Crl. Misc. No. M- 8131 of 2010 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Crl. Misc. No. M- 8131 of 2010 Date of decision. 27.04.2010 Kailash Kaur Ex-Sarpanch wife of Arjun Singh, r/o village Garcha, P.O. Bhore, Tehsil Kum Kalan, District Ludhiana. ....... Petitioner Versus 1.State of Punjab 2.Shukar Singh s/o Puran Singh, Ex-Sarpanch, r/o village Garcha, P.O. Bhore, Tehsil Kum Kalan, District Ludhiana. ........ Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present:- Mr. Kewal Singh, Advocate for the petitioner. Mr. T.S. Salana, DAG, for respondent no.1 -State. Mr. Vishal Sharma, Advocate for respondent no.2. -- Sham Sunder, J. This petition under Section 482 of the Code of Criminal Procedure, for quashing the First Information Report No. 37 dated 28.06.2007, under Section 409 of the Indian Penal Code, Police Station Koom Kalan, District Ludhiana,(Annexure P-1), and all the subsequent proceedings, arising therefrom, has been filed by the petitioner . Crl. Misc. No. M- 8131 of 2010 2 2. The assessment of the work, done by Smt. Kailash Kaur, Sarpanch, Gram Panchayat, Village Garcha, was made on 16.5.2007 by her, in the presence of her husband Arjan Singh, Secretary Gurtej Singh and other respectables of the village. As per the cash book, the material bought by the Sarpanch, aforesaid, was 442 bags of cement, in the sum of Rs.88130/-, 2080 feet sand, in the sum of Rs.16275/-, 640 feet concrete, in the sum of Rs.39200/-, 495 feet red sand, in the sum of Rs.5790/-, 77000 bricks, in the sum of Rs.1,56,076/-, 900 kilograms iron, rods, in the sum of Rs.23,779/-, and wheat 39.7 quintals, in the sum of Rs.19,890/- Labour charges, in the sum of Rs.48,772/-, and miscellaneous expenses in the sum of Rs.90,256/- were also incurred by her as per the cash book. During the assessment, 225 bags of cement, 1865 feet sand, 310 feet concrete, 605 feet red sand, 57300 bricks, and 405 kilograms iron rods, were found to have been bought. The labour charges of Rs.16042/- and miscellaneous expenditure including cleaning of pond of Rs.58,000/- were incurred. In this manner, Smt. Kailash Kaur mis-appropriated 217 bags of cement, in the sum of Rs.45,570/-, 215 feet sand , in the sum of Rs.1612/-, 330 feet concrete, in the sum of Rs.5940, 19700 bricks , in the sum of Rs.42709/- and 495 Kilograms iron rods , in the Crl. Misc. No. M- 8131 of 2010 3 sum of Rs.13365. She also mis-appropriated the amount in the sum of Rs.52257/-, as labour charges, and Rs.32257/- on account of miscellaneous expenditure. The total value of all the aforesaid articles was Rs.1,93,710/- and value of 97 quintals wheat was of Rs.48,500/-. This material was not available at the spot. In this way, Smt. Kailash Kaur, dishonestly mis-appropriated a sum of Rs.2,42,210/-. A sum of Rs.159711/- was shown as balance in the account of Gram Panchayat, in account No.209 in PNB. The balance in the Cooperative Bank Ludhiana, in Account No.4070 was Rs.31345/-. The total amount of both these accounts of Sarpanch Gram Panchayat Garcha, was Rs.1,91,056/-. It was further stated that instead of spending the entire amount on the development works, Smt. Kailash Kaur, Sarpanch, (petitioner), dishonestly mis-appropriated a sum of Rs.2,42,210/-. An enquiry was conducted, and, on the basis of the same, the instant FIR was registered. 3. I have heard the Counsel for the parties, and have gone through the documents on file, carefully. 4. The Counsel for the petitioner has submitted that the petitioner did not embezzle any amount, when she was Sarpanch of the village, but, on the other hand, spent the entire amount, which was received from the Crl. Misc. No. M- 8131 of 2010 4 Government, as Grant for carrying out the development work, in the village. He has further submitted that respondent no.2-complainant, being the brother-in-law of the petitioner, out of rivalry got implicated her in the present case. He has further submitted that the parties have arrived at a compromise, and the disputes have been settled. He has further submitted that if on the basis of compromise deed, (Annexure P-2), the FIR and the subsequent proceedings are quashed, it would prevent the abuse of process of Court; harassment to the parties, and create better relations, between them. 5. The Counsel for respondent no.2- complainant, has submitted that the parties have arrived at a compromise (Annexure P-2) and now there remains no dispute. He has further submitted that he has no objection, if the FIR, and the subsequent proceedings, arising therefrom, are quashed. 6. The Counsel for respondent no.1-State, however, opposed the acceptance of compromise, and quashing the proceedings, on the ground that the grant, provided by the Government, for carrying out the development work in the village was mis-appropriated by the petitioner. He has further submitted that the mere fact that there was a compromise between the petitioner, and Crl. Misc. No. M- 8131 of 2010 5 respondent no.2-complainant, the private parties, did not absolve the former, of her criminal liability. He has further submitted that the offence, under Section 409 of the Indian Penal Code, is non-compoundable. He has further submitted that if the FIR and the subsequent proceedings arising therefrom, are quashed, on the basis of compromise, then every public servant shall feel encouraged, to commit such offence. He has further submitted that if, in such like cases, the FIR and the subsequent proceedings, are quashed, then there will be complete lawlessness in the society. 7. After giving my thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, in my considered opinion, it is not a fit case, in which the FIR and the subsequent proceedings, should be quashed. 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 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 Crl. Misc. No. M- 8131 of 2010 6 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 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. Even in State of Haryana and others Vs. Ch. Bhajan Lal and others AIR 1992 Supreme Court 604 (1), it was held that in following categories 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 Crl. Misc. No. M- 8131 of 2010 7 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 every reach a just conclusion that Crl. Misc. No. M- 8131 of 2010 8 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. 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 allegations 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. 8. The inherent powers with which the Criminal Courts are clothed are to make such orders, as may Crl. Misc. No. M- 8131 of 2010 9 be necessary for the ends of justice. Though the power is unrestricted and undefined, it should not be used capriciously or arbitrarily, but should be exercised, in appropriate cases, to do real and substantial justice, for which alone the Courts exist. Now adverting to the facts of the instant case, let us see, as to whether, the petitioner deserves the indulgence of the Court or not. There are serious allegations, against the accused-petitioner, that she misused the funds, which were provided to her for carrying out the development works in the village. She not only allegedly cheated the Government, but also allegedly dishonestly mis-appropriated the funds, which were provided to her, for the purpose of development. She also allegedly forged and fabricated the records thereof. The provisions of Section 482 of the Cr.P.C. cannot be invoked, for quashing the FIR, relating to such serious offence. If, in such like cases, the FIR and the subsequent proceedings, are quashed, then there will be complete chaos in the society. Even otherwise, the offence under Section 409 of the Indian Penal Code ,allegedly committed by the accused- petitioner, is against the public policy and society. In the present case, the offence, punishable under Section 409 is non-compoundable, as per the provisions of Section 320 Cr.P.C. In Surendra Nath Mohanty and another Vs. State Crl. Misc. No. M- 8131 of 2010 10 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 the case of 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 proceedings, charged 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 State Crl. Misc. No. M- 8131 of 2010 11 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." Crl. Misc. No. M- 8131 of 2010 12 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 jurisdiction. Most of the cases set out herein above Crl. Misc. No. M- 8131 of 2010 13 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." 9. In view of the principle of law, laid down, 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 offence punishable under Section 409 IPC. If the power, under Section 482 Cr.P.C., is exercised, in such like cases, then the crime will increase manifold, and the criminals will feel encouraged. Under these circumstances, no ground, whatsoever, is made out, for exercising the power, under Section 482 Cr.P.C., for quashing the FIR, and the subsequent proceedings. 10. For the reasons recorded above, Criminal Miscellaneous No.M- 8131 of 2010, for quashing the First Information Report No.37 dated 28.06.2007, under Section 409 of the Indian Penal Code, Police Station Koom Kalan, Crl. Misc. No. M- 8131 of 2010 14 District Ludhiana, and the subsequent proceedings, arising therefrom, is dismissed. Any observation, made in this order, shall not be taken, as an expression of mind on merits of the case. 11. The Registry is directed to comply with the order immediately by sending the copies of the order to the concerned Courts immediately. April 27, 2010 (SHAM SUNDER) dinesh JUDGE