Criminal Misc. No. M-22178 of 2009 v. State of Haryana through Secretary, Department of Home Affairs, Civil Secretariat, Haryana

Judgment

3. ...Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Satbir Gill, Advocate, for the petitioner. Mr. Sandeep Mann, Senior Deputy Advocate General, Haryana, for the respondents. SHAM SUNDER, J. This petition, under Section 482 Cr.P.C., for quashing FIR No. 145, dated 29.07.09, under Sections 363 and 366 IPC, Police Station Rania, District Sirsa, and, the subsequent proceedings, arising therefrom, has been filed by the petitioner.

2. The father of the prosecutrix (name not being mentioned, in view of the pronouncement of the Apex Court), got registered the

aforesaid first information report, on the allegations, that on the night intervening 25/26.07.09, he and his family members, including his Criminal Misc. No. M-22178 of 2009 2 daughter i.e. the prosecutrix, was sleeping, in the courtyard. When the complainant, got up early in the morning, he saw that the prosecutrix, was missing. He enquired about the whereabouts of the prosecutrix, from his neighbourers and villagers, as also the relatives, but in vain. It was stated that on the day, when the prosecutrix, went missing, he checked the iron box, lying in his house, wherefrom, Rs. 2 lacs, in cash, and about 8 tolas of Gold, were also missing. It was further stated that the prosecutrix, had also taken away her clothes. It was further stated that the complainant, came to know, that Gulzar Singh, accused-petitioner, was also missing, from the day, the prosecutrix, was found missing. The complainant entertained a firm belief in his mind that the prosecutrix had been kidnapped by the petitioner with an intention to induce her to illicit intercourse. Ultimately, the aforesaid FIR was got registered.

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

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

5. The Counsel for the petitioner, submitted that, the prosecutrix, accompanied the petitioner of her own accord, and, as such, it could not be said, that she was kidnapped, from her legal guardianship. He further submitted that, even the prosecutrix, gave an affidavit, to the effect, that she performed marriage with the petitioner. He further submitted that, no offences, punishable under Sections 363 and 366 of the Indian Penal Code, were committed, by Criminal Misc. No. M-22178 of 2009 3 the petitioner, in the circumstances, explained above. He further submitted that the parties, have arrived at a compromise, and the continuation of the FIR and the subsequent proceedings, in this view of the matter, shall amount to sheer abuse of the process of the Court. He, thus, prayed for quashing the same.

6. On the other hand, the Counsel for the respondents, submitted that, the prosecutrix, was below 18 years of age, at the time, she was kidnapped, from her legal guardianship. He further submitted that the consent of the minor, is no consent, in the eye of law. He further submitted that the offences, punishable under Sections 363 and 366 of the Indian Penal Code, are, thus, made out, from the allegations, contained in the first information report. He further submitted that, under these circumstances, even if, the compromise, has been arrived at, between the parties, the first information report, and the subsequent proceedings, cannot be quashed, as the offences, are non-compoundable.

7. 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 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, Criminal Misc. No. M-22178 of 2009 4 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 categories 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: 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 Criminal Misc. No. M-22178 of 2009 5 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 prudgent person can every reach a just conclusion that there is sufficient ground for proceeding Criminal Misc. No. M-22178 of 2009 6 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 any of the categories of cases, enumerated above, calling for exercise of extraordinary powers or inherent powers, quashing of FIR was not justified.

8. 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 Criminal Misc. No. M-22178 of 2009 7 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 petitioner deserves the indulgence of the Court or not. 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. Not only this, the Court, is also required to determine the nature of the offences, allegedly committed, by the accused, at the time of deciding the petition, under Section 482 Cr.P.C. If the nature of the offences, allegedly committed, by the accused, is serious and against the public policy, then the Court, should stay back its hands, in allowing the petition, under Section 482 Cr.P.C. In the present case, the offences, punishable under Sections 363 and 366 of the Indian Penal Code, are non-compoundable, as per the provisions of Section 320 Cr.P.C. The prosecutrix was also minor i.e. below 18 years of age, at the time of the alleged occurrence. Her alleged consent, thus, was of no consequence, in the eye of law. 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. In the case of Inspector of Police Vs. B. Raja Gopal and Others Criminal Misc. No. M-22178 of 2009 8 (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, 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 under Article 227 is a discretionary power and it is difficult to attribute to an order of the High Criminal Misc. No. M-22178 of 2009 9 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 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 Criminal Misc. No. M-22178 of 2009 10 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 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 Criminal Misc. No. M-22178 of 2009 11 exercised as against an express bar in some other enactment."

9. 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 the composition of offences, punishable under Sections 363 and 366 of the Indian Penal Code. The crime allegedly committed by the accused, is not only against the society, but also against the public policy. If the power under Section 482 Cr.P.C., is exercised, in such like cases, where the prosecutrix was minor, at the time of alleged occurrence, then the petitioner shall feel encouraged in indulging into such like crimes. Exercise of power, under Section 482 Cr.P.C., in such like cases, will create lawlessness, in the society. No ground, therefore, is made out for exercising the power, under Section 482 Cr.P.C., for quashing the FIR, and the subsequent proceedings.

10. For the reasons recorded above, Criminal Misc. No. M-22178 of 2009, being devoid of merit, must fail, and the same stands dismissed. Any observation, made in this order, shall not be taken, as an expression of mind, on merits of the case.

08.01.2010 Amodh (SHAM SUNDER) JUDGE