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2014 DIGILAW 271 (HP)

Shalini Sood v. Arti Sharma

2014-03-26

RAJIV SHARMA

body2014
JUDGMENT : - Rajiv Sharma, Judge (oral). This petition is instituted against the order dated 26.12.2013 passed by the Chief Judicial Magistrate, Shimla in case No. 55-2 of 2012. 2. “Key facts” necessary for the adjudication of this petition are that the respondent has filed a complaint against the petitioner before the Chief Judicial Magistrate, Shimla under section 156 (3) of the Code of Criminal Procedure for registration of FIR against the petitioner. According to the petitioner, learned Chief Judicial Magistrate instead of ordering of registration of FIR has converted the complaint under section 200 of the Code of Criminal Procedure and has framed the charge against her. The Chief Judicial Magistrate has already recorded the statements of CW-1, CW-2 and CW-3. 3. It can be gathered from the statement of CW-1 that she was given beatings and threatened by the petitioner. Her version has been corroborated by CW-2 and CW-3. The Chief Judicial Magistrate, on the basis of statements of CW-1, CW-2 and CW-3 has rightly framed the charge against the petitioner on 26.12.2013 under sections 323 and 506 of the Indian Penal Code. Prima facie, commission of cognizable offence is made out on the basis of material placed on record. 4. Their Lordships of the Hon’ble Supreme Court in Amit Kapoor vs Ramesh Chander and another, (2012) 9 SCC 460 have laid down the principles to be considered for proper exercise of jurisdiction, particularly with regard to quashing of a charge either in exercise of jurisdiction under section 397 or section 482 of the Code of Criminal Procedure or together, as the case may be, as under: “(1) Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. (2) The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. (2) The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere. (3) The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge. (4) Where the exercise of such power is absolutelyessential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loathe to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers. (5) Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused. (6) The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender. (7) The process of the Court cannot be permitted to be used for an oblique or ultimate/ulterior purpose. (8) Where the allegations made and as they appearedfrom the record and documents annexed therewith to predominantly give rise and constitute a 'civil wrong' with no 'element of criminality' and does not satisfy the basic ingredients of a criminal offence, the Court may be justified in quashing the charge. Even in such cases, the Court would not embark upon the critical analysis of the evidence. (9) Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction, the Court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice. (10) It is neither necessary nor is the court called upon to hold a full-fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction. (11) Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained. (12) In exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The Court has to consider the record and documents annexed with by the prosecution. (13) Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie. (14) Where the charge-sheet, report under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge. (15) Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae, i.e. to do real and substantial justice for administration of which alone, the courts exist.” 5. Their Lordships of the Hon’ble Supreme Court in Satish Mehra vs. State (NCT of Delhi) and another, (2012) 13 SCC 614 have held that extraordinary power under section 482 of the Code of Criminal Procedure has to be exercised carefully and sparingly. Their Lordships have held as under: “14. Their Lordships of the Hon’ble Supreme Court in Satish Mehra vs. State (NCT of Delhi) and another, (2012) 13 SCC 614 have held that extraordinary power under section 482 of the Code of Criminal Procedure has to be exercised carefully and sparingly. Their Lordships have held as under: “14. The power to interdict a proceeding either at the threshold or at an intermediate stage of the trial is inherent in a High Court on the broad principle that in case the allegations made in the FIR or the criminal complaint, as may be, prima facie do not disclose a triable offence there can be reason as to why the accused should be made to suffer the agony of a legal proceeding that more often than not gets protracted. A prosecution which is bound to become lame or a sham ought to interdicted in the interest of justice as continuance thereof will amount to an abuse of the process of the law. This is the core basis on which the power to interfere with a pending criminal proceeding has been recognized to be inherent in every High Court. The power, though available, being extra ordinary in nature has to be exercised sparingly and only if the attending facts and circumstances satisfies the narrow test indicated above, namely, that even accepting all the allegations levelled by the prosecution, no offence is disclosed. However, if so warranted, such power would be available for exercise not only at the threshold of a criminal proceeding but also at a relatively advanced stage thereof, namely, after framing of the charge against the accused. In fact the power to quash a proceeding after framing of charge would appear to be somewhat wider as, at that stage, the materials revealed by the investigation carried out usually comes on record and such materials can be looked into, not for the purpose of determining the guilt or innocence of the accused but for the purpose of drawing satisfaction that such materials, even if accepted in its entirety, do not, in any manner, disclose the commission of the offence alleged against the accused.” 6. Their Lordships of the Hon’ble Supreme Court in Rajiv Thapar and others vs. Madan Lal Kapoor, (2013) 3 SCC 330 have held that where allegations bring out all ingredients of charge(s) levelled, and material placed before court prima facie shows truthfulness of allegations, trial must proceed even when accused is successful in raising some suspicion or doubt in allegations levelled. Their Lordships have further held that to invoke its inherent jurisdiction to quash proceedings on basis of defence material High Court has to be fully satisfied that material produced or relied on by accused: a) leads to conclusion, that his/their defence is based on sound, reasonable, and indubitable facts; b) rules out and displaces the assertions contained in the charges levelled against the accused without necessity of recording any evidence; c) should not have been refuted, or alternatively, cannot be justifiably refuted, being of sterling and impeccable quality i.e. a reasonable man should be persuaded to dismiss and condemn actual basis of accusations as false; and d) whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice. 7. Accordingly, in view of above discussion and analysis, there is no merit in the petition and the same is dismissed, so also the pending application, if any.