Criminal Misc. No. M-12656 of 2009 v. State of Haryana

The aforesaid FIR, came into existence, on the basis of the statement of Ram Chander, complainant, who stated therein, that he has three daughters and three sons. It was further stated that, his sons namely Kuldip and Kulbir, as also his daughters namely Saroj and Murti, were married, whereas, his younger son namely Kulwant and daughter the prosecutrix, were unmarried, at the relevant time. It was further stated that his daughter the prosecutrix, passed 10+2, at the age of about 19/20 years. It was further stated that, in the evening, the complainant alongwith his wife and daughter Sunita, was sleeping, in a room, situated on the roof of his house, on separate cots. When he woke up, in the morning, he did not find his daughter. It was further stated that, thereafter, the complainant looked for her, everywhere, but in vain. It was further stated that, in the courtyard, near the stairs of his house, he found a plastic statute, containing some pieces of chicken meat and other things relating to black magic (tuna-totka). It was further stated that, no clue of Sunita, could be found. It was further stated that Sunita, might have been taken away, by an unknown person, after administering her some sedative, with a view to entice her or play black magic. Ultimately, Criminal Misc. No. M-12656 of 2009 3 the accused, were arrested.

3. Feeling aggrieved, the instant petition, has been filed by the accused-petitioners.

4. I have heard the Counsel for the parties, and have gone through the record of the case, carefully.

5. The Counsel for the petitioners, submitted that the parties, have arrived at a compromise. He further submitted that, if the first information report, is quashed, it will go a long-way, to create better relations, between the parties. He further submitted that, petitioner No. 1, has already performed marriage with respondent No. 2.

6. The Counsel for the complainant (respondent No. 2), also submitted, that better relations, shall prevail, between the parties, in case, the first information report, and the subsequent proceedings, are quashed, on the basis of compromise.

7. On the other hand, the Counsel for respondent No. 1 – State, submitted that the offences, committed by the petitioners, being very heinous, the first information report, could not be quashed. He further submitted that the prosecution evidence, has already been concluded, and the prosecutrix supported the case of the prosecution. He further submitted that the petition, be dismissed.

8. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, the petition, is liable to be dismissed, for the reasons to be recorded, hereinafter. It is trite that jurisdiction, under Section 482 Criminal Misc. No. M-12656 of 2009 4 Cr.P.C., which saves the inherent power of the High Court, to make such orders, as may be necessary to prevent abuse of the process of any Court, or otherwise, to secure the ends of justice, has to be exercised sparingly, and with circumspection. In exercising that jurisdiction, the High Court would not embark upon an enquiry, whether the allegations, in the complaint, are likely to be established by the evidence or not. That is the function of the trial Magistrate, when the evidence comes before him. Though, it is neither possible, nor advisable to lay down any inflexible rules, to regulate such jurisdiction, one thing, however, appears clear that it is that when the High Court is called upon to exercise this jurisdiction, to quash a proceeding, at the stage of the Magistrate, taking cognizance of an offence, it is guided by the allegations, whether those allegations set out in the complaint, or charge-sheet, do not, in law constitute, or spell out any offence, and that resort to criminal proceedings, would, in the circumstances, amount to an abuse of the process of the Court, or not. Even in State of Haryana and others Vs. Ch. Bhajan Lal and others AIR 1992 Supreme Court 604(1), it was held that in following category of cases, the High Court in exercise of its powes, under Article 226 or under Section 482 of the Code of Criminal Procedure, may interfere in the proceedings, relating to cognizable offences, to prevent the abuse of the process of any Court, or otherwise, to secure the ends of justice. However, this power should be exercised sparingly, and that too, in the rarest of rare cases: Criminal Misc. No. M-12656 of 2009 5 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 Criminal Misc. No. M-12656 of 2009 6 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 prudgent person can every 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 mala fide 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. 8)Where allegtions in the complaint did constitute a cognizable offence justifying registration of a case and investigation thereon and did not fall in Criminal Misc. No. M-12656 of 2009 7 any of the categories of cases, enumerated above, calling for exercise of extraordinary powers or inherent powers, quashing of FIR was not justified.

9. The inherent powers, with which the Criminal Courts, are clothed, are to make such orders, as may be necessary for the ends of justice. Though the power is unrestricted and undefined, it should not be used capriciously or arbitrarily, but should be exercised in appropriate cases, to do real and substantial justice, for which alone the Courts exist. Now adverting to the facts of the instant case, let us see, as to whether, the petitioners, deserve the indulgence of the Court or not. The power, under Section 482 Cr.P.C., can be exercised only in the rarest of rare cases. Section 482 Cr.P.C., provides an extra-ordinary remedy, which can be invoked only in exceptional circumstances. The power under Section 482 Cr.P.C., cannot be exercised, when there is an express bar created by any provision of the Cr.P.C., or any other Statute. In the present case, the offences, punishable under Sections 363, 366, and, 376 (g) IPC, are non- compoundable, as per the provisions of Section 320 Cr.P.C. In Surendra Nath Mohanty and another Vs. State of Maharashtra 1999(2) RCR (Criminal) 683 (S.C.), a three Judge Bench of the Apex Court, held that the High Court cannot order the composition of offences, which are non-compoundable, as per Section 320 Cr.P.C., in exercise of its inherent powers, under Section 482 Cr.P.C. Criminal Misc. No. M-12656 of 2009 8 In the case of Inspector of Police Vs. B. Raja Gopal and Others (2002)9 SCC, 533, the Apex Court, while setting aside the High Court order of quashing the criminal proceedings, held that merely because the parties had compromised the case, and the payment was made, in proceedings, charged under Sections 420, 468 and 471 of the Indian Penal Code, the premature quashing, made by the High Court, was not in accordance with law. While defining the powers of the High Court, under Section 482 Cr.P.C., the Apex Court summed up, its conclusions, in case, State, through Special Cell, New Delhi Vs. Navjot Sandhu @ Afshan Guru and others 2003(2) RCR (Criminal) 860 (SC), in para Nos.28 and 29, which read as follows : "28. Thus the law is that Article 227 of the Constitution of India gives the High Court the power of superintendence over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction. This jurisdiction cannot be limited or fettered by any act of the State Legislature. The supervisory jurisdiction extends to keeping the subordinate Tribunals within the limits of their authority and to seeing that they obey the law. The powers under Article 227 are wide and can be used, to meet the ends of justice. They can be used to interfere even with an interlocutory order. However, the power Criminal Misc. No. M-12656 of 2009 9 under Article 227 is a discretionary power and it is difficult to attribute to an order of the High Court, such a source of power, when the High Court itself does not in terms propose to exercise any such discretionary power. It is settled law that this power of judicial superintendence, under Article 227, must be exercised sparingly and only to keep subordinate Courts and Tribunals within the bounds of their authority and not to correct mere errors. Further where the statute bans the exercise of revisional powers it would require very exceptional circumstances to warrant interference under Article 227of the Constitution of India since the power of superintendence was not meant to circumvent statutory law. It is settled law that the jurisdiction under Article 227 could not be exercised "as the cloak of an appeal is disguise."

29. Section 482 of the Criminal Procedure Code starts with the words "Nothing in this Code". Thus the inherent jurisdiction of the High Court under Section 482 of the Criminal Procedure Code can be exercised even when there is a bar under Section 397 or some other provisions of Criminal Misc. No. M-12656 of 2009 10 the Criminal Procedure Code. However, as is set out in Satya Narayanan Sharma's case (supra) this power cannot be exercised if there is a statutory bar in some other enactment. If the order assailed is purely of an interlocutory character, which could be corrected in exercise of revisional powers or appellate powers the High Court must refuse to exercise its inherent power. The inherent power is to be used only in cases where there is an abuse of the process of the Court or where interference is absolutely necessary for securing the ends of the justice. The inherent power must be exercised very sparingly as cases which require interference would be few and far between. The most common case where inherent jurisdiction is generally exercised is where criminal proceedings are required to be quashed because they are initiated illegally, vexatiously or without jurisdiction. Most of the cases set out herein above fall in this category. It must be remembered that the inherent power is not to be resorted to if there is a specific provision in the Code or any other enactment for redress of the Criminal Misc. No. M-12656 of 2009 11 grievance of the aggrieved party. This power should not be exercised against an express bar of law engrafted in any other provision of the Criminal Procedure Code. This power cannot be exercised as against an express bar in some other enactment."

10. In view of the enunciation of the principle of law, made in the aforesaid cases, the power under Section 482 Cr.P.C., cannot be exercised, in this case, as there is a specific bar, created by Section 320 Cr.P.C. for composition of the offences, punishable under Sections 363, 366, and, 376 (2) (g) IPC. The offences, punishable under Sections 363, 366, and, 376 (2) (g) IPC, allegedly committed by the petitioners, are against the society and public policy. It cannot be said to be a private dispute, between the petitioners, and the prosecutrix or her parents. There are specific allegations, against the petitioners, that they kidnapped the prosecutrix, from her lawful guardianship and committed rape with her. Procurement of an affidavit, in the shape of compromise (Annexure P5), from the prosecutrix, clearly goes to show that the prosecutrix has been allegedly won over, and the evidence is being tampered with. At this stage, it cannot be said, as to whether, this document is genuine or otherwise or, under what circumstances, the same was got executed from the prosecutrix. If, in such like serious offences, involving the crime against women, the criminal proceedings are quashed, at the Criminal Misc. No. M-12656 of 2009 12 initial stage, it will send a wrong signal to the society. If the power, under Section 482 Cr.P.C., is exercised, in such like cases, then there will be complete lawlessness, in the society. Under these circumstances, no ground, whatsoever, is made out, for exercising the power, under Section 482 Cr.P.C., for quashing the FIR, and the subsequent proceedings. Criminal Misc. No. M-12656 of 2009, is, thus, liable to be dismissed.

11. For the reasons recorded above, Criminal Misc. No. M- 12656 of 2009, being devoid of merit, must fail, and the same is dismissed. Any observation, made in this order, shall not be taken, as an expression of mind on merits of the case.

12. The Registry shall send copies of the order to the Courts concerned immediately.

01.02.2010 Amodh (SHAM SUNDER) JUDGE