IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.M.M.O. No.61 of 2011. Date of decision:02.05.2011 Surjeet Gupta & Another … …Petitioners Versus State of H.P. … …Respondent Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 Yes. For the Petitioner: Mr.Ajay Mohan Goel, Advocate. For the Respondent: Ms.Shubh Mahajan, Deputy Advocate General. Dev Darshan Sud,J. This petition has been instituted under Section 482 of the Code of Criminal Procedure praying that Complaint No.107/10 of 2009, titled: State of H.P. vs. Qimat Rai Gupta and Others, instituted under Section 92 of the Factories Act, 1948 (Annexure P-1) pending in the Court of Judicial Magistrate Ist Class, Court No.II, Nalagarh, may be quashed and set aside. 2. A number of grounds have been taken in the petition. The primary ground urged is that the respondents themselves accept the compliance with the provisions of the Act and in these circumstances, the 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 question of prosecution does not arise. Learned counsel appearing for the petitioners submits that on each occasion when notice has been issued by the authorities, compliance has been reported which compliance infact has been accepted by the respondents. In this eventuality, continuation of the proceedings against the petitioners is nothing but an abuse of the process of Court. 3. Learned counsel places reliance to the judgment of the Supreme Court in Suryalakshmi Cotton Mills Limited vs. Rajvir Industries Limited and Others, (2008)13 SCC 678. In that case, the Supreme Court held:- “17. The parameters of jurisdiction of the High Court in exercising its jurisdiction under Section 482 of the Code of Criminal Procedure is now well settled. Although it is of wide amplitude, a great deal of caution is also required in its exercise. What is required is application of well known legal principles involved in the matter. (p-685) 4. Learned counsel also places reliance on the decision in K.L.E. Society and Others vs. Siddalingesh, (2008)4 SCC 541 reiterating the same principle. In this case, the Supreme Court held:- “8. “6. Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The Section 3 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 abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High Courts. 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 the 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). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by 4 the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. 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. 7. In R. P Kapur v. State of Punjab (AIR 1960 SC 866) this Court summarized some categories of cases where inherent power can and should be exercised to quash the proceedings: (AIR para 6) (i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction; (ii) where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged; (iii) where the allegations constitute an offence, but there is no legal 5 evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge. 8. In dealing with the last case, 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 clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would 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. That is the function of the trial Judge. Judicial process should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death. The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lai (]992 Supp (1)335). A note of caution was, however, added that 6 the power should be exercised sparingly and that too in rarest of rare cases. The illustrative categories indicated by this Court are as follows : (SCC pp 378-79, para 102) "102(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 7 the proceedings and/or where there is a specific provision in the Code or 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." (pp-544-546) 5. Learned Deputy Advocate General submits that no two cases are alike and that the Supreme Court time and again sounds word of caution for exercise the powers under Section 482. Reliance is placed in judgment of the Supreme Court in State of Karnataka and another vs. Pastor P.Raju, (2006)6 SCC 728 to urge that the powers of the Court are circumscribed and can be exercised only if there is miscarriage of justice. Learned counsel has also referred to the decisions of the Supreme Court in Mohammed Ibrahim and Others vs. State of Bihar and Another, (2009)8 SCC 751, Subrata Das vs. State of Jharkhand and Another, (2010)10 SCC 798 and Iridium India Telecom Limited vs. Motorola Incorporated and Others, (2011)1 SCC 74. I need not notice more precedent as the principle by now is well settled that it is only to prevent the abuse of the process of Court/law that these powers are to be exercised. 6. Prior to the present petition, Cr.M.M.O. No.140 of 2010 was instituted in which the name of two 8 of the accused Qimat Rai Gupta and Surender Thakur were directed to be deleted as statutorily a complaint could not be maintained against them for the reasons set out in that judgment. 7. Learned counsel for the petitioner submits with vehemence and skill that that very order is itself a clear pointer/indicator to establish that the learned trial Court has issued process without application of mind and that even if detailed reasons are not required to be given in a summoning order, it must be in concord with the material on the record which indicates the complicity of the accused. He submits that the acknowledgements of compliance of various directions/orders, made by the complainant on the record, would show that no offence having been made out. 8. At this stage, I do not intend to undertake a detailed examination of the evidence on record. Suffice it to say that if the complainant has withheld important material inter alia arising from the show cause notices/ communications exchanged between the parties, which exonerates the petitioner from any wrong doing, that would be a matter of evidence before the trial Court and this Court need not spell out in detail as to what would be the consequences for the complainant. The petitioner of-course would be acquitted by the Court and it is not powerless to take 9 appropriate action including award of exemplary costs for initiation of frivolous complaints. 9. At this stage for me to go into all the finer details would be undertaking a meticulous examination of the evidence which I do not intend to undertake at this stage. For this reason, this petition is dismissed. May 2, 2011 (Dev Darshan Sud) (aks) Judge.