Criminal Misc. No. M-22102 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No. M-22102 of 2009 Date of Decision: 17.02.2010 Raj Kumar @ Raju son of Charanji Ram, r/o Ravidaspura Noor Mahal Road, Phillaur, District Jalandhar, Punjab. ... Petitioner Versus 1. State of Punjab. 2. Resham Kaur d/o Late Amarjit Ram, r/o village Gadra Bilga, District Jalandhar, Punjab. ...Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Liaqat Ali, Advocate, for the petitioner. Mr. T.S. Salana, Deputy Advocate General, Punjab, for respondent No. 1 – State. SHAM SUNDER, J. This petition under Section 482 Cr.P.C., for quashing FIR No. 30, dated 15.04.09, under Sections 120-B, 363 and 366-A IPC, P.S. Bilga, Tehsil Phillaur, District Jalandhar (Annexure P2), and all the subsequent proceedings, arising out of the same, has been filed by the petitioner. 2. The facts, in brief, are that, on 29.03.09, Resham Kaur, complainant, went to village Bilga, in order to attend the marriage of the son of his brother-in-law, leaving her minor daughter i.e. the Criminal Misc. No. M-22102 of 2009 2 prosecutrix, and Tota Ram, her son, in the house, but when she returned, her daughter went missing. She was having a strong suspicion, that Raju, maternal nephew of her brother-in-law, must have abducted her daughter, in connivance with his maternal uncle and his mother Hanso, with an intention to solemnize marriage with her. Thereafter, the complainant, requested her brother-in-law and Hanso, to return her daughter, being minor, and also sought intervention of her relatives and Panchayat, in this regard, but in vain. Ultimately, the aforesaid first information report, was got registered, by her, against the petitioner. 3. I have heard the Counsel for the parties, and, have gone through the documents, on record, carefully. 4. The Counsel for the petitioner, submitted that the prosecutrix, was major, at the time of the alleged occurrence. He further submitted that, the prosecutrix, herself accompanied the petitioner, and forced him to solemnize marriage with her. He further submitted that the mother of the prosecutrix got a false case registered, against the petitioner. He further submitted that, no offence, whatsoever, was committed by the petitioner. 5. On the other hand, the Counsel for the respondent, submitted that the prosecutrix, was below 18 years of age, on the date of occurrence, as her date of birth is 21.12.94. He further submitted that the consent of the minor, is no consent, in the eyes of law. He further submitted that the mother of the petitioner, was right, in lodging the first information report, against the petitioner. He Criminal Misc. No. M-22102 of 2009 3 further submitted that the petitioner, kidnapped the prosecutrix, from her lawful guardianship with an intention to induce her to perform marriage with her. He further submitted that the disputed facts, cannot be finally determined, at the time of decision of the petition, under Section 482 Cr.P.C. The same can only be adjudicated upon during the trial of the case. He further submitted that, no ground, whatsoever, is made out for quashing the first information report. 6. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, the petition, is liable to be dismissed, for the reasons, to be recorded, hereinafter. It is trite that jurisdiction, under Section 482 Cr.P.C., which saves the inherent power of the High Court, to make such orders, as may be necessary to prevent the abuse of the process of any Court, or otherwise, to secure the ends of justice, has to be exercised sparingly, and with circumspection. In exercising that jurisdiction, the High Court would not embark upon an enquiry, whether the allegations, in the complaint, are likely to be established by the evidence or not. That is the function of the trial Magistrate, when the evidence comes before him. Though, it is neither possible, nor advisable to lay down any inflexible rules, to regulate such jurisdiction, one thing, however, appears clear that it is that when the High Court is called upon to exercise this jurisdiction, to quash a proceeding, at the stage of the Magistrate, taking cognizance of an offence, it is guided by the allegations, whether those allegations set out, in the complaint, or the charge-sheet, do not, in law constitute, Criminal Misc. No. M-22102 of 2009 4 or spell out any offence, and that resort to criminal proceedings, would, in the circumstances, amount to an abuse of the process of the Court, or not. Even in State of Haryana and others Vs. Ch. Bhajan Lal and others AIR 1992 Supreme Court 604(1), it was held that in the following category of cases, the High Court, in exercise of its powers, under Article 226 or under Section 482 of the Code of Criminal Procedure, may interfere, in the proceedings, relating to cognizable offences, to prevent the abuse of the process of any Court, or otherwise, to secure the ends of justice. However, this power should be exercised sparingly, and that too, in the rarest of rare cases: 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. Criminal Misc. No. M-22102 of 2009 5 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 concerned Act (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 concerned Act, providing efficacious redress for the grievance of the aggrieved party. Criminal Misc. No. M-22102 of 2009 6 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. Where allegtions in the complaint did constitute a cognizable offence justifying registration of a case and investigation thereon and did not fall in any of the categories of cases, enumerated above, calling for exercise of extraordinary powers or inherent powers, quashing of FIR was not justified. 7. Now adverting to the facts of the instant case, let us see, as to whether, the principle of law, laid down, in the aforesaid case, is applicable, to the same, or not. As per school leaving certificate, collected during the course of investigation, the prosecutrix, was born on 21.12.94. She was less than 16 years, at the time of the occurrence i.e., on 15.04.09. Under these circumstances, the consent of the prosecutrix, could not be said to be of any consequence, in the eye of law, she being minor. From the allegations, contained in the first information report, it was prima-facie established, that the petitioner, kidnapped the prosecutrix with an intent to induce her to perform marriage with her. The disputed facts, as to whether, the prosecutrix, herself went to the petitioner, or he gave her an Criminal Misc. No. M-22102 of 2009 7 allurement or forced her to come to him, are to be proved, during the trial of the case. The disputed facts, cannot be determined, at this stage. In Surendra Nath Mohanty and another Vs. State of Maharashtra 1999(2) RCR (Criminal) 683 (S.C.), a three Judge Bench of the Apex Court, held that the High Court cannot order the composition of offences, which are non-compoundable, as per Section 320 Cr.P.C., in exercise of its inherent powers, under Section 482 Cr.P.C. In Inspector of Police Vs. B. Raja Gopal and Others (2002)9 SCC, 533, the Apex Court, while setting aside the High Court order of quashing the criminal proceedings, held that merely because the parties had compromised the case, and the payment was made, in the proceedings, under Sections 420, 468 and 471 of the Indian Penal Code, the premature quashing, made by the High Court, was not in accordance with law. While defining the powers of the High Court, under Section 482 Cr.P.C., the Apex Court summed up its conclusions, in case, State, through Special Cell, New Delhi Vs. Navjot Sandhu @ Afshan Guru and others 2003(2) RCR (Criminal) 860 (SC), in para Nos.28 and 29, which read as follows : "28. Thus the law is that Article 227 of the Constitution of India gives the High Court the power of superintendence over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction. This jurisdiction cannot be limited or fettered by any act of the Criminal Misc. No. M-22102 of 2009 8 State Legislature. The supervisory jurisdiction extends to keeping the subordinate Tribunals within the limits of their authority and to seeing that they obey the law. The powers under Article 227 are wide and can be used, to meet the ends of justice. They can be used to interfere even with an interlocutory order. However, the power under Article 227 is a discretionary power and it is difficult to attribute to an order of the High Court, such a source of power, when the High Court itself does not in terms propose to exercise any such discretionary power. It is settled law that this power of judicial superintendence, under Article 227, must be exercised sparingly and only to keep subordinate Courts and Tribunals within the bounds of their authority and not to correct mere errors. Further where the statute bans the exercise of revisional powers it would require very exceptional circumstances to warrant interference under Article 227of the Constitution of India since the power of superintendence was not meant to circumvent statutory law. It is settled law that the jurisdiction under Article 227 could not be exercised "as the cloak of an appeal is disguise." Criminal Misc. No. M-22102 of 2009 9 29. Section 482 of the Criminal Procedure Code starts with the words "Nothing in this Code". Thus the inherent jurisdiction of the High Court under Section 482 of the Criminal Procedure Code can be exercised even when there is a bar under Section 397 or some other provisions of the Criminal Procedure Code. However, as is set out in Satya Narayanan Sharma's case (supra) this power cannot be exercised if there is a statutory bar in some other enactment. If the order assailed is purely of an interlocutory character, which could be corrected in exercise of revisional powers or appellate powers the High Court must refuse to exercise its inherent power. The inherent power is to be used only in cases where there is an abuse of the process of the Court or where interference is absolutely necessary for securing the ends of the justice. The inherent power must be exercised very sparingly as cases which require interference would be few and far between. The most common case where inherent jurisdiction is generally exercised is where criminal proceedings are required to be quashed because they are initiated illegally, vexatiously or without Criminal Misc. No. M-22102 of 2009 10 jurisdiction. Most of the cases set out herein above fall in this category. It must be remembered that the inherent power is not to be resorted to if there is a specific provision in the Code or any other enactment for redress of the grievance of the aggrieved party. This power should not be exercised against an express bar of law engrafted in any other provision of the Criminal Procedure Code. This power cannot be exercised as against an express bar in some other enactment." 8. In view of the enunciation of the principle of law, made in the aforesaid cases, the power under Section 482 Cr.P.C., cannot be exercised, in this case, as there is a specific bar created by Section 320 Cr.P.C., for the composition of offences, punishable under Sections 120-B, 363 and 366-A of the Indian Penal Code. The crime allegedly committed by the petitioner, is not only against the society, but also against the public policy. If the power under Section 482 Cr.P.C., is exercised, in such like cases, where the prosecutrix was minor, at the time of the alleged occurrence, then the petitioner, shall feel encouraged, in indulging into such like crimes. Exercise of power, under Section 482 Cr.P.C., in such like cases, will create lawlessness, in the society. The petitioner has been continuously absent and has not submitted to the jurisdiction of the investigating agency or the Court. Even the proceedings for declaring the Criminal Misc. No. M-22102 of 2009 11 petitioner, as proclaimed offender are going on. No ground, therefore, is made out, for exercising the power, under Section 482 Cr.P.C., for quashing the FIR, and the subsequent proceedings. 9. For the reasons recorded above, Criminal Misc. No. M-22102 of 2009, being devoid of merit, must fail, and the same stands dismissed. Any observation, made in this order, shall not be taken, as an expression of mind, on merits of the case. 10. Registry is directed, to comply with the order, by sending the copies thereof, to the Courts concerned. 17.02.2010 (SHAM SUNDER) Amodh JUDGE