PETITIONER:
SMT. RASHMI KUMAR
Vs.
RESPONDENT:
MAHESH KUMAR BHADA
DATE OF JUDGMENT: 18/12/1996
BENCH:
K. RAMASWAMY, S.B. MAJUMUDAR, G.T. NANAVATI
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
K. Ramaswamy, J.
This appeal has been placed before this Bench pursuant
to an order date 19.4.1995 passed by a two Judge Bench in
the following terms:
"A decade has gone by since
Pratibha Rai vs. Suraj Kumar & Anr,
[(1985) 2 SCC 370] - a decision by
a majority of 2:1 has governed the
scene. Having regard to its wider
ramifications and its actual
working in the last decade, we are
of the view that a fresh look to
the ratio in that case is
necessary. We, therefore, order
that this case be placed before a
three-judge Bench."
This appeal by special leave arises from the Judgment
of the Allahabad High Court dated June 19, 1992 in Criminal
Miscl. Case No.44 of 1992. The admitted facts are that the
appellant was married to the respondent on July 7, 1973 at
Lucknow according to the Hindu rites and rituals. The
parties have three children from the wedlock. It is not in
dispute that there was estrangement in the marital
relationship between the husband and the wife. It is the
case of the appellant that she was treated with cruelty and
was driven out of the marital home along with the three
children. She was constrained to lay proceedings under
Section 9 of the Hindu Marriage Act for restitution of
conjugal rights. The appellant was given jewellery, i.e.,
gold and silver ornaments and other household goods
enumerated in Annexures I and II and also cash by her
parents, brothers and other relatives at different
ceremonies prior to her marriage and after the marriage at
the time of bidai (farewell). She claims that all these
articles constituted her stridhana properties and were kept
in the custody of the respondent-husband. The respondent has
asked the appellant to entrust for safe custody all the
jewellery and cash mentioned in Annexure I, to his father
with the promise that on her demand whenever made, they
would be returned. Accordingly, she had entrusted them to
the appellant at Lucknow in the presence of three named
witnesses. Similarly, the household goods mentioned in
Annexure-II were entrusted by the parents of the appellant
to the respondent at the time of farewell in the presence of
three named witnesses. They lived together in Delhi in her
in-laws house. The appellant alleged in the complaint that
she was treated with cruelty in the matrimonial home and
ultimately on July 24/25, 1978 she and the children were
thrown out from the matrimonial home at duress and at the
peril of their lives. Accordingly, she was driven out from
the matrimonial home without getting an opportunity to take
with her Stridhana properties enumerated in Annexures I and
II.
She filed an application under Section 9 of the Hindu
Marriage Act for restitution of conjugal rights. Even
thereafter she went to Cochin where at the respondent-
husband was working, on October 9, 1986 and requested him to
restitute her into the conjugal society along with the
children. he promised that he would do it provided she
withdrew her application for restitution of conjugal rights.
He also promised to return the jewellery and other valuables
mentioned in Annexures I and II entrusted to him. Even after
her withdrawing the application, on October 21, 1986, he did
not take her into the conjugal society. Therefore, she was
again constrained to file second application on November 18,
1986 for restitution of conjugal rights. She also filed
application under Section 125 of the Code of Criminal
Procedure, 1973 (for short, the "Code") for maintenance.
Since these attempts proved unsuccessful, she made a demand
on December 5, 1987 to return the jewellery as detailed in
Annexure I and household goods mentioned in Annexure II but
the respondent flatly refused to return her stridhana
properties. Consequently, she filed a private complaint on
September 10, 1990.
After recording her statement under Section 200 of the
Code, the learned Magistrate took cognizance of the offence
and issued process to the respondent. While the respondent
appeared in the Court, he filed an application under Section
482 of the Code in the High Court to quash the proceedings.
As stated earlier, the High Court in the impugned Order has
quashed the proceedings on two grounds, viz., (i) the
appellant did not make out any case in the complaint and
(ii) it is barred by limitation. On the ground of
limitation, the learned Judge came to the conclusion that in
October 1986 the appellant had made a demand for return of
the jewellery and gold but the respondent did not return the
same. Therefore, it furnished a cause of action. Since
complaint was laid in September 1990, it was clearly barred
by limitation the period prescribed being three years.
Smt. Indira Jaising, Learned senior counsel for the
appellant, contended that the ratio in Pratibha Rani V/s.
Suraj Kumar & Anr. [(1985) 2 SCC 370] has stood the test of
time for more than a decade though therein there was
difference of opinion between the majority and the minority
on certain aspects of the matter. The decision has never
been doubted by any other Bench. The said ration is based on
the personal law as elaborately discussed in the judgment.
Therefore, it requires reiteration. Shri Rajinder Singh,
learned senior counsel for the respondent, on the other
hand, sought to support the present reference to the three
Judge Bench on the basis of the conduct of the appellant. He
also contends that a clear demand for return of the
stridhana properties was made in October 1986 when the
respondent had refused to return the same. Since the
complaint came to be filed only in September 1990, i.e.,
after a delay of 11 months from the expiry of prescribed
limitation, it is time barred. Since no application for
condonation of delay was filed, the High Court was enjoined
to dismiss the complaint as being barred by limitation. Smt.
Indira Jaisingh contended that the offence punishable under
Section 406, Indian Penal Code [for short, the "IPC"] is a
continuing offence and hence cause of action arose every day
subsequent to the refusal and, therefore, the complaint was
not barred by limitation. Shri Rajinder Singh further
contended that the respondent has always been willing to
transfer his flat in Bombay in the name of his daughters. He
also states that he has been paying every month maintenance
allowance in respect of the children. Even if the articles
which the appellant is claiming is mentioned, the respondent
is prepared to deposit the same in a fixed account in the
name of his daughters. This conduct on the part of the
respondent would militate against the conduct of the
appellant who intends to harass the respondent by filing
endless complaints. These circumstances would go to indicate
that there are no justifiable reasons for interference with
the order of the High Court. At this juncture, it is
relevant to not that several attempts made by this Court to
have the dispute settled amicably between the parties, could
not bear any fruit of success. Therefore, we are not
inclined to undertake the exercise once over.
The question that has arisen for consideration is:
whether the ratio in Pratibha Rani's case does not hold good
any more? That case also related to a complaint filed under
Section 406, IPC for breach of trust by the respondent-
husband on his refusing to return stridhana property, viz.,
jewellery, wearing apparels etc. The question that had
arisen for consideration was whether the stridhana property
was exclusive property of the appellant-wife or was a joint
property owned and held by both the spouses? Though all the
three learned Judges concurred on the point of entrustment
of the jewellery and wearing apparels to be stridhana, the
majority view was that the stridhana property was the
exclusive property of the appellant-wife and that,
therefore, the failure to return the property in the custody
of the husband to the wife constitutes breach of trust
defined under Section 405, IPC. Therefore, the offence of
breach of trust punishable under Section 406 was made out,
as per the averments contained in the complaint. The
minority view was that the property entrusted to the husband
after the marriage is joining property of the wife and the
husband. The essential requirement for constituting an
offence defined under Section 405, IPC in relation to
stridhana property, is that there should be a specific
separate agreement between the parties, whereby the property
of the wife or the husband, as the case may be, is
entrusted. In the absence of such a separate agreement for
specific entrustment, it would not be possible to draw an
inference of entrustment of custody or dominion over the
property of one spouse to the other and/or his or her close
relations so as to attract the stringent provisions of
Section 406, IPC; otherwise there would be disastrous
effects and consequences on the peace and harmony which
ought to prevail in matrimonial homes. The appropriate
remedy would appear to be by way of a civil suit for
recovery of the stridhana property.
Fazal Ali, J., speaking for himself and Sabyasachi
Mukherjee, J., as he then was, held that the possession of
Saudayika or stridhana of a Hindu married female during
coverture is absolutely clear and unambiguous. She is the
absolute owner of her stridhana property and can deal with
it in any manner she likes. She may spend the whole of it or
give it away at her own pleasure by gift or will without any
reference to her husband. Ordinarily, the husband has no
right or interest in it with the sole exception that in
times of extreme distress, as in famine, illness or the
like, the husband can utilise it but he is morally bound to
restore it or its value when he is able to do so. This right
is purely personal to the husband and the property so
received by him in marriage cannot be proceeded against even
in execution of a decree for debt passed against the
husband. If in spite of demands for return of the articles,
the husband refuses to return them to the wife, it amounts
to an offence of criminal breach of trust. The stridhana
property is not a joint property of the wife and the
husband. Section 27 of the Hindu Marriage Act merely
provides another remedy of suit to recover from the husband
or the persons to whom the stridhana property was entrusted.
The mere factum of the husband and the wife living together
does not entitle either of them to commit a breach of
criminal law and if one does, then he or she will be liable
for all the consequences of such breach. By mere living in
matrimonial home the stridhana does not become joint
property of the spouses. It is also not a partnership
property between the wife and the husband. The concept of
partnership is alien to the stridhana property under the
personal law. Therefore, entrustment of stridhana, without
creating any right in the husband except, putting the
articles in the possession, does not entitle him to use the
same to the detriment of his wife without her consent. The
husband has no justification for not returning the said
articles as and when demanded by the wife; nor can he burden
her with loss of business by using the said properties which
were never intended by her while entrusting possession of
the stridhana. The husband being only a custodian of the
stridhana of his wife, cannot be said to be in joint
possession thereof and does not acquire a joint interest in
the property. It was, therefore, concluded that the custody
or entrustment of the stridhana with the husband does not
amount to partnership in any sense of the term nor does the
stridhana becomes a joint property. It was held in para 60
of the judgment that taking all the allegations made in the
complaint, by no stretch of imagination it could be said
that they do not prima facie amount to an offence of
criminal breach of trust against the respondent. Thus there
could be no room for doubt that all the facts stated in the
complaint constitute an offence under Section 406, IPC and
the appellant could not be denied the right to prove her
case at the trial by pre-empting it at the very inception by
the order passed by the High Court. Accordingly, it was
quashed. Direction was given to proceed with the trial from
the stage at which stay was granted by this Court. The only
difference of point was whether there should be special
agreement of entrustment. Varadarajan, J. elaborately dealt
with the special agreement and had held that in view of the
fact that wife and husband have dominion over the wife's
property jointly, proof of special agreement of entrustment
is an essential ingredient.
In Mayne's Hindu Law & Usage [13th Edn.] edited by
Justice Alladi Kuppuswami, former Chief Justice of Andhra
Pradesh High Court, in paragraph 644 at page 877 it is
stated that "Katyayana indicates a cross-classification of
stridhana [Vivadachintamani vide p.259; Jha HLS II, 529-31;
Apararka, 21 MLJ (Jour.) 428. He further states: "that which
is obtained by a married woman or by a maiden, in the house
of her husband or of her father, from her brother (from her
husband) or from her parents, is stridhana [Vide: Katyayna
cited in Mit., II, xi, 5; Smritichandrika, IX, ii,4-5; V.
May., IV, x, 8 etc.]. Under the caption "Yautaka and
ayautake", it is stated that "Yautaka is that which is given
at the nuptial fire... It includes all gifts made during the
marriage ceremonies. Ayautaka is gift made before or after
marriage. Saudayika includes both Yautaka and Ayautaka and
received from strangers. It is defined to be gifts from
affectionate kindered". In support thereof, he relied on
Venkatareddy v. Hanumant [(1993) 57 Bom 85] and Muthukaruppa
v. Sellathammal [(1916) 39 Mad. 298 at 300 and see para
No.10] At page 881, in paragraph 650, sub-para (4), it is
stated that "So also gifts or grants to her by strangers,
whether made during coverture or when she is a widow, will
be her stridhana" [Vide Salemma v. Lutchmana [(1998) 21 Mad
100]. In paragraph 652 on page 882, it is stated that "the
absolute dominion of a woman over her saudayika property was
admitted from the earliest times". Katyayana declares: "The
independence of women who have received the saudayika wealth
is desirable (in regard to it), for it was given (by their
kindered) for their maintenance out of affection. The power
of women over saudayika at all times is absolute both in
respect of gift and sale, according to their pleasure, even
in (the case of) immovables". The Smiritichandrika would
confine saudayika to yautaka or the like, received by a
woman from her own parents or persons connected with them,
in the house of either her father or her husband, from the
time of her betrothment to the completion of the ceremony to
be performed on the occasion of her entering her lord's
house. But his view has not been followed. The texts of
Katyayana and Vyasa have been explained by other
commentators as including gifts received by her from her
husband, and from others after her marriage. The decisions
of the courts have taken the same view. Provided the gift is
made by her husband or her parents or by relatives either of
her husband or of parents, it is immaterial whether it is
made before marriage, at marriage or after marriage. It is
equally her saudayika. In other words, saudayika means all
gifts and bequests from relations but not gifts and bequests
from strangers. Saudayika of all sorts are absolutely at a
woman's own disposal. She may spend, sell, devise or give it
away at her own pleasure. In support of that conclusion,
footnote No.6 cites several decisions including Venkata Rama
v. Venkata Suriya [(1880) 2 Mad 333] and Muthukaruppa v.
Sellathammal [(1916) 39 Mad 298] etc. It is stated
thereafter that her husband can neither control her in her
dealings with it, nor use it himself. But he may take it in
case of extreme distress, as in a famine, or for some
indispensable duty, or during illness, or while a creditor
keeps him in prison. Even then he would appear to be under
at least a moral obligation to restore the value of the
property when able to do so. What he has taken without
necessity, he is bound to repay with interest. This right to
take the wife's property is purely a personal one in the
husband. If he does not choose to avail himself of it, his
creditors cannot proceed against her properties. The word
`take' in the text of Yajanavalkya means `taking' and
`using'. Hence if the husband taking his wife's property in
the exceptional circumstances mentioned in the text does not
actually use it, the wife still remains its owner and the
husband's creditors have no claim against the property.
A woman's power of disposal, independent of her
husband's control, is not confined to saudavika but extends
to other properties as well. Devala says: "A women's
maintenance (vritti), ornaments, perquisites (sulka), gains
(labha), are her stridhana. She herself has the exclusive
right to enjoy it. Her husband has no right to use it except
in distress...". In "N.R. Raghavachariar's "Hindu law -
Principles and Precedents" [8th Edn.] edited by Prof. S.
Venkataraman, one of the renowned Professors of Hindu law
para 468 deals with "Definition of Stridhana". In para 469
dealing with "Sources of acquisition" it is stated that the
sources of acquisition of property in a women's possession
are: gifts before marriage, wedding gifts, gifts subsequent
to marriage etc. Para 470 deals with "Gifts to a maiden".
Para 471 deals with "Wedding gifts" and it is stated therein
that properties gifted at the time of marriage to the bride,
whether by relations or strangers, either Adhiyagni or
Adhyavahanika, are the bride's stridhana. In para 481 at
page 426, it is stated that ornaments presented to the bride
by her husband or father constitute her Stridhana property.
In para 487 dealing with "powers during coverture" it is
stated that saudayika meaning the gift of affectionate
kindered, includes both Yautaka or gifts received at the
time of marriage as well as its negative Ayautaka. In
respect of such property, whether given by gift or will she
is the absolute owner and can deal with it in any way she
likes. She may spend, sell or give it away at her own
pleasure.
It is thus clear that the properties gifted to her
before the marriage, at the time of marriage or at the time
of giving farewell or thereafter are her stridhana
properties. It is her absolute property with all rights to
dispose at her own pleasure. He has no control over her
stridhana property. Husband may use it during the time of
his distress but nonetheless he has a moral obligation to
restore the same or its value to his wife. Therefore,
stridhana property does not become a joint property of the
wife and the husband and the husband has no title or
independent dominion over the property as owner thereof.
In this backdrop, the question that arises for
consideration is: whether the fact of a wife's having been
driven out from the matrimonial home without taking along
with her stridhana properties, amount to entrustment with
the husband within the meaning of Section 405, IPC? Section
405 defines "Criminal breach of trust thus:
"405. Criminal breach of trust. -
Whoever, being in any manner
entrusted with property, or with
any dominion over property,
dishonestly misappropriates or
converts to his own use that
property, or dishonestly uses or
disposes of that property in
violation of any direction of law
prescribing the mode in which such
trust is to be discharge, or of any
legal contract, express or implied,
which he has made touching the <??>
of such trust, or wilfully suffers
any other person so to do, commits
"criminal breach of trust".
It is not necessary to refer to the Explanations to the
said section for the purpose of this case. Hence they are
omitted.
Thus when the wife entrusts her stridhana property with
the dominion over that property to her husband or any other
member of the family and the husband or such other member of
the family dishonestly misappropriates or converts to his
own use that property or wilfully suffers any other person
to do so, he commits criminal breach of trust. The essential
ingredients for establishing an offence of criminal breach
of trust as defined in Section 405 and punishable under
Section 406, IPC with sentence for a period upto three years
or with fine or with both, are: [i] entrusting any person
with property or with any dominion over property; [ii] the
person entrusted dishonestly misappropriating or converting
to his own use that property; or dishonestly using or
disposing of that property or wilfully suffering any
direction of law prescribing the mode in which such trust is
to be discharged, or of any legal contract made touching the
discharge of such trust. The expression "entrustment"
carries with it the implication that the person handing over
any property or on whose behalf that property is handed over
to another, continues to be its owner. Entrustment is not
necessarily a term of law. It may have different
implications in different contexts. In its most general
significance, all its imports is handing over the possession
for some purpose which may not imply the conferment of any
proprietary right therein. The ownership or beneficial
interest in the property in respect of which criminal breach
of trust is alleged to have been committed, must be in some
person other than the accused and the latter must hold it on
account of some person or in some way for his benefit. In
Pratibha Rani's case, the majority has extensively
considered the words "entrustment" of and "dominion" over
the property. All the case law in that behalf was
exhaustively considered obviating the necessity to tread
once over the same. In order to establish entrustment of
dominion over the property, both the majority and minority
relied on in particular the judgment of this Court in Velji
Raghavji Patel v. State of Maharashtra [(1965) 2 SCR 492]
wherein it was held that in order to establish entrustment
of dominion over the property to an accused person, mere
existence of that person's dominion over the property is not
enough. It must be further shown that his dominion was the
result of entrustment. The question therein pertained to the
entrustment with the dominion over the partnership property
by one partner to the other. It was held that the
prosecution must establish that the dominion over the assets
or particular assets of the partnership was by a special
agreement between the parties. The property of the
partnership being a partnership asset, every partner has a
right o or a dominion over it. It was held that special
agreement was necessary to constitute an offence of criminal
breach of trust defined under Section 405, IPS. In view of
the finding that stridhana property is the exclusive
property of the wife on proof that she entrusted the
property or dominion over the stridhana property to her
husband or any other member of the family, there is no need
to establish any further special agreement to establish that
the property was given to the husband or other member of the
family. It is always a question of fact in each case as to
how property came to be entrusted to the husband or any
other member of the family by the wife when she left the
matrimonial home or was driven out therefrom. No absolute or
fixed rule of universal application can be laid down in that
behalf. It requires to be established by the complainant or
the prosecution, depending upon the facts and circumstances
of the case, as to how and in what manner the entrustment of
the stridhana property or dominion over her stridhana came
to be made to the husband or any other member of the family
or the accused person, as the case may be. We are in
respectful agreement with the majority view in Pratibha
Rani's case and consequently requires no reconsideration.
The next question is; whether the appellant has made
out any prima facie case of entrustment in that behalf? A
reading of the complaint clearly indicates that her parents
entrusted the property to the respondent at the time of her
farewell from her parents house in Lucknow. They lived
together in matrimonial home in Deli. Three children were
born from the wedlock and during that period she had
retained the custody of the property. When she left the
matrimonial home she had not taken the property with her.
She has specifically averred that when she went in October
1978 to Cochin requesting the respondent-husband to take her
into matrimonial home along with the children, he promised
to take her in the conjugal society and also that he would
return the jewellery to her subject to the condition that
she should withdraw her application filed under Section 9 of
the Hindu Marriage Act for restitution of conjugal rights
and accordingly she had withdrawn the application. The
learned Single Judge failed to correctly appreciate her
evidence recorded under Section 200 of the Code that she
made a demand for return of the jewellery and household
goods. On the other hand, a fair reading of it would
indicate that when she met the respondent in Cochin and
requested to take her and children to home he promised to do
so on her withdrawing the case for restitution of conjugal
rights. Threat the husband promised to return them but he
did not keep up his promise. The sequences that followed
were that she filed another case for restitution of conjugal
rights and an application for maintenance and thereafter she
filed the complaint under Section 406, IPC. A fair reading
of the averments would clearly indicate that a prima facie
case of entrustment of the jewellery and the household goods
had been made out. The learned Judge was not right in
jumping to the conclusion that the averments made by the
respondent in the counter-affidavit disclosed that no
entrustment was made of the jewellery, cash and household
goods and other movables enumerated in Annexures I and II
details of which are not material for our purpose. In the
light of the above, we are of the view that a prima facie
case of entrustment had been made out by the appellant as
the stridhana properties were not returned to her by the
husband. Obviously, therefore, the learned Magistrate,
having taken cognizance of the offence, had issued process
for appearance of the respondent. It is fairly settled legal
position that at the time of taking cognisance of the
offence, the Court has to consider only the averments made
in the complaint or in the charge-sheet filed under Section
173, as the case may be. It was held in State of Bihar v.
Rajendra Agrawalla [(1996) 8 SCC 164] that it is not open
for the Court to sift or appreciate the evidence at that
stage with reference to the material and come to the
conclusion that no prima facie case is made out for
proceeding further in the matter. It is equally settled law
that it is open to the Court, before issuing the process, to
record the evidence and on consideration of the averments
made in the complaint and the evidence thus adduced, it is
required to find out whether an offence has been made out.
On finding that such an offence has been made out and after
taking cognizance thereof, process would be issued to the
respondent to take further steps in the matters. If it is a
charge-sheet filed under Section 173 of the Code, the facts
stated by the prosecution in the charge-sheet, on the basis
of the evidence collected during investigation, would
disclose the offence for which cognisance would be taken by
the court to proceed further in the matter. Thus it is not
the province of the court at that stage to embark upon and
sift the evidence to come to the conclusion whether offence
has been made out or not. The learned Judge, therefore, was
clearly in error in attempting to sift the evidence with
reference to the averments made by the respondent in the
counter-affidavit to find out whether or not offence
punishable under Section 406, IPC had been made out.
The next question that needs to be answered is: whether
the complaint filed by the appellant in September 1990 is
time barred? Section 468 of the Code prescribes period of
limitation. Under sub-section (3) thereof, the period of
limitation shall be three years if the offence is punishable
with imprisonment for a term exceeding one year but not
exceeding three years, Since the offence alleged to have
been committed by the respondent is punishable under Section
406, viz., criminal breach of trust, and the punishment of
imprisonment which may extend to three years or with fine or
with both, the complaint is required to be filed within
three years from date of the commission of the offence. It
is seen that the appellant has averred in paragraphs 21 and
22 of the complaint that she demanded from the respondent
return of jewellery detailed in Annexure I and household
goods mentioned in Annexure II on December 5, 1987 and the
respondent flatly refused to return the stridhana of the
complainant-wife. In paragraph 22 of the complaint, it is
stated that the complainant was forced to leave the
matrimonial home in the manner described and the stridhana
mentioned in Annexures I and II belonging to the complainant
was entrusted to the respondent-accused which he refused to
return to the complainant. Thus she has averred that the
respondent "has illegally, dishonestly and mala fidely
retained and converted it to his own use which is clearly a
criminal breach of trust in respect of the aforesaid
property". The complaint was admittedly filed on September
10, 1990 meaning within three years from the date of the
demand and refusal by the respondent. The learned Judge
relied upon her evidence recorded under Section 200 of the
Code. The learned counsel for the respondent read out the
text of the evidence to establish that the appellant had
demanded in October 1986 for return of the jewellery and
that the respondent refused to do the same. Thus it
constitutes refusal from which date the limitation period
began to run and the complaint have been filed in September
1990, is time barred, i.e., beyond three years. That view of
the learned Judge is clearly based on the evidence torn of
the context without reference to the specific averments made
in the complaint and the evidence recorded under section 200
of the Code. As stated earlier, the sequence in which the
averments came to be made was the voluntary promise of the
respondent and his failure to abide by the promise. It is
incongruous to comprehend the demand for return of jewellery
etc, at the stage when she was persuading him to take her
into matrimonial home. Accordingly, we hold that the
complaint was filed within the limitation.
The question, therefore, whether it is a continuing
offence and limitation began to run everyday loses its
relevance, in view of the above finding. The decisions cited
in support thereof, viz., Vanka Radhamanohari (Smt.) v.
Vanka Venkata Reddy & Ors. [(1993) 3 SCC 4] and Balram Singh
vs. Sukhwant Kaur [(1992) Crl. L.J. 792 F.B. (P&H)] hence
need not be considered. It is well settled legal position
that the High Court should sparingly and cautiously exercise
the power under Section 482 of the Code to prevent
miscarriage of justice. In State of Himachal Pradesh v. Shri
Pirthi Chand & Anr. [JT 1995 (9) 411] two of us [K.
Ramaswamy and S.B. Majmudar, JJ.] composing the Bench and in
State of U.P. Vs. O.P. Sharma [(1996) 7 SCC 70], a three-
Judge Bench of this Court, reviewed the entire care law on
the exercise of power by the High Court under Section 482 of
the Code to quash the complaint or the charge-sheet or the
First Information Report and held that the High Court would
be loath and circumspect to exercise its extraordinary power
under Section 482 of the Code or under Article 226 of the
Constitution. The Court would consider whether the exercise
of the power would advance the cause of justice or it would
tantamount to abuse of the process of the Court. Social
stability and order require to be regulated by proceeding
against the offender as it is an offence against the society
as a whole. This cardinal principle should always be kept in
mind before embarking upon the exercise of the inherent
power vested in the Court. Same view was taken in State of
Haryana & Ors. v. Bhajan lal & Ors. [(1992) Supp. 1 SCC 355]
and G.L. Didwania & Anr. v. Income Tax Officer & Anr.
[(1995) Supp. SCC 25] etc.
Considered from this perspective, we hold that the High
Court was wholly wrong in quashing the
complaint/proceedings, under Section 432 of the Code. The
appeal is accordingly allowed. The judgment of the High
Court is set aside. We make it clear that all the
observations in the judgment on merits are only to find out
prima facie case whether the High Court would be justified
in the exercise of its power under Section 482. The trial
Court will have to decide the case on its own merits in the
light of the evidence that may be led at the trial without
being influenced in any manner by our observations made
hereinabove. The trial Court is directed to proceed from the
stage the complaint was pending at the time of quashing, to
take further steps in accordance with law.
