Case: HIMACHAL PRADESH CRICKET ASSOCIATION &amp; ANR Vs. STATE OF HIMACHAL PRADESH &amp; ORS

be harassed unnecessarily. If the trial is allowed to linger when prima facie it appears to the Court that the trial could likely to be ended in acquittal. It is, for this reason, principle which is laid down by catena of judgments is that the power is to be exercised by the High Court either to prevent abuse of process of any court or otherwise to secure the ends of justice. However, whenever it is found that the case is coming within the four corners of the aforesaid parameters, the powers possessed by the High Court under this provision are very wide. It means that the Court has to undertake the exercise with great caution. However, the High Court is not to be inhibited when the circumstances warrant exercise of such a power to do substantial justice to the parties. This provision has been eloquently discussed in Bhajan Lals case which has become locus classicus. Principle Nos. (i) and (ii) of Indian Oil Corporation are, therefore, become applicable. The entire subject matter has been revisited in a recent judgment in Vineet Kumar and some of the discussion therein which takes note of earlier judgments is reproduced below: 26. A three-Judge Bench in State of Karnataka v. M. Devendrappa [State of Karnataka v. M. Devendrappa, 2002 3 SCC 89 : 2002 SCC (Cri) 539 ] had the occasion to consider the ambit of Section 482 CrPC. By analysing the scope of Section 482 CrPC, this Court laid down that authority of the Court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice the Court has power to prevent abuse. It further held that 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. The following was laid down in para 6: (SCC p. 94) 6. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide 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. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. 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. 27. Further in para 8 the following was stated: (Devendrappa case [State of Karnataka v. M. Devendrappa, 2002 3 SCC 89 : 2002 SCC (Cri) 539 ] , SCC p. 95) 8. Judicial process should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death. The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp1 SCC 335 : 1992 SCC (Cri) 426 ]. In the instant case, the High Court simply noted those judgments which put a note of caution in exercising the powers under Section 482 Cr.P.C. to quash such proceedings and dismissed the petition with a shallow examination of the case, thereby glossing over the material facts (which are noted hereinabove) and failing to examine that these pertinent aspects were sufficient to demonstrate that no criminal case was made out, particularly when all the concerned officers, who had taken the decision, were let off on the ground that they had not committed any wrong. 47. As far as Writ Petition (Criminal) No. 135 of 2017 is concerned, the appellants came to this Court challenging the order of cognizance only because of the reason that matter was already pending as the appellants had filed the Special Leave Petitions against the order of the High Court rejecting their petition for quashing of the FIR/Chargesheet. Having regard to these peculiar facts, writ petition has also been entertained. In any case, once we hold that FIR needs to be quashed, order of cognizance would automatically stands vitiated.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]32. Before we undertake the exercise of deliberating on the arguments of the counsel for the parties and reach our conclusions, it would be in the fitness of things to recapitulate the events in brief with focus on the allegations of alleged criminality which have been fastened upon the appellants and others. Appellant No. 1 was initially registered as a Society under the Societies Registration Act, 1860 in the year 1990. It is now a not for profit company incorporated under Section 25 of the Companies Act, 1956. One of the allegations pertains to the so-called illegalities committed in the conversion of the society into deemed company under Section 25 of the Companies Act, 1956. Be that as it may, the Society, after its formation, had applied for land at Village Mauja and Tehsil Dharamshala, District Kangra for construction of an international cricket stadium. A proper lease was executed between appellant No. 1 and the State of Himachal Pradesh through Director, Himachal Pradesh Youth Services and Sports Department. It happened more than 16 years ago. In respect of this lease, the allegation is that it was executed at a monthly rent of Re.1/- which was allegedly done to favour the appellants. Admittedly, proviso to Rule 8 of the Rules empowers the State Government to adopt such a course and decision to this effect was taken after due deliberations at a very high level, keeping in view the necessity of such a stadium in the State, which did not have any cricket stadium.33. After the allotment of the land to appellant No. 1, it constructed cricket stadium thereupon. Appellant was desirous of making a world-class cricket stadium which could host international cricket matches as well. For this purpose, it submitted proposal to the ICC. The ICC got the stadium and playground inspected through Mr. Alan Hurst, its match referee. He inspected the stadium and submitted his report dated September 20, 2007. The venue was not approved, at that stage, for hosting international matches. A perusal of the report submitted by the said referee would disclose that there were no adequate hotel facilities in the area and, therefore, tour support was lacking. Two hotels were shown to Mr. Hurst and it was found by him that each of them were at substantial distance from the ground. Moreover, the facilities in the said hotels were also not adequate. Notwithstanding the same, insofar as the cricket ground is concerned, the match referee had lauded it for its quality and settings. It can be seen from the general comments/recommendations/conclusions in his report and the relevant portion whereof reads as under:This ground has one of the best settings imaginable. The people involved in its development have been innovative and are passionate and visionary. They have done a great job so far in getting this ground to where it is and should be congratulated and encouraged. I have no doubt that with adequate finances, in the near future, this ground can become one of the best in the country. The idea of having a hotel as an integral part of the ground with dual use as corporate boxes during games is not new, however, the circular restaurant planned for the top, with 360 deg views of the Himalayas and surrounding area will make it unique. Having said this, I believe that at this stage there is still a lot of work to be done that relates to its suitability for staging International cricket. I am informed that sufficient finance has recently been obtained to complete everything, and further work is now underway. I have listed below the issues I still have concerns with and things that need to be changed. If all of these things are addressed, I would have no hesitation in recommending this ground as suitable as an International ODI venue. The administrators have ensured me that all of these things will be addressed with urgency. They are extremely keen to get into the BCCI ground rotation system as soon as possible.34. It is clear from the above that Mr. Hurst was of the view that the cricket ground at this picturesque place with scenic beauty can be transformed into one of the best cricket grounds in the country, which would be suitable for international events if the deficiencies pointed out therein are taken care of. Apart from providing other facilities to improve the infrastructure (which could be easily taken care of), main concern was to have a hotel as an integral part of the ground with the dual use as corporate boxes during the game. Because of the above, appellant No.1 felt need to construct a club house on the lease land and also seek allotment of some other land for the purpose of construction of a hotel, keeping in view the observations contained in the aforesaid inspection report. Accordingly, it sent request for promotion to construct a club house on the lease land which was accorded by respondent No.1 through Directorate of Youth Services and Sports on June 23, 2008 subject to completing all the formalities.36. Pertinently, insofar as this lease deed is concerned, since the land was to be used for commercial purpose, namely, the club house, it provided rental at commercial rate i.e. the market rate which the appellant No.1 was supposed to pay. After the execution of the lease, club house was constructed and the Town and Country Planning Department, Dharamshala also issued No Objection Certificate for the use of part of infrastructure of cricket stadium as club house for cricket activities. It is also pertinent to mention that Principal Secretary (Revenue), Government of Himachal Pradesh issued no objection for execution of supplementary lease enabling commercial activities on additional land provided that lease money was charged in accordance with the Lease Rules, 2011. This led to execution of supplementary lease deed dated June 23, 2012 on which commercial hotel was constructed after obtaining requisite permissions.37. From the aforesaid events, following aspects can be culled out: Appellant No.1 has been given lease of land on which cricket stadium was constructed and thereafter lease for additional land meant for club house and also supplementary lease for commercial activity i.e. the hotel. It is only in respect of the land which is meant for cricket stadium that rental of Re.1/- per month was agreed to be charged by invoking proviso to Rule 8. Thus, it is not contrary to law. State of Himachal did not have any cricket ground, much less State of art cricket ground. It is, for this reason, that the land was given on lease for the purpose of constructing the cricket ground, which may become pride of Himachal Pradesh, at nominal rental. Insofar as lease in respect of club house and supplementary lease for commercial activity (i.e. hotel) is concerned, the lease money has been fixed in accordance with Lease Rules, 2011, namely, at commercial rates. There can hardly be any element of criminality in the afofresaid allotments inasmuch as six very senior officers in the State Government (four of them of IAS Cadre and one belongs to Himachal Pradesh Administrative Service) who had examined the matter and only after their approval, the allotments were made. There is no culpability attributed to them, which is a very crucial factor.38. What is more important is that the matter was looked into by Director-cum-Special Secretary, Youth Services and Sports Department as well as Secretary, Youth Services and Sports Department and it is only after the examination of the proposal by them and their final approval, lands in question were allotted.40. Insofar as other allegations are concerned, two Officers, namely, Shri R.S. Gupta and Shri Deepak Sanan are implicated. While doing so, other senior Officers who took active part in decision making have not been touched.41. In the two FIRs, seven IAS Officers, one Officer belonging to Himachal Pradesh Administrative Service and one Executive Engineer, Dharamshala Division in Himachal Pradesh PWD Department played their significant role at one stage or the other. Interstingly, in the FIRs, these nine Officers were also implicated and specific role attributed to them which has been already mentioned in the tabulated format while recording the arguments of Mr. Patwalia. This would demonstrate that insofar as Mr. Subhash Ahluwalia (IAS), Director-cum-Special Secretary, Youth Services and Sports Department is concerned, allegation against him was that he ignored the rules and did not mention the provisions of Lease Rules, 1993. He was also signatory to lease deed dated July 29, 2002. It is important to mention that entire FIRs proceed on the basis that appellants conspired with these Officers, among others. The imputation against Mr. Subhash Ahluwalia is that in fixing the rent at Re.1/- per month, he not only ignored the rules and did not even mention in his noting thereby implying that he was party to the alleged conspiracy. Similar allegations are against other eight persons as well alleging their role at different stages. Notwithstanding the same, three Officers, namely, Subhash Ahluwalia, Subhash Negi and T.G. Negi were not even charged on the purported ground that there were not enough evidence and mala fide intention. In respect of Mr. Ajay Sharma, Central Government had declined the sanction. Though, State Government had accorded the sanction for prosecution earlier but it has also later withdrawn. Same is the position in respect of Deepak Sanan. Mr. Gopi Chand, who belongs to HPAS, though the prosecution sanction was granted earlier, in his case also, not only prosecution sanction was withdrawn by the State Government, he has even been promoted to IAS Cadre. In case of Mr. K.K. Pant and Mr. P.C. Dhiman, other IAS Officers, prosecution sanction is declined. This leaves us only Mr. Devi Chand Chauhan, Executive Engineer, Dharamshala Division in PWD, though in his case also, prosecution sanction was earlier rejected but subsequently granted on the recommendation of the then Chief Minister. There are two Gram Panchayat members, who had issued no objection for allotment of land for club house, who have been prosecuted. These three Officers are public servants who remain as accused persons. This Court gets an impression that in the entire conspiracy story put up by the prosecution, high Government officials are deliberately let off and very junior Officers were become scapegoat in order to ensure that a case under PC Act survives in respect of appellants as well who are not public servants. Even otherwise, when the aforesaid eight persons are not charged or proceeded against for want of prosecution, this lends support to the allegations of the appellants in imputing motives for their prosecution.42. This Court, on a 360 scanning of the matter, arrives at the conclusion that the elements of criminal intent or criminal acts are lacking. Following factors do stand established from record:(i) there is no criminal act on their part and the facts do not disclose any offence;(ii) none of the officers who processed the case of the appellants are not prosecuted;(iii) two Officers Subhash Ahluwalia and T.G. Negi who took active part in the decision making were made Principal Secretary to CM and Advisor to CM, respectively, by respondent No. 2 and were not prosecuted;(iv) As per the prosecution, there is no criminal act on the part of the officers and they performed their appropriate administrative duties due to which sanction stands declined by the Central Government and the CVC. That itself is sufficient to absolve others from any criminal prosecution;(x) even otherwise the State Government continues to remain owner of the land which is on lease and on which the appellants have constructed assets worth above 150 crores;(xi) these assets are for use of the public of the State and are being used as such. Further, filing of chargesheet and an order taking cognizance is not a final judicial order. It is a preliminary process in criminal law and is open to challenge in higher judicial fora such as this Court.43. Insofar as conversion of Society into not for profit company under Section 25 of the Companies Act, 1956 is concerned, it was obviously done as per the mandate of BCCI. There can hardly be an element of criminality therein. This Court fails to understand as to how any criminal intent can be attributed in merging the said society into a company, that too, to prevent the State Government from controlling it, which is the motive attributed by the respondents themselves. It rather shows the intent of the State Government which wanted to grab the control of the Cricket Association. Such a tendency on the part of the State authorities is condemned by a Committee headed by former Chief Justice R.M. Lodha and approved by this Court. If at all, this is a reflection upon the State Government. It also lends credence to the submission of the appellants that when the State Government fail to achieve the aforesaid purpose, it went after the appellants. If at all, the subject matter was a civil dispute between the appellants and the respondents.44. We may also mention that record reveals that respondent No.2 personally supervised the investigation. However, we are eschewing the discussion as to whether chargesheet is result of mala fide or political vendetta, since we feel that, ex facie, no case of cheating/fraud or criminal breach of trust is made out. However, at the same time, it would be necessary to point out that in the proceedings filed by the appellants under Section 482 Cr.P.C., respondent No.2 was impleaded as the allegations of mala fides were attributed to him. Since, we are not looking into these allegations, respondent No.2 does not have much role to play in these proceedings. That apart, respondent No.2 has filed counter affidavit stating that he is not a necessary party and it is not his job to defend the prosecution. Having regard to the stand taken by the respondent No.1 not to prosecute these cases, even otherwise, no purpose would be served in continuing with these proceedings.45. In view of our aforesaid discussion, argument of respondent No.2 that the appeals have become infructuous cannot be accepted.46. We are conscious of the scope of powers of the High Court under Section 482 of Cr.P.C. The inherent jurisdiction is to be exercised carefully and with caution and only when exercise is justified by the tests specifically laid down in the Section itself. Further, inherent power under this provision is not the rule but it is an exception. The exception is applied only when it is brought to the notice of the Court that grave miscarriage of justice would be committed if the trial is allowed to proceed where the accused would be harassed unnecessarily. If the trial is allowed to linger when prima facie it appears to the Court that the trial could likely to be ended in acquittal. It is, for this reason, principle which is laid down by catena of judgments is that the power is to be exercised by the High Court either to prevent abuse of process of any court or otherwise to secure the ends of justice. However, whenever it is found that the case is coming within the four corners of the aforesaid parameters, the powers possessed by the High Court under this provision are very wide. It means that the Court has to undertake the exercise with great caution. However, the High Court is not to be inhibited when the circumstances warrant exercise of such a power to do substantial justice to the parties. This provision has been eloquently discussed in Bhajan Lals case which has become locus classicus. Principle Nos. (i) and (ii) of Indian Oil Corporation are, therefore, become applicable. The entire subject matter has been revisited in a recent judgment in Vineet Kumar and some of the discussion therein which takes note of earlier judgments is reproduced below:26. A three-Judge Bench in State of Karnataka v. M. Devendrappa [State of Karnataka v. M. Devendrappa, 2002 3 SCC 89 : 2002 SCC (Cri) 539 ] had the occasion to consider the ambit of Section 482 CrPC. By analysing the scope of Section 482 CrPC, this Court laid down that authority of the Court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice the Court has power to prevent abuse. It further held that 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. The following was laid down in para 6: (SCC p. 94)6. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide 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. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. 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.27. Further in para 8 the following was stated: (Devendrappa case [State of Karnataka v. M. Devendrappa, 2002 3 SCC 89 : 2002 SCC (Cri) 539 ] , SCC p. 95)8. Judicial process should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death. The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp1 SCC 335 : 1992 SCC (Cri) 426 ].In the instant case, the High Court simply noted those judgments which put a note of caution in exercising the powers under Section 482 Cr.P.C. to quash such proceedings and dismissed the petition with a shallow examination of the case, thereby glossing over the material facts (which are noted hereinabove) and failing to examine that these pertinent aspects were sufficient to demonstrate that no criminal case was made out, particularly when all the concerned officers, who had taken the decision, were let off on the ground that they had not committed any wrong.47. As far as Writ Petition (Criminal) No. 135 of 2017 is concerned, the appellants came to this Court challenging the order of cognizance only because of the reason that matter was already pending as the appellants had filed the Special Leave Petitions against the order of the High Court rejecting their petition for quashing of the FIR/Chargesheet. Having regard to these peculiar facts, writ petition has also been entertained. In any case, once we hold that FIR needs to be quashed, order of cognizance would automatically stands vitiated.