Case BriefsSupreme Court

Supreme Court: In a case where the Gujarat High Court had quashed criminal proceedings at the behest of persons who were not named in the FIR purely on the basis of their names appearing in the draft charge-sheet, the bench of Dr. DY Chandrachud* and BV Nagarathna, JJ has found it to be a “clear abuse” of High Court’s jurisdiction under Section 482 of the CrPC. The Court noticed that the High Court cannot place reliance on a “draft charge-sheet” which is yet to be placed before the Magistrate to quash the criminal proceedings under Section 482.

In a dispute over the title of a land, a sum of money running into crores of rupees is alleged to have been demanded from the appellant, stating that the lands had been sold to land mafias. While the sixth and seventh respondents were named in the FIR, the eighth and ninth respondents were arraigned as accused in the draft charge-sheet. The allegations against the sixth to ninth respondents are that as a part of a criminal conspiracy, they colluded to execute false powers of attorney and MoUs to jeopardize the right and title to the land belonging to the appellant and were party to the extortion of money from him. It is alleged that sixth, seventh and ninth respondents executed champertozus agreements with the legal heirs of the land owner and were alleged to be involved in the extortion of money from the appellant. The eighth respondent, who is an advocate, is alleged to have helped the other accused in drafting the powers of attorney and MoUs.

While the High Court permitted the continuation of investigation in the allegations against the fourth and fifth respondents under Section 385 of the Penal Code 1860 for extortion, it quashed an FIR which was registered against the private respondents under Section 482 of the Code of Criminal Procedure 1973

Not only this, but in its interim order, the High Court allowed the investigation to continue against the accused but directed that the final report cannot be submitted to the Magistrate without its permission. The direction was not supported by any reasoning whatsoever.

The Supreme Court noted that,

“Even at the interim stage, the High Court must demonstrate an application of mind and furnish reasons for issuing any interlocutory direction, which is capable of being tested before this Court in an appropriate case. The interim direction amounted to an unnecessary interference in the investigative process envisaged under the CrPC. The High Court transgressed the scope of the powers conferred upon it by restricting the police from submitting the charge-sheet before the Magistrate and by further perusing the contents of the “draft charge-sheet” in the proceedings before it.”

The Court, however, clarified that a distinct position arises when the chargesheet has been filed before a Magistrate and proceedings under Section 482 are pending before the High Court. In such cases, the High Court must take into consideration the material collected during the investigation. However, the High Court cannot place reliance on a “draft charge-sheet” which is yet to be placed before the Magistrate to quash the criminal proceedings under Section 482.

Further, the police have a statutory right to investigate a cognizable offence under Sections 154 and 156 of the CrPC. Sub-Section 2 (i) of Section 173 of the CrPC provides that after the completion of investigation, the police officer in charge of the police station shall forward the final report to the Magistrate who is empowered to take cognizance of the offence alleged in the report. Before taking cognizance of the offence, the Magistrate has to apply their own mind and is not bound by the conclusions drawn by the police.

In Pratibha v. Rameshwari Devi, (2007) 12 SCC 369 a two-judge Bench of this Court has held that the High Court can neither direct an investigating agency to submit the investigation report before it nor can it quash a criminal proceeding under Section 482 relying on such a report when the report has not been submitted to the Magistrate.

In the impugned judgment, while the High Court has held that the allegations on their face disclose that the fourth and fifth respondents committed the offence of extortion under Section 385 of the IPC and directed that the investigation be continued against them, it has completely failed to examine the allegation of criminal conspiracy qua the other accused where it has been alleged that they were also privy to such extortion. Thus, in such circumstances, when a specific role was attributed to the accused, the High Court could not have quashed the FIR under Section 482 of the CrPC.

Following an unusual, if not extraordinary course, the High Court proceeded to entertain petitions for quashing under Section 482 at the behest of persons who were not named in the FIR purely on the basis of their names appearing in the draft charge-sheet. A draft charge-sheet was placed before the High Court by the investigating officer only in order to seek its permission, pursuant to the interim order, for submitting the charge-sheet to the competent court. Knowledge in regard to what has transpired during the course of the investigation is obtained by the accused once a copy of the charge-sheet is made available under Section 207 of the CrPC.

It is important to note that even before the charge-sheet was brought to the notice of the High Court, petitions for quashing had already been filed. The High Court ought to have taken note of these developments. The appellant has submitted both in the course of the oral and written submissions that these developments indicate that the accused were complicit with the police. The High Court should have been alive to the abuse of its process.

Also, during the course of the investigation, the sixth to ninth respondents, who were apprehending arrest, moved an application for anticipatory bail, which was allowed by the Sessions Judge.

“While the apprehension of arrest may have led to the filing of an application for anticipatory bail before the Sessions Judge, this could not furnish the basis of a petition for quashing under Section 482 at the behest of persons who were not named in the FIR and who, as stated earlier, had instituted proceedings for quashing even before the draft charge-sheet came to be submitted before the High Court.”

The judgment of the High Court indicates that while analyzing the case set up before it by the applicants in various quashing petitions, it has proceeded to quash the FIR and the draft charge-sheet in respect of applicants who were not even arraigned as accused in the FIR. Hence, the interference by the High Court in the investigation against the eighth and ninth respondents was at a premature stage and was not warranted.

[Jitul Jentilal Kotecha v. State of Gujarat, 2021 SCC OnLine SC 1045, decided on 12.11.2021]


Counsels:

For appellant: Advocate Nikhil Goel

For respondents: Advocates Karan Bharihoke and Khilan Chandrani


*Judgment by: Justice Dr. DY Chandrachud

Know Thy Judge| Justice Dr. DY Chandrachud

Case BriefsSupreme Court

Supreme Court: Answering the “hotly debated” question as to in what circumstances and categories of cases, a criminal proceeding may be quashed either in exercise of the extraordinary powers of the High Court under Article 226 of the Constitution, or in the exercise of the inherent powers of the High Court under Section 482 CrPC, the bench of Indu Malhotra* and Ajay Rastogi, JJ has held that in the matter of exercise of inherent power by the High Court, the only requirement is to see whether continuance of the proceedings would be a total abuse of the process of the Court

“… the exercise of inherent power of the High Court is an extraordinary power which has to be exercised with great care and circumspection before embarking to scrutinise the complaint/FIR/charge-sheet in deciding whether the case is the rarest of rare case, to scuttle the prosecution at its inception.”

The Court observed that in order to exercise powers under Section 482 CrPC, the complaint in its entirety shall have to be examined on the basis of the allegation made in the complaint/FIR/charge-sheet and the High Court at that stage was not under an obligation to go into the matter or examine its correctness. Whatever appears on the face of the complaint/FIR/charge-sheet shall be taken into consideration without any critical examination of the same. The offence ought to appear ex facie on the complaint/FIR/charge-sheet and other documentary evidence, if any, on record.

“The Criminal Procedure Code contains a detailed procedure for investigation, framing of charge and trial, and in the event when the High Court is desirous of putting a halt to the known procedure of law, it must use proper circumspection with great care and caution to interfere in the complaint/FIR/charge-sheet in exercise of its inherent jurisdiction.”

The Court was dealing with a case where a property, belonging to 2nd Respondent was mortgaged with State Bank of Patiala and the total legal liability payable to the Bank was Rs. 18 crores. In order to clear the said dues, 2nd respondent hatched a conspiracy with a broker so as to cheat and defraud the appellants/complainants and to further misappropriate the amounts paid by the complainants as part of the deal, the 2nd respondent breached the trust of the appellants/complainants deliberately and falsely stating to the appellants/complainants that the 2nd respondent would be liable to pay a sum of Rs. 25.50 crores to the complainant if the deal is not carried forward by the 2nd respondent.

While an FIR was lodged in the case at hand for offence of cheating, arbitral proceedings were also initiated at the instance of the appellants/complainants.

On a careful reading of the complaint/FIR/charge-sheet, the Court noticed that the ingredients of the offences under Sections 406 and 420 IPC cannot be said to be absent on the basis of the allegations in the complaint/FIR/charge-sheet.

“… whether the allegations in the complaint are otherwise correct or not, has to be decided on the basis of the evidence to be led during the course of trial. Simply because there is a remedy provided for breach of contract or arbitral proceedings initiated at the instance of the appellants, that does not by itself clothe the court to come to a conclusion that civil remedy is the only remedy, and the initiation of criminal proceedings, in any manner, will be an abuse of the process of the court for exercising inherent powers of the High Court under Section 482 CrPC for quashing such proceedings.”

The Court noticed that the facts narrated in the present complaint/FIR/charge-sheet indeed reveal the commercial transaction but that is hardly a reason for holding that the offence of cheating would elude from such transaction. In fact, many a times, offence of cheating is committed in the course of commercial transactions and the illustrations have been set out under Sections 415, 418 and 420 IPC. So far as initiation of arbitral proceedings is concerned, there is no correlation with the criminal proceedings.

The Court, hence, held that the issue involved in the matter under consideration is not a case in which the criminal trial should have been short-circuited. The High Court was not justified in quashing the criminal proceedings in exercise of its inherent jurisdiction. The High Court has primarily adverted on two circumstances,

(i) that it was a case of termination of agreement to sell on account of an alleged breach of the contract and

(ii) the fact that the arbitral proceedings have been initiated at the instance of the appellants.

The Court held that both the alleged circumstances noticed by the High Court are unsustainable in law.

[Priti Saraf v. State of NCT of Delhi, 2021 SCC OnLine SC 206, decided on 10.03.2021]


*Judgment by: Justice Indu Malhotra

Appearances before the Court by:

For appellants: Senior Advocate Mukul Rohatgi,

For Second Respondent: Senior Advocate P. Chidambaram,

For State: Additional Solicitor General  Aishwarya Bhati

Case BriefsSupreme Court

Supreme Court: The bench of Dr. DY Chandrachud and MR Shah, JJ has held that merely because on the same set of facts with the same allegations and averments earlier the complaint is filed, there is no bar to lodge the FIR with the police station with the same allegations and averments. However, when the impugned FIR is nothing but an abuse of process of law and to harass the accused, the High Courts must quash the FIR by exercising the powers under Article 226 of the Constitution of India and 482 Cr.P.C., to secure the ends of justice.

As per Section 210 Cr.P.C., when in a case instituted otherwise than on a police report, i.e., in a complaint case, during the course of the inquiry or trial held by the Magistrate, it appears to the Magistrate that an investigation by the police is in progress in relation to the offence which is the subject matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation.

It also provides that if a report is made by the investigating police officer under Section 173 Cr.P.C. and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report.

It also further provides that if the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of Cr.P.C.

Hence, the Code of Criminal Procedure permits such an eventuality of a complaint case and enquiry or trial by the Magistrate in a complaint case and an investigation by the police pursuant to the FIR. However, at the same time, if it is found that the subsequent FIR is an abuse of process of law and/or the same has been lodged only to harass the accused, the same can be quashed in exercise of powers under Article 226 of the Constitution or in exercise of powers under Section 482 Cr.P.C. In that case, the complaint case will proceed further in accordance with the provisions of the Cr.P.C.

“As observed and held by this Court in catena of decisions, inherent jurisdiction under Section 482 Cr.P.C. and/or under Article 226 of the Constitution is designed to achieve salutary purpose that criminal proceedings ought not to be permitted to degenerate into weapon of harassment.”

The statute saves the inherent power of the High Court, as a superior court, to make such orders as are necessary

(i) to prevent an abuse of the process of any Court; or

(ii) otherwise to secure the ends of justice.

Same are the powers with the High Court, when it exercises the powers under Article 226 of the Constitution. When the Court is satisfied that criminal proceedings amount to an abuse of process of law or that it amounts to bringing pressure upon accused, in exercise of inherent powers, such proceedings can be quashed.

[Kapil Agarwal v. Sanjay Sharma, 2021 SCC OnLine SC 154, decided on 01.03.2021]


*Judgment by: Justice MR Shah

Appearances before the Court by:

For appellants: Senior Advocate K.V. Vishwanathan

For Respondent: Advocate M.C. Dhingra

Case BriefsSupreme Court

Supreme Court: In an appeal against the verdict of Gujarat High Court that quashed the criminal proceedings against a man accused for sexually assaulting and blackmailing his employee, the 3-judge bench of UU Lalit, Indu Malhotra and R. Subhash Reddy, JJ has set aside the verdict and held that the High Court has got carried away by the agreement/settlement arrived at, between the parties, and recorded a finding that the physical relationship of the appellant with the respondent was consensual.

The Court said,

“where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped, and such woman states in her evidence before the Court that she did not consent, the court shall presume that she did not consent.”

The Court was hearing the case where the respondent had taken inappropriate pictures of the appellant while she was asleep. He had gone to visit the appellant when she was unwell. Taking advantage of the situation, he started blackmailing her to make viral her pictures and to terminate her employment. He then started committing rape on her. When she resigned from the job, he contacted her fiancé and told him is not of good character, she had physical relationship with him and with other boys. When the fiancé refused to meet him, he sent a cover to his residence containing her nude/inappropriate pictures. The parties later entered into a written agreement wherein it was agreed that the dispute between the parties is settled and that the respondent has allegedly paid a huge amount to the appellant.

The Court noticed that whether the respondent by clicking inappropriate pictures of the appellant has blackmailed her or not, and further whether he has continued to interfere by calling appellant’s fiancé or not are the matters for investigation. It, hence, held that the High Court should not have made a roving inquiry while considering the application filed under Section 482 CrPC.

Holding that the High Court has got carried away by the agreement/settlement arrived at, between the parties, and recorded a finding that the physical relationship of the appellant with the respondent was consensual, the Court said,

“When it is the allegation of the appellant, that such document itself is obtained under threat and coercion, it is a matter to be investigated.”

[Miss XYZ v. State of Gujarat, CRIMINAL APPEAL NO.1619 OF 2019, decided on 25.10.2019]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Dipak Misra, CJ and AM Khanwilkar and Dr. DY Chandrachud, JJ, explaining the principles governing the inherent powers of the High Court under Section 482 CrPC, said that while the inherent power of the High Court has a wide ambit and plenitude it has to be exercised to secure the ends of justice or to prevent an abuse of the process of any court.

The Court summarised the elaborate principles laid down by the Supreme Court in various cases. Below is the summary of the principles:

  • The invocation of the jurisdiction of the High Court to quash a First Information Report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973. Also, the power to quash under Section 482 is attracted even if the offence is non-compoundable.
  • In the exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences.
  • As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing in so far as the exercise of the inherent power to quash is concerned.
  • Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute. In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice.
  • Economic offences involving the financial and economic well-being of the state have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance.

The Court, however, said that the decision as to whether a complaint or First Information Report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated. [Parbatbhai Aahir v. State of Gujarat, 2017 SCC OnLine SC 1189, decided on 04.10.2017]

 

Case BriefsHigh Courts

Delhi High Court: While disposing of a petition filed under Section 482 CrPC, the Single Bench of S.P. Garg, J. held that if the prosecutrix had made specific and clear allegations against the accused to have committed rape upon her, then the criminal proceedings against the accused cannot be quashed merely on the grounds that the prosecutrix has later retracted from her statement.

In the instant case, the prosecutrix, in her statement to the police, had implicated the petitioner for committing sexual assault upon her on the pretext to provide her job in his office. She also reiterated this version before the Metropolitan Magistrate. Later, a supplementary statement of the prosecutrix was recorded under Section 161 CrPC. She also filed an application to the SHO denying the allegations leveled by her in her previous complaint. Nevertheless, a charge-sheet had been filed against the petitioner for commission of offence under Section 376 IPC.

The High Court noted that the supplementary statement and the application moved before the SHO cannot be taken into consideration to throw away the earlier complaint of prosecutrix. The  Court further added that it was to be ascertained during trial as to how and in what circumstances, the prosecutrix denied her earlier version or whether it was due to some threats or pressure, and it would be unsafe to quash the FIR/charge-sheet on the basis of the prosecutrix’s retraction from her statement. The petition was accordingly dismissed. [Dilip Kumar Gupta v. State (NCT of Delhi), 2017 SCC OnLine Del 6576, decided on January 18, 2017]

Case BriefsHigh Courts

Punjab and Haryana High Court: Deciding on the matter of whether the crime registered under Section 304-A of Penal Code, 1860 can be quashed on the basis of compromise arrived at by the legal heir/legal representative of the victim/deceased, with the offender, the two judge bench comprising of Mahesh Grover and Lisa Gill, JJ., observed that to quash the proceedings under Section 304-A solely on the basis of a settlement or compromise arrived at between the accused and the legal representatives is not permissible and militates against all canons of justice. It was further said that in the case under Section 304-A IPC the victim is obviously not present to settle the matter and hence, to permit a legal representative or legal heir to compromise or settle the matter is indeed an invitation to a dangerous trend and cannot be permitted.

Rejecting the contention that the offence under Section 304-A IPC is private in nature, the Court observed that, to consider that an offence under Section 304-A is private in nature is wholly incorrect and it is an offence which impacts society as a whole, permeating to the very core.

The Court further held that undoubtedly, there is a distinction between the power of the Court to compound an offence under Section 320 Cr. P.C. and quashing of criminal proceedings in exercise of power under Section 482 Cr. P.C. It is trite to mention that the power of the High Court under Section 482 Cr. P.C. can nevertheless be exercised in appropriate matters where it is felt that a prima facie case is not made out in consonance with the settled principles of law. (Baldev Singh v. State of Punjab, 2016 SCC OnLine P&H 4509, Decided on  02.06.2016).