Crl. Misc. No. M-14659 of 2008 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Crl. Misc. No. M- 14659 of 2008 Date of decision. 31.03.2010 Harbans Singh s/o Munsha Singh, village Dadwan, Police Station Dhariwal, District Gurdaspur. ....... Petitioner Versus State of Punjab ........ Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present:- Mr. Rakesh Pandey, Advocate for the petitioner. Mr. T.S. Salana, DAG, for the respondent -State. -- Sham Sunder, J. This petition under Section 482 of the Code of Criminal Procedure, for quashing the First Information Report No.109 dated 24.08.2006, under Sections 420, 467, 468, and 471 of the Indian Penal Code, Police Station Dhariwal, District Gurdaspur, and all the subsequent proceedings, arising therefrom, has been filed by the petitioner . Crl. Misc. No. M-14659 of 2008 2 2. Criminal complaint No.101 dated 28.7.1997, titled as “Harbans Singh v. Shazada Gas Services and another”, under Section 138 of the Negotiable Instruments Act, for dishonour of the cheque bearing No. 0073740, was filed. The Court concerned acquitted the accused. While acquitting the accused, the concerned Court, observed that the petitioner had fabricated the signatures of the accused,( Rakesh Kumar) on the cheque, referred to above. He sent the matter to the Station House Officer for the registration of case. On the basis of said letter, FIR, aforesaid, was registered. 3. I have heard the Counsel for the parties, and have gone through the record, of the case, carefully. 4. The Counsel for the petitioner has submitted that no specific finding was recorded by the Court below that the said cheque was forged. He has further submitted that in para Nos.24 and 25, vide judgment, (Annexure P-1), the trial Court observed that the previous antecedents of the petitioner was bad and the enquiry be conducted by the Sessions Judge. He further submitted that the inquiry, which was going on, in the Court of Sessions, was stayed. He has further submitted that even an appeal against acquittal, has already been filed. Crl. Misc. No. M-14659 of 2008 3 5. On the other hand, the Counsel for the respondent, has submitted that in the judgment of acquittal, it was in clear-cut terms held by the Court of Judicial Magistrate Ist Class, Gurdaspur that the signatures on the cheque, which was dishonoured, was forged by the complainant (now petitioner). He has further submitted that the Magistrate was competent to get a case registered against the petitioner. He has further submitted that the continuation of FIR and the subsequent proceedings shall not amount to abuse of the process of the Court. 6. 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 the evidence or not. That is the function of the trial Magistrate, when the Crl. Misc. No. M-14659 of 2008 4 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-14659 of 2008 5 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 Crl. Misc. No. M-14659 of 2008 6 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. 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-14659 of 2008 7 7. 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. Admittedly, a complaint under Section 138 of the Negotiable Instruments Act read with Section 420 of the Indian Penal Code against Shahzada Gas Service Gurdaspur through its Manager Rakesh Kumar, was filed by Harbans Singh. While acquitting Rakesh Kumar, in that case, the Learned Magistrate, came to the conclusion that the petitioner had in fact forged the signatures of Rakesh Kumar, on the said cheque. It was, thereafter, that the Court concerned, got registered a case. An enquiry was also going on in the Court of Sessions Judge. The mere fact that the proceedings in the enquiry before the Sessions Judge, were stayed by this Court, did not at all have any effect on the merits of the case. Even the civil suit, filed by the petitioner and the result thereof, did not have any effect on the criminal proceedings, Crl. Misc. No. M-14659 of 2008 8 which were instituted at the behest of the Judicial Magistrate Ist Class, who acquitted Rakesh Kumar. At the time of deciding the petition under Section 482 Cr.P.C., the Court is only required to go into the allegations, contained in the FIR and the documents, attached therewith. The Court is not required to take into consideration the probable defence of the accused. The probable defence, which may be available to the accused/petitioner, can only be taken, during the course of trial of the case. The proceedings under Section 482 of the Code of Criminal Procedure, are summary, in nature and, as such, the disputed facts cannot be adjudicated upon in the same. 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. 8. For the reasons recorded above, petition under Section 482 Cr.P.C., for quashing the First Information Report No. 109 dated 24.08.2006, under Sections 420, 467, 468 and 471 of the Indian Penal Code, Police Station Dhariwal, District Gurdaspur, 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. Crl. Misc. No. M-14659 of 2008 9 9. The Registry is directed to comply with the order immediately. 31.03.2010 (SHAM SUNDER) dinesh JUDGE