Criminal Misc. No. M-21423 of 2009 v. State of Punjab

Judgment

3. Criminal Misc. No. M-21423 of 2009 Criminal Misc. No. M-34488 of 2009 2

CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. L.M. Gulati, Advocate, for the petitioner, in Criminal Misc. No. M-21423 of 2009. Mr. S.S. Majithia, Advocate, for Mr. Sachin Sharma, Advocate, for the petitioners, in Criminal Misc. No. M-34488 of 2009. Mr. T.S. Salana, DAG, Punjab, for respondents No. 1 and 2, in both the petitions. Mr. Hemant Saini, Advocate, for respondent No. 3, in Criminal Misc. No. M-34488 of 2009. SHAM SUNDER, J. This order shall dispose of Criminal Misc. No. M-21423 of 2009, and, Criminal Misc. No. M-34488 of 2009, filed by the petitioners, under Section 482 Cr.P.C., for quashing FIR No. 337, dated 23.06.08, under Sections 420, 467, 468 and 471 IPC, Police Station Civil Lines, Amritsar, and all the subsequent proceedings, arising out of the same.

2. The facts, in brief, are that, the petitioners, approached the complainant and so many other persons, to invest a sum of Rs. 500/- per month and Rs. 70/- per month respectively, in the kitty, being run by them, in the name and style of Renu Kitty, for a period of 50 months. It was assured by the petitioners, that the kitty, would mature after a period of 50 months, and, thereafter, the investors, shall receive an amount of Rs. 25,000/- each. It was stated that, on Criminal Misc. No. M-21423 of 2009 Criminal Misc. No. M-34488 of 2009 3 the basis of the assurance, given by the petitioners, the complainant and so many other persons, joined the kitty, and started paying the amount every month, in different groups, being run by them. It was further stated that, when the complainant and so many other persons, were to receive the amount, assured by the petitioners, at the time of maturity, there were 598 kittys, wherein, its members were having 5 to 10 number of shares. It was further stated that, on 01.05.2008, when the 49th kitty of the first group was fixed, the petitioners, did not turn up, and fled, thereby duping the complainant and so many other investors of their hard earned money, which came to be Rs. 1,49,50,000/-. It was further stated that, later on, it came to the fore, that the petitioners, had also forged receipts and withdrawn kittys of similar serial numbers a number of times. It was further stated that the petitioners, were also tried to be approached, at their residence, but in vain, as they had already left the same. Ultimately, the aforesaid FIR was got registered.

3. I have heard the Counsel for the parties, and, have gone through the documents, on record, carefully.

4. The Counsel for the petitioners, submitted that the petitioners, respondent No. 3 (complainant) and the other investors, have arrived at a compromise. They further submitted that, even collective affidavits of the complainants, Annexure R3/1, have been placed, on the record, wherein, they have submitted that, they have received the amount, and, have no objection, in case, the FIR, Criminal Misc. No. M-21423 of 2009 Criminal Misc. No. M-34488 of 2009 4 aforesaid, and the subsequent proceedings, arising therefrom, are quashed. They further submitted that, if the compromise, in the shape of affidavits, referred to above, is accepted, it will go a long way, to prevent the abuse of process of Court, and, create better relations, between the parties.

5. The Counsel for respondent No. 3, one of the complainants, also submitted that, since the parties, have arrived at a compromise, and, all the investors, have received the amount, which was settled after compromise, no useful purpose, shall be served by prosecuting the case further. He further submitted that, the complainant had no objection, in case, the compromise, in the shape of affidavits, referred to above, is accepted, and the FIR, and the subsequent proceedings are quashed.

6. The Counsel for respondents No. 1 and 2 – the State of Punjab, on the other hand, opposed the quashing of the FIR, and the subsequent proceedings. He submitted that the petitioners, played a fraud, and duped the complainant and so many other investors, making them, to part with a sum of Rs. 1,49,50,000/-, in the name of kitty parties. He further submitted that, such persons, who cheat the public at large, by making it to part with a huge amount, do not deserve the indulgence of the Court, and, are required to be dealt with, in accordance with the provisions of law. He further submitted that, it is not that, in every case, which is non-compoundable, as per the provisions of Section 320 Cr.P.C., once there is compromise, the Criminal Misc. No. M-21423 of 2009 Criminal Misc. No. M-34488 of 2009 5 criminal proceedings, should be quashed. He further submitted that the Court, at the time of accepting or rejecting the compromise, is also required, to see, as to whether, the same is against the public policy or the interest of the society. He further submitted that the inherent power, under Section 482 Cr.P.C., cannot be invoked, by the Court, for quashing criminal proceedings, in relation to all non- compoundable offences, even if the parties arrive at a compromise.

7. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, the petitions, are 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 the 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 Criminal Misc. No. M-21423 of 2009 Criminal Misc. No. M-34488 of 2009 6 out, in the complaint, or the 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 the following category of cases, the High Court, in exercise of its powers, 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 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 Criminal Misc. No. M-21423 of 2009 Criminal Misc. No. M-34488 of 2009 7 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 Criminal Misc. No. M-21423 of 2009 Criminal Misc. No. M-34488 of 2009 8 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. 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. Now adverting to the facts of the instant case, let us see, as to whether, the principle of law, laid down, in the aforesaid case, is applicable, to the same, or not. 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 Inspector of Police Vs. B. Criminal Misc. No. M-21423 of 2009 Criminal Misc. No. M-34488 of 2009 9 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 had been made, in the 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 Criminal Misc. No. M-21423 of 2009 Criminal Misc. No. M-34488 of 2009 10 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-21423 of 2009 Criminal Misc. No. M-34488 of 2009 11 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-21423 of 2009 Criminal Misc. No. M-34488 of 2009 12 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."

9. In view of the enunciation of the principle of law, 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 467, 468 and 471 of the Indian Penal Code.

10. As stated above, the complainant and so many other persons, were cheated, by the petitioners, and, they were made to part with a sum of Rs. 1,49,50,000/-. This was hard earned money of the complainant and other investors, who were taken in, by the assurance of the petitioners, that if they joined the kitty party and paid the specific amount every month, the same, would be returned, to them in lump-sum, as and when, their turn came. If, in such like heinous crimes, the compromise, between the parties, is accepted, that would amount to negating the very purpose of law and defeat the ends of justice. Not only this, such a compromise, is against the public policy and interest of the society, as a whole. Such like persons, who allegedly cheat the public, at large, do not deserve the indulgence of the Court, in the matter like the one, involved in this Criminal Misc. No. M-21423 of 2009 Criminal Misc. No. M-34488 of 2009 13 case. The FIR and the subsequent proceedings, arising out of the same, therefore, could not be said to be abuse of the process of the Court.

11. For the reasons recorded above, Criminal Misc. No. M-21423 of 2009, and, Criminal Misc. No. M-34488 of 2009, being devoid of merit, must fail, and the same stand dismissed. Any observation, made in this order, shall not be taken, as an expression of mind, on merits of the case.

12. Registry is directed, to comply with the order, by sending the copies thereof, to the Courts concerned, immediately.

12.03.2010 Amodh (SHAM SUNDER) JUDGE