IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.M.M.O. No.38 of 2011. Judgment Reserved on: 19.05.2011 Date of decision: 23.05.2011 Devinder Kumar … …Petitioner Versus State of H.P. & Another … …Respondents Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 Yes. For the Petitioner: Ms.Vidushi Sharma, Advocate. For Respondents 1 & 2: Ms.Shubh Mahajan, Deputy Advocate General. Dev Darshan Sud,J. This petition has been preferred by the petitioner herein under Section 482 of the Code of Criminal Procedure with a prayer that FIR No.4 dated 2.8.2010, under Sections 429/120-B IPC and Section 13(2) of the Prevention of Corruption Act, 1988, registered with Police Station, Anti Corruption Zone, Shimla and the order passed by the learned Special Judge(Forest), Shimla on 2.8.1010 (Annexure P-8) summoning the accused for 15.9.2010 may be quashed. 2. Learned counsel appearing for the petitioner submits that the petitioner has not committed any 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 offence. Detailed submissions have been made by the learned counsel as to how initially in the First Information Report the name of the petitioner does not figure and lateron he has been summoned as an accused. The ground urged is that while passing the order Annexure P-8, the Court did not consider that the building has been leased out by following the proper procedure. There was a valid lease deed between the University and the petitioner. More importantly, it is urged that it is the allegation that the building was hired by the University in violation of the norms in connivance with S/Shri S.D. Sharma, O.P. Saraswat, Dr.Yogender Verma, Dr.S.K. Garg and J.B.Nadda, but these persons barring Shri S.D. Sharma have not been charged and arrayed as accused. The other accused have been left out on the ground that no prosecution sanction has been granted. Learned counsel then urges that the trial Court did not consider the fact that the FIR was registered in the year 2003 and Shri S.D. Sharma was arrested and bailed out, and at that particular point of time nobody felt the need of either arresting/arraying the petitioner as an accused. 3. In support of her contentions that the FIR is nothing but an abuse of the process of Court, learned counsel relies upon the decision of the Supreme Court in State of Karnataka vs. M.Devendrappa and another, AIR 2002 SC 671. In this case, the State of Karnataka has challenged the order passed by the learned Single 3 Judge of the High Court quashing the proceedings initiated against the respondent. After considering the ambit of the powers of the Court, on the settled principles of law the Court held:- “9. 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 quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In 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 ma/a fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged 4 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 ma/a fides against the informant are of no consequence and cannot by itself be the basis for quashing the proceeding. [See: Mrs. Dhanalakshmi vs. R. Prassnna Kumar and Ors. (AIR 1990 SC 494), State of Bihar & Anr. vs. P.P. Sharma I.A.S. & Anr. (1992 Suppl. (1) SCC 222), Rupan Deo Bajaj (Mrs.) & Anr. vs. Kanwar Pal Singh GUI & Anr. (1995(6) SCC 194), State of Kerala & Ors. vs. O.C. Kuttan & Ors. (1999(2) SCC 651), State ofU.P. vs. O.P. Sharma (1996(7) SCC 705), Rashmi Kumar (Smt.) vs. Mahesh Kumar Bhada (1997(2) SCC 397), SatuincterKaurvs. Stare (Gout. ofNCT of Delhi) and Anr. (1999(8) SCC 728), Rajesh Bajaj vs. State NCT of Delhi and Ors. (AIR 1999 SC 1216))” (p-675) 4. Ultimately, the case was remanded to the trial Court. Learned counsel also seeks sustenance from the judgment of the Supreme Court in Mohammed Ibrahim and Others vs. State of Bihar and another (2009)8 SCC 751, holding that civil disputes cannot be made the subject matter of criminal proceedings. The Court ruled:- “8. This Court has time and again drawn attention to the growing tendency of complainants attempting to give the cloak of a criminal offence to matters which are 5 essentially and purely civil in nature, obviously either to apply pressure on the accused, or out of enmity towards the accused, or to subject the accused to harassment. Criminal courts should ensure that proceedings before it are not used for settling scores or to pressurise parties to settle civil disputes. But at the same, it should be noted that several disputes of a civil nature may also contain the ingredients of criminal offences and if so, will have to be tried as criminal offences, even if they also amount to civil disputes. [See: G. Sagar Suri v. State of U.P. [2000 (2) SCC 636] and Indian Oil Corporation vs. NEPC India Ltd. [2006 (6) SCC 736]. Let us examine the matter keeping the said principles in mind.” (p-754) 5. Learned counsel then submits that in Subrata Das vs. State of Jharkhand and another, (2010)10 SCC 798, the Supreme Court reiterates:- “6. We have heard learned counsel for the parties, but find no reason to interfere with the order under challenge. It is fairly well-settled by a long line of decisions rendered by this Court that the power vested in the High Court under Section 482 Cr.P.C. can be invoked for quashing an on-going investigation, complaint or other proceedings only in cases where either there is legal power to the continuance of the proceedings such as the absence of a sanction wherever required or where averments made in the complaint or first information report even if accepted on their face value do not 6 constitute an offence or where there is no legal evidence to support the charge made against the accused. It is also fairly settled that the powers vested in the High Court under Section 482 Cr.P.C. have to be exercised sparingly and that the Court cannot be called upon to appreciate the available evidence or material with a view to find out whether the charge leveled against the accused stands proved. See Arun Shanker Shukla v. State of U.P. & Ors. AIR 1999 SC 2554, State of Punjab v. Kasturi Lal & Ors. 2004 Crl.L.J. 3866, State of Karnataka v. M. Devendrappa and Anr. (2002) 3 SCC 89 and Central Bureau of Investigation v. K.M. Sharan 2008 (4) SCC 471, State of Haryana & Ors. v. Bhajan Lal & Ors., 1992 Suppl. 1 SCC 335 and R.P. Kapur v. State of Punjab (1960) 3 SCR 388.” (p-800) 6. Two other decisions cited may also be noted. They are Iridium India Telecom Limited vs. Motorola Incorporated and Others, (2011)1 SCC 74, holding that the inherent powers of the Court are to be exercised in cases where there is a blatant miscarriage of justice. Counsel lastly relies upon a decision of the Supreme Court in Sarabjit Singh and Another vs. State of Punjab and another, AIR2009 SC 2792 to urge that once the petitioner has not been named in the FIR, calling upon him to face trial, merely because some witness during investigation has stated his name is illegal. 7 7. I have heard learned counsel for the petitioner and have gone through the record. No doubt, the petitioner pleads that the case is of a civil nature but that fact by itself is not sufficient to invoke the powers of this Court for quashing the on going proceedings. Undoubtedly, the petitioner will have a chance to submit in detail before the Court at the time of framing of charge with the material on the record that no case is made out. The examination of the documents/material on the record would undoubtedly give the petitioner a better/wider scope of examining and addressing on the material on the record to urge that no prosecution can continue. At the stage of summoning, powers under Section 482 cannot be exercised in a routine manner unless the malafides/bias is writ large or no offence is made out from prima facie reading of the material on record. A meticulous examination of the documents/evidence collected on the record cannot be undertaken by the Court as is sought to be done. 8. In these circumstances, this petition is disposed of with a direction:- (a) That it will be open to the petitioner to urge all the points as raised in this petition herein at the time of framing of charge or at any other appropriate stage before the learned trial Court. (b) The petitioner shall of-course be at liberty to urge any other point in 8 support of his contention that the proceedings are an abuse of the process of the Court. The disposal of this petition will not be deemed to have been adjudication on merits of the contentions as urged on behalf of the petitioner. Petition disposed of. May 23, 2011. (Dev Darshan Sud) (aks) Judge.