SALIMBHAI HAMIDBHAI MEMON versus NITESHKUMAR MAGANBHAI PATEL & ANR.
[2021] 8 S.C.R. 281, Supreme Court of India, 2021
Outcome: Disposed off
Segment: Body
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SALIMBHAI HAMIDBHAI MEMON
v.
NITESHKUMAR MAGANBHAI PATEL & ANR.
(Criminal Appeal No. 884 of 2021)
AUGUST 31, 2021
[DR DHANANJAYA Y CHANDRACHUD AND
M. R. SHAH, JJ.]
Code of Criminal Procedure, 1973 – s.482 – Penal Code,
1860 – ss.405, 420, 465, 467, 468 and 471 – Appellant and the
first respondent entered into a deed of partnership under which a
firm was constituted – Dispute arose between the parties – FIR was
registered – The gravamen of the allegations in the FIR is that: a)
The deed of relinquishment which was prepared in relation to certain
lands situated was interpolated and forged by the first respondent;
b) The deed of dissolution of partnership was fabricated; and c)
Despite the settlement dated 24.12.2018, the amount due to the
appellant had not been paid and the title to the lands which were
purported to be transferred in favour of the appellant is in dispute
– The first respondent instituted proceedings u/s. 482 of the Cr.P.C.
– An order was initially passed recording the statement of counsel
for the first respondent that he was ready and willing to offer a
settlement – Since, the parties desired to explore the possibility of a
settlement, the proceedings were adjourned – The text of the order
of the High Court did not contain any direction restraining the arrest
of the first respondent – Thereafter, the first respondent was arrested
– When the proceedings were taken up again by the Single Judge
of the High Court, the
Court recorded the submission of the first
respondent that initially, an oral direction was issued by the High
Court restraining the arrest of the first respondent – Recording that
this statement was not disputed on behalf of the appellant, the Single
Judge directed release of the first respondent – The Single Judge,
by the impugned order issued an ad interim protection against arrest
till the next date of listing – On appeal, held: The procedure followed
by the High Court of issuing an oral direction restraining the arrest
of the first respondent was irregular – If after hearing the parties,
the High Court was of the view that an opportunity should be granted
to counsel for the appellant and the first respondent to explore the
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possibility of a settlement and, on that ground, an interim protection
against arrest ought to be granted, a specific judicial order to that
effect was necessary – Oral observations in court are in the course
of a judicial discourse – The text of a written order is what is binding
and enforceable – Issuing oral directions (presumably to the APP)
restraining arrest, does not form a part of the judicial record and
must be eschewed – Further, in the instant case, the offences alleged
to be involved is of serious nature – The High Court has not alluded
to the allegations made in the FIR – This constitutes serious
deficiency – The Supreme Court has in various decisions
disapproved of interim orders of High Courts which grant stay of
arrest or which direct that no coercive steps must be taken against
the accused, without assigning reasons – Thus, the impugned order
of the High Court is set aside.
Code of Criminal Procedure, 1973 – s.482 – Oral directions
restraining arrest – Consequences of – Held: Absent a judicial order,
the investigating officer would have no official record emanating
from the High Court on the basis of which a stay of arrest is enforced
– The administration of criminal justice is not a private matter
between the complainant and the accused but implicates wider
interests of the State in preserving law and order as well as a societal
interest in the sanctity of the criminal justice administration – Oral
directions restraining arrest by the High Court are liable to cause
serious misgivings – Such a procedure is open to grave abuse –
Judicial assessments change with the roster – Absent a written record
of what has transpired in the course of a judicial proceeding, it
would set a dangerous precedent if the parties and the investigating
officer were expected to rely on unrecorded oral observations.
Zahira Habibulla H. Sheikh v. State of Gujrat (2004) 4
SCC 158 : [2004] 3 SCR 1050; Neeharika
Infrastructure Pvt Ltd. v. State of Maharashtra (2021)
SCC Online SC 315; Parbatbhai Aahir alias Parbatbhai
Bhimsinhbhai Karmur v. State of Gujrat (2017) 9 SCC
641 : [2017] 10 SCR 12 – relied on.
Case Law Reference
[2004] 3 SCR 1050
relied on
Para 23
[2017] 10 SCR 12
relied on
Para 31
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CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No.884 of 2021.
From the Judgment and Order dated 31.03.2021 of the High Court
of Gujarat at Ahmedabad, in Criminal Miscellaneous Application
No.19358 of 2020.
Anshin H. Desai, Sr. Adv., D.N. Ray, Nandish H. Thacker, Dillip
Kumar Nayak, Ms. Disha Ray, Mrs. Sumita Ray, Advs. for the Appellant.
Manoj Swarup, Sr. Adv., Shakti Kanta Pattanaik, Dhruv K. Dave,
Kalpesh N. Soni, Kanu Agrawal, Advs. for the Respondents.
The following Order of the Court was passed
O R D E R
DR DHANANJAYA Y CHANDRACHUD, J.
1. This appeal arises from a judgment dated 31 March 2021of a
Single Judge of the High Court of Gujarat.
2. On 10 October 2010, the appellant and the first respondent
entered into a deed of partnership under which a firm by the name of
Calla Associates was constituted. The share of the first respondent in
the profit / loss is alleged to be 55 per cent while the share of the appellant,
45 percent. On 21 June2017, a document styled as ‘’sammati-lekh’’was
allegedly entered into by the appellant consenting to the execution of a
sale deed in favour of a third party and the appellant agreed not to make
any claim in the amount of Rs 3.89 crores from his capital investment.
3. On 23 August 2017, an addendum to the “sammati-lekh” is
alleged to have been executed in terms of which certain amounts were
to be adjusted and an amount of Rs 5.03 crores was to be paid by the
first respondent to the appellant. It has been alleged
that under the terms
of the addendum, a sale deed of certain land situated at Mouje Samiyala
was to be executed in favour of the appellant.
4. It has been alleged that on 4 September 2017, a document was
prepared and notarised on 8 September 2017 pertaining to record the
relinquishment of rights by the appellant from a parcel of land belonging
to the firm. The allegation of the appellant is that under the terms of the
original document, the appellant agreed to relinquish rights only in certain
land situated at Akota, Vadodara. However, it is alleged that the first
respondent forged the internal pages of the document and added additional
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survey numbers of land, over and above what was agreed to be
relinquished.
5. On 1 November 2017, an advocate’s notice was issued by the
appellant to the first respondent which was followed by a public notice
on 2 January 2018 alleging misappropriation of the amount invested by
the appellant. In a reply dated 5 January 2018, the respondent suggested
that partnership had been mutually dissolved and documents had been
executed to that effect.
6. On 25 January 2018, a legal notice was issued by the appellant
complaining of the dishonour of a cheque of Rs 1.47 crores and on
7 January 2018, of another cheque in the amount of Rs 81.31 lacs.
7. On 31 January 2018, the appellant addressed a communication
to the bankers  to cease all transactions in the account of the partnership
firm due to disputes between the parties.
8. On 22 February 2018, the appellant received a communication
from HDFC Bank recording that the bank had received a document
allegedly executed on 8 September 2017 by which the appellant had
relinquished all his rights in the firm in favour of the first respondent.
The appellant alleges that it was then that he came to know that the first
respondent has fabricated the deed of dissolution of partnership dated
10 February 2018. This forged deed allegedly contained a reference to
another forged document dated 8 September 2017. According to the
appellant, his signature on the deed of dissolution of partnership is
forged
and another copy of the document without his signature was notarised
on 23 February 2018.
9. On 25 February 2018, the investigating officer at JP Road Police
Station conducted a preliminary enquiry into a complaint lodged by the
appellant, which is stated to have been disposed of on the ground that
the first respondent was ready to settle the accounts in the presence of
a mediator and that the allegations were of a civil nature.
10. On 12 March 2018, a settlement was arrived at between the
appellant and the first respondent in terms of which it was agreed that
the partnership be dissolved and a sum of Rs 26.03 crores be paid to the
appellant. Post-dated cheques were issued to the appellant. One of Rs
50 lacs was honoured while the remaining cheques were dishonoured,
leading to the initiation of proceedings under the Negotiable Instruments
Act 1881.
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11. On 20 June 2018, the appellant instituted a complaint before
the Gotri Police Station against the first respondent making allegations
of forgery and cheating.
12. On 24 December 2018, a fresh MoU was entered between
the appellant and the first respondent which acknowledged that an amount
of Rs 50 lacs was paid, while a balance of Rs 25.52 crores remained
due. The terms of the MoU envisaged that certain lands would be
transferred to the appellant in lieu of the outstanding amount. The appellant
has alleged that fresh cheques issued to him also returned unpaid on 6
March 2020 and the sale deeds which were executed by the first
respondent were in respect of lands whose title was not marketable.
The complaint filed by the appellant was disposed of by the Gotri Police
Station on 25 August 2019 in view of the settlement dated 24 December
2018 on the ground that despite repeated requests, the appellant had not
come forth to record his statement and it appeared that the matter involved
monetary transactions for which the appellant would have to seek
redressal before the appropriate court.
13. On 9 July 2020, the first respondent got an FIR registered
before the Vadodara City Police Station alleging an act of forgery on the
part of the appellant. On 9 October 2020, the investigating officer filed a
‘B’ summary report recording that the alleged document dated 8
September 2017 had not been forged by the appellant but by the first
respondent.
14. On 6 December
2020, the FIR which forms the basis of the
present proceedings was registered, alleging the commission of offences
punishable under Sections 405, 420, 465, 467, 468 and 471 of the Penal
Code. The gravamen of the allegations in the FIR is that:
a. The deed of relinquishment which was prepared in relation to
certain lands situated at Akota had been interpolated and forged
by the first respondent;
b. The deed of dissolution of partnership has been fabricated;
and
c. Despite the settlement dated 24 December 2018, the amount
due to the appellant had not been paid and the title to the lands
which were purported to be transferred in favour of the
appellantis in dispute.
SALIMBHAI HAMIDBHAI MEMON v. NITESHKUMAR MAGANBHAI
PATEL & ANR. [DR DHANANJAYA Y CHANDRACHUD, J.]
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15. The first respondent instituted proceedings under Section 482
of the Code of Criminal Procedure 1973 (“CrPC”) for quashing the
FIR, being Criminal Misc. Application No 19358 of 2020.
16. On 23 December 2020, when the proceedings were initially
moved before the High Court, an order was passed by the Single Judge
recording that :
“The matter is between the partners and there appears allegation
that some of the partners have taken advantage and siphoned
away amount as well as also made falsification of documents.’’
Counsel appearing on behalf of the first respondent urged that he
was willing to offer a settlement. Since Counsel for the parties sought
time to explore the possibility of a settlement, the proceedings were
adjourned to 10 February 2021. On 8 March 2021, the first respondent
was arrested. When the proceedings were taken up by the Single Judge
on 9 March 2021, the Court recorded the submission of the first
respondent that on 23 December 2020, an oral direction had been issued
by the Court restraining the arrest of the first respondent. Recording
that this statement was not disputed on behalf of the appellant, the Single
Judge directed that the first respondent should forthwith be released by
the Vadodara Police Station if he was arrested in connection with the
FIR which was the subject matter of the petition for quashing. The
proceedings were adjourned to 15 March 2021. On 15 March 2021, the
proceedings
were adjourned to 22 March 2021 with a direction that no
steps should be taken against the first respondent till 23 March 2021.
Eventually, on 31 March 2021, the Single Judge recorded that:
“5. … prima facie it appears that the complaints are with respect
to business transactions between both the parties. It further
appears that there are some dues which are payable by the present
applicant and FIR came to be filed against applicant. On 6.12.2020
by the respondent No.2 which is subject matter of present petition.
It is alleged that the documents dated 8.09.2017 and 10.02.2018
are forged documents. There was one complaint filed by the
present application against respondent No.2 on 9.07.2020 wherein
B Summary report was filed which is at pages 38 to 57. The said
report has culminated in a proceedings before the learned
Magistrate Court, Vadodara. Those proceedings are also pending.”
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The Single Judge noted that previously the appellant had filed a
similar complaint which was disposed of by the investigating officer and
it was then that a new settlement was arrived at which, formed the basis
of the FIR in question. After extracting the earlier orders dated 23
December 2020 and 9 March 2021, the Single Judge issued the following
directions in paragraph 9 of the impugned order:
“9. At this juncture when the proceedings are clearly pending
between the parties and both of them have set the criminal
machinery in action, to strike a balance between both the parties
the investigation is required to be proceeded, however the present
applicant be not arrested till next date of hearing, S.O. to
28.4.2021.”
17. This order has given rise to the appeal before this Court.
18. We have heard Mr Anshin H Desai, Senior Counsel appearing
on behalf of the appellant, Mr Manoj Swarup, Senior Counsel for the
first respondent and Mr Kanu Agrawal, Counsel for the State of Gujarat.
19. Mr Desai,  Senior Counsel appearing on behalf of the appellant
submits that:
(i)
An FIR was lodged on 6 December 2020 containing serious
allegations involving:
a.
Interpolation of the deed of relinquishment executed
by the appellant with the consequence that whereas
the interest in only one property at Akota was
relinquished, several additional properties have been
included and the nature of the interpolation would be
obvious on a bare perusal of the documents which have
been
annexed to the paper book;and
b.
The deed of dissolution of partnership is purported to
have been executed on a day when the appellant was
not present in India but was traveling to Dubai;
(ii)
The FIR has been registered on the basis of the above
allegations implicating  the commission of offences
punishable under Sections 405, 420, 465, 467, 468 and 471
of the Penal Code;
SALIMBHAI HAMIDBHAI MEMON v. NITESHKUMAR MAGANBHAI
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(iii)
On the representation made by the first respondent,
successive Memorandum of Understandings (“MoU” or
“MoUs”) were entered into between the appellant and the
first respondent; and
(iv)
Pursuant to the settlement, the cheques which were issued
by the first respondent have been dishonoured and the title
to the lands which were purported to be transferred to the
appellant is under a cloud and is not marketable.
In this backdrop, it was urged that in view of the consistent position
in law laid down by this Court, the High Court was not justified in issuing
a direction restraining the arrest of the first respondent till the next date
of listing without reasons .
20. On the other hand, Mr Manoj Swarup, learned Senior Counsel
appearing on behalf of the first respondent submitted that:
(i)
In terms of the MoU several parcels of land have been
transferred to the appellant, details of which have been
tabulated as followed in the Counter Affidavit:
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(ii)
These parcels of land have been transferred to the appellant
in terms of the MoUs executed on 12 March 2018 and 24
December 2018 in addition to which a payment of Rs 50
lacs has been made by cheque. As a result, out of the agreed
payment of Rs 26.02 crores to be made to the appellant,
25.52 crores have been paid or value has been received;
(iii)
The appellant has received the benefit of the settlements
which have been arrived at between the parties and lands
have been transferred to him;
(iv)
On the earlier complaint lodged by the appellant, a ‘B’
summary was filed by the Gotri Police Station recording
that the appellant had not come forth to record his statement
and the transaction between the parties appeared to be of
a monetary nature;
(v)
By August 2019, these parcels of land were transferred to
the appellant in pursuance of the settlements dated 12 March
2018 and 24 December 2018; and
(vi)
The order of the High Court dated 31 March 2021 continued
to remain in operation due to the general orders operating
during the second wave of the pandemic.
21. Mr Kanu Agrawal, learned Counsel appearing on behalf of
the State of Gujarat has submitted that the impugned order of the High
Court refers to the submission of the police report by the APP which
was taken on the record and that the police report has adverted to the
forgery of two valuable documents namely, the deeds of relinquishment
and dissolution of partnership.
22. After the High Court was moved
in proceedings under Section
482 of the CrPC for quashing the FIR, an order was initially passed on
23 December 2020, recording the statement of Counsel for the first
respondent that he was ready and willing to offer a settlement. Since
Counsel for the parties desired to explore the possibility of a settlement,
the proceedings were adjourned to 10 February 2021. The text of the
order of the High Court did not contain any direction restraining the
arrest of the first respondent. But it appears from the subsequent order
dated 9 March 2021 that an oral direction was issued by the Single
Judge not to arrest the first respondent. In its order dated 9 March 2021,
the High Court adverted to the submission of Counsel for the first
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respondent that such a direction was previously issued, which was not
disputed by the appellant. Since the first respondent was arrested on 8
March 2021, he was directed to be released forthwith.
23. The procedure followed by the High Court of issuing an oral
direction restraining the arrest of the first respondent was irregular. If
after hearing the parties on 23 December 2020, the High Court was of
the view that an opportunity should be granted to Counsel for the appellant
and the first respondent to explore the possibility of a settlement and, on
that ground, an interim protection against arrest ought to be granted, a
specific judicial order to that effect was necessary. Oral observations in
court are in the course of a judicial discourse. The text of a written order
is what is binding and enforceable. Issuing oral directions (presumably
to the APP) restraining arrest, does not form a part of the judicial record
and must be eschewed. Absent a judicial order, the investigating officer
would have no official record emanating from the High Court on the
basis of which a stay of arrest is enforced. The administration of criminal
justice is not a private matter between the complainant and the accused
but implicates wider interests of the State in preserving law and order as
well as a societal interest in the sanctity of the criminal justice
administration. Though in a different context, the principle was set down
by this
Court in Zahira Habibulla H. Sheikh v State of Gujarat1 :
“35. This Court has often emphasized that in a criminal case the
fate of the proceedings cannot always be left entirely in the hands
of the parties, crimes being public wrongs in breach and violation
of public rights and duties, which affect the whole community as
a community and are harmful to the society in general. The concept
of fair trial entails familiar triangulation of interests of the accused,
the victim and the society and it is the community that acts through
the State and prosecuting agencies. Interests of society are not to
be treated completely with disdain and as persona non grata. Courts
have always been considered to have an overriding duty to maintain
public confidence in the administration of justice — often referred
to as the duty to vindicate and uphold the “majesty of the law”…..”
24. Oral directions of this nature by the High Court are liable to
cause serious misgivings. Such a procedure is open to grave abuse.
Most High Courts deal with  high volumes of cases. Judicial assessments
1 (2004) 4 SCC 158
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change with the roster. Absent a written record of what has transpired
in the course of a judicial proceeding, it would set a dangerous precedent
if the parties and the investigating officer were expected to rely on
unrecorded oral observations.
25. We are conscious of the fact that in civil proceedings, Counsel
appearing on behalf of the contesting parties do in certain cases mutually
agree before the court to  an ad interim arrangement and agree among
themselves to record the terms of the arrangement by an exchange of
correspondence between the advocates. This can typically happen when
civil disputants are attempting an amicable settlement. Civil cases involve
disputes between two private contestants. In criminal proceedings, apart
from the accused and the complainant, there is a vital interest of the
State and of society in the prosecution of crime. The procedure which
was followed by the Single Judge must therefore be eschewed in the
future. Judges speak through their judgments and orders. The written
text is capable of being assailed. The element of judicial accountability is
lost where oral regimes prevail. This would set a dangerous precedent
and is unacceptable. Judges, as much as public officials over whose
conduct they preside, are accountable for their actions.
26. The Single Judge, by the impugned order dated 31 March
2021 issued an ad interim protection against  arrest till the next date of
listing. The only reasons which are to be found in
the order of the Court
are that:
(i) Proceedings are pending between the parties; and
(ii) Both of them have set the criminal machinery in action.
27. Having recorded this, the Single Judge has granted a stay of
arrest “to strike” a balance between both the parties while observing
that the investigation may proceed. How this would strike a balance
between both the parties is unclear from the reasons which have been
adduced. The FIR contains grave allegations involving:
(i) The interpolation of a deed of relinquishment so as to cover a
significantly larger number of properties than the sole property which
was agreed to be relinquished; and
(ii) The fabrication of a deed of dissolution of partnership.
28. The offences which are alleged to be involved are punishable
under the provisions of Sections 405, 420, 465, 467, 468 and 471 of the
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Penal Code. These offences are of a serious nature. The APP had
evidently apprised the Single Judge of the police report dated 31 March
2020, to which a reference has been made by the Counsel of the State
of Gujarat, as noted earlier. While an order granting a stay of arrest in a
proceeding under Section 482 of the CrPC  lies within the jurisdiction of
the High Court,  the grant of such relief must be after a judicious
application of mind, which must emerge from the reasons which are
recorded by the Judge. The formulation of reasons in a judicial order
provides the backbone of public confidence in the sanctity of the judicial
process. While directing that the proceedings are to be listed on a future
date, the High Court is undoubtedly not expected to deliver a detailed
judgment elaborating upon reasons why a stay of arrest has been granted.
But the reasons recorded by the Court must reflect an application of
mind to relevant facts and circumstances, including:
(i)
The nature and gravity of the allegations;
(ii)
The seriousness of the alleged offence(s);
(iii)
The position of the accused and the likelihood of their
availability for investigation; and
(iv)
The basis on which a stay of arrest has been granted till the
next date.
29. The High Court has not alluded to the allegations made in the
FIR. This constitutes a serious deficiency. The petition before the High
Court is for quashing the FIR under section 482. While
determining
whether to grant ad-interim relief in such a case, involving a stay of
arrest, the High Court must bear in mind the parameters for the exercise
of the jurisdiction for quashing, which has been invoked. The interim
order of a stay of arrest is in aid of the final relief which is sought in the
petition. Hence, the considerations germane to the exercise of the
jurisdiction to quash an FIR must be present to the mind while deciding
whether an interim stay of arrest is warranted. What is present to the
mind must emerge from the text of the order. In the recent judgment in
Neeharika Infrastructure Pvt Ltd. v. State of Maharashtra2, this
Court through one of us (Justice MR Shah) formulated the principles
which have to be borne in mind by the High Court, when its intervention
is sought under Section 482 of the CrPC to quash an FIR. After setting
out the principles, the Court observed:
2 2021 SCC OnLine SC 315
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“59. Before passing an interim order of staying further investigation
pending the quashing petition under Section 482 Cr.P.C. and/or
Article 226 of the Constitution of India, the High Court has to
apply the very parameters which are required to be considered
while quashing the proceedings in exercise of powers under Section
482 Cr.P.C. in exercise of its inherent jurisdiction, referred to
hereinabove.”
30. Expressing a caution, which requires the High Courts to be
circumspect in interfering with investigation, the Court noted:
“60. In a given case, there may be allegations of abuse of process
of law by converting a civil dispute into a criminal dispute, only
with a view to pressurize the accused. Similarly, in a given case
the complaint itself on the face of it can be said to be barred by
law. The allegations in the FIR/complaint may not at all disclose
the commission of a cognizable offence. In such cases and in
exceptional cases with circumspection, the High Court may stay
the further investigation. However, at the same time, there may
be genuine complaints/FIRs and the police/investigating agency
has a statutory obligation/right/duty to enquire into the cognizable
offences. Therefore, a balance has to be struck between the rights
of the genuine complainants and the FIRs disclosing commission
of a cognizable offence and the statutory obligation/duty of the
investigating agency to investigate into the cognizable offences
on the one hand and those
innocent persons against whom the
criminal proceedings are initiated which may be in a given case
abuse of process of law and the process. However, if the facts
are hazy and the investigation has just begun, the High Court would
be circumspect in exercising such powers and the High Court
must permit the investigating agency to proceed further with the
investigation in exercise of its statutory duty under the provisions
of the Code. Even in such a case the High Court has to
give/assign brief reasons why at this stage the further investigation
is required to be stayed. The High Court must appreciate that
speedy investigation is the requirement in the criminal
administration of justice.”
This Court observed that while there may be some cases where
the initiation of the criminal proceedings may be an abuse of law,it is in
cases of an exceptional nature, where it is found that absence of
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interference would result in a miscarriage of justice, that the Court may
exercise its jurisdiction under Section 482 of the CrPC and Article 226
of the Constitution. This Court has disapproved of interim orders of High
Courts which grant stay of arrest or which direct that no coercive steps
must be taken against the accused, without assigning reasons. The
impugned order of the High Court cannot be sustained on the touchstone
of the principles which have been consistently laid down by this Court
and reiterated in the above decision.
31. In Parbatbhai Aahir alias Parbatbhai Bhimsinhbhai
Karmur v. State of Gujarat3, this Court formulated the governing
principles to guide the exercise of powers under Section 482 of the CrPC.
Speaking for the three judge Bench, one of us (Dr DY Chandrachud)
observed:
“(1) Section 482 CrPC preserves the inherent powers of the High
Court to prevent an abuse of the process of any court or to secure
the ends of justice. The provision does not confer new powers. It
only recognise and preserves powers which inhere in the High
Court.
(2) The invocation of the jurisdiction of the High Court to quash a
first information report or a criminal proceeding on the ground
that a settlement has been arrived at between the offender and
the victim is not het same as the invocation of the jurisdiction for
the purpose of compounding an offence. While compounding an
offence, the power of the court is governed
by the provisions of
Section 320 CrPC. The power to quash under Section 482 is
attracted even if the offence is non-compoundable.
(3) In forming an opinion whether a criminal proceeding or complain
should be quashed in exercise of its jurisdiction under Section
482, the High Court must evaluate whether the ends of justice
would justify the exercise of the inherent power.
(4) While the inherent power of the High Court has a wide ambit
and plenitude it has to be exercised (i) to secure the ends of justice,
or (ii) to prevent an abuse of the process of any court.
(5) The decision as to whether a complaint or first information
report should be quashed on the ground that the offender and
3 (2017) 9 SCC 641
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B
C
D
E
F
G
H
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victim have settled the dispute, revolves ultimately on the facts
and circumstances of each case and no exhaustive elaboration of
principles can be formulated.
(6) In the exercise of the power under Section 482 and while
dealing with a plea that the dispute has been settled, the High
Court must have due regard to the nature and gravity of the
offence. Heinous and serious offences involving mental depravity
or offences such as murder, rape and deceit cannot appropriately
be quashed though the victim or the family of the victim have
settled the dispute. Such offences are, truly speaking, not private
in nature but have a serious impact upon society. The decision to
continue with the trial in such cases is founded on the overriding
element of public interest in punishing persons for serious offences.
(7) As distinguished from serious offences, there may be criminal
cases which have an overwhelming or predominant element of a
civil dispute. They stand on a distinct footing insofar as the exercise
of the inherent power to quash is concerned.
(8) Criminal cases involving offences which arise from commercial,
financial, mercantile, partnership or similar transactions with an
essentially civil flavour may in appropriate situations fall for
quashing where parties have settled the dispute.
(9) In such a case, the High Court may quash the criminal
proceeding if in view of the compromise between the disputants,
the possibility of a conviction is remote and the
continuation of a
criminal proceeding would cause oppression and prejudice; and
(10) There is yet an exception to the principle set out in Propositions
(8) and (9) above. Economic offences involving the financial and
economic well-being of the State have implications which lie
beyond the domain of a mere dispute between private disputants.
The High Court would be justified in declining to quash where the
offender is involved in an activity akin to a financial or economic
fraud or misdemeanour. The consequences of the act complained
of upon the financial or economic system will weigh in the balance.”
32. We are conscious of the fact that in the present case the
petition for quashing is still pending before the High Court. At the same
time, the High Court was moved for the grant of ad interim relief in a
petition for quashing the FIR. The considerations which ought to weigh
SALIMBHAI HAMIDBHAI MEMON v. NITESHKUMAR MAGANBHAI
PATEL & ANR. [DR DHANANJAYA Y CHANDRACHUD, J.]
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SUPREME COURT REPORTS
[2021] 8 S.C.R.
in whether or not to exercise the jurisdiction to quash must be present in
the mind of the Judge while determining whether an interim order should
be made.That these considerations have been borne in mind can only be
evident from the reasons, however brief, which have been indicated in
the order of the High Court. This does not emerge from the impugned
order of the High Court.
33. We accordingly allow the appeal and set aside the impugned
order of the High Court dated 31 March 2021. The High Court, it is
clarified would be at liberty to proceed to deal with the petition under
Section 482 of the CrPC which is pending consideration. The appeal is
disposed of in the above terms.
34. Pending application(s), if any, stand disposed of.
Ankit Gyan
Appeal disposed of.