Vinay Dhawan v. State of Punjab & Anr.

Cr.P.C. for quashing of FIR No.375/2009 dated 10.9.2009 under Sections 420, 120-B IPC read with Section 8/9 P.C. Act Police Station Civil Lines Amritsar. While praying for quashing of FIR, it is contended that there is no allegation against the petitioner. The petitioner simply accompanied his brother-in-law and he did not make any promise for the job. It is further stated that the said FIR has been registered on account of the fact that the father of the petitioner had issued a cheque in favour of respondent No.2-complainant. The said cheque was dishonoured and a complaint under Section 138 of the Negotiable Instruments Act was filed and the present FIR has been registered only to implicate the petitioner. Reply has been filed by the State opposing the present CRM M-17263 of 2011 -2- petition submitting there that there are specific allegations against the petitioner. From the perusal of the FIR, offence is clearly made out. Heard. As per the allegation in the FIR against the present petitioner, in the month of July, 2006 accused Vinay Dhawan along with co-accused went to the house of the complainant and convinced him that they could arrange for sending Mandeep Singh abroad. They induced the complainant to part with ` One lac in cash and subsequently on another occassion ` 10 lacs vide two cheques in the name of Madan Mohan. Madan Mohan is no one else but the father of the petitioner. Thus, it is a matter of evidence as to whether the petitioner had shared the said amount given by respondent No.2- complainant and was a party in the conspiracy to cheat him or not. It is also pointed out that the charges have already been framed and the examination-in-chief of the complainant has also been recorded. Hon’ble the Supreme Court in the case of State of M.P. vs. Awadh Kishore Gupta and others reported as (2004)1 SCC 691 while relying on the judgment of R.P. Kapur vs. State of Punjab reported as AIR 1960 SC 866, observed the category of cases, in which, the inherent power should be exercised to quash the proceedings. Para 9 of the same reads as under :- “ 9. In R.P. Kapur v. State of Punjab this Court summarized some categories of cases where inherent power can and should be exercised to quash the CRM M-17263 of 2011 -3- proceedings: (i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction; (ii) where the allegations in the first information report or complaint taken at their face value and accepted in their entirety do not constitute the offence alleged; (iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.” Thus, needless to say, that none of the three grounds are available in the facts of the present case. Even as per the judgment rendered in the case of State of Haryana vs. Bhajan Lal reported as 1992 Supp (1) SCC 335, a note of caution was, however, added that the power should be exercised sparingly and that too in the rarest of rare cases. Hon’ble the Apex Court in the case of Pankaj Kumar vs. State of Maharashtra reported as 2008(4) RCR (Criminal) 890, while discussing the scope and ambit of powers of the High Court under Section 482 Cr.P.C., as well as, the expression “rarest of rare cases” observed in paras 10, 11 and 12 as under :- “10. The scope and ambit of powers of the High Court under Section 482 Cr.P.C or Article 227 of the Constitution has been enunciated and reiterated by this Court in a series of decisions and several circumstances CRM M-17263 of 2011 -4- under which the High Court can exercise jurisdiction in quashing proceedings have been enumerated. Therefore, we consider it unnecessary to burden the judgment by making reference to all the decisions on the point. It would suffice to state that though the powers possessed by the High Courts under the said provisions are very wide but these should be exercised in appropriate cases, ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. The inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice. The powers have to be exercised sparingly, with circumspection and in the rarest of rare cases, where the court is convinced, on the basis of material on record, that allowing the proceedings to continue would be an abuse of the process of the court or that the ends of justice require that the proceedings ought to be quashed.

11. Although in Bhajan Lal’s case (supra), the court by way of illustration, formulated as many as seven categories of cases, wherein the extra-ordinary power under the afore-stated provisions could be exercised by the High Court to prevent abuse of process of the court yet it was clarified that it was not possible to lay down precise and inflexible guidelines or any rigid formula or to give an exhaustive list of the circumstances in which CRM M-17263 of 2011 -5- such power could be exercised.

12. The purport of the expression “rarest of rare cases” has been explained very recently in Som Mittal (supra). Speaking for the three-Judge Bench, Hon’ble the Chief Justice has said thus : “When the words `rarest of rare cases’ are used after the words `sparingly and with circumspection’ while describing the scope of Section 482, those words merely emphasize and reiterate what is intended to be conveyed by the words `sparingly and with circumspection’. They mean that the power under Section 482 to quash proceedings should not be used mechanically or routinely, but with care and caution, only when a clear case for quashing is made out and failure to interfere would lead to a miscarriage of justice. The expression “rarest of rare cases” is not used in the sense in which it is used with reference to punishment for offences under Section 302 IPC, but to emphasize that the power under Section 482 Cr.P.C to quash the FIR or criminal proceedings should be used sparingly and with circumspection.” Applying the test and the legal position as laid down in the cases of State of Orissa and another, State of MP as well as State of Haryana (supra), the case, in hand, does not all in any of the exceptions as well as the expression 'rarest of rare cases' wherein, the FIR can be quashed while exercising power under under Section 482 Cr.P.C. Dismissed accordingly.

16.5.2012 rajeev ( NIRMALJIT KAUR ) JUDGE