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Rajasthan High Court · body

2009 DIGILAW 1834 (RAJ)

Kamlender Singh Kurki v. State of Rajasthan

2009-08-17

MAHESH BHAGWATI

body2009
JUDGMENT 1. - By way of filing a petition under Section 482 of Cr.P.C., the petitioner has impugned the order dated 4th June, 2009 rendered by Additional C.J.M. No.4, Jaipur City, Jaipur whereby the learned Judge dismissed the prayer of the petitioner to suspend the proceedings of the case for a period of sever months. 2. Heard the learned counsel for the petitioner as also learned Public Prosecutor appearing for the State and learned counsel for respondent No.2 and perused the relevant material on record. 3. The learned counsel for the petitioner has canvassed that both the respondent No.2 and the petitioner have entered into a compromise on 150 April, 2009 and as per this compromise the payment of money is required to be made by the petitioner to the respondent No.2 within a period of sever months, as such the proceedings pending in the Court-of Additional C.J.M. No.4 should be stayed. If the proceedings are not stayed, the compromise dated 15th April, 2009 shall lose its effect. The learned counsel has also prayed that in view of compromise dated 15th April, 2009 the proceedings of criminal case No. 1250 of 2008 titled as K.S. Kurki v. State may be quashed. 4. The learned Public Prosecutor as ' also learned counsel for respondent No.2 have opposed the submissions made by the petitioner. 5. Having reflected over the submissions made at the bar and carefully scanned the relevant provisions of law, it is noticed that Section 482 of Cr PC envisages three circumstances in which inherent jurisdiction may he exercised by the High Court, namely, (i) to give effect to any order under Code of Criminal Procedure; (ii) to prevent abuse of the process of any Court or; (iii) otherwise, to secure the ends of justice. 6. It is made clear that while exercising powers under Section 482 of Cr.P.C., this Court does not function as a Court of appeal or revision. It is also not required to enter into the appreciation of evidence as such inherent powers are to be very sparingly exercised for compelling reasons when there has been any abuse of the process of law or for securing the ends of justice. It is also not required to enter into the appreciation of evidence as such inherent powers are to be very sparingly exercised for compelling reasons when there has been any abuse of the process of law or for securing the ends of justice. Inherent powers are in the nature of _ extra-ordinary powers available only where no express power is available to the High Court to do a particular thing and where the express power does not negativate the existence of such inherent power. A further condition to its exercise is that it must be necessary to resort to give effect to an order under Cr.PC.,for preventing an abuse of the process of the Court or otherwise for securing the ends of justice. 7. In the case of Som Mittal v. Government of Karnataka, reported in 2008(1) WLC (SC) Cri. 790 : 2008(3) SCC 753 , the Hon'ble Apex Court has held thus : "In a catena of decisions this Court has deprecated the interference by the High Court in exercise of its inherent powers under Section 482 of the Code in a routine manner. It has been consistently held that the power under Section 482 must be exercised sparingly, with circumspection and in the rarest of the rare cases. Exercise of inherent power under Section 482 of the Code of Criminal Procedure is not the rule but it is an exception. The exception is applied only when it is brought to the notice of the Court that grave miscarriage of justice would be committed if the trial is allowed to proceed where the accused would be harassed unnecessarily if the trial is allowed to linger when prima facie it appears to Court that the trial would likely to end in acquittal. In other words, the inherent power of the Court under Section 482 of the Code of Criminal Procedure can be invoked by the High Court either to prevent abuse of process of any court or otherwise to secure the ends of justice." 8. The Hon'ble Supreme Court, in a catena of decisions, consistently gave a note of caution that inherent power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of the rare cases. The Hon'ble Supreme Court, in a catena of decisions, consistently gave a note of caution that inherent power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of the rare cases. The Apex Court also held that the High Court will not be justified in embarking upon an inquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extra ordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whims and caprice. 9. We now refer to a few decisions of the Apex Court deprecating the exercise of the extraordinary or inherent powers by the High Court according to its whims and caprice. 10. In State of Bihar v. J.A.C. Saldanha the Apex Court pointed out at SCC p. 574: (SCC para 28) "28. .... The High Court in exercise of the extraordinary jurisdiction committed a grave error by making observations on seriously disputed questions of facts takings its cue from affidavits which in such a situation would hardly provide any reliable material In our opinion the High Court was clearly in error in giving the direction virtually amounting to a mandamus to close the case before the Investigation is complete. We say no more." 11. In Hazari Lal Gupta v. Rameshwar Prasad the Apex Court at SCC p. 455 pointed out (SCC para 12). "12. ....In exercising jurisdiction under Section 561- A of the Criminal Procedure Code, the High Court can quash proceedings if there is no legal evidence or if there is any impediment to the institution or continuance of proceedings but the High Court does not ordinarily enquire as to whether the evidence is 'reliable or not. Where again, investigation into the circumstances of an alleged cognizable offence is carried on under the provisions of the Criminal Procedure Code, the High Court does not interfere with such investigation because it would then be impeding the investigation and jurisdiction of statutory authorities to exercise power in accordance with the provisions of the Criminal Procedure Code. 12. In Jehan Singh v. Delhi Admn. 12. In Jehan Singh v. Delhi Admn. the application filed by the accused under Section 561-A of the old Code for quashing the investigation was dismissed as being premature and incompetent on the finding that prima facie, the allegations in the FIR, if assumed to be correct, constitute a cognizable offence. 13. In Kurukshetra University v. State of Haryana the Apex Court pointed out : (SCC p. 451) "2. It surprises us in the extreme that the High Court thought that in the exercise of its inherent powers under Section 482 of the Code of Criminal Procedure, it could quash a first information report. The police had not even commenced investigation in to the complaint filed by the Warden of the University and no proceeding at all was pending in any Court in pursuance of the FIR. It ought to be realised that inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice. That statutory power has to be exercised sparingly, with circumspection and in the rarest of rare cases." (emphasis supplied) 14. In State of Bihar v. Murad All Khan the Apex Court held that the jurisdiction under section 482 of the Code has to be exercised sparingly and with circumspection and has given the working that in exercising that jurisdiction, the High Court should not embark upon an enquiry whether the allegations in the complaint are likely to be established by evidence or not. 15. In State of Haryana v. Bhajan Lal the Apex Court after referring to various decisions of Apex Court, enumerated various categories of cases by way of illustration wherein the inherent power under Section 482 of the Code should be exercised by the High Court. They are : (SCC pp. 378-79, para 102) 102.(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 pi lr. ow of Sorti(in 155f~ ) of the Code. (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 pi lr. ow of Sorti(in 155f~ ) 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 152(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 Act concerned (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 Act concerned, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with malafide 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." 16. Now, adverting to the impugned order dated 4th June, 2009 rendered by Additional C.J.M. No. 4, Jaipur City, Jaipur as also the bail order dated 22nd January, 2009 passed by the Coordinate Bench in S.B. Cr. Misc. Second Bail Application No. 543 of 2009 titled as Kamlender Singh Kurki v. State of Raj. , it is noticed that while dealing with second bail petition, the Coordinate Bench directed the learned trial Court to conclude the trial of the case within a period of 60 days from the date fixed for recording of the evidence. Misc. Second Bail Application No. 543 of 2009 titled as Kamlender Singh Kurki v. State of Raj. , it is noticed that while dealing with second bail petition, the Coordinate Bench directed the learned trial Court to conclude the trial of the case within a period of 60 days from the date fixed for recording of the evidence. It is also noticed that when the trial could not be concluded within a period of 60 days, then having considered the prayer of the concerned Court below, the Coordinate Bench has given five months more time to conclude the same. In contra to this direction, the petitioner seeks quashing of the proceedings of the case pending before the learned court below. During arguments, the learned counsel for the petitioner has impressed upon that the proceedings may be stayed for seven months, as payment of amount is required to be made by the petitioner to the respondent No.2 within a period of seven months. The prayers made by the petitioner from time to time in separate petitions before the separate Benches are inconsistent, unfair and self- contradictory. It is gathered from the prayers of the petitioner made from time to time before the Courts that the petitioner, by hook or by crook, after getting the bail from the Court, has been trying to linger on the proceedings for one or the other ground. Thus, it is tangible that it is not the learned trial Court who has abused the process of law nor the impugned order is found to be in any way illegal or against the provisions of law, but it is the petitioner who has not come with clean hands under Section 482 of CrP.C. and it is the petitioner only who seems to have abused the process of law. Under the garb of securing the ends of justice, he has preferred this frivolous petition and such attempt of the petitioner, undisputedly and undeniably, is required to be discouraged. 17. The petition filed by the petitioner under Section 482 of Cr.P.C. being bogus, frivolous and bereft of any substance, is ordered to be dismissed with a cost of Rs. 5,000/- which if not deposited within a period of seven days from the receipt of the order, the learned trial Court shall recover from him in accordape with the provisions of law.Petition Dismissed. *******