IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.2973 of 2010 1. Ram Sajjan Sah, S/o Late Laxami Sah, R/o Village- Mohammadpur near C.R.P. Camp, P.S.-Ahiyapur, District- Muzaffarpur at present Village-Kalyanpur Harauna, P.S.- Motipur, District-Muzaffarpur, 2. Raj Kishore Gupta, S/o Ram Sankar Sah, R/o Village- Siddaulia, P.S.-Rajapur, District-East Champaran at present Vill.- Kalyanpur Harauna, P.S.-Motipur, District- Muzaffarpur, 3. Anandi Devi, W/o Ram Sajjan Sah, R/o village- Kalyanpur Harauna, P.S.-Motipur, District-Muzaffarpur, 4. Rita Devi @ Rita Prasad, W/o Vishwanath Prasad, R/o Village- Kalyanpur Harauna, P.S.-Motipur, District- Muzaffarpur, 5. Usha Devi @ Munniya @ Usha Kumari, W/o Raj Kishore Gupta, R/o Village-Siddaulia, P.S.-Rajapur, District-East Champaran at present Vill.- Kalyanpur Harauna, P.S.- Motipur, District-Muzaffarpur …….. Petitioners Versus 1. The State of Bihar, 2. Nand Kishore Gupta, S/o Late Saheb Sah, R/o Village- Kalyanpur Harauna, P.S.-Motipur, District-Muzaffarpur. …….. Opp. Parties ----------- For the petitioners:- Mr. Manan Kumar Mishra, Sr. Advocate and Mr. Abhinabh Kumar Pandey, Advocate. For the State:- Mr. Jharkhandi Upadhyay, A.P.P. ------------ PRESENT: THE HON’BLE THE CHIEF JUSTICE. O R D E R (29.01.2010) Dipak Mishra, C.J.- The present application under Section 482 of the Code of Criminal Procedure has been filed for quashment 2 of the order dated 27.08.2009 passed by the learned Judicial Magistrate 1st Class, Muzaffarpur by which he has taken cognizance in respect of the offences punishable under Sections 323, 504 and 379 of the Indian Penal Code in Complaint Case No. 1042 of 2009. 2. Questioning the correctness of the order Mr. Manan Kumar Mishra, learned Senior Counsel for the petitioners submitted that the learned Magistrate has not applied his mind before taking cognizance and, in fact, has passed the order in a mechanical manner. It is urged by him that the learned Magistrate has remained oblivious of the factum that before issuing notice he has to keep in mind that issuance of notice, unless warranted, would cause hardship to the person, who has to appear in a criminal court. Learned counsel has also contended that Rule 31 of the Criminal Court Rules of the High Court of Judicature at Patna has been totally given a go-by by the court below as a result of which the order passed by him has become sensitively vulnerable. It is his further submission that the complainant is the cousin brother of the present petitioner no. 3 and the present complaint case 3 has been filed out of sheer malice with mala fide intention and, therefore, the proceeding deserves to be quashed on the anvil of the law laid down in State of Haryana & Ors. v. Bhajan Lal & Ors., (1992) Supp (1) SCC 335 : AIR 1992 SC 604 . 3 It is further proponed by Mr. Mishra that the learned Magistrate has really not appreciated the statements made by the complainant and her daughter under Section 200 of the Code of Criminal Procedure and, thus, the order has been passed in a most perfunctory manner. To bolster his submissions, he has commended me to the decisions rendered in Vijay Kumar & Anr. v. State of Bihar & Anr., 2008 (1) PLJR 723, Parminder Kaur v. State of U.P. & Anr., 2009 (7) Supreme 494, and Baijnath Jha v. Sita Ram & Anr., (2008) 8 SCC 77. 4. The singular issue that emanates for consideration is whether in the obtaining factual matrix a case has been made out for quashment of the order taking cognizance and also the proceeding initiated on the basis of the complaint filed by the respondent. Before dwelling upon the issue it is seemly to refer to certain authorities in the 4 field relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure by the High Court for quashing of the criminal proceeding as well as the order taking cognizance. 5. In Madhavrao Jiwaji Rao Scindia and others v. Sambhajirao Chandrajirao Angre and others, (1988) 1 SCC 692, the Apex Court pronounced the law on the following terms: “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 utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, 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 proceedings even though it may be at a preliminary stage.” 6. In State of Bihar v Murad Ali Khan and others, (1988) 4 SCC 655, the Apex Court laid down that the jurisdiction under Section 482 of the Code of Criminal 5 Procedure has to be exercised sparingly and with circumspection. In the said case, it has been opined that the High Court should not embark upon an enquiry whether the allegations in the complaint are likely to be established by evidence or not. 7. In State of Haryana and others v. Bhajan Lal and others, 1992 Supp (1) SCC 335, their Lordships have held in paragraphs 102 and 103 as follows: “In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. 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 F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers 6 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 F.I.R. 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 F.I.R. 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 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. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection 7 and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the F.I.R. or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice.” 8. In State of Bihar and Another v. P.P. Sharma, IAS and Another, 1992 Supp (1) SCC 222, the Apex Court has held thus: “At a stage when the police report under Section 173 CrPC has been forwarded to the Magistrate after completion of the investigation and the material collected by the Investigating Officer is under the gaze of judicial scrutiny, the High Court would do well to discipline itself not to undertake quashing proceedings in exercise of its inherent jurisdiction. In this case the High Court fell into grave error in appreciating the documents and affidavits produced before it by treating them as evidence, delving into the disputed questions of fact in its jurisdiction under Article 226/227 and pronouncing the respondents to be innocent and quashing the criminal proceedings by converting itself into a trial Court. This was not at all a case where High Court should have interfered in the exercise of its inherent jurisdiction. The appreciation of evidence is the function of the criminal courts the Special Judge was seized of the matter. He had heard the arguments on the question of cognizance and had reserved the orders. The High Court did not even permit the Special judge to pronounce the orders. The High Court, under the circumstances, could not have assumed jurisdiction and put an end to the process of 8 investigation and trial provided under the law.” 9. In Central Bureau of Investigation v. Shri Ravi Shankar Shrivastava, IAS and another, 2006 (7) SCC 188, the Apex Court, after referring to the decisions rendered in R.P. Kapur v. State of Punjab, AIR 1960 SC 866 and Bhajanlal (supra) has expressed the view as follows: “As noted above, 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. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. (See: Janata Dal v. H.S. Chowdhary and Raghubir Saran (Dr.) v. State of Bihar). It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises arrive at a conclusion that the proceedings are to be 9 quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In a proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis of quashing the proceedings. (See: Dhanalakshmi v. R. Prasanna Kumar, State of Bihar v. P.P. Sharma, Rupan Deol Bajaj v. Kanwar Pal Singh Gill, State of Kerala v. O.C. Kuttan, State of U.P. v. O.P. Sharma, Rashmi Kumar v. Mahesh Kumar Bhada, Satvinder Kaur v. State (Govt. of NCT of Delhi), Rajesh Bajaj v. State NCT of Delhi and in State of Karnataka v. M. Devendrappa.” 10 10. In State of Orissa and Another v. Saroj Kumar Sahoo, (2005) 13 SCC 540, the Apex Court opined that the High Court should not ordinarily embark upon an enquiry as to the reliability of evidence to sustain the allegations which is the function of the trial Judge. Their Lordships further held that the power under Section 482 CrPC should be exercised sparingly and it is to be exercised ex bebito justitiae, to do the real and substantial justice and not to stifle legitimate prosecution. It has also been held therein that while exercising the power under Section 482 CrPC, the High Court does not function as a court of appeal or revision and the inherent jurisdiction under the said section has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. 11. In Pepsi Foods Ltd. and Another v. Special Judicial Magistrate and others, (1998) 5 SCC 749, the Apex Court has expressed thus: “It is settled that High Court can exercise its power of judicial review in criminal matters. In State of Haryana v. Bhajan Lal, this Court examined the 11 extraordinary power under Art. 226 of the Constitution and also the inherent powers under S. 482 of the Code which it said could be exercised by the High Court either to prevent abuse of the process of any Court or otherwise to secure the ends of justice. While laying down certain guidelines where the Court will exercise jurisdiction under these provisions, it was also stated that these guidelines could not be inflexible or laying rigid formulae to be followed by the Courts. Exercise of such power would depend upon the facts and circumstances of each case but with the sole purpose to prevent abuse of the process of any Court or otherwise to secure the ends of justice. One of such guideline is 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. Under Art. 227 the power of superintendence by the High Court is not only of administrative nature but is also of judicial nature. This Article confers vast powers on the High Court to prevent the abuse of the process of law by the inferior Courts and to see that the stream of administration of justice remains clean and pure. The power conferred on the High Court under Arts. 226 and 227 of the Constitution and under S. 482 of the Code have no limits but more the power more due care and caution is to be exercised invoking these powers. When the exercise of powers could be under Art. 227 or S. 482 of the Code it may not always be necessary to invoke the provisions of Art. 226. Some of the decisions of this Court laying down principles for the exercise of powers by the High Court under Arts. 226 and 227 may be referred to.” 12 After so stating, their Lordships proceeded to opine as under:- “No doubt the Magistrate can discharge the accused at any stage of the trial if he considers the charge to be groundless, but that does not mean that the accused cannot approach the High Court under Section 482 of the Code or Article 227 of the Constitution to have the proceedings quashed against him when the complaint does not make out any case against him and still he must undergo the agony of a criminal trial ……” 12. In Pankaj Kumar v. State of Maharashtra and others, JT 2008 (8) SC 109, while taking note of the concept of speedy trial, their Lordships eventually held thus: “Tested on the touchstone of the broad principles, enumerated above, we are of the opinion that in the instant case, appellant’s constitutional right recognized under Article 21 of the Constitution stands violated. It is common ground that the First Information Report was recorded on 12th May, 1987 for the offences allegedly committed in the year 1981, and after unwarranted prolonged investigations, involving afore-stated three financial irregularities; the chargesheet was submitted in Court on 22nd February, 1991. Nothing happened till April, 19, 1999, when the appellant and his deceased mother filed criminal writ petition seeking quashing of proceedings before the trial court. Though, it is true that the plea with regard to inordinate delay in investigations and trial has been raised before us for the first time but we feel that at this distant point of time, 13 it would be unfair to the appellant to remit the matter back to the High Court for examining the said plea of the appellant. Apart from the fact that it would further protract the already delayed trial, no fruitful purpose would be served as learned Counsel for the State very fairly stated before us that he had no explanation to offer for the delay in investigations and the reason why the trial did not commence for eight long years. Nothing, whatsoever, could be pointed out, far from being established, to show that the delay was in any way attributable to the appellant. Moreover, having regard to the nature of the accusations against the appellant, briefly referred to above, who was a young boy of about eighteen years of age in the year 1981, when the acts of omission and commission were allegedly committed by the concerns 20 managed by his parents, who have since died, we feel that the extreme mental stress and strain of prolonged investigation by the Anti Corruption Bureau and the sword of Damocles hanging perilously over his head for over fifteen years must have wrecked his entire career. Be that as it may, the prosecution has failed to show any exceptional circumstance, which could possibly be taken into consideration for condoning the prolongation of investigation and the trial. The lackadaisical manner of investigation spread over a period of four years in a case of this type and inordinate delay of over eight years (excluding the period when the record of the trial court was in the High Court), is manifestly clear. Thus, on facts in hand, we are convinced that the appellant has been denied his valuable constitutional right to a speedy investigation and trial and, therefore, criminal proceedings initiated against him in the year 1987 and pending in the court of 14 Special Judge, Latur, deserve to be quashed on this short ground alone.” 13. In R. Kalyani v. Janak C. Mehta, (2009) 1 SCC 516, the Apex Court has laid down the law on the following terms: “Propositions of law which emerge from the said decisions are: (1) The High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a First Information Report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence. (2) For the said purpose, the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence. (3) Such a power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an offence, the court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus. (4) If the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue. It is furthermore well known that no hard and fast rule can be laid down. Each case has to be considered on its own merits. The Court, while exercising its inherent jurisdiction, although would not interfere with a genuine complaint keeping in view the purport and object for which the provisions 15 of Sections 482 and 483 of the Code of Criminal Procedure had been introduced by the Parliament but would not hesitate to exercise its jurisdiction in appropriate cases. One of the paramount duties of the Superior Courts is to see that a person who is apparently innocent is not subjected to persecution and humiliation on the basis of a false and wholly untenable complaint. The charge sheet, in our opinion, prima facie discloses commission of offences. A fair investigation was carried out by the investigating officer. The charge-sheet is a detailed one. If an order of cognizance has been passed relying on or on the basis thereof by the learned Magistrate, in our opinion, no exception thereto can be taken. We, therefore, do not find any legal infirmity in the impugned orders.” 14. In Devendra and others v. State of Uttar Pradesh and another, (2009) 7 SCC 495, after dealing with the scope of Section 482 of the Code of Criminal Procedure, their Lordships opined thus: “….. it is now well settled that the High Court ordinarily would exercise its jurisdiction under Section 482 of the Code of Criminal Procedure if the allegations made in the first information report, even if given face value and taken to be correct in their entirety, do not make out any offence. When the allegations made in the first information report or the evidences collected during investigation do not satisfy the ingredients of an offence, the superior courts would not encourage harassment of a person in a criminal court for nothing.” 15. Keeping in view the aforesaid pronouncements the present factual matrix has to tested, but prior to that 16 the authorities that have been commended by Mr. Mishra are required to be considered. In the case of Vijay Kumar (supra), the learned Single Judge after referring to Rule 31 of the Criminal Court Rules of the High Court of Judicature at Patna emphasised on the duty cast under the said Rule on the Magistrate. Thereafter the learned single Judge referred to the conceptual import of Section 202 of the Code of Criminal Procedure to highlight that the Magistrate should not treat the enquiry as a routine work. Thereafter, in paragraph 10 he has held as follows:- “10. Coming to the facts of the case, undeniably the parties are at the daggers drawn