Criminal Misc. No. M-2171 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No. M-2171 of 2010 Date of Decision: 29.07.2010 1. Munish Monga son of Kuldip Kumar Monga, resident of Akalsar Road, Moga, District Moga. 2. Akshit Jain son of Joginder Pal Jain, resident of Vedant Nagar, Moga, District Moga. ... Petitioners Versus State of Punjab. ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. P.S. Dhaliwal, Advocate, for the petitioners. Mrs. Ravinder Kaur Nihal Singh Wala, Additional Advocate General, Punjab, for the respondent – State. SHAM SUNDER, J. This petition under Section 482 Cr.P.C., for quashing FIR No. 46, dated 24.03.09, under Sections 120-B,205, 419 and 420 IPC, P.S. Moga, District Moga, has been filed by the petitioner. 2. Sessions Case No. 107 dated 05.05.08, titled as 'State Vs. Akshit Jain', bearing FIR No. 122 dated 10.10.07, Police Station Sadar Moga, was pending, in the Court of Mr. B.S. Sandhu, the then Additional Sessions Judge, Moga. When the statement of Harbhajan Singh, PW2, was being recorded, in the said case, it was revealed Criminal Misc. No. M-2171 of 2010 2 that, one Munish Monga son of Kuldip Kumar Monga, was present, in the dock, meant for the accused. When the witness identified him, as Akshit Jain, accused, he immediately took out his identity-card and disclosed, that he was not Akshit Jain, but, was Munish Monga. At that time, it was revealed, that actually, Akshit Jain, accused, was sitting, on one of the chairs, in the back row, meant for the advocates. He then came forward and disclosed, that, in fact, he was Akshit Jain, accused. The statements of Munish Monga, Akshit Jain, accused, and, Gurjant Singh, Naib Court, attached to the Court, were recorded, so as to elicit the explanation of Munish Monga, as to how, he was found standing, in the dock, meant for the accused, when the case, was called. He tried to put some explanation, that he was asked, by the Naib Court, to come forward, but, from the very beginning, he remained present, in the dock, meant for the accused posing himself as such. It was stated that, it was a case of impersonation. Accordingly, on the basis of a letter, sent by Mr. B.S. Sandhu, Additional Sessions Judge, Moga, to the Station House Officer, Police Station Sadar Moga, the FIR, under Sections 419, 420, 205 and 120-B IPC, was registered, against the petitioners. 3. I have heard the Counsel for the parties, and, have gone through the documents, on record, carefully. 4. The Counsel for the petitioners, submitted that, the allegations, contained in the FIR, do not constitute any criminal offence, against the petitioners. He further submitted that, as per the statement of Akshit Jain, accused, recorded by the Court of Mr. B.S. Criminal Misc. No. M-2171 of 2010 3 Sandhu, Additional Sessions Judge, Moga, Munish Monga, was his class fellow. He further submitted that, if by mistake, Munish Monga, stood in the dock, meant for the accused, in the Court, when there was too much rush, without knowing the intricacies of law or the procedure of the Court, and, when he was asked, as to whether, he was Akshit Jain, accused, he immediately clarified, that he was not Akshit Jain, accused, but, Munish Monga, and also showed his identity-card, there was no mens rea, on his part, to impersonate Akshit Jain. He has further submitted that Munish Monga accompanied Akshit Jain, accused, in the aforesaid case, to the Court, being his class-fellow to watch the proceedings. He further submitted that, even Akshit Jain, was present, in the Court, on the date fixed, but, he was sitting, on a chair, in the back row, as he was not feeling well. He further submitted that, had it been the intention of Munish Monga, to impersonate Akshit Jain, who was accused, in case FIR No. 122, dated 10.10.07, Police Station Sadar Moga, he would not have, on enquiry, from the Court, told that, he was not Akshit Jain, accused, but, was Munish Monga, and, would also not have shown his identity-card. He further submitted that, Akshit Jain, Munish Monga and Gurjant Singh, Naib Court, did not make the statements on oath. He further submitted that, under these circumstances, once there was no mens rea, as per the allegations, contained in the FIR, on the part of Munish Monga, to impersonate Akshit Jain, accused, or, Akshit Jain, to produce Munish Monga, in his place, they did not commit the offences, punishable under Criminal Misc. No. M-2171 of 2010 4 Sections 419 and 205 read with Section 120-B IPC. He further submitted that, there was no cheating with the Court, as there was no mens rea. He further submitted that continuance of the FIR and the subsequent proceedings, arising out of the same, thus, would amount to sheer abuse of process of the Court, and, cause injustice, to the petitioners. 5. On the other hand, the Counsel for the respondent – State, submitted that, Munish Monga, intentionally stood, in the dock, meant for the accused, in the Court, with a view, to impersonate Akshit Jain, who was the actual accused, in case FIR No. 122 dated 10.10.07, Police Station Sadar Moga. She further submitted that, under these circumstances, from the allegations, contained in the FIR, the offences, punishable under Sections 419, 205 and 120-B as also 420 IPC, were constituted. She further submitted that continuation of the FIR and the subsequent proceedings, would not cause any injustice, to the petitioners, nor would amount to the abuse of process of Court. 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 accepted, 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 Criminal Misc. No. M-2171 of 2010 5 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 to be clear 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 charge-sheet, do not, in law, constitute, 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. This Court, has inherent powers, under Section 482 Cr.P.C., to act ex debito justitiae, to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the Court. Inherent power under Section 482 Cr.P.C. can be exercised: (i) to give effect to an order under the Code; (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. 7. If any abuse of the process, leading to injustice, is brought to the notice of the Court, then the Court would be justified, in preventing injustice, by invoking inherent powers, in the absence of specific provisions, in the Statute. Before touching the allegations, contained in the FIR, it would be appropriate, to delineate the Criminal Misc. No. M-2171 of 2010 6 principle of law, on the point, laid down, by the Apex Court, as also by the Foreign Courts in some of the cases. Reference to the following cases, would reveal that the Courts have consistently taken the view that they must use this extraordinary power, to prevent injustice and secure the ends of justice. The English Courts have also used inherent power to achieve the same objective. It is generally agreed that the Crown Court has inherent power to protect its process from abuse. In Connelly Vs. DPP (1964), A.C. 1254, Lord Devlin stated that where particular criminal proceedings, constitute an abuse of process, the Court is empowered to refuse to allow the indictment to proceed to trial. Lord Salmon in DPP Vs. Humphrys (1977), A.C. 1, stressed the importance of the inherent power, when he observed, that it is only if the prosecution amounts to an abuse of the process of the Court, and is oppressive, and vexatious, that the Judge has the power to intervene. He further mentioned that the Court's power to prevent such abuse, is of great constitutional importance and should be jealously preserved. 8. In R.P. Kapur Vs. State of Punjab, AIR, 1960 (SC), 866, the Apex Court, summarized some categories of cases, where inherent power, can and should be exercised, to quash the proceedings: (i) where it manifestly appears that there is a legal bar against the institution or continuance of the proceedings; (ii) where the allegations, in the first information report, or complaint taken at their face value, and accepted in Criminal Misc. No. M-2171 of 2010 7 their entirety do not constitute the offence alleged; (iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge. 9. The Apex Court, in State of Karnataka Vs. L. Muniswamy and others, (1977) 2, SCC, 699, observed that the wholesome power under Section 482 Cr.P.C. entitles the High Court, to quash a proceeding, when it comes to the conclusion, that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The High Courts have been invested with inherent powers, both in civil and criminal matters, to achieve a salutary public purpose. A Court proceeding, ought not to be permitted, to degenerate into a weapon of harassment or persecution. The Court observed, in that case, that ends of justice were higher than the ends of mere law, though justice must be administered, according to the laws framed by the Legislature. This case has been followed, in a large number of subsequent cases of this Court, and other Courts. 10. In Chandrapal Singh & others Vs. Maharaj Singh & another, (1982) 1, SCC, 466, in a landlord and tenant dispute where the criminal proceedings had been initiated, the Apex Court observed, in para 1 at page 467 as under:- “A frustrated landlord after having met his waterloo in the hierarchy of Civil Courts, has further enmeshed the tenant in a frivolous criminal Criminal Misc. No. M-2171 of 2010 8 prosecution which prima facie appears to be an abuse of the process of law. The facts when stated are so telling that the further discussion may appear to be superfluous.” 11. The Apex Court noticed that the tendency of perjury was very much on the increase. Unless the Courts come down heavily, upon such persons, the whole judicial process would come to ridicule. The Court also observed that chagrined and frustrated litigants, should not be permitted to give vent to their frustration, by cheaply invoking the jurisdiction of the Criminal Court. 12. The Apex Court, in Madhavrao Jiwajirao Scindia & others Vs. Sambhajirao Chandrojirao Angre & others, 1988(1), RCR (Criminal), 565 : (1988) 1, SCC, 692, observed in para 7 as under:- “7. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the Court cannot be utilized for any oblique purpose and where in the opinion of the Court chances of an ultimate conviction is bleak, and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may while taking into consideration the special facts of a case also quash the proceeding even though it may be Criminal Misc. No. M-2171 of 2010 9 at a preliminary stage.” 13. In State of Haryana & others Vs. Bhajan Lal & others, 1991(1), RCR (Criminal), 383 : 1992 Supp. (1), SCC, 335, the Apex Court, in the backdrop of interpretation of various relevant provisions of the Cr.P.C. under Chapter XIV and of the principles of law, enunciated by it, in a series of decisions, relating to the exercise of the extraordinary power under Article 226 of the Constitution of India or the inherent powers under Section 482 Cr.P.C. gave the following categories of cases, by way of illustration, wherein, such power could be exercised, either to prevent the abuse of the process of the Court or otherwise to secure the ends of justice. Thus, the Apex Court, made it clear, that it may not be possible, to lay down, any precise, clearly defined and sufficiently channelized and inflexible guidelines, or rigid formulae, and to give an exhaustive list to myriad kinds of cases, wherein such power should be exercised :- (i) 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. (ii) 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-2171 of 2010 10 (iii)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. (iv)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. (v) 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. (vi)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 of the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (vii)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.” 14. The Apex Court, in Janata Dal Vs. H.. Chowdhary & others, (1992)4, SCC, 305, observed thus:- Criminal Misc. No. M-2171 of 2010 11 “132. The criminal Courts are clothed with inherent power to make such orders, as may be necessary, for the ends of justice. Such power though unrestricted and undefined should not be capriciously or arbitrarily exercised, but should be exercised in appropriate cases, ex debito justitiae to do real and substantial justice for the administration for which alone the Courts exist. 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. Courts must be careful to see that its decision in exercise of this power is based on sound principles.” 15. In G. Sagar Suri & another Vs. State of U.P. & others, 2000(1), RCR (Criminal), 707 : (2000) 2, SCC, 636, the Apex Court observed that it is the duty and obligation of the Criminal Court, to exercise a great deal of caution, in issuing the process, particularly, when the matters are essentially of civil nature. 16. The Apex Court, in Roy V.D. Vs. State of Kerala, 2000(4), RCR (Criminal), 762 : (2000) 8, SCC, 590, observed thus:- “18. It is well settled that the power under Section 482 Cr.P.C. has to be exercised by the High Court, inter alia, to prevent abuse of the process of any Court or otherwise to secure the ends of justice. Where criminal proceedings are initiated based on illicit material collected on search and arrest which are per se illegal and vitiate not only a conviction and sentence based on such material but also the trial itself, the proceedings cannot be allowed to go on as it cannot but amount to Criminal Misc. No. M-2171 of 2010 12 abuse of the process of the Court; in such a case not quashing the proceedings would perpetuate abuse of the process of the Court resulting in great hardship and injustice to the accused. In our opinion, exercise of power under Section 482 Cr.P.C., to quash proceedings in a case like the one one hand, would indeed secure the ends of justice.” 17. The Apex Court, in Zandu Pharmaceutical Works Ltd. & others Vs. Mohd. Sharaful Haque & another, 2004(4), RCR (Criminal), 937 : 2005(1) Apex Criminal 74 : (2005) 1, SCC, 122, observed thus:- “It would be an abuse of process of the Court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers, Court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of Court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the Court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.” 18. In Indian Oil Corporation Vs. NEPC India Ltd. & others, 2006(3), RCR (Criminal), 740 : 2006(2), Apex Criminal, 637 : (2006) 6, SCC, 736, the Apex Court, again cautioned about a growing tendency, in business circles, to convert purely civil Criminal Misc. No. M-2171 of 2010 13 disputes into criminal cases. The Court noticed the prevalent impression, that civil law remedies are time consuming, and do not adequately protect the interests of lenders/creditors. The Court further observed that any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure, through criminal prosecution, should be deprecated and discouraged. 19. In Inder Mohan Goswami & another Vs. State of Uttaranchal & others, 2007(4), RCR (Criminal), 548 : 2007(5), RAJ, 451 : AIR, 2008, SC, 251, the Apex Court, examined the scope and ambit of Section 482 of the Criminal Procedure Code. The Apex Court in the said case, observed that inherent powers, under Section 482, should be exercised, for the advancement of justice. If any abuse of the process, leading to injustice is brought to the notice of the Court, then the court would be fully justified, in preventing injustice, by invoking inherent powers. 20. In Anil Mahajan Vs. Bhor Industries Ltd. and another, (2005), 10, SCC, 228, the Apex Court, held that, if the dispute, is, with regard to the non-payment of price, and no dishonest intention, at the initial stage of transaction, was established, then it could be said, to be a dispute relating to the breach of contract, falling within the ambit of civil dispute, and not a criminal offence of cheating. The Apex Court, thus, quashed the proceedings. 21. In B. Suresh Yadav Vs. Sharifa Bee & another, AIR, 2008 (SC), 210, a criminal case, under Section 420 of the Indian Penal Code, was filed, on the ground, that the accused vendor, by dishonest Criminal Misc. No. M-2171 of 2010 14 concealment of facts, before execution of the sale deed, in favour of the complainant, surreptitiously demolished structure, standing on the land sold to him (complainant). Civil suit, with regard to the same matter, was already pending. Under these circumstances, it was held that, no criminal offence, was made out. The proceedings, were ultimately quashed. 22. In All Cargo Movers (I) Pvt. Ltd. Vs. Dhane Badarmal Jain & another, AIR, 2008 (SC), 247, it was held, that the allegation, contained in the complaint, did not constitute any criminal offence, but, on the other hand, only gave rise to the civil dispute. Ultimately, the proceedings were set aside. 23. In S.K. Alagh Vs. State of Uttar Pradesh and others, (2008) 5, SCC, 662, it was held, that under Sections 405 and 406 of the Indian Penal Code, relating to the offences of criminal breach of trust, vicarious liability, could not be fastened on the Managing Director, Directors or other officers of a Company, which was accused of the commission of offence, under Section 406 of the Indian Penal Code. It was further held that, in that case, the allegations, contained in the complaint, even if, assumed to be correct, in its entirety, did not disclose the offence, punishable under Section 406 of the Indian Penal Code. Ultimately, the criminal proceedings were quashed. 24. In Maksud Saiyed Vs. State of Gujarat and others, (2008) 5, SCC, 668, the Magistrate ordered the Police investigation, under Section 156 (3) Cr.P.C., without applying mind, to the facts and Criminal Misc. No. M-2171 of 2010 15 circumstances of the case. The Magistrate, did not consider the bonafide mistake of the respondent Directors, in publishing the prospectus of the company. Thus, it was held, that no criminal offence, was made out, and the proceedings were quashed. 25. In Hindustan Steel Works Construction Ltd. Vs. Tarapore & Co. and another, (1996) 5, SCC, 34, it was held, that a bank guarantee, is an independent and distinct contract, between the bank and the beneficiary, and is not qualified by the underlying transaction, and the primary contract, between the person, at whose instance the bank guarantee, is given, and the beneficiary. 26. Keeping in view the principle of law, laid down, in the aforesaid cases, now let us see, as to whether, the allegations, contained in the FIR, in the instant case, constituted any criminal offence. The bare perusal of the allegations, contained in the FIR, in my considered opinion, do not constitute any of the offences, referred to above. Had, Akshit Jain, been not present, in the Court, at the time, when case FIR No. 122 dated 10.10.07, Police Station Sadar Moga, pending, in the Court of Mr. B.S. Sandhu, Additional Sessions Judge, Moga, was called, it would have certainly been said that Munish Monga, impersonated him, by standing, in the dock, meant for the accused. Not only this, as stated above, when Harbhajan Singh, PW2, identified Munish Monga, as Akshit Jain, accused, and the Court, asked him, as to whether, he was Akshit Jain, he voluntarily answered, that he was not Akshit Jain, but, Munish Monga, and, also showed his identity-card. The mere fact, that Criminal Misc. No. M-2171 of 2010 16 Akshit Jain, accused, was sitting on a chair, in the Court room, did not mean, that he hatched a conspiracy with Munish Monga, so as to enable him (Munish Monga), to impersonate him. In Fakhruddin Ahmed Vs. State of Uttranchal and Ors.