Crl. Misc. No. M-20140 of 2009 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Crl. Misc. No. M- 20140 of 2009 Date of decision. 03.03.2010 1. Rajesh Kumar s/o Sansar Chand, permanent r/o H.No.B4/677, Dashmesh Nagar, Malerkotla at present r/o Vicenza , Italy. 2. Seema Rani w/o Rajesh Kumar r/o H.No. B4/677, Dashmesh Nagar, Malerkotla, District Sangrur. ....... Petitioners Versus State of Punjab ........ Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present:- Mr. P.R. Yadav, Advocate for Mr. Gurmail Singh, Advocate for the petitioners. Mr. T.S. Salana, DAG, Punjab for the respondent. -- Sham Sunder, J. This petition under Section 482 of the Code of Criminal Procedure, for quashing the First Information Report No. 107 dated 24.03.2004, under Sections 193, 205, 209, 419, 465, 468, 471 and 120-B of the Indian Penal Code, Police Station Kotwali, Sangrur, Jalandhar, and also the subsequent proceedings, arising out of the same qua the petitioners, has been filed by the petitioners. 2. A divorce petition titled as Seema Rani Crl. Misc. No. M-20140 of 2009 2 v. Rajesh Kumar son of Sansar Chand, was received by entrustment in the Court of Mr. Virender Kumar, the then Additional District & Sessions Judge, Sangrur, from the Court of the District Judge, Sangrur, which was registered as HMA No.9 dated 10.02.2004. The Counsel for the petitioner, in that case, was Shri D. Sharda, Advocate, (attested copy of the divorce petition accompanying affidavit and the power of attorney were attached with the divorce petition). Rajesh Kumar, husband, in that divorce petition, was directed to be summoned for 5.3.2004. On 5.3.2004 he did not come present, despite service, wherein he was ordered to be proceeded against ex-parte and the case was adjourned to 19.03.2004, for ex-parte evidence of the petitioner-wife. 3. In between on 10.03.2004, real Seema Rani wife of Rajesh Kumar, appeared in the Court, and moved an application stating therein, that she was Seema Rani, wife of Rajesh Kumar, respondent. She further stated that she neither filed a divorce petition, nor she ever came to the Court, nor she ever went to any Oath Commissioner for swearing any affidavit. She further stated, in that application, that her husband, who was residing in Italy and was at that time in India, had an affair with some Italian lady and in order to get divorce from her (Seema Rani), and Crl. Misc. No. M-20140 of 2009 3 to perform marriage with that Italian girl, had produced some impostor and had got filed the divorce petition against himself, from that impostor and got himself proceeded against ex-parte It was further stated that, in this manner, Rajesh Kumar, her husband wanted to get decree of divorce fraudulently. 4. The statement of real Seema Rani was recorded by the Court of Additional Sessions Judge, and the same was sealed. Shri D. Sharda, Advocate, appeared in the Court and made statement for withdrawal of the divorce petition, when real Seema Rani, wife of Rajesh Kumar, was present. 5. It was stated that Rajesh Kumar, got filed the said divorce petition against himself from some impostor projecting her as Seema Rani and thus, conspiring with each other, committed fraud with the Court by impersonation as well as with his real wife. Accordingly, a complaint was sent by the Additional District & Sessions Judge, Sangrur, to the Station House Officer, Police Station Kotwali, Sangrur, Jalandhar, on the basis whereof, the formal First Information Report was registered. Ultimately, the challan against the accused, aforesaid, was presented. 6. I have heard the Counsel for the parties, and have gone through the documents on record, Crl. Misc. No. M-20140 of 2009 4 carefully. 7. The Counsel for the petitioners has submitted that, on account of mis-understanding, the petition for divorce was got filed by Rajesh Kumar, petitioner no.1, in the Court of District Judge, Sangrur from some Seema Rani. He has further submitted that son of the petitioner has been staying with him in VICENZA Italy , for the last two years, and he in pursuing computer course in Italy itself. He has further submitted that the daughter of the petitioners has also joined her father in Italy. He has further submitted that Seema Rani, petitioner no.2, will also be moving to Italy to join her husband and children. He has further submitted that Seema Rani, petitioner no.2, was having no grievance against petitioner no.1. He has further submitted that the FIR, in question, and the subsequent proceedings arising therefrom, be quashed. 8. The Counsel for the respondent, in reply, as also at the time of arguments, has submitted that petitioner no.1, committed fraud with the Court as also with actual Seema Rani, by getting filed a false divorce petition from one fake Seema Rani and got himself proceeded against ex-parte, so as to obtain decree of divorce, to enable him to perform second marriage with another lady, residing in Italy. He has further submitted that Rajesh Crl. Misc. No. M-20140 of 2009 5 Kumar, petitioner no.1. had been absconding and could not be arrested and, ultimately, he was declared proclaimed offender on 1.3.2005 by the Court of Chief Judicial Magistrate, Sangrur. He has further submitted that instead of submitting himself to the jurisdiction of the Court, petitioner no.1, threw the provisions of law, to the winds, and absconded. He has further submitted that even if the compromise had been arrived, at between the parties, the FIR and the subsequent proceedings, arising therefrom could not be quashed as petitioner no.1 committed the offences against the Court of justice, as also absconded and had not yet been arrested. 9. After giving my thoughtful consideration, to the rival contentions, raised 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 Crl. Misc. No. M-20140 of 2009 6 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 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 Crl. Misc. No. M-20140 of 2009 7 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 prudgent Crl. Misc. No. M-20140 of 2009 8 person can every 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. 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 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. Crl. Misc. No. M-20140 of 2009 9 10. The inherent powers with which the Criminal Courts are clothed are to make such orders, as may 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. The power, under Section 482 Cr.P.C., can be exercised only in the rarest of rare cases. Section 482 Cr.P.C., provides an extra- ordinary remedy, which can be invoked only in exceptional circumstances. The power under Section 482 Cr.P.C., cannot be exercised, when there is an express bar created by any provision of the Cr.P.C., or any other Statute. In the present case, the offences, punishable under Section 465, 468 and 471 of IPC are non-compoundable, as per the provisions of Section 320 Cr.P.C. 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 the case of Inspector of Police Vs. B. Raja Gopal and Crl. Misc. No. M-20140 of 2009 10 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 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. Crl. Misc. No. M-20140 of 2009 11 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." 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 Crl. Misc. No. M-20140 of 2009 12 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 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 Crl. Misc. No. M-20140 of 2009 13 provision of the Criminal Procedure Code. This power cannot be exercised as against an express bar in some other enactment." 11. 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 composition of the offences, punishable under Section 465, 468 and 471 IPC. Not only this, an accused, who has been declared proclaimed offender by the Court below, on 01.03.2005 and is still at large, by no stretch of imagination, deserves the indulgence of the Court, in exercise of the power, under Section 482 Cr.P.C. He, instead of submitting himself to the jurisdiction of the trial Court, and participating in the proceedings, has tried to wriggle out of the clutches of law, by over-reaching this Court, by resorting to the extra- ordinary remedy under Section 482 Cr.P.C. If petitioner no.1, who has thrown the provisions of law, to winds, by breaching the same, with impunity, and considers himself, beyond the reach of law, is shown indulgence, in exercise of the power, vested in this Court, under Section 482 Cr.P.C., then every perpetrator of crime, will feel encouraged, not to abide by the rule of law, and, ultimately, after a very long spell of absence, from the criminal proceedings, in the trial Crl. Misc. No. M-20140 of 2009 14 Court, against him, by invoking the inherent power of the Court, would make the mockery of law. Even petitioner No. 1 committed the offences against the Court of Justice If the power, under Section 482 Cr.P.C., is exercised, in such like cases, then there will be complete lawlessness in the society. 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. 12. The Counsel for the respondent, however, placed reliance on Rajinder Singh alias Rajinder Kumar Vs. State of Haryana and Another, 2003(1) RCR (Criminal), 123, a case decided by a single Bench of this Court. The perusal of the facts of the aforesaid case, clearly goes to show, that the accused, in that case, was a proclaimed offender. The Court specifically held, therein, that a proclaimed offender, could not be granted indulgence, but, keeping in view the peculiar facts and circumstances, prevailing therein, the FIR and the subsequent proceedings were quashed. Since that case was decided, on the peculiar facts and circumstances, prevailing therein, no help can be drawn, by the Counsel for the petitioners, therefrom. 13. For the reasons recorded above, petition under Section 482 Cr.P.C., for quashing the First Crl. Misc. No. M-20140 of 2009 15 Information Report No. 107 dated 24.03.2004, under Sections 193, 205, 209, 419, 465, 468, 471 and 120-B of the Indian Penal Code, Police Station Kotwali, Sangrur, Jalandhar, 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. 14. The Registry is directed to comply with the order immediately. 03.03.2010 (SHAM SUNDER) dinesh /preeti JUDGE