Supreme Court of India

Pratibha vs Rameshwari Devi & Ors on 17 September, 2007

Author:
Tarun Chatterjee

Bench:
A.K. Mathur
,
Tarun Chatterjee

CASE NO.:
Appeal (crl.) 1242 of 2007

PETITIONER:
Pratibha

RESPONDENT:
Rameshwari Devi & Ors

DATE OF JUDGMENT: 17/09/2007

BENCH:
A.K. MATHUR & TARUN CHATTERJEE

JUDGMENT:

J U D G M E N T

CRIMINAL APPEAL NO. 1242 OF 2007
[Arising out of SLP [Crl] No. 6334 of 2004]

TARUN CHATTERJEE, J.

1. Leave granted.

2. This appeal by special leave is preferred against the
judgment and order dated 14th September, 2004 of the
High Court of Judicature for Rajasthan at Jaipur Bench,
whereby the High Court had quashed an FIR dated 31st
December, 2001 lodged at the instance of the appellant in
the exercise of its inherent powers under
Section 482
of
Code of Criminal Procedure (hereinafter referred to as
the Code). The said FIR was registered by the
complainant/appellant (in short the appellant) against
the accused/respondents (in short the respondents) for
the alleged offences under
Section 498-A
and
of IPC.

3. Before we take up the questions that were posed

before us by the learned counsel for the parties, it is
necessary at this stage to state the facts giving rise to the
filing of this appeal. Accordingly, the facts in a nutshell are
stated below :

4. The appellant had entered into wedlock with the
respondent No.2 on 25th January, 2000. The respondent
Nos.1, 3, 4 and 5 are the mother-in-law, brother-in-law,
maternal father-in-law and the father-in-law of the
appellant respectively. The appellant left her matrimonial
home on 25th May, 2001 with her father and brother. In
the FIR, the appellant alleged that during her stay in her
matrimonial home, she was subjected to harassment and
cruelty by all the respondents as they were dissatisfied
with the articles that the appellant had brought as
stridhan. The respondents also forced her to bring Rs.5
lacs more in dowry from her father which she could not
bring from her parents nor could her parents afford to pay
such a huge amount. The respondents also did not allow
the appellant to take back her ornaments and other
articles, which were gifted to her as stridhan when she left
her matrimonial home. On 31st July, 2001, the husband,
namely, respondent No.2 filed a petition before the Family
Court praying for a decree for divorce on the ground of
mental cruelty. On 31st December, 2001, the appellant
lodged an FIR No.221 of 2001 against the respondents
for the alleged offences under
Section 498A
and
of
IPC. This FIR was challenged by way of a criminal
miscellaneous petition under
Section 482
of the Code in
which the respondents prayed for quashing of the said
FIR. The respondents had also obtained an order
granting anticipatory bail from the Sessions Judge,
Jhunjhunu, Rajasthan on 8th February, 2002. While the
petition under
Section 482
of the Code was pending, a
final investigation report was submitted on 13th February,
2004 in the High Court. The High Court by the impugned
order had quashed the FIR No.221 of 2001 on the basis
of the report of the Investigating Officer submitted before
it and concluded that no offence under
Section 498A
and
of the IPC was made out by the appellant against the
respondents. The High Court also observed that the FIR
must be quashed to avoid undue harassment and mental
agony to the respondents, more so when the divorce
petition was still pending before the Family Court. It is this
order of the High Court, quashing the FIR in the exercise
of its inherent power under
Section 482
of the Code,
which is now under challenge before us in this appeal.

5. Having heard the learned counsel for the parties
and after considering the materials on record and the
complaint filed by the appellant under
Sections 498A
and
of the IPC, we are of the view that the High Court had
exceeded its jurisdiction by quashing the FIR No.221 of
2001 in the exercise of its inherent powers under
Section
of the Code. Before we consider the scope and
power of the High Court to quash an FIR in the exercise
of its inherent powers under
Section 482
of the Code
even before the parties are permitted to adduce evidence
in respect of the offences alleged to have been made
under the aforesaid two sections (namely,
Sections 498A

and
of IPC), we may keep it on record that two
questions merit our determination in the present case: -

(i) whether the High Court while quashing the FIR in the
exercise of its inherent powers under Section 482 of the
Code was entitled to go beyond the complaint filed by the
complainant; and (ii) whether the High Court was
entitled to look into and consider the investigation report
submitted by four officers of the rank of Dy.

Superintendent of Police for quashing the FIR even
before the same could be filed before the concerned
Magistrate. Before we do that, we may first consider how
and when the High Court, in its inherent powers under

Section 482
of the Code, would be justified in quashing
an FIR. It is at this stage appropriate to refer
Section 482

of the Code itself which runs as under:

482. Saving of inherent powers of High Court 
Nothing in this Code shall be deemed to limit
or affect the inherent powers of the High Court
to make such orders as may be necessary to
give effect to any order under this Code, or to
prevent abuse of the process of any Court or
otherwise to secure the ends of justice.

A bare look at this provision would show that while
exercising such inherent powers, the High Court must be
satisfied that either:-

(i) An order passed under the Code would be
rendered ineffective; or

(ii) The process of any court would be abused; or

(iii) The ends of justice would not be secured.

In
State of West Bengal Vs. Swapan Kumar Guha
[1982
[1] SCC 561] Chandrachud, C.J. [as His Lordship then
was] had observed that if the FIR did not disclose the
commission of a cognizable offence, the court would be
justified in quashing the investigation on the basis of the
information as laid or received. In the same judgment,
Justice A.N. Sen [as His Lordship then was] who has
written the main judgment, has laid down the legal
propositions as follows:

...the legal position is well-settled. The legal
position appears to be that if an offence is
disclosed, the Court will not normally interfere
with an investigation into the case and will permit
investigation into the offence alleged to be
completed; if, however, the materials do not
disclose an offence, no investigation should
normally be permitted.... Once an offence is
disclosed, an investigation into the offence must
necessarily follow in the interests of justice. If,
however, no offence is disclosed, an
investigation cannot be permitted, as any
investigation, in the absence of any offence
being disclosed, will result in unnecessary
harassment to a party, whose liberty and
property may be put to jeopardy for nothing. The
liberty and property of any individual are sacred
and sacrosanct and the court zealously guards
them and protects them. An investigation is
carried on for the purpose of gathering necessary
materials for establishing and proving an offence
which is disclosed. When an offence is disclosed,
a proper investigation in the interests of justice
becomes necessary to collect materials for
establishing the offence, and for bringing the
offender to book. In the absence of a proper
investigation in a case where an offence is
disclosed, the offender may succeed in escaping
from the consequences and the offender may go
unpunished to the detriment of the cause of
justice and the society at large. Justice requires
that a person who commits an offence has to be
brought to book and must be punished for the
same. If the court interferes with the proper
investigation in a case where an offence has
been disclosed, the offence will go unpunished to
the serious detriment of the welfare of the society
and the cause of justice suffers. It is on the basis
of this principle that the court normally does not
interfere with the investigation of a case where
an offence has been disclosed Whether an
offence has been disclosed or not must
necessarily depend on the facts and
circumstances of each particular case.... If on a
consideration of the relevant materials, the court
is satisfied that an offence is disclosed, the court
will normally not interfere with the investigation
into the offence and will generally allow the
investigation into the offence to be completed for
collecting materials for proving the offence.

In
Pratibha Rani Vs. Suraj Kumar and Anr.
[1985] 2 SCC
370, this Court at page 395 observed as follows:

 It is well settled by a long course of decisions of
this Court that for the purpose of exercising its
power under
Section 482
Cr PC to quash a FIR
or a complaint the High Court would have to
proceed entirely on the basis of the allegations
made in the complaint or the documents
accompanying the same per se. It has no
jurisdiction to examine the correctness or
otherwise of the allegations. [emphasis supplied]

In
Madhavrao Jiwaji Rao Scindia and Ors. v. Sambhajirao
Chandrojirao Angre and Ors.
[1988 [1] SCC 692], this
Court has reiterated the same principle and laid down 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.

Again in the case of
State of Bihar Vs. Murad Ali Khan &
Ors.
[1988 [4] SCC 655], Venkatachaliah, C.J. [as His
Lordship then was] has laid down that the jurisdiction
under
Section 482
of the Code has to be exercised
sparingly and with circumspection and has observed that
in exercising that jurisdiction, the High Court should not
embark upon an inquiry whether the allegations in the
complaint are likely to be established by evidence or not.

6. From the principles
laid down in
the
abovementioned decisions, it is clear that the Court is
entitled to exercise its inherent jurisdiction for quashing a
criminal proceeding or an FIR when the allegations made
in the same do not disclose the commission of an offence
and that it depends upon the facts and circumstances of
each particular case.

We also feel it just and proper to
refer to a leading decision of this court reported in
State of
Haryana Vs. Bhajan Lal
[1992 Suppl. {1} SCC 335] in
which this court pointed out certain category of cases by
way of illustrations wherein the inherent power under

Section 482
of the Code can be exercised either to
prevent abuse of the process of any court or otherwise to
secure the ends of justice. The same are as follows :-

(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
FIR do not disclose a cognizable offence, justifying
an investigation by police officers under
Section
156(1)
of the Code except under an order of a
Magistrate within the purview of
Section 155(2)
of
the Code.

(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 FIR do not
constitute a cognizable offence but constitute only a
non-cognizable offence, no investigation is
permitted by a police officer without an order of a
Magistrate as contemplated under
Section 155(2)
of
the Code.

(5) Where the allegations made in the FIR or
complaint are so absurd and inherently improbable
on the basis of which no prudent person can ever
reach a just conclusion that there is sufficient
ground for proceeding against the accused.
(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 malafide 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.

7. Keeping the aforesaid principles in mind and
considering the decisions as referred to hereinearlier, let
us now apply them in the facts of the present case. But
before we do that, it would be apt for us to consider the
findings arrived at by the High Court for quashing the FIR
which are as under: -

(i) The complainant-wife left the marital
house with her father and brother on
25th May, 2001. The Divorce Petition
was filed by the husband on the
ground of mental cruelty on 31st July,
2001. It was only on 31st December,
2001 that the FIR for offences under

Sections 498A
and
of IPC was
lodged by the complainant-wife;

(ii) A registered letter was sent to the
appellant wife for receiving all her
articles on 13th August, 2001 which
was duly received by the father of
the appellant;

(iii) The family court also issued
directions to the appellant to receive
her articles on 2nd February, 2002
and the same were declined by her;

(iv) In view of the above and also in view
of the detailed report submitted by
the investigating officer, even prima
facie no offence under
Section 498A

and
IPC is made out against the
respondent;

(v) The conduct of the appellant wife
was depreciable and there had been
a continuing effort by her of avoiding
the proceedings before the Court;

(vi) The appellant wife leveled false
allegations against the Court itself
apart from adopting all sorts of
unhealthy tactics by creating
gimmicks and scenes in the Court;

(vii) Merely because one of the
respondents is a judicial officer and
others being his family members, it
did not preclude them from seeking
justice from a court of law;

(viii) The High Court is empowered to
quash the FIR to avoid undue
harassment and mental agony to the
respondents, more so when the
divorce petition is still pending
before the Family Court.

8. From a plain reading of the findings arrived at by the
High Court while quashing the FIR, it is apparent that the
High Court had relied on extraneous considerations and
acted beyond the allegations made in the FIR for
quashing the same in the exercise of its inherent powers
under
Section 482
of the Code. We have already noted
the illustrations enumerated in Bhajan Lals case and from
a careful reading of these illustrations, we are of the view
that the allegations emerging from the FIR are not
covered by any of the illustrations as noted hereinabove.
For example, we may take up one of the findings of the
High Court as noted herein above. The High Court has
drawn an adverse inference on account of the FIR being
lodged on 31st December, 2001 while the appellant was
forced out of the matrimonial home on 25th May, 2001. In
our view, in the facts and circumstance of the case, the
High Court was not justified in drawing an adverse
inference against the appellant- wife for lodging the FIR
on 31st December, 2001 on the ground that she had left
the matrimonial home atleast six months before that. This
is because, in our view, the High Court had failed to
appreciate that the appellant and her family members
were, during this period, making all possible efforts to
enter into a settlement so that the respondent No.2-
husband would take her back to the matrimonial home. If
any complaint was made during this period, there was
every possibility of not entering into any settlement with
the respondent No.2-husband. It is pertinent to note that
the complaint was filed only when all efforts to return to
the matrimonial home had failed and the respondent
No.2-husband had filed a divorce petition under
Section
of the Hindu Marriage Act, 1955. That apart, in our
view, filing of a divorce petition in a Civil Court cannot be
a ground to quash criminal proceedings under Section
482 of the Code as it is well settled that criminal and civil
proceedings are separate and independent and the
pendency of a civil proceeding cannot bring to an end a
criminal proceeding even if they arise out of the same set
of facts. Such being the position, we are, therefore, of the
view that the High Court while exercising its powers under
Section 482 of the Code has gone beyond the allegations
made in the FIR and has acted in excess of its jurisdiction
and, therefore, the High Court was not justified in
quashing the FIR by going beyond the allegations made
in the FIR or by relying on extraneous considerations.

9. This takes us to the second question which merits
our determination, namely whether the High Court was
entitled to consider the investigation report submitted
before it by four officers of the rank of Dy. Superintendent
of Police even before the same could be filed before the
concerned Magistrate. As noted herein earlier, a bare
perusal of the judgment of the High Court would also
show that the High Court had relied on the investigation
report in quashing the FIR. Now, the question is whether
the High Court while exercising its powers under Section
482 of the Code was justified in relying on the
investigation report which was neither filed before the
Magistrate nor a copy of the same supplied to the
appellant. In our view, the High Court has acted in
excess of its jurisdiction by relying on the investigation
report and the High Court was also wrong in directing the
report to be submitted before it. It is now well settled that
it is for the investigating agency to submit the report to the
Magistrate. In this connection, we may refer to sub-
section (2) of Section 173 of the Code which runs as
under :

(i) As soon as it is completed the officer in
charge of the police station shall forward to a
Magistrate empowered to take cognizance of
the offence on a police report (not
necessary therefore omitted).

From a bare reading of this provision, it cannot be
disputed that after completion of the investigation, the
officer-in-charge of the police station shall forward the
report not to the High Court where the proceedings under
Section 482 of the Code is pending but to a Magistrate
empowered to take cognizance of the offence on such
police report. Therefore, the High Court had acted beyond
its power to direct the investigating agency to file the said
report before it in the exercise of power under Section
482 of the Code. The procedure for submitting an
investigation report has been considered by this Court in
the case of
M.C. Abraham and Anr. Vs. State of
Maharashtra
[ 2003] 2 SCC 649.

While considering the
law on the question as to when the report of the
investigating agency shall be submitted before the
Magistrate where the case is pending, an observation
made in the case of
Abhinandan Jha Vs. Dinesh Mishra

[AIR 1968 SC117] was quoted with approval by
B.P.Singh, J. in M.C. Abrahams case (supra) with which
we are also in full agreement and which is as follows:

 Then the question is, what is the position,
when the Magistrate is dealing with a report
submitted by the police, under Section 173, that
no case is made out for sending up an accused
for trial, which report, as we have already
indicated, is called, in the area in question, as a
final report? Even in those cases, if the
Magistrate agrees with the said report, he may
accept the final report and close the proceedings.
But there may be instances when the Magistrate
may take the view, on a consideration of the final
report, that the opinion formed by the police is
not based on a full and complete investigation, in
which case, in our opinion, the Magistrate will
have ample jurisdiction to give directions to the
police, under Section 156(3), to make a further
investigation. That is, if the Magistrate feels, after
considering the final report, that the investigation
is unsatisfactory, or incomplete, or that there is
scope for further investigation, it will be open to
the Magistrate to decline to accept the final
report and direct the police to make further
investigation under Section 156(3). The police,
after such further investigation, may submit a
charge-sheet, or, again submit a final report,
depending upon the further investigation made
by them. If ultimately, the Magistrate forms the
opinion that the facts, set out in the final report,
constitute an offence, he can take cognizance of
the offence, under Section 190(1)(b),
notwithstanding the contrary opinion of the
police, expressed in the final report.

The function of the Magistracy and the police,
are entirely different, and though, in the
circumstances mentioned earlier, the Magistrate
may or may not accept the report, and take
suitable action, according to law, he cannot
certainly infringe (sic impinge) upon the
jurisdiction of the police, by compelling them to
change their opinion, so as to accord with his
view.

Therefore, to conclude, there is no power,
expressly or impliedly conferred under the Code,
on a Magistrate to call upon the police to submit
a charge-sheet, when they have sent a report
under Section 169 of the Code, that there is no
case made out for sending up an accused for
trial.

This court in M.C. Abrahams case (supra) observed in
para 17 as under:

The principle, therefore, is well settled that it is
for the investigating agency to submit a report to
the Magistrate after full and complete
investigation. The investigating agency may
submit a report finding the allegations
substantiated. It is also open to the investigating
agency to submit a report finding no material to
support the allegations made in the first
information report. It is open to the Magistrate
concerned to accept the report or to order further
enquiry. But what is clear is that the Magistrate
cannot direct the investigating agency to submit
a report that is in accord with his views. Even in a
case where a report is submitted by the
investigating agency finding that no case is made
out for prosecution, it is open to the Magistrate to
disagree with the report and to take cognizance,
but what he cannot do is to direct the
investigating agency to submit a report to the
effect that the allegations have been supported
by the material collected during the course of
investigation.

In our view, applying the principles
laid down in
the case
of
Abhinandan Jha
(supra) and
M.C.Abrahim
(supra) as
indicated herein above, using the report of the
investigating agency for quashing the FIR or a criminal
proceeding cannot be sustained. It was impermissible for
the High Court to entertain the report of the investigating
agency before the same could be forwarded and filed
before the concerned Magistrate in compliance with
Section 173(2) of the Code.

In
Union of India vs. Prakash
P.Hinduja & Anr.
[(2003) 6 SCC 195], this Court in para
20 observed as follows :

Thus the legal position is absolutely clear and
also settled by judicial authorities that the court
would not interfere with the investigation or
during the course of investigation which would
mean from the time of the lodging of the First
Information Report till the submission of the
report by the officer-in-charge of the police
station in court under Section 173 (2) Code, this
field being exclusively reserved for the
investigating agency.

Therefore, in view of our discussions made herein
above, while exercising power under Section 482 of the
Code, it is not open to the High Court to rely on the report
of the investigating agency nor can it direct the report to
be submitted before it as the law is very clear that the
report of the investigating agency may be accepted by the
Magistrate or the Magistrate may reject the same on
consideration of the material on record. Such being the
position, the report of the investigating agency cannot be
relied on by the High Court while exercising powers under
Section 482 of the Code. Accordingly, we are of the view
that the High Court has erred in quashing the FIR on
consideration of the investigation report submitted before
it even before the same could be submitted before the
Magistrate. For the reasons aforesaid, we are inclined to
interfere with the order of the High Court and hold that the
High Court in quashing the FIR in the exercise of its
inherent powers under Section 482 of the Code by relying
on the investigation report and the findings made therein
has acted beyond its jurisdiction. For the purpose of
finding out the commission of a cognizable offence, the
High Court was only required to look into the allegations
made in the complaint or the FIR and to conclude whether
a prima facie offence had been made out by the
complainant in the FIR or the complaint or not.

10. Before parting with this judgment, we may also
remind ourselves that the power under Section 482 of the
Code has to be exercised sparingly and in the rarest of
rare cases. In our view, the present case did not warrant
such exercise by the High Court. For the reasons
aforesaid, we are unable to sustain the order of the High
Court and the impugned order is accordingly set aside.

The appeal is allowed to the extent indicated above. The
learned Magistrate is directed to proceed with the case in
accordance with law. It is expected that the Magistrate
shall dispose of the criminal proceedings as expeditiously
as possible preferably within six months from the date of
communication of this judgment.