SCOPE OF THE POWERS OF THE HIGH COURT UNDER SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE, 1973 BY: - NITISH KAUSHIK

Transcription

1 SCOPE OF THE POWERS OF THE HIGH COURT UNDER SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE, 1973 BY: - NITISH KAUSHIK

2 Table of Contents INDEX OF AUTHORITIES... 3 ABSTRACT... 5 QUASHING FIR UNDER S. 482:... 9 Quashing of Second FIR on petition under Section 482 CrPC Quashing of FIR when investigation has not commenced Quashing FIR where cognizance not yet taken FIR disclosing offence Quashing FIR when the power of investigation has been exercised mala fide Quashing of FIR where allegations not constituting an offence Landmark and Latest Judgements of the SC on the Issue of Quashing FIR CONCLUSION Bibliography

3 INDEX OF AUTHORITIES Cases Agra Electricity Board v. State of U.P., AIR 1960 All Ajit Pramod Kumar Jogi v. Union of India, 2004 CrLJ 3304 (3314)... 9 Arjun Shankar Shukla v. State of U.P., AIR 1999 SC Arnavaz v. Alcobex Metals Ltd., 2005 CrLJ 610 (612) (Raj)... 9, 11 Ayub Khan v. State of Orissa, 2000 (2) Crimes 338 (Ori) Balkar Singh v. Jagdish Kumar, 2005 CrLJ 1712 (1715) (SC)... 6 Bijon Mahanta v. State of Assam, 2009 (3) GLR 148 (Gauh)... 8 Central Bureau of Investigation v. Ravi Shanker Srivastava, 2006 CrLJ 4050 (4052,4053)... 5 Dhanvinder Singh v. State of NCT Delhi, 2002 (3) Crimes Eastern Spinning Mills v. Shri Rajiv Poddar, AIR 1985 SC Guruduth Prabhu v. M.S. Krishna Bhat, 1999 CrLJ 3909 (Kant) Haridas Mundra v. State of W.B., AIR 1970 Cal Indian Oil Corporation vs. NEPC India Ltd. and Others, (2006) 6 SCC J. Raghuraj Gond v. Sub-Inspector of Police, Kukapally, 2005 CrLJ 1301 (1305) (AP)... 8 Jagdish Prasad v. State of U.P., 1991 CrLJ 1624, Kavita v. State, 2000 CrLJ 315 (Del)... 3 Lalit Mohan Mondal v. Dehoyendra Nath Chatterjee, AIR 1982 SC M.L. Bhatt v. M.K. Pandita, 2002 (4) Crimes 343 (343,344) (SC)... 7 Madan Gopal v. State, 2001 (3) Crimes 87 (89) (Del)... 7 Madhu Limaye v. Maharashtra, AIR 1978 SC Mangal Chouhan v. State, 1983 CrLJ 279 (Cal-DB) Manjula Sinha v. State of U.P., (2008) 3 SCC (Cri) Manohar M. Galani v. Ashok N. Advani, 2000 CrLJ Mast Ram v. Smt. Shanti Devi, (2002) 2 HLR Mathews Peter v. Asstt. Police Inspector, (2002) 93 Cut LT Pepsi Foods Ltd. v. Special Judicial Magistrate, AIR 1998 SC Prashant Bharti v. State of NCT of Delhi, Criminal Appeal No. 175 of 2013 (Arising out of SLP (Criminal) No of 2009) Pratibha v. Rameshwari Devi, 2008 CrLJ 329 (331) (SC)... 8 Pulgaon Cotton Mills Ltd. v. Maharashtra Pollution Control Board, 2001 CrLJ 610 (Bom) Raj Kapoor v. State (Delhi Admn.), AIR 1980 SC Ravider Wadhwa v. State, 1996 CrLJ 2700 (Del) Rishipal v. State of Harayan, 1997 CrLJ 1438 (P&H)... 9 S. Rajendra v. K.A.S. Rama Appaswamy, 1981 CrLJ 1298 (Kant) S.C. Mitra v. Raja Kali Charan, (1927) 3 Luck S.K. Kothari v. State of Rajasthan, 2004 (1) Crimes 440 (443,444) (Raj)... 8 Sagat Singh v. State of Rajasthan, 2003 (2) Crimes 33 (36) (Raj)... 6 Sanapareddy Maheedhar Seshagiri v. State of Andhra Pradesh, AIR 2008 SC Sandhu Singh, AIR 1962 All Saumya Navit v. State of Karnataka, 1998 CrLJ 14 (Kant) Shiv Shankar Singh v. State of Bihar, (2012) 1 SCC

4 State of Andhra Pradesh v. Goloconda Linga Swami, (2004) 6 SCC State of Bihar v. P.P. Sharma, 1991 CrLJ 1438, 1448 (SC) State of Haryana vs. Bhajan Lal, 1992 Supp.(1) SCC State of Orissa & Anr. v. Saroj Kumar Sahoo, (2005) 13 SCC State of U.P. v. Mohammad Naim, AIR 1964 SC State of W.B. v. Narayan K. Patodia, AIR 200 SC Suneet Gupta v. Anil Triloknath Sharma, (2008) 11 SCC Sunita Jain v. Pawan Kumar Jain, (2008) 2 SCC Suresh Chandra Swain v. State of Orissa, 1988 CrLJ 1175 (Ori)... 9 Swaran Singh v. State, 2008 CrLJ 4369 (4370)... 7 T. Vengama Naidu v. T. Doraswamy Naidu, (2008) 2 SCC (Cri) T.T. Antony v. State of Kerala, AIR 2001 SC Trilochan Singh Johar v. State, (2002) 62 DRJ Union of India v. B.R. Bajaj, 1994 CrLJ 2086 (SC) Union of India v. B.R. Bajaj, AIR 1994 SC Vijay Kumar v. State of Punjab, 1996 CrLJ 3070 (P&H) Vinod Kumar Sethi v. State of Punjab, AIR 1982 (P&H) 372 (FB) Vinod Kumar Sethi v. State of Punjab, AIR 1982 P&H 372, 381 (FB) Vishnu (1942) Nag Statutes Code of Criminal Procedure, 1973 Constitution of India,

5 ABSTRACT Scope of the powers of the High Court under section 482 of the Code of Criminal Procedure, 1973: - This section has not given increased power to High Court which it did not possess before the section was enacted. It gives no new powers. It only provides that those which the court already inherently possessed shall be preserved, and is inserted lest it should be considered that the only powers possessed by the courts are those expressly conferred by the court and no inherent power survived the passing of the Code. 1 Though the jurisdiction exists and is wide in its scope it is a rule of practice that it will only be exercised in exceptional cases, 2 in rarest of rare cases. 3 The power under section 482 are to be exercised sparingly and not as an appellate/revisional court. 4 The Supreme Court has held that the following principles would govern the exercise of the inherent jurisdiction of a High Court given by Section 482 : (1) the power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party; (2) it should be exercised very sparingly to prevent abuse of the process of any Court or otherwise to secure the ends of justice; (3) it should not be exercised as against the express bar of law engrafted in any other provisions of the Code. 5 The inherent power overrides the express bar against revision provided under S. 341 of the Code. 6 Similarly, the power under S. 382 is not subjected to the limitations imposed on the power of revision conferred by S It cannot be invoked with respect to any matter covered by the specific provisions of the Code or if its exercise would be inconsistent with any of the specific provisions of the Code, 8 1 State of U.P. v. Mohammad Naim, AIR 1964 SC S.C. Mitra v. Raja Kali Charan, (1927) 3 Luck Sunita Jain v. Pawan Kumar Jain, (2008) 2 SCC Kavita v. State, 2000 CrLJ 315 (Del) 5 Madhu Limaye v. Maharashtra, AIR 1978 SC 47 6 Lalit Mohan Mondal v. Dehoyendra Nath Chatterjee, AIR 1982 SC Raj Kapoor v. State (Delhi Admn.), AIR 1980 SC Arjun Shankar Shukla v. State of U.P., AIR 1999 SC

6 or when there is another remedy available, e.g. a civil proceeding 9 or revision, 10 or when a remedy is available to the applicant to approach the Supreme Court under Article 137 of the Constitution to review High Court s order dismissing petition for special leave, 11 or when the powers of the High Court are expressly limited to a particular matter under an Act. 12 In State of Punjab v. Kasturi Lal, 13 The Supreme Court observed that exercise of power under S. 482 of the Code in a case of this nature is the exception and not the rule. The section does not confer any new powers on the High Court. It only saves the inherent power which the court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent the abuse of the process of Court, (iii) and to otherwise secure the ends of justice. While exercising powers under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. 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 the exercise of this power is based on sound principles. 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, when 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 9 Suneet Gupta v. Anil Triloknath Sharma, (2008) 11 SCC Agra Electricity Board v. State of U.P., AIR 1960 All Sandhu Singh, AIR 1962 All Vishnu (1942) Nag CrLJ 3866 (3868) (SC) 6

7 High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. All Courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do right and to undo a wrong in course of administration of justice on the principle quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest (when the law gives a person anything it gives him that without which it cannot exist). 14 It would be an abuse of process of the Court to allow any action which would result in injustice and prevent promotion of justice. 15 Where the High Court has no jurisdiction in revision to interfere with any judgement, order or sentence passed by a judge of the High Court in the exercise of its original criminal jurisdiction, the provisions of this section cannot be invoked since the question there is one of jurisdiction. 16 The High Court can exercise its power of judicial review in criminal matters. The High Court can exercise this power under Art. 226 of the Constitution or under S. 482 Cr.P.C., either to prevent abuse of any process of the Court or otherwise to secure the ends of justice. Exercise of such power would depend upon the facts and circumstances of each case. One of the cases where such power can be exercised is where the first information report or the complaint, even if they are taken at their face value and accepted to their entirety do not prima constitute any offence or make out a case against the accused. 17 The High Court would exercise its extraordinary jurisdiction under S. 482, CrPC where it finds that non interference shall result in abuse of the process of the court or failure of justice 18, or where grave injustice 14 Central Bureau of Investigation v. Ravi Shanker Srivastava, 2006 CrLJ 4050 (4052,4053) 15 Central Bureau of Investigation v. Ravi Shanker Srivastava, 2006 CrLJ 4050 (4052,4053) 16 Haridas Mundra v. State of W.B., AIR 1970 Cal Pepsi Foods Ltd. v. Special Judicial Magistrate, AIR 1998 SC Mathews Peter v. Asstt. Police Inspector, (2002) 93 Cut LT 651 7

8 is shown to have been caused and requires to be undone, 19 Where the complaint does not make out any triable case against the petitioner. 20 The High Court would not quash complaint or FIR merely on the statement of the Counsel for the State for withdrawal of the case, the decision of the government to withdraw the prosecution is an irrelevant ground. 21 If the Court is satisfied that there is great miscarriage of justice or abuse of the process of the Court or the required statutory provision has not been complied with or there is failure of justice, in that event, it is but the duty of the Court to have it corrected at the inception. 22 Where the criminal proceedings lodged would be mere result in harassment to the petitioner, the proceeding would be quashed Mast Ram v. Smt. Shanti Devi, (2002) 2 HLR Balkar Singh v. Jagdish Kumar, 2005 CrLJ 1712 (1715) (SC) 21 Balkar Singh v. Jagdish Kumar, 2005 CrLJ 1712 (1715) (SC) 22 Sagat Singh v. State of Rajasthan, 2003 (2) Crimes 33 (36) (Raj) 23 Sanapareddy Maheedhar Seshagiri v. State of Andhra Pradesh, AIR 2008 SC 784 8

9 QUASHING FIR UNDER S. 482: In quashing FIR, the High Court would be entitled to only examine the allegations made in the FIR but would not be entitled to appreciate by way of shifting the materials collected in course of investigation including the statements recorded under S.161, CrPC. 24 At this stage the correctness or otherwise of the allegations in the FIR is not to be seen by the High Court, and that will be seen at the trial. It has to be seen that whether on a perusal of the FIR a prima facie offence is made out or not. 25 Interference at the threshold with the FIR is to be in very exceptional circumstances. 26 Whether the FIR does not disclose the commission of an offence without anything being added or subtracted from the recitals thereof, FIR would be quashed the Court would not embark upon any enquiry in a case where the First Information Report discloses the commission of a cognizable offence, to find whether some person was actually involved in that case or not. This is the function purely entrusted to the Investigating Officer of Police and the Court will not assume the jurisdiction of the Investigating Officer to arrive at a conclusion and to give a finding which normally a police officer is supposed to give in terms of S The quashing of, FIR and investigation after elaborate discussion of the merits of the case was held not proper. 28 While considering the question of quashing FIR on petition under S. 482 Cr.P.C., pre-judging the prosecution case by examining its weakness and contradictions is not permissible. 29 FIR is to be quashed only very sparingly and with circumspection and only in the rarest of the rare cases, 30 when no offence is spelt therein. 31 The Court is entitled to exercise its inherent jurisdiction for quashing a criminal proceeding or an FIR when the allegations made to the same do not disclose the commission of an 24 M.L. Bhatt v. M.K. Pandita, 2002 (4) Crimes 343 (343,344) (SC) 25 Swaran Singh v. State, 2008 CrLJ 4369 (4370) 26 State of Andhra Pradesh v. Goloconda Linga Swami, (2004) 6 SCC Jagdish Prasad v. State of U.P., 1991 CrLJ 1624, Manohar M. Galani v. Ashok N. Advani, 2000 CrLJ Madan Gopal v. State, 2001 (3) Crimes 87 (89) (Del) 30 Dhanvinder Singh v. State of NCT Delhi, 2002 (3) Crimes T. Vengama Naidu v. T. Doraswamy Naidu, (2008) 2 SCC (Cri) 231 9

10 offence and that it depends upon the facts and circumstances of each case. 32 Where complaint for offences under S.406 and 498A was filed by the wife after the accused husband had filed divorce petition, and six months after she had left the matrimonial home, the order of the High Court quashing the criminal proceedings on petition under S. 482 CrPC was held proper. 33 Where FIR is registered on reference being made by the Criminal Court, there is hardly any scope of making allegations as to mala fide exercise of power, FIR would not be quashed. 34 FIR would not be quashed merely on the ground that the same has been filed with mala fide and evil design. 35 Where allegations in FIR do not prima facie disclose commission of criminal an offence, FIR would be quashed. 36 Quashing of Second FIR on petition under Section 482 CrPC: - A second FIR based on based on the same facts is not permissible. But where the facts and allegations of the earlier FIR are different from the facts and allegations of the second FIR, the second FIR would not be quashed. 37 A person cannot be harassed twice or made accused I two FIRs in respect of the same matter or connected matters hence second FIR would be quashed on petition under S. 482 CrPC. If the allegations made in the FIR do not make out any case against the accused or the allegations are patently absurd and inherently improbable so that no prudent person can ever reach to such a conclusion that there is sufficient ground for proceeding against such accused, 32 Pratibha v. Rameshwari Devi, 2008 CrLJ 329 (331) (SC) 33 Pratibha v. Rameshwari Devi, 2008 CrLJ 329 (331) (SC) 34 J. Raghuraj Gond v. Sub-Inspector of Police, Kukapally, 2005 CrLJ 1301 (1305) (AP) 35 Bijon Mahanta v. State of Assam, 2009 (3) GLR 148 (Gauh) 36 S.K. Kothari v. State of Rajasthan, 2004 (1) Crimes 440 (443,444) (Raj) 37 T.T. Antony v. State of Kerala, AIR 2001 SC

11 in such cases with a view to prevent the abuse of process of the Court, the High Court would be competent to quash the FIR to secure the ends of justice. 38 Under S.482, CrPC the High Court has the power to quash an FIR or even a complaint subject to limitations and conditions laid down in various judgements. However this power has to be exercised by the High Courts very sparingly with circumspection and also in rarest of rare cases. Quashing of FIR when investigation has not commenced: - The High Court cannot quash the FIR when the police has not even commenced the investigation and no proceedings at all is pending in any Court in pursuance of the FIR. 39 Investigation could not be quashed because FIR does not disclose any offence, because investigation could be carried on the basis of other material. 40 Quashing FIR where cognizance not yet taken: - Where Magistrate has not yet taken cognizance of the offence, the FIR cannot be quashed under S FIR disclosing offence: - An FIR should be quashed only in rarest of rare cases. Where a prima facie case is disclosed in FIR, there is no question of quashing the same 42 on the mere ground of delay in filing FIR. Where the FIR discloses the offence, High Court would not be justified in quashing the first information report. 43 If the facts mentioned in the FIR prima facie disclose cognizable offence, than the High Court is required to look into the veracity, reliability, sufficiency and adequate proof of the facts alleged and to make a meticulous scrutiny and whether all the ingredients are precisely spelled out in the complaint is not the 38 Arnavaz v. Alcobex Metals Ltd., 2005 CrLJ 610 (612) (Raj) 39 State of W.B. v. Narayan K. Patodia, AIR 200 SC Suresh Chandra Swain v. State of Orissa, 1988 CrLJ 1175 (Ori) 41 Rishipal v. State of Harayan, 1997 CrLJ 1438 (P&H) 42 Ajit Pramod Kumar Jogi v. Union of India, 2004 CrLJ 3304 (3314) 43 Union of India v. B.R. Bajaj, AIR 1994 SC

12 need at this stage. Where petitioner fails to show that allegations in FIR/Complaint do not constitute offence, FIR/Complaint cannot be quashed. 44 Where FIR discloses offence the same cannot be quashed before the close of the investigation. 45 If on consideration of the allegations made in light the light of the statement made an oath, the ingredients of the offence are disclosed and the complaint is not mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. Where prima facie case is made out, FIR cannot be quashed under S. 482, CrPC, evidentiary value of the statements cannot be assessed in petition under S. 482, CrPC. 46 Where FIR discloses the commission of alleged offences, and mere denial by the accused is no ground for quashing the FIR. 47 Where FIR discloses cognizable offence, the FIR cannot be quashed under S. 482, CrPC. 48 FIR in a case under S.376, IPC would not be quashed merely because trial would put the prosecutrix to future embarrassment. 49 If allegation in FIR Constitute offence prosecution cannot be quashed, even if the prosecution is mala fide, 50, or because the offence are of technical nature. 51 The High Court cannot exercise its inherent power under S. 482, CrPC to quash FIR or investigation by police in pursuance of a direction by Magistrate under S. 156(3). 52 Whether allegations in the complaint are cryptic discloses no offence, order for investigation under S.156 (3) CrPC, is without jurisdiction, can be quashed under S. 482 CrPC/ Art 226 of the Constitution. 53 There cannot be a blanket bar against the quashing of a proceeding at the investigation stage. If the High Court is convinced that the first information report does not 44 Saumya Navit v. State of Karnataka, 1998 CrLJ 14 (Kant) 45 Ayub Khan v. State of Orissa, 2000 (2) Crimes 338 (Ori) 46 Vijay Kumar v. State of Punjab, 1996 CrLJ 3070 (P&H) 47 Ravider Wadhwa v. State, 1996 CrLJ 2700 (Del) 48 Union of India v. B.R. Bajaj, 1994 CrLJ 2086 (SC) 49 Trilochan Singh Johar v. State, (2002) 62 DRJ State of Bihar v. P.P. Sharma, 1991 CrLJ 1438, 1448 (SC) 51 Pulgaon Cotton Mills Ltd. v. Maharashtra Pollution Control Board, 2001 CrLJ 610 (Bom) 52 S. Rajendra v. K.A.S. Rama Appaswamy, 1981 CrLJ 1298 (Kant) 53 Guruduth Prabhu v. M.S. Krishna Bhat, 1999 CrLJ 3909 (Kant) 12

13 disclose a cognizable offence and that the continuation of an investigation, based on no foundation would amount to an abuse of power of police, necessitating interference to secure the ends of justice the inherent power will have to be exercised. The High Court will interfere with the investigation only if non-interference would result in miscarriage of justice. 54 Quashing FIR when the power of investigation has been exercised mala fide: - Even if the First Information Report or its subsequent investigation purports to raise a suspicion of a cognizable offence, the High Court can still quash if it is convinced that the power of investigation has been exercised mala fide. 55 Quashing of FIR where allegations not constituting an offence: - Ordinarily the High Court shall be reluctant to interfere with FIR and investigation, but where FIR does not disclose elements of cognizable offence, it can be quashed. 56 FIR which did not contain any facts constituting an offence may be quashed by the High Court in exercise of its inherent powers. 57 A full bench of Punjab and Haryana High Court has held that there is no blanket bar against the quashing of a first information report and the consequent investigation. It has laid down the following requisite pre-condition s for the exercise of the power- (i) When the FIR, even if accepted as true, discloses no reasonable suspicion of the commission of a cognizable offence. (ii) When the materials subsequently collected in the course of an investigation further disclose no such cognizable offence at all; 54 Eastern Spinning Mills v. Shri Rajiv Poddar, AIR 1985 SC Vinod Kumar Sethi v. State of Punjab, AIR 1982 (P&H) 372 (FB) 56 Mangal Chouhan v. State, 1983 CrLJ 279 (Cal-DB) 57 Arnavaz v. Alcobex Metals Ltd., 2005 CrLJ 610 (612) (Raj) 13

14 (iii) When the continuation of such investigation would amount to an abuse of power by the police; and (iv) That even if the FIR or its subsequent investigation purports to raise a suspicion of a cognizable offence, the High Court can still quash if it is convinced that the power of investigation has been exercised mala fide. 58 After charge sheet against the accused has been filed and charge has been framed in the case, the question of quashing FIR on petition filed under S. 482 CrPC would not arise Vinod Kumar Sethi v. State of Punjab, AIR 1982 P&H 372, 381 (FB) 59 Manjula Sinha v. State of U.P., (2008) 3 SCC (Cri)

15 Landmark and Latest Judgements of the SC on the Issue of Quashing FIR: In the landmark case of State of Haryana vs. Bhajan Lal, 60 this Court considered in detail the provisions of Section 482 and the power of the High Court to quash criminal proceedings or FIR. This Court summarized the legal position by laying down the following guidelines to be followed by High Courts in exercise of their inherent powers to quash a criminal complaint: (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 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 concerned Act (under which a criminal proceeding is instituted) to the institution and 60 State of Haryana vs. Bhajan Lal, 1992 Supp.(1) SCC

16 continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, 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. In State of Orissa & Anr. v. Saroj Kumar Sahoo, 61 it has been held that 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 Indian Oil Corporation vs. NEPC India Ltd. and Others, 62 a petition under Section 482 was filed to quash two criminal complaints. The High Court by a common judgment allowed the petition and quashed both the complaints. The order was challenged in appeal to this Court. While deciding the appeal, this Court laid down the following principles: 1. The High courts should not exercise their inherent powers to repress a legitimate prosecution. The power to quash criminal complaints should be used sparingly and with abundant caution. 2. The criminal complaint is not required to verbatim reproduce the legal ingredients of the alleged offence. If the necessary factual foundation is laid in the criminal complaint, merely on the ground that a few ingredients have not been stated in detail, the criminal proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is bereft of even the basic facts which are absolutely necessary for making out the alleged offence. 61 State of Orissa & Anr. v. Saroj Kumar Sahoo, (2005) 13 SCC Indian Oil Corporation vs. NEPC India Ltd. and Others, (2006) 6 SCC

17 3. It was held that a given set of facts may make out (a) purely a civil wrong, or (b) purely a criminal offence or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. In Prashant Bharti v. State of NCT of Delhi, 63 the Supreme Court of India laid down the following steps to determine the veracity of a prayer for quashing, raised by an accused by invoking the power vested in the High Court under Section 482 of the Cr.P.C.:- (i) Step one, whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality? (ii) Step two, whether the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused, i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false. (iii) Step three, whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant? (iv) Step four, whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice? If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal - proceedings, in exercise of power vested in it under Section 482 of the Cr.P.C. Such exercise 63 Prashant Bharti v. State of NCT of Delhi, Criminal Appeal No. 175 of 2013 (Arising out of SLP (Criminal) No of 2009) 17

18 of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as, proceedings arising wherefrom) especially when, it is clear that the same would not conclude in the conviction of the accused. If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash the criminal proceedings. In Shiv Shankar Singh v. State of Bihar, 64 the Supreme Court expressed the view that the law does not prohibit filing or entertaining of a second complaint even on the same facts, provided that the earlier complaint has been decided on the basis of insufficient material or has been passed without understanding the nature of the complaint or where the complete facts could not be placed before the court and the applicant came to know of certain facts after the disposal of the first complaint. 64 Shiv Shankar Singh v. State of Bihar, (2012) 1 SCC

19 CONCLUSION Section 482 CrPC has a very wide scope and it s really important for the courts to use it properly and wisely. Many a time it has been observed that when there is an issue of money (as for instance) the petitioner instead of filing a civil suit files an FIR against the other person just to harass him. In such cases it becomes very important for the High Court to quash such complaints as it leads to the abuse of the process of the lower courts. Section 482 of the Code of Criminal Procedure, 1973 would enable the courts for providing proper justice and also should be exercised to stop the public from filing fictitious complaints just to fulfil their personal grudges. Justice Dhingra in one of his judgements said that while exercising powers under Section 482 of the Cr.P.C. the Court has to keep in mind that it should not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. This is a function of the Trial Court. Though the judicial process should not be an instrument in exercising discretion and should take all relevant facts and circumstances in consideration before issuing process under Section 482 lest the Section becomes an in the hands of accused persons to claim differential treatment only because the accused persons can spend money to approach higher forums. This Section is not an instrument handed over to an accused to short circuit a prosecution and brings about its sudden death. 19

20 Bibliography Books 1. A. R. Amar, The Constitution and Criminal Procedure (New Haven: Yale University Press, 1997). 2. Dr.K.N.C Pillai, Kelkar s Lectures on Criminal Law (9 th edn.,lucknow: Eastern Book Company, 2006). 3. P. Ramanatha Aiyar s Code of Criminal Procedure (7 th edn., J.K. Mathur ed., Lucknow: Modern Law House, 2000). 4. S.C. Sarkar, Sarkar on the Code of Criminal Procedure (8 th edn., S.C. Sarkar et al. ed., New Delhi: Wadhwa and Company, 2005). Journals 1. Criminal Law Journal 20