Supreme Court of India

Pratibha vs Rameshwari Devi & Ors on 17 September, 2007

Equivalent citations: 2007 AIR SCW 5933, 2008 CRI. L. J. 329, 2007 CRI LJ (NOC) 974, AIR 2007 SC (SUPP) 899, 2007 (12) SCC 369, (2008) 1 WLC(SC)CVL 88, (2007) 59 ALLCRIC 824, (2007) 4 RECCRIR 367, 2008 (1) SCC (CRI) 399, (2008) MATLR 69, (2007) 59 ALLINDCAS 159 (SC), (2007) 4 JCC 2769 (SC), (2007) 11 SCALE 174, (2007) 2 DMC 583, (2007) 38 OCR 834, (2008) 1 MAD LJ(CRI) 935, (2007) 4 EASTCRIC 213, (2007) 3 RAJ CRI C 972, 2007 CRILR(SC&MP) 924, (2007) 6 SUPREME 554, (2007) 4 CRIMES 76, (2007) 2 CRILR(RAJ) 924, (2007) 4 RECCRIR 152, (2007) 3 CHANDCRIC 270, 2007 (3) ANDHLT(CRI) 323 SC, (2007) 2 ALD(CRL) 860, (2007) 3 ANDHLT(CRI) 323

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 482
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 13
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.