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2013 DIGILAW 122 (HP)

Hem Raj v. State of H. P through Secretary Personnel to the Govt. of H. P

2013-02-27

RAJIV SHARMA

body2013
JUDGMENT Rajiv Sharma, Judge. An F.I.R. has been registered against the petitioners bearing No. 354/2011 for offences punishable under sections 418, 420 and 468 of the Indian Penal Code at Police Station, Sadar, Kullu on 22.6.2011. Petitioners have been enlarged on bail on 23.6.2011. Police has already investigated the matter and the challan has been put up before the Judicial Magistrate, Court No.4, Mandi. Case was listed for the presence of the petitioners on 30.10.2012. Since the petitioners were not present before the trial court, the case was listed for 15.1.2013. Petitioners were present before the trial court on 15.1.2013. Now, the case has been fixed for 25.3.2013. 2. The Court has gone through the contents of the F.I.R. No. 354/2011 dated 22.6.2011 minutely. 3. Prima facie, a case is made out against the petitioners, as per the contents of the F.I.R. No. 354/2011. According to the reply filed a sum of ` 78 lakhs has been misappropriated by the petitioners. It has also come in the reply that the petitioners are carrying on their business in violation of the terms and conditions of I.R.D.A. (Insurance Regulatory Development Authority). 4. As far as CMP No. 13370/2012 is concerned, petitioners have prayed for staying the proceedings in F.I.R. No. 114/2011 dated 13.6.2011 and in the writ petition, petitioners have only prayed for staying the proceedings of F.I.R. No.354/2011 dated 22.6.2011. 5. Their Lordships of the Hon’ble Supreme Court in State of Maharashtra and others versus Arun Gulab Gawali and others, (2010) 9 SCC 701 have held that court under its inherent powers can neither intervene at an uncalled for stage nor can it “soft-pedal” the course of justice at crucial stage of investigation/proceedings. Their Lordships have further held that inherent power is to be exercised with due care and caution. Their Lordships have held as under: “13. The power of quashing criminal proceedings has to be exercised very sparingly and with circumspection and that too in the rarest of rare cases and the Court cannot be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of allegations made in the F.I.R./Complaint, unless the allegations are so patently absurd and inherently improbable so that no prudent person can ever reach such a conclusion. The extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice. However, the Court, under its inherent powers, can neither intervene at an uncalled for stage nor it can `soft-pedal the course of justice' at a crucial stage of investigation/ proceedings. The provisions of Articles 226, 227 of the Constitution of India and Section 482 of the Code of Criminal Procedure, 1973 (hereinafter called as `Cr.P.C.') are a device to advance justice and not to frustrate it. The power of judicial review is discretionary, however, it must be exercised to prevent the miscarriage of justice and for correcting some grave errors and to ensure that esteem of administration of justice remains clean and pure. However, there are no limits of power of the Court, but the more the power, the more due care and caution is to be exercised in invoking these powers. (Vide State of West Bengal & Ors. Vs. Swapan Kumar Guha & Ors. AIR 1982 SC 949 ; M/s. Pepsi Foods Ltd. & Anr. Vs. Special Judicial Magistrate & Ors. AIR 1998 SC 128; G. Sagar Suri & Anr. Vs. State of U.P. & Ors. AIR 2000 SC 754 ; and Ajay Mitra Vs. State of M.P. & Ors. AIR 2003 SC 1069 ). 16. In State of Karnataka Vs. L.Muniswamy & Ors. AIR 1977 SC 1489 , this Court held as under:- "In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the State and its subjects it would be impossible to appreciate the width and contours of that salient jurisdiction." (Emphasis added). 6. Their Lordships of the Hon’ble Supreme Court in Iridium India Telecom Limited versus Motorola Incorporated and others, (2011) 1 SCC 74 have held that inherent power of High Court under section 482 of the Code of Criminal Procedure of quashment of proceedings in case of economic offences/commercial transactions, breach of trust, cheating etc. is to be exercised sparingly and only when prosecution is launched maliciously or with ulterior motive. Their Lordships have held as under: “76. As noticed earlier, both the appellants and the respondents have much to say in support of their respective view points. Which of the views is ultimately to be accepted, could only be decided when the parties have had the opportunities to place the entire materials before the Court. This Court has repeatedly held that power to quash proceedings at the initial stage have to be exercised sparingly with circumspection and in the rarest of the rare cases. The power is to be exercised ex debito justitiae. Such power can be exercised where a criminal proceeding is manifestly attended with malafide and have been instituted maliciously with ulterior motive. This inherent power ought not to be exercised to stifle a legitimate prosecution. 78. In our opinion, the High Court clearly exceeded its jurisdiction in quashing the criminal proceeding in the peculiar facts and circumstances of this case. The High Court noticed that while exercising jurisdiction under Section 482 Cr.P.C. "the complaint in its entirety will have to be examined on the basis of the allegations made therein. But the High Court has no authority or jurisdiction to go into the matter or examine its correctness. The High Court noticed that while exercising jurisdiction under Section 482 Cr.P.C. "the complaint in its entirety will have to be examined on the basis of the allegations made therein. But the High Court has no authority or jurisdiction to go into the matter or examine its correctness. The allegations in the complaint will have to be accepted on the face of it and the truth or falsity cannot be entered into by the Court at this stage." Having said so, the High Court proceeded to do exactly the opposite.” 7. Their Lordships of the Hon’ble Supreme Court in Asmathunnisa versus State of Andhra Pradesh, (2011) 11 SCC 259 have laid down the following broad categories where inherent powers can be used under section 482 of the Code of Criminal Procedure: (i) “Where it manifestly appears that there is a legal bar against the institution or continuance of the proceedings; (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.” 8. Their Lordships of the Hon’ble Supreme Court in Padal Venkata Rama Reddi alias Ramu versus Kovvuri Satyanarayana Reddi and others, (2011) 12 SCC 437 have held that there is no need to analyze each and every aspect meticulously before trial to find out whether the case would end in conviction or acquittal. The complaint has to be read as a whole and the statement of witnesses made on oath to be verified in full and materials put forth in the charge-sheet ought to be taken note of as a whole before arriving any conclusion. Their Lordships have finally concluded that it is the material concluded during the investigation and evidence led in court which decides the fate of the accused persons. 9. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in the petition and the same is dismissed. Pending application(s), if any, including CMP No. 13370/2012 also stands disposed of. It is made clear that the observations, made hereinabove, shall have no bearing on the merits of the case. No costs.