CASE NO.:
Appeal (crl.) 1708 of 2007
PETITIONER:
Sanapareddy Maheedhar and Another
RESPONDENT:
State of Andhra Pradesh and Another
DATE OF JUDGMENT: 13/12/2007
BENCH:
S.B. Sinha & G.S. Singhvi
JUDGMENT:
J U D G M E N T
(arising out of Special Leave Petition (Crl.) No. 6680 OF 2006)
G.S. Singhvi, J.
Leave granted.
This appeal is directed against the order dated 6.12.2006
passed by the learned Single Judge of the Andhra Pradesh High
Court whereby he dismissed the petition filed by the appellants
under Section 482 of the Criminal Procedure Code (for short Cr.P.C)
for quashing the proceedings of CC No.240/2002 pending in the
Court of XXII Metropolitan Magistrate, Hyderabad in relation to
offences under Sections 498A & 406, Indian Penal Code read with
Sections 4 & 6 of the Dowry Prohibition Act 1961 (for short the
Dowry Act).
Bhavani Shireesha, the eldest daughter of respondent no. 2
Shrimati D. Shaila, is a doctor by profession. She was married to
appellant no. 1 Sanapareddy Maheedhar Seshagiri who is working as
Software Engineer at New Jersey, USA on 22.04.1998 at Hyderabad.
Before marriage, the appellants and their parents demanded Rs. 5
lakh cash, 50 tola gold jewellery and Rs. 75,000/- towards Adapaduchu
Katnam as dowry. They also demanded transfer of the ground floor
of the residential house belonging to respondent no. 2 and her
husband in favour of the parents of the appellants. Respondent no. 2
and her husband agreed to pay Rs. 4 lakh cash, 60 tola gold jewellary
and Rs. 75,000/- towards Adapaduchu Katnam as dowry. They also
agreed to bequeath the ground portion of their house in the name of
their daughter. The appellants and their parents accepted the
proposal and performed betrothal on 16.04.1998. Thereafter, the
parents of the appellants demanded Zen car and threatened to cancel
the engagement unless the car is given. This compelled the husband
of respondent no. 2 to raise loan of Rs. 4 lakh and purchased the car,
which is said to have been kept at the disposal of the parents of the
appellants. After marriage, the appellants left for USA, but Shireesha
Bhavani stayed back at Hyderabad with their parents because she
was undergoing training as House Surgeon. After completing the
training, Shireesha Bhavani went to USA along with the parents of
the appellants. She stayed at New Jersey from 1.11.1998 to 2.12.1998.
During this period, Shireesha Bhavani was subjected to cruelty and
harassment by the appellants and their parents on the ground that
she did not bring enough dowry. On 3.12.1998 she went to Maryland
(U.S.A.) and stayed with her relatives. In April 1999, the parents of
the appellants returned to India. On 5.4.1999, appellant No.1
instituted divorce petition in Superior Court at New Jersey and an ex
parte decree was passed in his favour on 15.12.1999.
In the meanwhile, Shireesha Bhavani wrote letter dated
13.04.1999 to her parents complaining of cruelty by the appellants
and their parents. She disclosed that while she was staying with the
parents of the appellants at Hyderabad, the mother-in-law always
complained of lack of dowry and abused and criticized her and asked
her to do menial job. She further disclosed that appellant no. 1 and
his brother harassed and also pressurized her to bring additional
money for purchase of a house at Hyderabad in the name of the in-
laws. She gave detailed account of the alleged harassment and
torture meted out by the appellants and their parents. Thereupon,
respondent no. 2 filed complaint dated 26.8.1999 in the Court of XXII
Metropolitan Magistrate, Hyderabad (hereinafter referred to as the
concerned Magistrate ) detailing therein the facts relating to demand
of dowry by the appellants and their parents and the incidents of
cruelty and harassment to which her daughter was subjected at
Hyderabad and New Jersey. Respondent no. 2 also alleged that
immediately after marriage, the appellants and their parents
complained about lack of dowry by saying that appellant no. 1 could
have been married for a dowry of Rs. 35 lakhs. Another allegation
made by respondent no. 2 was that her daughter was driven out of
the house with an indication that she will be allowed to return only
after the demands of the accused appellants and their parents are
met. The learned Magistrate referred the complaint for investigation
under Section 156(3) Cr.P.C. This led to registration of Crime
No.54/1999 at Women Police Station, CID, Hyderabad. On 18.9.2000
the Inspector of Police, Women Protection Cell, C.I.D., Hyderabad
submitted final report with the prayer that the case may be treated
as closed due to lack of evidence. He mentioned that much progress
could not be made due to non-availability of de facto victim and
other key witnesses in India and there was no immediate prospect of
their coming to India. He also mentioned that the accused party
returned the personal belongings including gold jewellery to the
de facto victim in U.S.A. and that a decree of divorce had been passed
by the Superior Court of New Jersey, Chancery Division, Family Part,
Middlesex County. The Investigating Officer also made a reference
to the direction given by Additional Director General of Police, CID
to close the case due to lack of evidence.
By an order dated 1.11.2000, the concerned Magistrate rejected
the final report and directed the police to make further investigation.
In the opinion of the learned Magistrate, the investigation had not
been done properly and the final report submitted under the dictates
of the Additional Director General of Police was not acceptable.
While doing so, the learned Magistrate made a reference to the letter
addressed by Director General of Police, CID, Andhra Pradesh to the
Regional Passport Office, Hyderabad wherein it was mentioned that
Shrimati Bhavani Shireesha had been subjected to cruelty and a
request was made to cancel or impound the passport of the
appellants.
In compliance of the direction given by the learned Magistrate
the police conducted further investigation and recorded statements
of 18 persons. Notice was also issued to Shrimati Shireesha Bhavani
to appear before CID Police, Hyderabad. At that stage, respondent
no. 2 filed Criminal Petition No. 3912 of 2000 under Section 482
Cr.P.C. for quashing the notice issued by the Inspector of Police, CID,
Hyderabad for appearance of her daughter in connection with the
Crime No. 54 of 1999. The same was disposed of by the learned
Single Judge on 22.9.2000 with liberty to the petitioner to approach
the investigating agency and inform it about the efforts being made
by her daughter to come to India or to approach the concerned court
for non-acceptance of final report, if any, submitted by the police.
Respondent no. 2 also filed Writ Petition No. 1173 of 2001 for issue of
a mandamus to the Regional Passport Officer, Secuderabad to
impound the passport of appellant no. 1 herein. That petition was
disposed of by the learned Single Judge on 26.9.2000 with a direction
to the Regional Passport Officer to take appropriate decision on the
complaint made by respondent no. 2.
It is borne out from the record that on an application made by
respondent no. 2 the concerned Magistrate issued warrant for search
of the premises of the parents of the appellants for recovery of the
dowry articles and passport of her daughter. In the course of search
conducted by Sri P.Ventaka Rami Reddy, Inspector of Police (Women
Protection Cell) CID, Hyderabad on 19.7.2000 the parents of the
appellants disclosed that the passport has been sent to Shrimati B.
Shireesha by Ordinary Post some time in January/February, 1999,
but they could not produce any evidence to substantiate the same.
After disposal of Criminal Petition No. 3912 of 2000, Bhavani
Shireesha obtained duplicate passport and visa and came to India on
26.7.2002. She appeared before the Investigating Officer on 27.7.2002
and gave statement under Section 161 Cr.P.C. Thereafter, the police
filed a charge-sheet under Sections 498A and 406 IPC read with
Sections 3, 4 and 6 of the Dowry Act. On 4.10.2002 the concerned
Magistrate took cognizance of the case and issued summons to the
appellants and their parents.
It is also borne out from the record that without disclosing the
fact that the concerned Magistrate had already rejected the final
report, the appellants and their parents filed writ petition nos. 6237 of
2001 and 2284 of 2001 with the prayer for quashing the proceedings
of Crime No. 54 of 1999 on the file of Women Protection Cell, CID,
Hyderabad. The learned Single Judge who heard the writ petitions
made a reference to order dated 26.9.2000 passed by another learned
Single Judge in Criminal Petition No. 3912 of 2000 and disposed of
both the petitions on 4.12.2001 by directing XXII Metropolitan
Magistrate, Hyderabad to pass appropriate order on the final report
within a period of two months of receipt of the copy of the order.
The parents of the appellants challenged the proceedings of CC
No. 240 of 2002 in Criminal Petition No. 1302 of 2003 filed under
Section 482 Cr.P.C. They pleaded that in view of the bar contained in
Section 468 Cr.P.C. the concerned Magistrate did not have the
jurisdiction to take cognizance of the offences under Sections 498A
and 406 IPC read with Sections 3 and 4 of the Dowry Act. By an
order dated 24.10.2006 the learned Single Judge accepted their plea
and quashed the proceedings of CC No. 240 of 2002. While doing so,
the learned Single Judge also expressed doubt regarding Bhavani
Shireesha having come to India for the purpose of making statement
before the police.
Encouraged by the success of litigious venture undertaken by
their parents, the appellants filed Criminal Petition No. 4152 of 2006
for quashing the proceedings in CC No. 240 of 2002. They pleaded
that after the expiry of three years counted from the date of filing the
complaint, the learned magistrate could not have taken cognizance of
the offences allegedly committed by them under Sections 498A and
406 read with Sections 4 & 6 of the Dowry Act. Another plea taken
by them was that in the face of the decree of divorce passed by the
Superior Court at New Jersey, USA and the fact that Shrimati
Shireesha Bhavani had contracted marriage with one Mr. Venkat
Puskar in the year 2000, there was no warrants for initiation of
criminal proceedings against them, and that the offences allegedly
committed by them outside India cannot be enquired into or tried
without obtaining prior sanction of the Central Government in terms
of Section 188 Cr.P.C.
The learned Single Judge briefly referred to the parameters for
exercise of power by the High Court under Section 482 Cr.P.C., the
ingredients of Sections 498A & 406 IPC and Sections 3 & 4 of the
Dowry Act and held that the proceedings in CC No.240/2002 cannot
be quashed because the learned magistrate had taken cognizance
within three years. The learned Single Judge distinguished the
judgments of this Court in M/s. Zandu Pharmaceutical Works Ltd. v.
Mohd. Sharaful Haque [2005 (1) SCC 122] and Ramesh Chandra
Sinha & Ors. v. State of Bihar & Ors. [2003 (7) SCC 254] by
observing that in those cases the magistrate had taken cognizance
long after three years. He then observed that each act of cruelty
could be a new starting point of limitation and, therefore, the
cognizance taken by the Magistrate cannot be treated as barred by
time. As regards the ex-parte decree of divorce passed by the Court
at New Jersey, the learned Single Judge observed that the foreign
judgment is not conclusive and that various facts are required to be
proved and established before the Criminal Court. The learned
Single Judge rejected the appellant s plea regarding lack of sanction
of the Central Government by observing that such sanction can be
obtained even during the trial.
Ms. Beena Madhavan, learned counsel for the appellants
reiterated the contentions raised on behalf of her clients before the
High Court and argued that the learned Single Judge committed an
error by refusing to quash the proceedings of CC No.240 of 2002
ignoring the fact that the learned Magistrate had taken cognizance
after almost four years of the last act of alleged cruelty committed
against Shireesha Bhavani. She submitted that after dissolution of
the marriage, Shrimati Shireesha Bhavani had taken back the Gold
and Silver jewellery and then contracted marriage with Mr. Venkat
Puskar and this fact ought to have been considered by the learned
Single Judge while examining the appellants pleas that the
proceedings of criminal case instituted against them amounts to an
abuse of the process of law. She then argued that in exercise of the
power under Section 482 Cr.P.C., the High Court is duty bound to
quash the proceedings which are barred by time and protect the
appellants against unwarranted persecution.
Shri I.Venkata Narayana, learned Senior Advocate appearing
for respondent No.2, supported the order under challenge and
argued that the learned Single Judge of the High Court rightly
declined to quash the proceedings of criminal case because the
offences committed by the appellants are continuing in nature. Shri
Venkata Narayana further argued that even though as on the date of
taking cognizance of offences by the learned magistrate, a period of
more than three years had elapsed, the proceedings of CC
No.240/2002 cannot be declared as barred by limitation because the
appellants were not in India and the period of their absence is liable
to be excluded in terms of Section 470(4). Shri Venkata Narayana
relied on Section 472 and argued that offences of cruelty and criminal
breach of trust are continuing offences and prosecution launched
against the appellants cannot be treated as barred by time. He then
submitted that the learned Magistrate could also exercise power
under Section 473 for extending the period of limitation because the
appellants and their parents did not co-operate in the investigation
and also prevented Smt. Shireesha Bhavani from coming to India to
give her statement. Lastly, the learned Senior Counsel relied on the
judgment of this Court in Ajay Agarwal v.Union of India [1993 (3)
SCC 609] and argued that the proceedings of the criminal case cannot
be quashed only on the ground of lack of sanction under Section 188,
Cr.P.C.
We have considered the respective submissions and carefully
scrutinised the record. For deciding whether the learned Magistrate
could take cognizance of offence under Sections 498 A and 406 IPC
read with Sections 4 and 6 of the Dowry Act after expiry of three
years, it will be useful to notice the scheme of Chapter XXXVI of the
Code of Criminal Procedure. Section 468 which finds place in that
Chapter creates a bar against taking cognizance of an offence after
lapse of the period of limitation. Sub-section (1) thereof lays down
that except as otherwise provided elsewhere in this Code, no Court,
shall take cognizance of an offence of the category specified in sub-
section (2), after the expiry of the period of limitation. Sub-section (2)
specifies different periods of limitation for different types of offences
punishable with imprisonment for a term exceeding one year but not
exceeding three years , the period of limitation is three years. Section
469 specifies the point of time with reference to which the period of
limitation is to be counted. Section 470 provides for exclusion of time
in certain cases. Sub-section (4) thereof lays down that in computing
the period of limitation, the time during which the offender has been
absent from India or from any territory outside India which is under
the administration of the Central Government or has avoided arrest
by absconding or concealing himself, shall be excluded. Section 472,
which deals with continuing offence declares that in case of a
continuing offence, a fresh period of limitation shall begin to run at
every moment of the time during which the offence continues.
Section 473, which begins with non-obstante clause, empowers the
Court to take cognizance of an offence after the expiry of the period
of limitation, if it is satisfied that the delay has been properly
explained and it is necessary so to do in the interest of justice.
In State of Punjab v. Sarwan Singh [1981 (3) SCC 34], this
Court noted that the object of Section 468 Cr.P.C. is to create a bar
against belated prosecutions and to prevent abuse of the process of
the court and observed that this is in consonance with the concept of
fairness of trial enshrined in Article 21 of the Constitution.
In Venka Radhamanohari v. Vanka Venkata Reddy [1993 (3)
SCC 4] this Court considered the applicability of Section 468 to the
cases involving matrimonial offences, referred to the judgment in
Sarwan Singh s case (supra) and observed:
It is true that the object of introducing Section 468 was
to put a bar of limitation on prosecutions and to prevent
the parties from filing cases after a long time, as it was
thought proper that after a long lapse of time, launching
of prosecution may be vexatious, because by that time
even the evidence may disappear. This aspect has been
mentioned in the statement and object, for introducing a
period of limitation, as well as by this Court in the case
of Sarwan Singh (supra). But, that consideration cannot
be extended to matrimonial offences, where the
allegations are of cruelty, torture and assault by the
husband or other members of the family to the
complainant. It is a matter of common experience that
victim is subjected to such cruelty repeatedly and it is
more or less like a continuing offence. It is only as a last
resort that a wife openly comes before a court to unfold
and relate the day-to-day torture and cruelty faced by
her, inside the house, which many of such victims do
not like to be made public. As such, courts while
considering the question of limitation for an offence
under Section 498-A i.e. subjecting a woman to cruelty
by her husband or the relative of her husband, should
judge that question, in the light of Section 473 of the
Code, which requires the Court, not only to examine as
to whether the delay has been properly explained, but
as to whether it is necessary to do so in the interests of
justice .
[ Emphasis added ]
The court then compared Section 473 Cr.P.C. with Section 5 of
the Limitation Act and observed :
For exercise of power under Section 5 of the Limitation
Act, the onus is on the appellant or the applicant to satisfy
the court that there was sufficient cause for condonation
of the delay, whereas Section 473 enjoins a duty on the
court to examine not only whether such delay has been
explained but as to whether it is the requirement of the
justice to condone or ignore such delay. As such,
whenever the bar of Section 468 is applicable, the court
has to apply its mind on the question, whether it is
necessary to condone such delay in the interests of justice.
While examining the question as to whether it is
necessary to condone the delay in the interest of justice,
the Court has to take note of the nature of offence, the
class to which the victim belongs, including the
background of the victim. If the power under Section 473
of the Code is to be exercised in the interests of justice,
then while considering the grievance by a lady, of torture,
cruelty and inhuman treatment, by the husband and the
relatives of the husband, the interest of justice requires a
deeper examination of such grievances, instead of
applying the rule of limitation and saying that with lapse
of time the cause of action itself has come to an end. The
general rule of limitation is based on the Latin maxim : v
igilantibus, et non, dormientibus, jura subveniunt (the
vigilant, and not the sleepy, are assisted by the laws).
That maxim cannot be applied in connection with
offences relating to cruelty against women.
[ Emphasis added]
In Arun Vyas v. Anita Vyas [1999 (4) SCC 690 : 1999 SCC
(Cri) 629] this Court again considered the applicability of Section 473,
Cr.P.C. in cases relating to matrimonial offences and observed:
The first limb confers power on every competent
court to take cognizance of an offence after the period
of limitation if it is satisfied on the facts and in the
circumstances of the case that the delay has been
properly explained and the second limb empowers
such a court to take cognizance of an offence if it is
satisfied on the facts and in the circumstances of the
case that it is necessary so to do in the interests of
justice. It is true that the expression in the interest of
justice in Section 473 cannot be interpreted to mean
in the interest of prosecution. What the court has to
see is interest of justice . The interest of justice
demands that the court should protect the oppressed
and punish the oppressor/offender. In complaints
under Section 498-A the wife will invariably be
oppressed, having been subjected to cruelty by the
husband and the in-laws. It is, therefore, appropriate
for the courts, in case of delayed complaints, to
construe liberally Section 473 Cr.P.C. in favour of a
wife who is subjected to cruelty if on the facts and in
the circumstances of the case it is necessary so to do
in the interests of justice. When the conduct of the
accused is such that applying the rule of limitation
will give an unfair advantage to him or result in
miscarriage of justice, the court may take cognizance
of an offence after the expiry of the period of
limitation in the interests of justice. This is only
illustrative, not exhaustive.
In State of H.P. v. Tara Dutt [2000 (1) SCC 230] a three Judges
Bench of this Court considered whether there can be a presumption
of condonation of delay under Section 473 Cr.P.C. and observed :
Section 473 confers power on the court taking
cognizance after the expiry of the period of limitation,
if it is satisfied on the facts and in the circumstances of
the case that the delay has been properly explained
and that it is necessary so to do in the interest of
justice. Obviously, therefore in respect of the offences
for which a period of limitation has been provided in
Section 468, the power has been conferred on the court
taking cognizance to extend the said period of
limitation where a proper and satisfactory explanation
of the delay is available and where the court taking
cognizance finds that it would be in the interest of
justice. This discretion conferred on the court has to be
exercised judicially and on well-recognised principles.
This being a discretion conferred on the court taking
cognizance, wherever the court exercises this
discretion, the same must be by a speaking order,
indicating the satisfaction of the court that the delay
was satisfactorily explained and condonation of the
same was in the interest of justice. In the absence of a
positive order to that effect it may not be permissible
for a superior court to come to the conclusion that the
court must be deemed to have taken cognizance by
condoning the delay whenever the cognizance was
barred and yet the court took cognizance and
proceeded with the trial of the offence. But the
provisions are of no application to the case in hand
since for the offences charged, no period of limitation
has been provided in view of the imposable
punishment thereunder. In this view of the matter we
have no hesitation to come to the conclusion that the
High Court committed serious error in holding that
the conviction of the two respondents under Section
417 would be barred as on the date of taking
cognizance the Court could not have taken cognizance
of the said offence. Needless to mention, it is well
settled by a catena of decisions of this Court that if an
accused is charged with a major offence but is not
found guilty thereunder, he can be convicted of a
minor offence if the facts established indicate that such
minor offence has been committed.
This Court then considered the earlier judgment in Arun Vyas
v. Anita Vyas (supra) and held :
The aforesaid observations made by this Court
indicate that the order of the Magistrate at the time of
taking cognizance in case of an offence under Section
498-A, should indicate as to why the Magistrate does
not think it sufficient in the interest of justice to
condone the delay inasmuch as an accused committing
an offence under Section 498-A should not be lightly
let off. We have already indicated in the earlier part of
this judgment as to the true import and construction of
Section 473 of the Code of Criminal Procedure. The
said provision being an enabling provision, whenever
a Magistrate invokes the said provision and condones
the delay, the order of the Magistrate must indicate
that he was satisfied on the facts and circumstances of
the case that the delay has been properly explained
and that it is necessary in the interest of justice to
condone the delay. But without such an order being
there or in the absence of such positive order, it cannot
(sic) be said that the Magistrate has failed to exercise
jurisdiction vested in law. It is no doubt true that in
view of the fact that an offence under Section 498-A is
an offence against the society and, therefore, in the
matter of taking cognizance of the said offence, the
Magistrate must liberally construe the question of
limitation but all the same the Magistrate has to be
satisfied, in case of period of limitation for taking
cognizance under Section 468(2)(c) having expired that
the circumstances of the case require delay to be
condoned and further the same must be manifest in
the order of the Magistrate itself. This in our view is
the correct interpretation of Section 473 of the Code of
Criminal Procedure.
In Ramesh v. State of Tamil Nadu [ 2005 (3) SCC 507] this Court
considered the issue of limitation in taking cognizance of an offence
under Section 498A and observed :
On the point of limitation, we are of the view that the
prosecution cannot be nullified at the very threshold
on the ground that the prescribed period of limitation
had expired. According to the learned counsel for the
appellants, the alleged acts of cruelty giving rise to the
offence under Section 498-A ceased on the exit of the
informant from the matrimonial home on 2-10-1997
and no further acts of cruelty continued thereafter. The
outer limit of time for taking cognizance would
therefore be 3-10-200 0, it is contended. However, at
this juncture, we may clarify that there is an allegation
in the FIR that on 13-10-1998/14-10-1998, when the
informant s close relations met her in-laws at a hotel in
Chennai, they made it clear that she will not be
allowed to live with her husband in Mumbai unless
she brought the demanded money and jewellery. Even
going by this statement, the taking of cognizance on
13-2-2002 pursuant to the charge-sheet filed on
28-12-2001 would be beyond the period of limitation.
The commencement of limitation could be taken as
2-10-1997 or at the most 14-10-1998. As pointed out by
this Court in Arun Vyas v. Anita Vyas (supra) the last
act of cruelty would be the starting point of limitation.
The three-year period as per Section 468(2)(c) would
expire by 14-10-2001 even if the latter date is taken into
account. But that is not the end of the matter. We have
to still consider whether the benefit of extended period
of limitation could be given to the informant. True, the
learned Magistrate should have paused to consider the
question of limitation before taking cognizance and he
should have addressed himself to the question
whether there were grounds to extend the period of
limitation. On account of failure to do so, we would
have, in the normal course, quashed the order of the
Magistrate taking cognizance and directed him to
consider the question of applicability of Section 473.
However, having regard to the facts and circumstances
of the case, we are not inclined to exercise our
jurisdiction under Article 136 of the Constitution to
remit the matter to the trial court for taking a decision
on this aspect. The fact remains that the complaint was
lodged on 23-6-1999, that is to say, much before the
expiry of the period of limitation and the FIR was
registered by the All-Women Police Station,
Tiruchirapalli on that day. A copy of the FIR was sent
to the Magistrate s Court on the next day i.e. on
24-6-1999. However, the process of investigation and
filing of charge-sheet took its own time. The process of
taking cognizance was consequentially delayed. There
is also the further fact that the appellants filed Writ
Petition (Crl.) No. 1719 of 2000 in the Bombay High
Court for quashing the FIR or in the alternative to
direct its transfer to Mumbai. We are told that the
High Court granted an ex parte interim stay. On
20-8-2001, the writ petition was permitted to be
withdrawn with liberty to file a fresh petition. The
charge-sheet was filed four months thereafter. It is in
this background that the delay has to be viewed.
The ratio of the above noted judgments is that while
considering the applicability of Section 468 to the complaints made
by the victims of matrimonial offences, the court can invoke Section
473 and can take cognizance of an offence after expiry of the period of
limitation keeping in view the nature of allegations, the time taken by
the police in investigation and the fact that the offence of cruelty is a
continuing offence and affects the society at large. To put it
differently, in cases involving matrimonial offences the court should
not adopt a narrow and pedantic approach and should, in the interest
of justice, liberally exercise power under Section 473 for extending
the period of limitation.
At this stage, we may also notice the parameters laid down by
this Court for exercise of power by the High Court under Section 482
Cr.P.C to give effect to any order made under the Cr.P.C or to
prevent abuse of the process of any court or otherwise to secure the
ends of justice. In R.P.Kapur v. State of Punjab [AIR 1960 SC 866]
this Court considered the question whether in exercise of its power
under Section 561A of the Code of Criminal Procedure, 1898 (Section
482 Cr.P.C. is pari materia to Section 561A of the 1898 Code), the
High Court could quash criminal case registered against the
appellant who along with his mother-in-law was accused of
committing offences under Section 420, 109, 114 and 120B of the
Indian Penal Code. The appellant unsuccessfully filed a petition in
the Punjab High Court for quashing the investigation of the First
Information Report (FIR) registered against him and then filed appeal
before this Court. While confirming the High Court s order this
Court laid down the following proposition:
The inherent power of High Court under Section 561A,
Criminal P.C. cannot be exercised in regard to matters
specifically covered by the other provisions of the Code. The
inherent jurisdiction of the High Court can be exercised to
quash proceedings in a proper case either to prevent the
abuse of the process of any court or otherwise to secure the
ends of justice. Ordinarily criminal proceedings instituted
against an accused person must be tried under the
provisions of the Code, and the High Court would be
reluctant to interfere with the said proceedings at an
interlocutory stage. It is not possible, desirable or expedient
to lay down any inflexible rule which would govern the
exercise of this inherent jurisdiction.
This Court then carved out some exceptions to the above stated
rule. These are:
(i)
Where it manifestly appears that there is a legal bar
against the institution or continuance of the criminal
proceedings in respect of the offences alleged. Absence of
the requisite sanction may, for instance, furnish cases
under this category;
(ii)
Where the allegations in the First Information Report or
the complaint, even if they are taken at their face value
and accepted in their entirety, do not constitute the
offence alleged; in such cases no question of appreciating
evidence arises; it is a matter merely of looking at the
complaint or the First Information Report to decide
whether the offence alleged is disclosed or not;
(iii)
Where the allegations made against the accused person
do constitute an offence alleged but there is either no
legal evidence adduced in support of the case or the
evidence adduced clearly or manifestly fails to prove the
charge. In dealing with this class of cases it is important
to bear in mind the distinction between a case where
there is no legal evidence or where there is evidence
which is manifestly and clearly inconsistent with the
accusation made and cases where there is legal evidence
which on its appreciation may or may not support the
accusation in question. In exercising its jurisdiction
under Section 561-A the High Court would not embark
upon an enquiry as to whether the evidence in question is
reliable or not. That is the function of the trial magistrate,
and ordinarily it would not be open to any party to
invoke the High Court s inherent jurisdiction and
contend that on a reasonable appreciation of the evidence
the accusation made against the accused would not be
sustained.
In State of Haryana v Bhajanlal [1992 Supp. (1) SCC 335] this
Court considered the scope of the High Court s power under Section
482 of Cr.P.C and Article 226 of the Constitution to quash the FIR
registered against the respondent, referred to several judicial
precedents including those of R.P.Kapoor v. State of Punjab (supra),
State of Bihar v. J.A.C. Saldanha [1980 (1) SCC 554] and State of
West Bengal v. Swapan Kumar Guha [1982 (1) SCC 561] and held
that the High Court should not embark upon an enquiry into the
merits and demerits of the allegations and quash the proceedings
without allowing the investigating agency to complete its task. At
the same time, the Court identified the following cases in which the
FIR or complaint can be quashed.
(1) Where the allegations made in the first information report
or the complaint, even if they are taken at their face value and
accepted in their entirety do not prima facie constitute any
offence or make out a case against the accused.
(2) Where the allegations in the first information report and
other materials, if any, accompanying the FIR do not disclose a
cognizable offence, justifying an investigation by police officers
under Section 156(1) of the Code except under an order of a
Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or
complaint and the evidence collected in support of the same do
not disclose the commission of any offence and make out a case
against the accused.
(4) Where the allegations in the FIR do not constitute a
cognizable offence but constitute only a non-cognizable offence,
no investigation is permitted by a police officer without an
order of a Magistrate as contemplated under Section 155(2) of
the Code.
(5) Where the allegations made in the FIR or complaint are so
absurd and inherently improbable on the basis of which no
prudent person can ever reach a just conclusion that there is
sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the
provisions of the Code or the Act concerned (under which a
criminal proceeding is instituted) to the institution and
continuance of the proceedings and/or where there is a specific
provision in the Code or the Act concerned, providing
efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with
mala fide and/or where the proceeding is maliciously
instituted with an ulterior motive for wreaking vengeance on
the accused and with a view to spite him due to private and
personal grudge.
The ratio of Bhajan Lal s case has been consistently followed in
the subsequent judgments. In M/s Zandu Pharmaceutical Works
Ltd. V. Mohd. Sharaful Haque (supra), this Court referred to a large
number of precedents on the subject and observed:
The powers possessed by the High Court under Section 482 of
the Code are very wide and the very plenitude of the power
requires great caution in its exercise. Court must be careful to
see that its decision in exercise of this power is based on sound
principles. The inherent power should not be exercised to stifle
a legitimate prosecution. The High Court being the highest
court of a State should normally refrain from giving a prima
facie decision in a case where the entire facts are incomplete
and hazy, more so when the evidence has not been collected
and produced before the court and the issues involved,
whether factual or legal, are of magnitude and cannot be seen
in their true perspective without sufficient material. Of course,
no hard-and-fast rule can be laid down in regard to cases in
which the High Court will exercise its extraordinary
jurisdiction of quashing the proceeding at any stage. It would
not be proper for the High Court to analyse the case of the
complainant in the light of all probabilities in order to
determine whether a conviction would be sustainable and on
such premises arrive at a conclusion that the proceedings are to
be quashed. It would be erroneous to assess the material before
it and conclude that the complaint cannot be proceeded with.
In a proceeding instituted on complaint, exercise of the inherent
powers to quash the proceedings is called for only in a case
where the complaint does not disclose any offence or is
frivolous, vexatious or oppressive. If the allegations set out in
the complaint do not constitute the offence of which cognizance
has been taken by the Magistrate, it is open to the High Court
to quash the same in exercise of the inherent powers under
Section 482 of the Code. It is not, however, necessary that there
should be meticulous analysis of the case before the trial to find
out whether the case would end in conviction or acquittal. The
complaint has to be read as a whole. It if appears that on
consideration of the allegations in the light of the statement
made on oath of the complainant that the ingredients of the
offence or offences are disclosed and there is no material to
show that the complaint is mala fide, frivolous or vexatious, in
that even there would be no justification for interference by the
High Court. When an information is lodged at the police
station and an offence is registered, then the mala fides of the
informant would be of secondary importance. It is the material
collected during the investigation and evidence led in court
which decides the fate of the accused person. The allegations of
mala fides against the informant are of no consequence and
cannot by themselves be the basis for quashing the
proceedings.
In the aforementioned judgment, this Court set aside the order
of the Patna High Court and quashed the summons issued by the
First Class Judicial Magistrate in Complaint Case No.1613) of 2002
on the ground that the same was barred by limitation prescribed
under Section468 (2)) Cr.P.C.
In Ramesh Chand Sinha s case (supra) this Court quashed the
decision of the Chief Judicial Magistrate, Patna to take cognizance of
the offence allegedly committed by the appellants by observing that
the same was barred by time and there were no valid grounds to
extend the period of limitation by invoking Section 473 Cr.P.C.
A careful reading of the above noted judgments makes it clear
that the High Court should be extremely cautious and slow to
interfere with the investigation and/or trial of criminal cases and
should not stall the investigation and/or prosecution except when it
is convinced beyond any manner of doubt that the FIR does not
disclose commission of any offence or that the allegations contained
in the FIR do not constitute any cognizable offence or that the
prosecution is barred by law or the High Court is convinced that it is
necessary to interfere to prevent abuse of the process of the court. In
dealing with such cases, the High Court has to bear in mind that
judicial intervention at the threshold of the legal process initiated
against a person accused of committing offence is highly detrimental
to the larger public and societal interest. The people and the society
have a legitimate expectation that those committing offences either
against an individual or the society are expeditiously brought to trial
and, if found guilty, adequately punished. Therefore, while deciding
a petition filed for quashing the FIR or complaint or restraining the
competent authority from investigating the allegations contained in
the FIR or complaint or for stalling the trial of the case, the High
Court should be extremely careful and circumspect. If the allegations
contained in the FIR or complaint discloses commission of some
crime, then the High Court must keep its hands off and allow the
investigating agency to complete the investigation without any fetter
and also refrain from passing order which may impede the trial. The
High Court should not go into the merits and demerits of the
allegations simply because the petitioner alleges malus animus
against the author of the FIR or the complainant. The High Court
must also refrain from making imaginary journey in the realm of
possible harassment which may be caused to the petitioner on
account of investigation of the FIR or complaint. Such a course will
result in miscarriage of justice and would encourage those accused of
committing crimes to repeat the same.
However, if the High Court
is satisfied that the complaint does not disclose commission of any
offence or prosecution is barred by limitation or that the proceedings
of criminal case would result in failure of justice, then it may exercise
inherent power under Section 482 Cr.P.C.
In the light of the above, we shall now consider whether the
High Court committed an error by refusing to quash the proceedings
of CC No.240 of 2002.
Although, the learned Single Judge of High Court dealt with
various points raised by the appellants and negatived the same by
recording the detailed order, his attention does not appear to have
been drawn to the order dated 24.10.2006 passed by the co-ordinate
bench in Criminal Petition No.1302/2003 whereby the proceedings of
CC No.240/2002 were quashed qua the parents of the appellants on
the ground that the learned Magistrate could not have taken
cognizance after three years. Respondent No.2 is not shown to have
challenged the order passed in Criminal Petition No.1302/2003.
Therefore, that order will be deemed to have become final. We are
sure that if attention of the learned Single Judge, who decided
Criminal Petition No.4152/2006 had been drawn to the order passed
by another learned Single Judge in Criminal Petition No.1302/2003,
he may have, by taking note of the fact that the learned Magistrate
did not pass an order for condonation of delay or extension of the
period of limitation in terms of Section 473 Cr.P.C., quashed the
proceedings of CC No.240/2002.
We are further of the view that in the peculiar facts of this case,
continuation of proceedings of CC No.240/2002 will amount to abuse
of the process of the Court. It is not in dispute that after marriage,
Shireesha Bhavani lived with appellant No.1 for less than one and a
half months (eight days at Hyderabad and about thirty days at New
Jersey). It is also not in dispute that their marriage was dissolved by
the Superior Court at New Jersey vide decree dated 15.12.1999.
Shireesha Bhavani is not shown to have challenged the decree of
divorce. As a mater of fact, she married Sri Venkat Puskar in 2000
and has two children from the second marriage. She also received
all the articles of dowry (including jewellery) by filing affidavit dated
28.12.1999 in the Superior Court at New Jersey. As on today a period
of almost nine years has elapsed of the marriage of appellant No.1
and Shireesha Bhavani and seven years from her second marriage.
Therefore, at this belated stage, there does not appear to be any
justification for continuation of the proceedings in CC No.240/2002.
Rather, it would amount to sheer harassment to the appellant and
Shireesha Bhavani who are settled in USA, if they are required to
come to India for giving evidence in relation to an offence allegedly
committed in 1998-99. It is also extremely doubtful whether the
Government of India will, after lapse of such a long time, give
sanction in terms of Section 188 Cr.P.C.
For the reasons stated above, the appeal is allowed, the
order of the learned Single Judge of the High Court is set aside and
the proceedings of CC No.240/2002, pending in the Court of XXII
Metropolitan Magistrate, Hyderabad, are quashed.
2008 AIR 787 , 2007(13 )SCR478 , , 2007(14 )SCALE321 ,
