TaxTMI 
TaxTMI 
2017 (4) TMI 978
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....actions with complainant, Smt. Rekha Rani, her husband, Akhilesh Kumar and her son, Ankur in the months of May, 2015. Accused No.3 gave Rs. 9 lakh to husband and son of the complainant for business purposes. An amount of Rs. 7 lakh 50 thousand was given in cash to complainant and her husband by accused No.1. Further, husband of complainant received Rs. 3 lakh 60 thousand in cash and Rs. 2 lakh 40 thousand by cheque dated 29.05.2015 from accused No.1. 3. An agreement dated 29.05.2015 was signed by the husband of the complainant and accused No.1 acknowledging the payment of Rs. 3 lakh 60 thousand in cash and Rs. 2 lakh 40 thousand by cheque. A cheque of Rs. 6 lakh was handed over by the husband of the complainant to accused No.1 to ensure the repayment. Another agreement between the complainant and accused No.1 was entered into on 01.06.2015 wherein it was acknowledged that complainant and her husband had taken Rs. 7 lakh 50 thousand in cash from accused No.1. Earlier, husband of complainant took Rs. 6 lakh from accused No.1. Parties entered into an agreement agreeing with certain conditions. Third agreement was entered into between the son of complainant and accused No.1 on 31.08....
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....When Sonu told them about arrival of complaint's husband, all the three accused fled away. It was further alleged that she went to the Police Station on the same day but the Police did not register FIR. An order dated 03.11.2015 was passed by the Additional Chief Judicial MagistrateIV, Moradabad for registration and investigation to the concerned Police Station. On 06.11.2015, the First Information Report was registered being No.251/2015 at Police Station Kanth, District Moradabad under Section 376(d), 323, 452 IPC against the accused. After registration of the case, crime was investigated by Investigating Officer(IO). The IO recorded the statements of complainant, her husband and motherinlaw. Complainant in her statement repeated her allegation. It was further stated that she went along with her husband to Police Station but report was not lodged. On next day, she went to Government Hospital, Moradabad with her husband for medical examination. Doctor conducted medical examination to external injuries but refused to her internal examination. Husband and fatherinlaw of the complainant also recorded statements. They stated that before they arrived at the house, accused had alread....
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....ent of Mohalla Vishanpura, Kasba Kanth is present. Upon enquiry has stated that on 22.10.15 there was Dushehara Mela. I alongwith my children had gone to see Mela(Fair) and had returned back to my house at 5.005.30 p.m. Rekha Rani is my real Bhabhi (sisterinlaw). There has been monetary transaction between Akhilesh and Vineet. Time to time my brother used to borrow a sum of Rs.Two lakh, four lakh from Vineet and used to invest the same in his business and then used to return. Now there has been interse dispute among them owing to monetary transaction. On this dispute my sisterinlaw Rekha has instituted case against Vineet and others. It is not good to mention such shameful facts and my sisterinlaw has not done good. There are young children in the family and there would be wrong effect of these facts. I have spade my brother Akhilesh and father have also scolded him. Now he is saying that mistake has been committed and whatever has occurred has occurred. I and my wife have gone to Court. Moradabad and have submitted our affidavit in the Court. We have mentioned the correct fact therein. We will tell the same fact in the Court that no such occurrence has taken place in our house. My....
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....as alleged by the complainant. Final Report No.40/15 was submitted by the IO on 29.11.2015 which is to the following effect: "The First Information Report in the above mentioned incident was registered on 6.11.2015 and the investigation was taken up by me. After recording the statement of the witnesses and inspection of the place of occurrence the allegation was found to be false by me. Therefore this final report No.40/15 is being submitted for your consideration." 14. After submission of Final Report on 29.11.2015 Police has also submitted a further report before the Additional Chief Judicial Magistrate for initiating proceeding under Section 182 Cr.P.C. against the complainant. Respondent No.2 moved Protest Petition dated 07.01.2016. It was allowed by the Addl.CJM on 28.05.2016. An Application under Section 482 Cr.P.C. was filed before the High Court. It was allowed and order dated 28.05.2016 was set aside directing the Magistrate to pass fresh order. The Magistrate passed again order dated 03.08.2016 summoned the accused. Revision was filed before the Sessions Judge against the order dated 03.08.2016 which was dismissed by order dated 22.10.2016. 15. The accused ....
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....ct that the Application under Section 156(3) Cr.P.C. itself was filed after 8 days of alleged rape, there is no medical report to prove the alleged rape, these were sufficient to discard the allegations made by the complainant. Summoning of the accused of such serious offence cannot be a mechanical exercise in the facts and circumstances of the case and material collected during investigation which were part of the Final Report were required to be adverted to by the Court while rejecting the Final Report. Learned counsel submits that prosecution in the present case is a clear abuse of the process of the Court and deserves to be set aside in exercise of jurisdiction under Section 482 Cr.P.C. by the High Court. 18. Learned counsel appearing for the respondent No.2 refuting the submission made by the learned counsel for the appellants contended that no error has been committed by the Courts below in summoning the accused, there was statement under Section 164 Cr.P.C. of the complainant where she reiterated her case of rape by accused No.1 and 3. It is submitted that at this stage the Court was not required to marshal the evidence and examine the charge on merit and the High Court h....
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.... and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction." 22. The judgment of this Court in State of Haryana and others vs. Bhajan Lal and others, 1992 Supp (1) SCC 335, has elaborately considered the scope and ambit of Section 482 Cr.P.C. Although in the above case this Court was considering the power of the High Court to quash the entire criminal proceeding including the FIR, the case arose out of an FIR registered under Section 161, 165 IPC and Section 5(2) of the Prevention of Corruption Act, 1947. This Court elaborately considered the scope of Section 482 CR.P.C./ Article 226 in the context of quashing the proceedings in criminal investigation. After noticing various earlier pronouncements of this Court, this Court enumerated certain Categories of cases by way of illustration where power under 482 Cr.P.C. can be exercised to prevent abuse of the process of the Court or secure ends of justice. Paragraph 102 which enumerates 7 categories of cases where power can be exercised under Section 482 Cr.P.C. are extracted as follows: "102. In the backdrop of the interpretation of the various relevant provisions of the Code ....
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....roceeding 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." 23. A three Judge Bench in State of Karnataka vs. M. Devenderappa and another, 2002 (3) SCC 89, had occasion to consider the ambit of Section 482 Cr.P.C. By analysing the scope of Section 482 Cr.P.C., this Court laid down that authority of the Court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice the Court has power to prevent abuse. It further held that Court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of Court or quashing of these proceedings would otherwise serve the ends of justice. Following was laid down in paragraph 6: "6......All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle quando lex aliquid alicui con....
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.... Tamil Nadu, 2009 (14) SCC 244, this Court was considering the challenge to the order of the Madras High Court where Application was under Section 482 Cr.P.C. to quash criminal proceedings under Section 498A IPC and Section 4 of Dowry Prohibition Act, 1961. It was contended before this Court that the complaint filed was nothing but an abuse of the process of law and allegations were unfounded. The prosecuting agency contested the petition filed under Section 482 Cr.P.C. taking the stand that a bare perusal of the complaint discloses commission of alleged offences and, therefore, it is not a case which needed to be allowed. The High Court accepted the case of the prosecution and dismissed the application. This Court referred to the judgment in Bhajan Lal case (supra) and held that the case fell within Category 7. Apex Court relying on Category 7 has held that Application under Section 482 deserved to be allowed and it quashed the proceedings. 25. In another case in Priya Vrat Singh and others vs. Shyam Ji Sahai, 2008 (8) SCC 232, this Court relied on Category 7 as laid down in State of Haryana vs. Bhajan Lal(supra). In the above case the Allahabad High Court had dismissed an Appl....
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....ion of justice on the principle quando lex aliquid alicui concedit, concedere videtur id sine quo res ipsa esse non potest (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the Court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. ....
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.... and alleges that on the same day she went to the Police Station but FIR was not registered. She states that after sending an application on 26.10.2015 to the SSP, she filed an Application under Section 156(3) Cr.P.C. before the Magistrate. There is no medical report obtained by the complainant except medical report dated 20.11.2015. IO on 07.11.2015 when asked the complainant to get medical examination done, complainant and her husband refused. The incident having taken place on 22.10.2015 at 7.30 p.m. nothing was done by the complainant and her husband till 26.10.2015 when she alleges the Application was sent to SSP. 28. During investigation, IO has recorded the statements of brother of complainant's husband as well as Smt. Bina Vishnoi, the wife of husband's brother who were residing in the same house and have categorically denied that any incident happened in their house. Both, in their statements and affidavits have condemned the complainant for lodging a false report. 29. IO collected affidavits of several persons including affidavits of Nikesh Kumar and Smt. Bina Vishnoi and on collecting the entire material and visiting the spot IO had come to the conclusion t....
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.... nothing which could have led the Courts to form an opinion that present case is fit a case of prosecution which ought to be launched. We are conscious that statement given by the prosecutrix/complainant under Section 164 Cr.P.C. is not to be lightly brushed away but the statement was required to be considered along with antecedents, facts and circumstances as noted above. Reference to the judgment of this Court in Prashant Bharti vs. State(NCT of Delhi), 2013 (9) SCC 293, is relevant for the present case. In the above case the complainant lady aged 21 years lodged an FIR under Section 328 and 354 IPC with regard to the incident dated 15.02.2007. She sent a telephonic information on 16.02.2007 and on her statement FIR under Sections 328 and 354 IPC was registered against the appellant. After a lapse of five days on 21.02.2007 she gave a supplementary statement alleging rape by the appellant on 23.12.2006, 25.12.2006 and 01.01.2007. Statement under Section 164 Cr.P.C. of the prosecutrix was recorded. Police filed chargesheet under Section 328, 324 and 376 IPC. Chargesheet although mentioned that no proof in support of crime under Section 328/354 could be found. However, on the groun....
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....annot be prejudged at this initial stage. I do not find any illegality or infirmity in the impugned order. Consequently, this Revision Petition is dismissed in limine while making it clear that anything herein shall not be construed as an opinion on merits at trial."" 37. The appeal was filed against the aforesaid judgment of the High Court by the accused contending that there was sufficient material collected in the investigation which proved that allegations were unfounded and the prosecution of the appellant was an abuse of process of the Court. In paragraph 23 this Court noted several circumstances on the basis of which this Court held that judicial conscience of the High Court ought to have persuaded it to quash the criminal proceedings. This Court further noticed that Investigating Officer has acknowledged, that he could not find any proof to substantiate the charges. The chargesheet had been filed only on the basis of the statement of the complainant/prosecutrix under Section 164 Cr.P.C. In paragraphs 24 and 25 of the judgment following was stated: "24. Most importantly, as against the aforesaid allegations, no pleadings whatsoever have been filed by the complain....