Criminal Misc. No. M-51847 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No. M-51847 of 2007 Date of Decision: 06.05.2010 Rana Inder Pratap Singh son of Rana Gurjeet Singh, resident of H. No. 53, Sector 4, Chandigarh. ... Petitioner Versus The State of Punjab. ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Rahul Sharma, Advocate, for the petitioner. Mr. T.S. Salana, Deputy Advocate General, Punjab, for the respondent – State. SHAM SUNDER, J. This petition under Section 482 Cr.P.C., for quashing the supplementary challan dated 09.09.07, filed in FIR No. 15, dated 13.02.07, under Sections 148, 171-B, 188, 307 and 427 read with Section 149 IPC and 25 of the Arms Act, 1959, Police Station Sadar, Kapurthala (Annexure P5), and all the subsequent proceedings, arising out of the same, has been filed by the petitioner. 2. The facts, in brief, are that, on 12.02.07, Lovely, a nephew of Rana Gurjit Singh, a Congress M.P., from Punjab, and Joginder Singh son of Sohan Singh, resident of village Sidhwa Dona, were canvassing for casting votes to the Congress party by offering Criminal Misc. No. M-51847 of 2007 2 allurement of money to the villagers. However, when Dalwinder Singh, complainant, being the General Secretary of Akali Dal (Badal) party of District Kapurthala, tried to desist them, from doing so, they started nursing grudge against him, as a result whereof, at around 1.00 AM, they alongwith 15-20 persons, came in four cars and knocked the main gate of his (complainant's) house. After hearing the knock, the moment, the complainant, went to the terrace of his house, Lovely nephew of Rana Gurjit Singh, started firing at him, whereas, Joginder Singh, co-accused (non-applicant), damaged his main gate with 'Dasti Takua'. When the complainant, raised alarm, all the assailants, escaped from the spot, in their respective vehicles, the numbers whereof, he could not note down. While running, from the spot, the complainant, identified Inderpratap Singh son of Gurjeet Singh Rana, petitioner, as, at the relevant time, the electricity bulb was glowing. Ultimately, the aforesaid FIR, was got registered, against the accused. 3. I have heard the Counsel for the parties, and, have gone through the documents, on record, carefully. 4. The Counsel for the petitioner, submitted that, as per the FIR, no role, was attributed, to the petitioner, in the alleged commission of crime. He further submitted that, in the FIR, the complainant, only stated, that he saw the petitioner there. He further submitted that, as per the allegations, contained in the FIR, the petitioner, was not wielding any weapon, nor did he commit any over-tact. He further submitted that, the petitioner, was found, to be Criminal Misc. No. M-51847 of 2007 3 innocent, by the Deputy Superintendent of Police, Kapurthala, during the course of inquiry/investigation vide report P2 and challan Annexure P3 was presented against other accused under Sections 148, 336, 171-B, 188, 127 & 506 read with Section 149 IPC. He further submitted that with the change of the government, re- investigation, was held, which was not permissible, under the provisions of law, wherein, the petitioner was found guilty and supplementary challan Annexure P5 was also presented against the petitioner, under Sections 148, 307, 171-B, 188 & 427 read with Section 149 IPC, and under Section 25 Arms Act, which was not permissible under law. 5. On the other hand, the Counsel for the respondent, submitted that, mere presence of the petitioner, as per the allegations, contained in the FIR, could be said to be sufficient, to come to the conclusion, that he was a member of an unlawful assembly, the common object whereof, was to make an attempt, on the life of Dalwinder Singh, complainant. He further submitted that, it was further investigation, which was held and not re-investigation, and, as such, supplementary challan against the petitioner, could be legally submitted. 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 Criminal Misc. No. M-51847 of 2007 4 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 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 Criminal Misc. No. M-51847 of 2007 5 preventing injustice, by invoking inherent powers, in the absence of specific provisions in the Statute. Before touching the allegations, contained in the complaint, it would be appropriate, to delineate the principle of law, on the point, laid down, by the Apex Court, as also of 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 Criminal Misc. No. M-51847 of 2007 6 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 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 Criminal Misc. No. M-51847 of 2007 7 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 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, Criminal Misc. No. M-51847 of 2007 8 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 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 Criminal Misc. No. M-51847 of 2007 9 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. (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 Criminal Misc. No. M-51847 of 2007 10 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:- “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 Criminal Misc. No. M-51847 of 2007 11 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 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.” Criminal Misc. No. M-51847 of 2007 12 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 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 Criminal Misc. No. M-51847 of 2007 13 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 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 Criminal Misc. No. M-51847 of 2007 14 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 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. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. The perusal of Annexure P1 FIR, clearly goes, to show, that the main allegations, were made, against Rana Hardeep Singh @ Lovely and Joginder Singh (non-applicant). According to the allegations, Rana Hardeep Singh @ Lovely (non-applicant), fired, at the complainant, with a view, to kill him, whereas, Joginder Singh, damaged the main gate with 'Takua'. It was further alleged, in the FIR that, when the complainant raised alarm, the accused escaped. It was further alleged that, when the accused, were running, from the spot, he saw the petitioner. As stated above, neither the petitioner, was allegedly Criminal Misc. No. M-51847 of 2007 15 holding any weapon of offence, nor did he allegedly cause any injury, on the person of the complainant, nor did he commit any over-tact, in the alleged commission of crime. The mere fact that, he was allegedly found standing, does not mean, that he allegedly committed any offence. The allegations, contained in the FIR, therefore, did not allegedly disclose the commission of any offence, by the petitioner. It was, under these circumstances, that an inquiry/investigation was conducted by the Deputy Superintendent of Police and he found, vide his report Annexure P2, that he was not present, at the spot, at the time of the alleged occurrence, and found him innocent. Thus, the original challan P3, was not presented against him, and he was shown, in the column of persons, in report, under Section 173 Cr.P.C., not challaned. 27. No doubt, further investigation, was held by the Deputy Superintendent of Police, on the basis of the application of Dalwinder Singh, and report Annexure P4 was submitted. Even during the course of further investigation, by the Deputy Superintendent of Police, no fresh evidence, was collected, against the petitioner, showing that he was wielding any weapon, or fire arm or that he committed any overact by exhorting his co-accused, or by causing injuries, or by firing from any fire-arm. Even the report Annexure P4 did not allegedly disclose the commission of any offence by the petitioner. Under these circumstances, submission of supplementary challan Annexure P5, against him, could be said to be nothing, but an abuse of the process of Court. The supplementary Criminal Misc. No. M-51847 of 2007 16 challan, qua the petitioner, is, thus, liable to be quashed. 28. For the reasons recorded above, the petition, is accepted. Supplementary challan dated 09.09.07, filed in FIR No. 15 dated 13.02.07, under Sections 148, 171-B, 188, 307 and 427 IPC read with Section 149 IPC, and, 25 Arms Act, Police Station Sadar Kapurthala (Annexure P5) qua the petitioner, is quashed. 29. The Registry is directed to comply with the order, by sending the copies of the judgement to the Courts concerned. 06.05.2010 (SHAM SUNDER) Amodh JUDGE