2019 SCeJ 230

12 February, 2019

 

Cr.P.C., Section 482  - Quashing - Allegations of civil nature  - The correctness or otherwise of the allegations has to be decided only in the Trial -  At the initial stage of issuance of process it is not open to the Courts to stifle the proceedings by entering into the merits of the contentions made on behalf of the accused - Criminal complaints cannot be quashed only on the ground that the allegations made therein appear to be of a civil nature - If the ingredients of the offence alleged against the accused are prima facie made out in the complaint, the criminal proceeding shall not be interdicted -  Indian Penal Code, 1860, Section 420, 465, 467, 468, 471 read with Section 34.

 

 

 

 

 

2019 SCeJ 230

12 February, 2019

Cr.P.C., Section 482  - Quashing - Quashing the criminal proceedings is called for only in a case where the complaint does not disclose any offence, or is frivolous, vexatious, or oppressive -  If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same - It is not necessary that a meticulous analysis of the case should be done before the Trial to find out whether the case would end in conviction or acquittal - If it appears on a reading of the complaint and consideration of the allegations therein, in the light of the statement made on oath that the ingredients of the offence are disclosed, there would be no justification for the High Court to interfere - Defences that may be available, or facts/aspects which when established during the trial, may lead to acquittal, are not grounds for quashing the complaint at the threshold. 

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2019 SCeJ 58

4 January, 2019

 

CrPC, 1860, S. 482 -  Compromise quashing – Non compoundable offences - High Court quashed  criminal  proceedings  against  the  Accused for offences under Sections 307, 294 read with Section 34 of the IPC, solely on the ground that the original Complainant and Accused have settled the dispute and the original Complainant does not want to prosecute the accused and, therefore, there is no chance of recording conviction against the accused persons - Offences under Sections 307, 294 read with Section 34 of the IPC are  not  non-compoundable offences  and,  looking  to  the  serious  allegations  against  the accused,  High  Court  has committed a grave error in quashing the criminal proceedings for the offences under Sections 307, 294 read with Section 34 of the IPC solely on the ground that the original Complainant and the accused have settled the dispute - IPC, S. 307, 294 read with Section 34. 2019 SCeJ 58


2019 SCeJ 49

4 January, 2019

Penal Code, 1860 – Section  307, 325 - Quashed – Considering material on record, the medical certificate more particularly, the injuries sustained by the original Complainant - Complainant sustained injuries on the nose and fracture of the nasal bone, the case may fall within the grievous hurt, but it cannot be said that even, prima facie, a case is made out for the offence under Section 307 of the IPC - It cannot be said that the intention of the accused was to cause death of the complainant – High Court rightly passed order holding that a charge under Section 325/149 ought to have been framed  and    setting aside the order passed by the trial Court insofar as framing the charge under Section 307 of the IPC - CrPC, 1860, S. 482  .   2019 SCeJ 49


CrPC , S. 482 - Jurisdiction to quash the proceedings at the stage of issuance of process, or at the stage of committal, or at the stage of framing of charges, that is to say before the commencement of actual trial, in the light of material placed on record by the accused – Steps to determine the veracity of a prayer for quashment raised by an accused by invoking the power vested in the High Court under Section 482 CrPC laid down - Rajiv Thapar and Others v. Madan Lal Kapoor, (2013) 3 SCC 330

 

28. High Court, in exercise of its jurisdiction under Section 482 CrPC, must make a just and rightful choice. This is not a stage of evaluating the truthfulness or otherwise of the allegations levelled by the prosecution/complainant against the accused. Likewise, it is not a stage for determining how weighty the defences raised on behalf of the accused are. Even if the accused is successful in showing some suspicion or doubt, in the allegations levelled by the prosecution/complainant, it would be impermissible to discharge the accused before trial. This is so because it would result in giving finality to the accusations levelled by the prosecution/ complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same. The converse is, however, not true, because even if trial is proceeded with, the accused is not subjected to any irreparable consequences. The accused would still be in a position to succeed by establishing his defences by producing evidence in accordance with law. There is an endless list of judgments rendered by this Court declaring the legal position that in a case where the prosecution/ complainant has levelled allegations bringing out all ingredients of the charge(s) levelled, and have placed material before the Court, prima facie evidencing the truthfulness of the allegations levelled, trial must be held.

 

29.          The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 CrPC, if it chooses to quash the initiation of the prosecution against an accused at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 CrPC, at the stages referred to hereinabove, would have far-reaching consequences inasmuch as it would negate the prosecution’s/complainant’s case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 CrPC the High Court has to be fully satisfied that the material produced by the accused is such that would lead to the conclusion that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/ complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 CrPC to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice.

 

30.          Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashment raised by an accused by invoking the power vested in the High Court under Section 482 CrPC:

 

Step one: whether the material relied upon by the accused is sound, reasonable, and indubitable i.e. the material is of sterling and impeccable quality?

 

Step two: whether the material relied upon by the accused would rule out the assertions contained in the charges levelled against the accused i.e. the material is sufficient to reject and overrule the factual assertions contained in the complaint i.e. the material is such as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false?

 

Step three: whether the material relied upon by the accused has not been refuted by the prosecution/complainant; and/or the material is such that it cannot be justifiably refuted by the prosecution/complainant?

 

Step four: whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?

 

If the answer to all the steps is in the affirmative, the judicial conscience of the High Court should persuade it to quash such criminal proceedings in exercise of power vested in it under Section 482 CrPC. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as proceedings arising therefrom) specially when it is clear that the same would not conclude in the conviction of the accused.”

 

 

 

CrPC Section 482  - Whether once the charge sheet is filed, petition for quashing of FIR is untenable?  - There is nothing in the words of Section 482 which restricts the exercise of the power of the Court to prevent the abuse of process of court or miscarriage of justice only to the stage of the FIR - It is settled principle of law that the High court can exercise jurisdiction under Section 482 of Cr.P.C even when the discharge application is pending with the trial court - Indeed, it would be a travesty to hold that proceedings initiated against a person can be interfered with at the stage of FIR but not if it has advanced, and the allegations have materialized into a charge sheet - On the contrary it could be said that the abuse of process caused by FIR stands aggravated if the FIR has taken the form of a charge sheet after investigation - The power is undoubtedly conferred to prevent abuse of process of power of any court. (2018)2 SCeJ 1719

 

 

CrPC Section 482, 406  - Allegation that the Appellant has fraudulently transferred the property which is the subject matter of the developer agreement to his wife and has thereby committed criminal breach of trust - This charge is wholly untenable and rather extraordinary since the alleged fraudulent transfer of property by the Appellant to his wife, assuming it to be illegal, by no stretch of imagination can constitute the offence of a criminal breach of trust, since the property was not entrusted by the complainant to the Appellants - The property belonged to Appellant and there was therefore no question of Appellants having been entrusted with their own property, and that too by the complainant, who had merely entered into a development agreement in respect of the property.

(2018)2 SCeJ 1719


Criminal Procedure Code, Section 482 - Revisional jurisdiction of the High Court  - High Court has not at all assigned any  cogent reason  for reaching its conclusion - We are conscious of the fact that revisional jurisdiction must be exercised by the High Court only  in exceptional circumstances, where there is a gross miscarriage  of justice, manifest illegality or perversity in the judgment of the lower court - Interference would be warranted only if there is a manifest illegality in the judgment of the lower court - But in the matter on hand, in our considered opinion, because of non­furnishing of valid reasons by the Trial Court, while coming to its conclusion, there is manifest illegality, and thus, the view taken  by the High Court cannot be termed as reasonable - When there is a glaring defect or manifest error leading to a flagrant miscarriage of justice, this Court cannot shut its eyes  merely  on  technicalities, particularly while exercising jurisdiction under Article 136 of the Constitution - In our considered opinion, the revisional jurisdiction vested in the High Court has not been properly exercised by the High Court - The High Court should not have proceeded casually while affirming the judgment of the trial Court - Having regard to the material on  record  and  having regard to the magnitude of the offence, the High Court should have been more serious while considering the revision petition.(2018)2 SCeJournal 1390

Criminal Procedure Code, 1973 S. 482 - Court is of the view that notwithstanding the fact the offence under Section 498A IPC is a non-compoundable offence, there should be no impediment in quashing the FIR under this section, if the Court is otherwise satisfied that the facts and circumstances of the case so Warrant - Indian Penal Code, 1860 (XLV of 1860) S. 498-A. (183) PLR (Del.)

Criminal Procedure Code, 1973 S. 482 - Negotiable Instruments Act, 1881 (26 of 1881) S. 138 - Whether the cheques were given as security or not, or whether there was outstanding liability or not is a question of fact which could have been determined only by the trial court after recording evidence of the parties - High Court not have expressed its view on the disputed question of fact - As to whether the signatory of demand notice was authorized by the complainant company or not, could not have been examined by the High Court in its jurisdiction under Section 482 of the Code of Criminal Procedure when such plea was controverted by the complainant before it - High Court exceeded its jurisdiction by giving its opinion on disputed questions of fact, before the trial Court. (S.C.)(179) PLR

Criminal Procedure Code, 1973 S. 482 - Since  matter of this FIR is essentially matrimonial, which now stands mutually and amicably settled between the parties, therefore, continuance of proceedings arising out of the FIR in question would be an exercise in futility and is a fit case for this Court to exercise its inherent jurisdiction and quash the same. (183) PLR (Del.)

Criminal Procedure Code, 1973 S. 482 - Where the High Court is convinced that the offences are entirely personal in nature and therefore do not affect public peace or tranquillity and where it feels that quashing of such proceedings on account of compromise would bring about peace and would secure ends of justice, it should not hesitate to quash them. (183) PLR (Del.)

Criminal Procedure Code, 1973 S. 482, 156(3) - Where the police does not register FIR - It is  inter alia provided that a petition under Section 482 Cr.P.C. is not to be entertained for registering a FIR and the petitioner should be relegated to the Magistrate, who has power to register FIR under Section 156(3) Cr.P.C. or direct the police to register FIR - In view of the above, the petitioners may, if so advised, avail other remedies in accordance with law.  (183) PLR

Criminal Procedure Code, 1974 S. 482 - Indian Penal Code, 1860 (XLV of 1860) S. 376, 120-B, Petitioners - Real question would be that if a female, who is 27 years old at the time of registration of FIR, was having an affair with VS for about 2-1/2 years, whether his family members could be held responsible in any way on the basis of story propounded in the FIR and revealed during investigation - Petitioner No.1 is the married sister of VS - Allegations so far as petitioners are concerned would pale into insignificance when child was born to the complainant after about 1 year and 4 months after registration of FIR - There is no assertion in the FIR or challan report that parents or the married sister of VS had any role to play when VS and the complainant started having an affair about 2-1/2 years before registration of FIR - Petitioners cannot be at all prosecuted for offence under Section 376 of the Code as their role was introduced while settling the issue of marriage between the complainant and   (180) PLR

 

Criminal Procedure Code, 1974 S. 482, 320 - High Court in exercise of its inherent powers under Section 482 of the Code of Criminal Procedure can quash the criminal proceedings in matrimonial disputes in non-compoundable offences and Section 320 of the Code of Criminal Procedure does not limit such power - Hindu Marriage Act, 1955 (25 of 1955). (178) PLR