Mumbai High Court
Abasaheb Yadav Honmane And Ashwini Abasaheb Honmane
vs
The State Of Maharashtra on 12/3/2008
JUDGMENT
Swatanter Kumar, C.J.
1. Introduction and Legislative History
1.1 Legislative amendments and judicial pronouncements over a period of
time have effectively expanded the scope of the canons of criminal
jurisprudence in our criminal justice delivery system. Article 21 of
the Constitution has been interpreted to provide the right to every
person including an under-trial to live with dignity. No person could
be deprived of his life or personal liberty except according to the
procedure established by law and also in consonance with Article 21 of
the Constitution of India. No person who is arrested shall be detained
in custody without informing the person the grounds of his arrest or
detention. Such person would be provided a due right to defend himself
by a legal practitioner of his choice. In addition to this, various
safeguards are provided for the exercise of power by prosecuting
agencies and conduct of trials by Courts. The radical change in
judicial approach relating to criminal trial, protection of witnesses
and the obligation of the Presiding Judge to play an effective role in
the evidence collecting process and to elicit all relevant material
necessary for reaching the correct conclusion to find out the truth and
do justice have given rise to various seminal principles which would
flow from the judgment of the Supreme Court in Zahira Habibulla
H.Shaikh and Anr. v. State of Gujarat 2004 Cr.L.J. 2050 (SC).
Essentially due process contemplated under Article 21 must be a fair
and acceptable procedure in accordance with the rule of law. Article 21
which was given a strict textual meaning in A.K. Gopalan’s case
received an enlarged interpretation in Maneka Gandhi
v. Union of India in which it was held that procedure
established by law in Article 21 has to be reasonable and not violative
of Article 14 and that the concept of the right to life and personal
liberty includes “right to live with dignity” being a basic human
right.
1.2 Public opinion is a valuable support for enactment of law and for
its enforcement as well. Without institutionalised law, enforcement
would be difficult and so also redressal of wrongs. The State should,
therefore, ensure a clear system of administration of criminal justice
so as to provide solution to all such problems that may arise in the
way of enforcement of law. Every crime, if proved, needs to be punished
and object of punishment should be to protect society against its
reoccurrence and in that sense it should even be prevented. Where
punishment is disabling or preventive, its aim is to prevent the
repetition of the offence by rendering the offender incapable of its
commission. Thus, different punishments relating to varied offences are
looked upon differently resulting into varied approaches of crime
prevention. Penal law in our country is codified in Indian Penal Code
being the substantive law and Code of Criminal Procedure dealing with
the procedure is the procedural law. In terms of Section 4 of the Code,
all offences under the Indian Penal Code shall be investigated,
enquired into, tried and otherwise dealt with according to the
provisions contained in the Code. In other words, the procedural scheme
of the Code is to control the entire process beginning with the
commission of offence till the conclusion of the judgment. Any
ambiguity in the penal and procedural statute must be construed in a
manner most favourable to liberty and the general rule is that penal
enactments are to be construed strictly and not to extend beyond their
clear meaning. Today the law is not a manifestation of the will of
anyone but has to be the true and correct reflection of the codified
laws in regard to the crime prevention and punishment. Law is
recognised as an instrument of social engineering. A crime as defined
by Halsbury’s Law of England is an unlawful act or default which is an
offence against the public and renders the person guilty of the act or
default liable to legal punishment. Every offence committed
particularly under the Indian Penal Code is an offence against the
State while normally there would be an aggrieved party or a victim as
well. It invades into the right of an individual on the one hand while
on the other it is a public wrong. In the case of Sadhanantham v.
Arunachalam 1980 SC 856, the Supreme Court clearly stated the principle
that a crime is an act deemed by law to be harmful to society in
general even though its immediate victim is an individual.
Interpretation of punitive provisions in conjunction with procedural
law has attained a new dimension where keeping in view the interest of
the society, the Courts have tilted the balance in favour of
administration of justice and achieving greater harmony in society.
1.3 In B.S. Joshi and Ors. v. State of Haryana and Anr.
, the Supreme Court took the view that the provisions
of Section 320 of the Code do not limit or control exercise of powers
vested in the Court under Section 482 of the Code. Describing the scope
of inherent powers it was held that they are very wide and the Court
would have the power to quash criminal proceedings or an FIR or a
complaint under Section 498A of the IPC even if the said offence
presumably was not compoundable under Section 320 of the Code.
1.4 Compounding and quashing are not synonymous terms. In law they have
a different meaning and consequences. They arise from different
situations and operate in different fields and stages. There is no
apparent legal interdependence or interlink to the extent that one
could exist only if the conditions of the other were satisfied or
vice-versa. Quashing is one of the facets of inherent powers while
compounding of an offence being a statutory expression contained under
Section 320 of the Code is entirely a different concept.
1.5 The Criminal Procedure Code does not specifically give any power to
the Court to quash proceedings as strictly construed in legal parlance.
This power is derived from the inherent powers contemplated under
Section 482 of the Code.
1.6 A Division Bench of this Court in the case of Kiran Tulshiram
Ingale v. Smt. Anupama P. Gaikwad and Ors. 2006 Cri. L.J. 4591, relying
upon the judgment of the Supreme Court in B.S. Joshi’s case (supra) and
expanding the principles of socio-welfare interpretation to the
provisions of the Code quashed an order of conviction. That was a case
where a case against the husband had been registered under Section 498A
of the Code wherein he was convicted by the trial Court. In appeal
before the Appellate Court, the parties settled the matter. They
obtained a decree by mutual consent and the wife agreed not to press
for the husband’s conviction. The Appellate Court maintained the
conviction and gave benefit of probation under Section 4(1) of the
Probation of Offenders’ Act to the husband. The husband filed a
criminal revision against the order of the Sessions Judge and
thereafter apprehending some objection to the maintainability of the
application, filed a petition under Section 482 of the Code praying for
quashing and setting aside the judgment of conviction of the Appellate
Court dated 3rd March, 2004. The Division Bench of this Court in that
case did not agree with the view expressed by another single Judge of
this Court in the case of State of Maharashtra v. Madhu Bhisham Bhatia
and Ors. 2004 Cri LJ 5072, wherein the single Judge referred the matter
to the Division Bench and the Division Bench after noticing this fact
framed the following two questions.
1. The decision of the Apex Court in B.S. Joshi’s case is not an
authority to hold that offence under Section 498A of the Indian
Penal Code is a compoundable offence, which can be compounded with
the permission of the Court.
2. Whether it is open for the High Court to quash the criminal
action in exercise of inherent powers even in a case which has ended
with an order of conviction after trial.
The Division Bench while quashing the criminal proceedings, answered
the questions as follows at the end of the judgment.
Ans. to Issue No. 1:-The decision of the Supreme Court gives powers
to the High Court to permit compounding of matrimonial offences and
the High Court has powers to quash the criminal proceedings or FIR
or complaint.
Ans. to Issue No. 2: Even in case of conviction, inherent powers can
be exercised and criminal proceedings can be quashed.
2. Facts in nutshell Criminal Appeal No. 576 of 2004, where the accused
was convicted for an offence under Section 495 of the IPC, came up for
admission hearing when the Court while admitting the appeal, released
the applicant on bail. Thereafter the applicant has preferred the
present application praying for the leave of the Court to compound the
offence under Section 495 of the IPC and also for quashing and setting
aside the judgment of conviction dated 20th April, 2004 passed by the
Additional Sessions Judge, Greater Bombay in Sessions Case No. 108 of
2001 where the appellant was convicted and sentenced to suffer rigorous
imprisonment for five years and to pay fine of Rs. 25,000/-, in default
to suffer rigorous imprisonment for one year.
2.2 The said application came up before the learned single Judge on
11th July, 2007. However, the learned single Judge did not accept the
principles stated in the order of the Division Bench and vide his order
dated 11th July, 2007 directed the Registry to place the application
for reference to a larger Bench of two or three Judges. The order dated
11th July, 2007, expressing the disagreement of the learned single
Judge reads as under.
Whether, by following the law laid down in the case of B.S. Joshi
and Anr. , the High Court under its inherent powers
under Section 482 of Cr.P.C. has the powers to allow compounding of
offences other than the offence punishable under Section 498A of
IPC, but initiated and/or originated on the basis of the complaint
filed by one spouse against the other and more particularly the
offences punishable under Sections 306, 307, 326, 376, 406 and 495
of IPC, at the trial stage or at the appellate stage.
2.3 No statute can provide for all situations when the legislature
enacts a law. It may neither be feasible nor comprehensible to enact a
law which could operate as a strait-jacket formula for all classes,
situations and stage of proceedings. The residuary clauses or like
provisions are normally introduced in an Act so as to ensure that
whatever impediments are faced by the competent authorities, during the
implementation of such an Act, can be dealt with by the aid of such
enabling or residuary clauses. Vesting of inherent powers in the the
courts is a known phenomena. In fact, one school of thought supports
the view that creation of a code necessarily implies vesting of
inherent powers to resolve the difficulties or such impediments in the
conclusion of a trial for a given situation which particularly, is not
specifically provided under the enactment itself. The other school of
thought supports the view that the courts could have no inherent power
in relation to codified law or special statutes unless it is so
specifically spelt out in the enactment itself. It further elucidates
the principle that inherent powers can be used only for bridging gaps
and cannot be taken recourse to where they are in conflict with the
provisions of the Code or any other law for the time being in force.
2.4 The Legislature in its wisdom, while emphasising the need of
providing inherent powers to the High Court, introduced Section 482 of
the Criminal Procedure Code which reads as under:
482. Saving of inherent powers of High court. Nothing in this Code
shall be deemed to limit or affect the inherent powers of the. High
Court to make such orders as may be necessary to give effect to any
order under this Code, or to prevent abuse of the process of any
Court or otherwise to secure the ends of justice.
2.5 A bare reading of the above provision indicates that the
Legislature intentionally worded this provision widely and, thus,
necessarily would have larger impact and ramifications on the
procedural law governing enquiry, investigation and trial in criminal
cases. It is a well-known concept that law is not static and it
develops and varies according to the progress of time and the need of
society. Similarly, the provision of Section 482 in regard to the
inherent powers of the Court is not meant to be static and diverse
views have been expressed by different High Courts as well as the
Supreme Court.
3. Inherent powers
3.1 It will be useful to examine the development of law in regard to
the inherent powers vested in the High Court under this provision.
Though the judgments of the courts have been rendered in the facts of
decided cases, nevertheless they are relevant in order to enunciate the
principles of law. The views taken by different courts over a long
period would be an appropriate guide for really determining the
legislative intent and scope of this provision.
3.2 As far back as in 1926, a Division Bench of this Court in re.
Llewelyn Evans , took the view that the provisions of
Section 561A (equivalent to present Section 482) extend to cases not
only of a person accused of an offence in a criminal court, but to the
case of any person against whom proceedings are instituted under the
Code in any Court. Explaining the word “process”, the Court said that
it was a general word, meaning in effect anything done by the Court.
Explaining the limitations and scope of Section 561A, the Court
referred to “inherent jurisdiction”, “to prevent abuse of process”, “to
secure the ends of justice” are terms incapable of precise definition
or enumeration, and capable at the most of test, according to well-
established principles of criminal jurisprudence. The ends of justice
are to be understood by ascertainment of the truth as to the facts on
balance of evidence on each side. With reference to the facts the Court
held that in the absence of any other method, it has no choice left in
the application of the Section except such tests subject to the caution
to be exercised in the use of inherent jurisdiction and the avoidance
of interference in details and directed providing of a legal
practitioner.
3.3 A Full Bench of the Allahabad High Court in the case of Manni Lal
v. Emperor , stated that the Court cannot exercise its
inherent powers in ordering a subordinate Court to do something which
was impermissible to create new categories of inherent jurisdiction.
The inherent jurisdiction is generally confined. to proceedings in
consonance with the provisions of law otherwise the provisions of the
Code would become quite unnecessary.
3.4 A Division Bench of this Court in Madhukar Purshottam Mondkar and
Anr. v. Talab Haji Hussain and Ors. , with reference
to exercise of inherent powers stated the principle that when there is
a specific provision in law enjoining upon the Court to do something or
not to do something, then the Court cannot go contrary to the mandate
of the Legislature by relying upon its inherent power and at the same
time made a note of caution that no Legislature or no law can
contemplate every situation and every eventuality and the best drafted
laws might have some lacuna. It is to meet with those unforeseen cases
and situations and to make good the lacuna, if it exists, that a Code
of law reserves to a Court inherent powers.
3.5 Citing an example of exercise of inherent powers, the Supreme Court
in the case of The State of Uttar Pradesh v. Mohammad Naim
, stated that an aggrieved party could apply for
expunging of remarks and pray before the Court for exercise of inherent
powers. The Court held as under:
The first point which falls for consideration is whether the State
of Uttar Pradesh had locus standi to make the application under
Section 561A Cr. P.C. We may first read the Section:
Nothing in this Code shall be deemed to limit or affect the inherent
power of the High Court to make such orders as may be necessary to
give effect to any order under this Code, or to prevent abuse of the
process of any Court or otherwise to secure the ends of justice.
It is now well settled that the Section confers no new powers on the
High Court. It merely safeguards all existing inherent powers
possessed by a High Court necessary (among other purposes) to secure
the ends of justice. The Section provides that those powers which
the court inherently possesses shall be preserved lest it be
considered that the only powers possessed by the court are those
expressly conferred by the Code and that no inherent powers had
survived the passing of the Code (see Jairam Das v. Emperor
and Emperor v. Nazir Ahmad .
3.6A Full Bench of the Calcutta High Court held in The State v. Haridas
Mundra and Anr. , that inherent powers contained in
Section 561A cannot be utilised for providing jurisdiction to the Court
which otherwise did not exist. Referring to the law that the High Court
had no jurisdiction in revision to interfere with any judgment, order
or sentence passed by a single Judge of the High Court in exercise of
original criminal jurisdiction, the Court said that there was no
inherent power in a Court to assume jurisdiction. Jurisdiction can be
conferred only by a statute.
3.7 In the case of L.V. Jadhav v. Shankarrao Abasaheb Pawar and Ors.
, the Supreme while dealing with the inherent powers
of the Court held as under:
The learned Magistrate was, therefore, right in proceeding on the
basis that the allegations in the complaint prima facie constitute
an offence under Section 4 of the Act and issuing processes to the
respondents. The High Court, we cannot refrain from observing, might
well have refused to invoke its inherent powers at the very
threshold in order to quash the proceedings, for these powers are
meant to be exercised sparingly and with circumspection when there
is reason to believe that the process of law is being misused to
harass a citizen. The present was not such a case. We find that the
complaint had been filed after obtaining the previous sanction of
the State Government or of such officer as the State Government may
by general or special order specify in this behalf as required by
the proviso to Section 4 of the Act.
3.8 We may also notice a Full Bench judgment of the Rajasthan High
Court in the case of Noor Taki alias Mammu v. State of Rajasthan
, where the Court explained the scope of power of the
Court under Section 482 of the Code which reads as under:
19. …Reasonable expeditious trial is warranted by the provisions
of the Criminal Procedure Code and in case this is not done and an
approver is detained for a period which is longer than what can be
considered to be reasonable in the circumstances of each case, this
Court has always power to declare his detention either illegal or
enlarge him to bail while exercising its inherent powers. Section
482 Cr. P.C. gives wide power to this Court in three circumstances.
Firstly, where the jurisdiction is invoked to give effect to an
order of the Court. Secondly if there is an abuse of the process of
the Court and thirdly, in order to secure the ends of justice. There
may be occasions where a case of approver may fall within latter two
categories. For example in a case where there are large number of
witnesses a long period is taken in trial where irregularities and
illegalities have been committed by the Court and a retrial is
ordered and while doing so, the accused persons are released on
bail, the release of the approver will be occasioned for securing
the ends of justice. Similarly, there may be cases that there may be
an abuse of the process of the Court and the accused might be trying
to delay the proceedings by absconding one after another, the
approver may approach this Court for seeking indulgence. But this
too will depend upon the facts and circumstances of each case.
Broadly, the parameters may be given but no hard and fast rule can
be laid down. For instance, an approver, who has already been
examined and has supported the prosecution version, and has also not
violated the terms of pardon coupled with the fact that no early end
of the trial is visible, then he may be released by invoking the
powers under Section 482, Cr. P.C. Section 482 Cr. P.C. gives only
power to the High Court. Sessions Judge cannot invoke the provisions
of the same. High Court therefore in suitable cases can examine the
expediency of the release of an approver. We are not inclined to
accept the contention of the learned Public Prosecutor that since
there is a specific bar under Section 306(4)(b), Cr. P.C. , Section
482 Cr.P.C. should not be made applicable. Their Lordships of the
Supreme Court have said in times without number, that there is
nothing in the Code to fetter the powers of the High Court under
Section 482,Cr. P.C. Even if there is a bar in different provisions
for the three purposes mentioned in Section 482 Cr.P.C. and one
glaring example quoted is that though Section 397 gives a bar for
interference with interlocutory orders yet Section 482 Cr. P.C. has
been made applicable in exceptional cases. Second revision by the
same petitioner is barred yet this Court in exceptional cases
invokes the provisions of Section 482 Cr. P.C. Therefore, Section
482 Cr. P.C. gives ample power to this Court. However, in
exceptional cases to enlarge the approver on bail, we answer the
question that according to Section 306(4)(b) Cr.P.C. the approver
should be detained in custody till the termination of trial, if he
is not already on bail, at the same time, in exceptional and
reasonable cases the High Court has power under Section 482 Cr.
P.C., to enlarge him on bail or in case there are circumstances to
suggest that his detention had been so much prolonged, which would
otherwise outlive the period of sentence, if convicted, his
detention can be declared to be illegal, as violative of Article 21
of the Constitution.
3.9 Following the above principles enunciated and further introducing a
word of caution, the Supreme Court in the case of State of Bihar v.
Muradali Khan and Ors. held as under:
6. The second ground takes into consideration the merits of the
matter. It cannot be said that the complaint does not spell out the
ingredients of the offence alleged. A complaint only means any
allegation made orally or in writing to a Magistrate, with a view to
his taking action, that some person whether known or unknown, has
committed an offence.
It is trite that jurisdiction under Section 482 Cr. P.C., which
saves the inherent power of the High Court, to make such orders as
may be necessary to prevent abuse of the process of any Court or
otherwise to secure the ends of justice, has to be exercised
sparingly and with circumspection. In exercising that jurisdiction
the High Court would not embark upon an enquiry whether the
allegations in the complaint are likely to be established by
evidence or not. That is the function of the trial Magistrate when
the evidence comes before him. Though it is neither possible nor
advisable to lay down any inflexible rule to regulate that
jurisdiction, one thing, however, appears clear and it is that when
the High Court is called upon to exercise this jurisdiction to quash
a proceeding at the stage of the Magistrate taking cognizance of an
offence the High Court is guided by the allegations, whether those
allegations, set out in the complaint or the charge-sheet, do not in
law constitute or spell out any offence and that resort to criminal
proceedings would, in the circumstances, amount to an abuse of the
process of the Court or not.
In Municipal Corporation of Delhi v. R.K. Rohtagi ,
it is reiterated:
It is, therefore, manifestly clear that proceedings against an
accused in the initial stages can be quashed only if on the face of
the complaint or the papers accompanying the same, no offence is
constituted. In other words, the test is that taking the allegations
and the complaint as they are, without adding or substracting
anything, if no offence is made out then the High Court will be
justified in quashing the proceedings in exercise of its powers
under Section 482 of the present Code.
In Municipal Corporation of Delhi v. P.D. Jhunjhunwala
, it was further made clear:
…As to what would be the evidence against the respondents is not a
matter to be considered at this stage and would have to be proved at
the trial. We have already held that for purpose of quashing the
proceedings only the allegations set forth in the complaint have to
be seen and nothing further.
3.10 Another Full Bench of Rajasthan High Court in the case of Mohan
Singh and Ors. v. State 1993 Cri.L.J. 3193 discussed the scope of
Section 482 of the Code, particularly in relation to compounding of
offences and discussing its scope and effect. The Court held as under.
13. Now, we may also consider the various decisions relied upon by
the learned Counsel for the petitioners. In Mahesh Chand v. State of
Rajasthan, the Supreme Court had, no doubt, directed the trial court
to accord permission to compound the offence under Section 307 IPC
even though this offence is not compoundable under the law. This was
permitted as a special case in view of the peculiar circumstances of
the case. But, in this case, the Supreme Court has nowhere held that
the High Court has inherent power under Section 482 Cr. P.C. to
permit composition of offence which is not otherwise compoundable
under the law. Therefore, this judgment cannot be an authority to
lay down a proposition of law, as argued by the learned Counsel for
the petitioners. It may be stated here that in special cases, the
Supreme Court may have power to direct compounding of
noncompoundable offence, but High Court has no such power.
The single Bench judgments of this Court in Hari Narain v. State of
Rajasthan and Shiv Nath v. State are based on the judgment of the
Supreme Court in Mahesh Chand v. State of Rajasthan. In Mahesh
Chand’s case, as we have already seen it was nowhere held by the
Supreme Court that High Court could allow composition of a
noncompoundable offence in exercise of its inherent power under
Section 482 Cr.P.C.
A Division Bench of this Court in Kailash Bahadur v. State of
Rajasthan has, no doubt, held in the affirmative that in exercise of
inherent power of the High Court a direction can be issued to lower
court to give permission to compound a non-compoundable offence.
With due respect this view of the Bench is not a correct proposition
of law and runs counter to the proposition of law laid down by the
apex court of the country. Accordingly, we overrule the Bench
decision in Kailash Bahadur v. State of Rajasthan.
The Full Bench decisions of this Court in Noor Taki alias Mammu v.
State of Rajasthan and Habu v. State of Rajasthan relied upon by the
learned Counsel for the petitioners, are quite distinguishable and
provide no assistance to lay down the proposition that composition
of offence which is not compoundable under Section 320 Cr. P.C. is
permissible by the High Court in exercise of its power under Section
482 Cr. P.C. In Noor Taki alias Mammu it was held that if the
detention of the approver had become so much prolonged which would
otherwise outlive the period of sentence, if convicted, he can be
enlarged on bail in exercise of power under Section 482 as his
detention can be declared to be illegal and violative of Article 21
of the Constitution. Whatever has been held in this decision is in
the context of the facts and circumstances of that case.
Similarly, in Habu v. State of Rajasthan, the question before the
Full Bench was as to whether the judgment given in absence of
appellant and or his counsel can be recalled by the High Court in
exercise of powers under Section 482 and the Full Bench of this
Court held that then power of recall is different from power of
altering or reviewing judgment as provided under Section 362, Cr.
P.C. as such, the bar contemplated under Section 362,. Cr. P.C. has
no application in such matter. Hence, this decision is not an
authority to lay down that inherent powers cannot be exercised by
the High Court under Section 482 Cr. P.C. against the express bar of
law engrafted in any other provision, of the Code.
The Full Bench formulated the following principles to govern the
exercise of powers under Section 482:
(i) That the High Court possesses the inherent power to be exercised
‘ex debito justiae’to do the real and substantial justice for the
administration of which alone court exists. But, such powers do not
confer any arbitrary jurisdiction on the High Court to act according
to its whim or caprice.
(ii) That it should be exercised very sparingly to. prevent abuse of
process of any Court or otherwise to secure the ends of justice;
(iii) That the power is not to be resorted to if there is a specific
provision in the Code for the redress of the grievance of the
aggrieved party; and
(iv) That it should not be exercised as against the express bar of
law engrafted in any other provision of the Code.
3.11 The Court, of course, observed that in view of the express bar
contained in Sub-Section (9) of Section 320 of the Cr.P.C., the High
Court would have no power to compound offences which are otherwise not
compoundable.
3.12 After considering the various judgments on the subject, the
Supreme Court in State of Andhra Pradesh v. Golconda Linga Swamy and
Anr. , discussed the scope of inherent powers of the
High Court and indicated that they have to be exercised sparingly,
carefully and with caution. The court held as under:
5. Exercise of power under Section 482 of the Code in a case of this
nature is the exception and not the rule.
The Section does not confer any new powers on the High Court. It
only saves the inherent power which the Court possessed before the
enactment of the Code. It envisages three circumstances under which
the inherent jurisdiction may be exercised, namely: (i) to give
effect to an order under the Code, (ii) to prevent abuse of the
process of court, and (iii) to otherwise secure the ends of justice.
It is neither possible nor desirable to lay down any inflexible rule
which would govern the exercise of inherent jurisdiction. No
legislative enactment dealing with procedure can provide for all
cases that may possibly arise. Courts, therefore, have inherent
powers apart from express provisions of law which are necessary for
proper discharge of functions and duties imposed upon them by law.
That is the doctrine which finds expression in the Section which
merely recognises and preserves inherent powers of the High Courts.
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 alique concedit, conceditur et 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 such abuse. It
would be an abuse of the 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 or continuance of it amounts
to abuse of the process of court or quashing of these proceedings
would otherwise serve the ends of justice. When no offence is
disclosed by the complaint, the court may examine the question of
fact. When a complaint is sought to be quashed, it is permissible to
look into the materials to assess what the complainant has alleged
and whether any offence is made out even if the allegations are
accepted in toto.
8. As noted above, the powers possessed by the High Court under
Section 482 of the Code are very wide and the very plenitude of the
power requires great caution in its exercise. Court must be careful
to see that its decision in exercise of this power is based on sound
principles. The inherent power should not be exercised to stifle a
legitimate prosecution. High Court being the highest court of a
State should normally refrain from giving a prima facie decision in
a case where the entire facts are incomplete and hazy, more so when
the evidence has not been collected and produced before the Court
and the issues involved, whether factual or legal, are of magnitude
and cannot be seen in their true perspective without sufficient
material. Of course, no hard-and-fast rule can be laid down in
regard to cases in which the High Court will exercise its
extraordinary jurisdiction of quashing the proceeding at any stage.
[See Janata Dal v. H.S. Chowdhary and Reghubir Saran (Dr.) v. State
of Bihar.] It would not be proper for the High Court to analyse the
case of the complainant in the light of all probabilities in order
to determine whether a conviction would be sustainable and on such
premises, arrive at a conclusion that the proceedings are to be
quashed. It would be erroneous to assess the material before it and
conclude that the complaint cannot be proceeded with. In a
proceeding instituted on complaint, exercise of the inherent powers
to quash the proceedings is called for only in a case where the
complaint does not disclose any offence or is frivolous, vexatious
or oppressive. If the allegations set out in the complaint do not
constitute the offence of which cognisance has been taken by the
Magistrate, it is open to the High Court to quash the same in
exercise of the inherent powers under Section 482 of the Code. It is
not, however, necessary that-there should be meticulous analysis of
the case before the trial to-find out whether the case would end in
conviction or acquittal. The complaint/FIR has to be read as a
whole. If it appears that on consideration of the allegations in the
light of the statement made on oath of the complainant , or
disclosed in the FIR that the ingredients of the offence or offences
are disclosed and there is no material to show that the
complaint/FIR is mala fide, frivolous or vexatious, in that event
there would be no justification for interference by the High Court.
When an information is lodged at the police station and an offence
is registered, then the mala fides of the informant would be of
secondary importance. It is the material collected during the
investigation and evidence led in court which decides the fate of
the accused person. The allegations of mala fides against the
informant are of no consequence and cannot by themselves be the
basis for quashing the proceeding. [See Dhanalakshmi v. R. Prasanna
Kumar, State of Bihar v. P.P. Sharma, Rupan Deol Bajaj v. Kanwar Pal
Singh Gill, State of Kerala v. O.C. Kuttan, State of U.P. v. O.P.
Sharma, Rashmi Kumar v. Mahesh Kumar Bhada, Satvinder Kaur v. State
(Govt. of NCT of Delhi), Rajesh Bajaj v. State NCT of Delhi and
State of Karnataka v. M. Devendrappa.]
3.13 Still in another case of Minu Kumari v. State of Bihar
, the Supreme Court reiterated the above position and
discussed the limitation on inherent powers.
3.14 Similar view was taken by the Supreme Court in the case of Central
Bureau of Investigation v. Ravi Shankar Srivastava
wherein the Supreme Court has reiterated the application of the
principle of of ex debito justitiae to do real and substantial justice
and to prevent abuse of the court process and the court observed that
the High Court was not justified in quashing the FIR and even rejected
the plea of jurisdiction of the CBI to register the case.
3.15 The Supreme Court with some variation from the earlier view taken,
in the case of Popular Muthiah v. State Represented by Inspector of
Police held as under:
30. In respect of the incidental or supplemental power, evidently,
the High Court can exercise its inherent jurisdiction irrespective
of the nature of the proceedings. It is not trammelled by procedural
restrictions in that:
(i) Power can be exercised suo motu in the interest of justice. If
such a power is not conceded, it may even lead to injustice to an
accused.
(ii)Such a power can be exercised concurrently with the appellate or
revisional jurisdiction and no formal application is required to be
filed therefor.
(iii)It is, however, beyond any doubt that the power under Section
482 of the Code of Criminal Procedure is not unlimited. It can inter
alia be exercised where the Code is silent, where the power of the
court is not treated as exhaustive, or there is a specific provision
in the Code; or the statute does not fall within the purview of the
Code because it involves application of a special law. It acts ex
debito justitiae. It can, thus, do real and substantial justice for
which alone it exists.
31. This Court in Dinesh Dutt Joshi v. State of Rajasthan while
dealing with the inherent powers of the High Court held: (SCC p.573,
para 6)
The principle embodied in the Section is based upon the maxim:
quando lex aliquid qlicui concedit, concedere videtur et id sine quo
res ipsae esse non potest i.e. when the law gives anything to
anyone, it gives also all those things without which the thing
itself would be unavailable. The Section does not confer any new
power, but only declares that the High Court possesses inherent
powers for the purposes specified in the Section. As lacunae are
sometimes found in procedural law, the Section has been embodied to
cover such lacunae wherever they are discovered. The use of
extraordinary powers conferred upon the High Court under this
Section are however required to be reserved, as far as possible, for
extraordinary cases.
32. The decisions of this Court emphasised the fact that there
exists a distinction between two classes of cases viz. (i) where
application of Section 482 is specifically excluded, and (ii) where
there is no specific provision but limitation of the power which is
sought to be exercised has specifically been stated.
33. In R.P. Kapur v. State of Punjab this Court summarised some of
the categories of cases where inherent power should be exercised to
quash a criminal proceeding against the accused, stating: (SCR p.
393)
(i) Where it manifestly appears that there is a legal bar against
the institution or continuance e.g. Want of sanction;
(ii) Where the allegations in the first information report or
complaint taken at its 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. ~ The said decision has been noticed
subsequently by this Court in State of Karnataka v. M. Devendrappa.
34. This Court furthermore laid down that the inherent power of the
High Court can be invoked in respect of the matters covered by the
provisions of the Code unless there is specific provision to redress
the grievance of the aggrieved party. (See Madhu Limaye v. State of
Maharashtra and Raj Kapoor v. State.)
35. It is also not in dispute that the said power overrides other
provisions of the Code but evidently cannot be exercised in
violation/contravention of a statutory power created under any other
enactment.
36. In State v. Navjot Sandhu it was stated: (SCC p.657, page 29)
29. Section 482 of the Criminal Procedure Code starts with the words
‘Nothing in this Code’. Thus the inherent jurisdiction of the High
Court under Section 482 of the Criminal Procedure Code can be
exercised even when there is a bar under Section 397 or some other
provisions of the Criminal Procedure Code. However as is set out in
Satya Narayan Sharma case this power cannot be exercised if there is
a statutory bar in some other enactment. If the order assailed is
purely of an interlocutory character, which could be corrected in
exercise of revisional powers or appellate powers the High Court
must refuse to exercise its inherent power. The inherent power is to
be used only in cases where there is an abuse of the process of the
court or where interference is absolutely necessary for securing the
ends of justice. The inherent power must be exercised very sparingly
as cases which require interference would be few and far between.
The most common case where inherent jurisdiction is generally
exercised is where criminal proceedings are required to be quashed
because they are initiated illegally, vexatiously or without
jurisdiction. Most of the cases set out hereinabove fall in this
category. It must be remembered that the inherent power is not to be
resorted to if there is a specific provision in the Code or any
other enactment for redress of the grievance of the aggrieved party.
This power should not be exercised against an express bar of law
engrafted in any other provision of the Criminal Procedure Code.
This power cannot be exercised as against an express bar in some
other enactment.
3.16 In a very recent case titled as Hamida v. Rashid @ Rasheed (2008)
1 SCC 474, the Supreme Court took the view that a Procedural Code,
however, exhaustive, cannot expressly provide for all time to come
against all the cases or points that may possibly arise, and in order
that justice may not suffer, it is necessary that every court must in
proper cases exercise its inherent power for the ends of justice or for
the purpose of carrying out the other provisions of the Code. It is a
well established principle that every Court has inherent power to act
ex debito justitiae to do that real and substantial justice for the
administration of which alone it exists or to prevent abuse of the
process of the Court.
3.17 Still in one more recent judgment in Som Mittal v. Govt. of
Karnataka Special Leave Petition (Cri.) No. 1719 of 2006 decided on
29.1.2008, the Supreme Court spelled out the caution in exercise of the
inherent powers as was said in some of the earlier cases and observed
as under:
10. 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 rarest of 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 be ended 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.
3.18 Hon’ble Katju, J. wrote a separate opinion as His Lordship was not
in agreement with the view expressed by Hon’ble Sema, J. that power
under Section 482 of Cr.P.C. should be used only in the “rarest of rare
cases”. In view of the difference of opinion on legal issues, the
appeal was directed to be placed before the Chief Justice of India. The
matter was accordingly placed before a Bench of three Judges. Hon’ble
Chief Justice of India while writing the judgment resolving the
controversy [Appeal (Cri.) No. 206of 2008 (Som Mittal v. Govt. of
Karnataka) dated 21st February, 2008] formulated one of the legal
issues as:
Whether the power under Section 482 Cr.P.C. should be exercised
‘sparingly’or ‘sparingly with circumspection and in the rarest of
rare cases’? While answering the issue, it was observed.
7. When Sema, J. observed that the power under Section 482 Cr.P.C.
was to be used ‘sparingly, with circumspection and in rarest of rare
cases’, he did not lay down any new proposition of law, but was
merely reiterating what was stated by this Court in several cases,
including Kurukshetra University v. State of Haryana
and State of ‘ Haryana v. Bhajan Lal 1992 Supp.
(1) SCC 335. In Kurukshetra University (supra), this Court observed
“that the statutory power under Section 482 has to be exercised
sparingly with circumspection and “in rarest of rare cases”. In
Bhajan Lal, this Court reiterated the word of caution that the power
of quashing a criminal proceeding should be exercised “very
sparingly and with circumspection and that too in the rarest of rare
cases”. It may not therefore be correct to say that the words
‘rarest of rare cases’ are appropriate only when considering death
sentence for an offence under Section 302 IPC or that those words
are inappropriate when referring to the ambit of the power to be
exercised under Section 482 Cr.P.C.
8. Quashing of a complaint or criminal proceedings under Section 482
Cr.P.C. depends on the facts and circumstances of each case. The
scope and ambit of the power under Section 482 has been explained by
this Court in a series of decisions –R.P. Kapur v. State of Punjab
, State of Uttar Pradesh v. R.K. Srivastava
; State of Haryana v. Bhajan Lal 1992 Supp. (1) SCC
335, Mrs. Rupan Deol Bajaj v. Kanwar Pal Singh Gill
; Pepsi Foods Ltd. v. Special Judicial Magistrate
; Zandu Pharmaceutical Works v. Mohd. Sharaful
Haque ; Indian Oil Corporation v. NEPC India Ltd.
, and Sonapareddy Maheedhar v. State of Andhra
Pradesh .
9. When the words ‘rarest of rare cases’ are used after the words
‘sparingly and with circumspection’ while describing the scope of
Section 482, those words merely emphasize and reiterate what is
intended to be conveyed by the words ‘sparingly and with
circumspection’. They mean that the power under Section 482 to quash
proceedings should not be used mechanically or routinely, but with
care and caution, only when a clear case for quashing is made out
and failure to interfere would lead to a miscarriage of justice. The
expression “rarest of rare cases” is not used in the sense in which
it is used with reference to punishment for offences under Section
302 IPC, but to emphasize that the power under Section 482 Cr.P.C.
to quash the FIR or criminal proceedings should be used sparingly
and with circumspection. Judgments are not to be construed as
statutes. Nor words or phrases in judgments to be interpreted like
provisions of a statute. Some words used in a judgment should be
read and understood contextually and are not intended to be taken
literally. Many a time a Judge uses a phrase or expression with the
intention of emphasizing a point or accentuating a principle or even
by way of a flourish of writing style. Ratio decidendi of a judgment
is not to be discerned from a stray word or phrase read in
isolation….
12. When this Court renders judgments, it does so with great care
and responsibility. The law declared by this Court is binding on all
courts. All authorities in the territory of India are required to
act in aid of it. Any interpretation of a law or a judgment, by this
Court, is a law declared by this Court. The wider the power, more
onerous is the responsibility to ensure that nothing is stated or
directed in excess of what is required or relevant for the case, and
to ensure that the Court’s orders and decisions do not create any
doubt or confusion in regard to a legal position in the minds of any
authority or citizen, and also to ensure that they do not conflict
with any other decision or existing law. Be that as it may.
3.19 The Supreme Court again reiterated the settled principles of
exercise of power under Section 482 of the Criminal Procedure Code in
the case of Renu Kumari v. Sanjay Kumar and Ors. Appeal (Cri.) No. 426
of 2008 as late as on 3rd March, 2008 and held as under:
9. As noted above, the powers possessed by the High Court under
Section 482 Cr.P.C. are very wide and the very plenitude of the
power requires great caution in its exercise. The court must be
careful to see that its decision, in exercise of this power, is
based on sound principles. The inherent power should not be
exercised to stiffle a legitimate prosecution. The High Court being
the highest court of a State should normally refrain from giving a
prima facie decision in a case where the entire facts are incomplete
and hazy, more so when the evidence has not been collected and
produced before the Court and the issues involved, whether factual
or legal, are of magnitude and cannot be seen in their true
perspective without sufficient material. Of course, no hard-and-fast
rule can be laid down in regard to cases in which the High Court
will exercise its extraordinary jurisdiction of quashing the
proceeding at any stage. It would not be proper for the High Court
to analyse the case of the complainant in the light of all
probabilities in order to determine whether a conviction would be
sustainable and on such premises arrive at a conclusion that the
proceedings are to be quashed. It would be erroneous to assess the
material before it and conclude that the complaint cannot be
proceeded with. When an information is lodged at the police station
and an offence is registered, then the mala fides of the informant
would be of secondary importance.
4. Law of other countries
4.1 In the case of Bremer Vulkan Schiffbau Und Maschinenfabrik v. South
India Shipping Corpn. [1981] All ER 289, while dealing with the concept
of inherent powers of Courts, it was held as under:
Every civilized system of government requires that the state should
make available to all its citizens a means for the just and peaceful
settlement of disputes between them as to their respective legal
rights…. So, it would stultify the constitutional role of the High
Court as a court of justice if it were not armed with power to
prevent its process being misused in such a way as to diminish its
capability of arriving at a just decision of the dispute.
4.2 In the case of Regina v. Deborah Bothwell [2006] NICA 35, the Court
of Appeal in Northern Ireland , referred the above decision in Bremer
Vulkan. It also referred Connelly v. DPP [1964] SC 1254, where Lord
Morris at page 1301 said:
There can be no doubt that a court which is endowed with a
particular jurisdiction has powers which are necessary to enable it
to act effectively within such jurisdiction. I would regard them as
powers which are inherent in its jurisdiction. A court must enjoy
such powers in order to enforce its rules of practice and to
suppress any abuses of its process and to defeat any attempted
thwarting of its process.
4.3 It also referred the below quoted concept of inherent jurisdiction
described by Sir Jack Jacob (from Current Legal Problems 1970) which
was quoted with approval by Justice Carswell in Braithwaite and sons
Limited v. Aniey Maritime Agencies Limited [1990] J N1 63 Carswell.
…the reserve of fund of powers, a residual source of powers, which
the Court may draw upon as necessary whenever it is just or
equitable to do so, and in particular to ensure the observance of
the due process of law, to prevent improper vexation or oppression,
to do justice between the parties and to secure a fair trial between
them.
Relying upon the above principles, the Court said that such exercise
would normally depend upon the question whether it is necessary in the
interest of justice that the act should be done.
4.4 Reference can usefully be made to the decision of the Federal Court
of Australia in Parsons v. Martin [1984] 58 ALR where the following was
said.
In our opinion a Court exercising jurisdiction conferred by statute
has powers expressly or by implication conferred by the legislation
which governs it. This is a matter of statutory construction. We are
also of the opinion that it has in addition such powers as are
incidental and necessary to the exercise of the jurisdiction or the
power so conferred.
4.5 Reference may also be made to the decision of the same Court in
Jackson v.’Sterling Industries Limited [1987] 162 CLR 612 at page 623
where the High Court endorsed the following passage from Bowen CJ.
In relation to a statutory court such as the Federal Court it is
wise to avoid the use of the words ‘inherent jurisdiction’.
Nevertheless a statutory court which is expressly given certain
jurisdiction and powers must exercise that jurisdiction and those
powers. In doing so it must be taken to be given by implication
whatever jurisdiction or powers may be necessary for the exercise of
those expressly conferred. The implied power for example to prevent
abuse of process is similar to, if not identical, with inherent
power.
4.6 While examining the law in New South Wales applicable to recording
and reporting of the proceedings of court by representatives of news
media, Law Reforms Commission referred to the concept of inherent
jurisdiction of courts thus: “A court exercising judicial functions has
an inherent power to regulate its own procedure, save insofar as its
procedure has been laid down by the enacted law.
4.7 While referring to Halsbury’s Laws of England, the report also
quoted K. Mason [The Inherent jurisdiction of the court (1983) 57
Australian Law Journal 449 at p. 449] who said:
Its ubiquitous nature precludes any exhaustive enumeration of the
powers which are thus exercised by the Courts.
The report also referred to article of I.H, Jacob [ The inherent
jurisdiction of the Court (1970) 23 Current Legal Problems 23 at p.24)
in the following words:
the source of the inherent jurisdiction of the court is derived from
its nature as a court of law, so that the limits of such
jurisdiction are not easy to define, and indeed appear to elude
definition.
Jacob states that the courts power to control its own practice and
proceedings can be used “to prevent any obstruction or interference
with the administration of justice. He does not make it clear
whether this power can only be exercised to prevent any obstruction
or interference with the administration of justice. If this was the
case, then the Judge in the illustration would have no power to
order the journalist to stop using sound recorder. In the United
States, for example, the courts have limited the exercise of
inherent powers by providing that:
inherent powers may be used only when reasonably necessary for the
court to be able to function…. Courts may not exercise inherent
powers merely because their use would be convenient or desirable.;
On this approach there would be no legitimate basis for a court
disallowing the use of a sound recorder where that use does not
interfere with the proceedings. On the other hand the Privy Council
in O’Toole v. Scot has stated that the discretionary power of a
magistrate to permit a person other than the informant or his
counsel to conduct the case for the informant:
is an element or consequence of the inherent right of a judge or
magistrate to regulate the proceedings in his court…. Its exercise
should not be confined to cases where there is a strict necessity,
it should be regarded as proper for a magistrate to exercise the
discretion in order to secure or promote convenience and expedition
in the administration of justice.
4.8 A court exercising judicial function has an inherent power to
regulate its own procedure, save in so far as its procedure has been
laid down by the enacted law, and it cannot adopt a practice or
procedure contrary to or inconsistent with rules laid down by statute
or adopted by ancient usage. This principle has been consistently
followed in English Courts right from the cases of Ex pane Evans (1846)
9 QB 279 and O’Toole v. Scott [1965] AC 939 : [1965] 2 all ER 240. As
is evident from the above narrated judgments of the Indian courts, it
can safely be said that this principle has, may be with some
modification, been applied to Indian law as well. In order to avoid
injustice, it vested the courts with very wide powers. To limit or
restrict these powers can hardly be justified on any accepted norms of
statutory interpretation.
4.9 Unlike English or Australian Courts, the Code of Criminal Procedure
has codified the concept of inherent powers of the Indian Courts.
Besides, the Section (Section 482) opens with the non-obstantive words
by specific mandate of law that these powers are not to be limited even
by the provisions of the code. The court can pass an order which in its
opinion is necessary to give effect to any order to prevent abuse of
process of court and/or otherwise to secure the ends of justice. One
can hardly find any legislative intent from the language of the Section
which suggests that the Legislature intended or has actually restricted
the exercise of inherent powers of Courts. The exercise of inherent
powers thus is required to be controlled only by and in accordance with
the principles enunciated by the Courts in judgments. There is nothing
in the Code or the judgments aforereferred by us to suggest that such
power is to be exercised in rarest of rare cases in the same sense as
the judicial opinion is expressed in relation to imposition of death
penalty in criminal jurisprudence. The power under Section 482 may be
used with caution and circumspection but the law does not permit
providing of a strait jacket formula which would uniformly apply to all
cases. Every case would have to be decided on its own merit and the
Courts would have to decide whether or not to take recourse to the
provisions of Section 482 of the Code and whether such a case falls in
any of the three categories referred to in the language of Section 482
itself. Such power can be exercised even by the Appellate Courts once
the Court is satisfied that the case squarely falls in the specified
category.
4.10 The category of cases which would fall within the ambit and scope
of inherent powers having been statutorily spelled out, it may not be
permissible to add further category of classification of cases which
can be introduced by judicial pronouncements. The Section itself
postulates and states beyond ambiguity the types of cases in which the
Courts would invoke inherent powers. This, of course, depends on the
facts and circumstances of a given case. Any interpretation which would
amplify inherent powers beyond the limits of the language of the
Section as well as restrict such powers to curtail the vested powers,
in our opinion, would not be permissible. This principle has duly been
accepted and clarified by the Supreme Court in the very recent judgment
in the case of Som Mittal v. Government of Karnataka, decided on 21st
February, 2008, which we have elaborately referred in paras 3.17 and
3.18 of this judgment.
5. Quashing
5.1 ‘Quashing’ is an expression which does not find mention or
definition in the Criminal Procedure Code. It is a term which has been
coined as a result of judicial pronouncements. It is a branch which has
been illustratively explained by Judge made law. Cannons of judicial
precedent are only for understanding an application of the concept of
criminal jurisprudence. Before we really proceed to discuss the legal
aspects of this concept of law, we may refer to the meaning of this
expression in common parlance. The Law Lexicon by P. Ramanatha Aiyer
(General Editor Justice Y.V. Chandrachud), 2nd Edition 1997, explains
this term as under:
quash: To overthrow or annul, to make void, to abate (Tomlins Law
Die. ) as Quashing a conviction.
To annul: to make null and void; to throw out as invalid; to put an
end to a legal proceeding.
Mr. Abbott, in his Law Dictionary, defines ‘quash’ to mean to annul,
overthrow, or vacate by judicial acts.
Where proceedings are irregular, void, or defective, the courts,
will quash them both in civil and criminal cases. An indictment
which is so defective that no judgment can be given on it, or where
there is no jurisdiction will be quashed. The remedy is applicable
only to irregular, defective, or improper proceedings.
Black’s Law Dictionary, 6th Edition also explains the meaning of
this expression as under:
To overthrow; to vacate; to annul; to make void; e.g. To quash an
indictment.
The power of the court to annul or overthrow, which is an exception to
let the normal procedure of law specified in the Code be followed,
should be exercised sparingly and subject to the satisfaction of the
condition precedents to exercise of such power. The doctrine of
inherent power is the basic support for exercise of such power. The
court inherently would be couched with such power to do justice and to
ensure that basic rule of law is not frustrated. Wherever the court has
to implement orders, to prevent the abuse of process of law and to meet
the ends of justice, it is entitled to take recourse to its inherent
powers including that of quashing. Power of the court to quash, thus,
is an inbuilt power to do justice and in fact, is a power of great
substance which categorically finds its place in the provisions of
Section 482 of the Code. Power to quash is one of the powers where the
court would be empowered to quash the FIR or even a criminal proceeding
in furtherance thereto. The legal controversy which has persisted for
quite some time is whether the court would in exercise of its inherent
powers set aside or quash the judgment of a court within the scheme of
the Criminal Procedure Code?
5.3 In the case of Nityanand A. Shetty v. Vikram Jayantilal Bangdiwala
and Anr. , a Bench of this Court while referring to
the scope of Section 482 of the Criminal Procedure Code in a case
registered under Section 420 of the IPC, came to the conclusion that
where the complaint read as a whole made out a prima facie case against
the accused wherein summons had been issued by the Magistrate, the
accused could appear before the Magistrate and pray for discharge under
Section 203 and this Court would not exercise its power under Section
482 of Criminal Procedure Code. The court held as under:
…it must be stated that it is now well settled that the powers
under Section 482 of the Criminal Procedure Code and/or under
Article 227 of the Constitution must be sparingly used and in the
rarest of cases.
5.4 In the case of Rakesh Saxena v. State through C.B.I.
, the Supreme Court while taking a somewhat different
view held that there is a serious doubt as to whether case against the
accused could result into conviction and keeping in view the fact that
the offences under the Foreign Exchange Act were alleged to have been
committed six years ago, quashed the charges levelled, against the
accused.
5.5 A three Judge Bench of the Supreme Court in the case of State of
Karnataka v. L. Muniswamy and Ors. clearly stated the
principle that in exercise of its wholesome power, the High Court was
entitled to quash a proceeding as this power is to ensure a salutary
public purpose that Court proceedings ought not to be permitted to
degenerate into a weapon of harasssment or persecution. In this case, a
case under Sections 324, 326 and 307 read with Section 34 of the Indian
Penal Code was registered against the accused. The learned Magistrate
directed the accused to face trial and committed the case to the Court
of Sessions. An application for discharge was filed before the
Additional Sessions Judge, who by his order rejected the same and
directed framing of charges. In a revision filed before the High Court
by some of the accused, the High Court took the view that no sufficient
grounds were made out for proceeding against the accused. In appeal,
the Supreme Court held as under:
9. Learned Counsel for the State Government relies upon a decision
of this Court in R.P. Kapur v. The State of Punjab in which it was
held that in the exercise of its inherent jurisdiction under Section
561A of the Code of 1898, the High Court cannot embark upon an
enquiry as to whether the evidence in the case is reliable or not.
That may be so. But in the instant case the question is not whether
any reliance can be placed on the veracity of this or that
particular witness. The fact of the matter is that there is no
material on the record on the basis of which any tribunal could
reasonably come to the conclusion that the respondents are in any
manner connected with the incident leading to the prosecution.
Gajendragadkar, J. who spoke for the Court in Kapur’s case observes
in his judgment that it was not possible, desirable or expedient to
lay down any inflexible rule which would govern the exercise of the
High Court’s inherent jurisdiction. The three instances cited in the
judgment as to when the High Court would be justified in exercising
its inherent jurisdiction are only illustrative and can in the very
nature of things not be regarded as exhaustive. Considerations
justifying the exercise of inherent powers for securing the ends of
justice naturally vary from case to case and a jurisdiction as
wholesome as the one conferred by Section 482 ought not to be
encased within the strait-jacket of a rigid formula.
10. On the other hand, the decisions cited by learned Counsel for
the respondents in Vadilal Panchal v. D.D. Ghadigaonkar and Century
Spinning and Manufacturing ‘ Co. v. State of Maharashtra show that
it is wrong to say that at the stage of framing charges the court
cannot apply its judicial mind to the consideration whether or not
there is any ground for presuming the commission of the offence by
the accused. As observed in the latter case, the order framing a
charge affects a person’s liberty substantially and therefore it is
the duty of the court to consider judicially whether the material
warrants the framing of the charge. It cannot blindly accept the
decision of the prosecution that the accused be asked to face a
trial. In Vadilal Panchals case, Section 203 of the old Code was
under consideration, which provided that the Magistrate could
dismiss a complaint if after considering certain matters mentioned
in the Section there was in his judgment no sufficient ground for
proceeding with the case. To an extent Section 327 of the new Code
contains an analogous power which is conferred on the Sessions
Court. It was held by this Court, while considering the true scope
of Section 203 of the old Code that the Magistrate was not bound to
accept the result of an enquiry or investigation and that he must
apply his judicial mind to the material on which he had to form his
judgment. These decisions show that for the purpose of determining
whether there is sufficient ground for proceeding against an accused
the court possesses a comparatively wider discretion in the exercise
of which it can determine the question whether the material on the
record, if unrebutted, is such on the basis of which a conviction
can be said reasonably to be possible.
5.6 Catena of judgments of the Supreme Court can be referred to where
the Supreme Court upheld and/or permitted exercise of inherent powers
for quashing proceedings. The scope of power under Section 482 was held
to be vast to prevent abuse of process of law by inferior Courts and to
see that the stream of administration of justice remains clean and
pure. The Courts have also taken the view that mere nomenclature of a
petition would not matter and even in a petition under Article 226, the
Court could take recourse to the provisions of Section 482 of the Code.
The legal position was stated to be well settled that when prosecution
is sought to be quashed at the earliest stage, the test would have to
be applied by the Court as to whether the uncontroverted allegations,
as made prima facie, establish the offence. It is for the Courts to
take into consideration any special features which appear in a
particular case and would justify quashing of the proceedings may be at
the preliminary stage.
5.7 Another limitation which is accepted universally in application of
criminal law is that in exercise of the powers conferred upon the High
Court under Section 482 of the Code, it should not embark upon an
enquiry as to whether the allegations in the complaint are likely to be
established by evidence or not and the Court should not impinge upon
the jurisdiction of the trial Court while entertaining the quashing
proceedings.
5.8 The main purpose of exercising power to quash proceedings covered
under Section 482 of the Code is that it will prevent abuse of process
of Court or secure ends of justice. Wherever the complaint or the first
information report prima facie reflects commission of an offence,
quashing of proceedings at the initial stage would not be justified
unless and until the case falls in one of the exceptions stated in this
provision.
5.9 The inherent powers with which the criminal courts are clothed are
to make such orders as may be necessary for the ends of justice. Though
the power is unrestricted and undefined, it should not be used
capriciously or arbitrarily but should be exercised in appropriate
cases to do real and substantial justice for which alone the Courts
exist.
5.10 When ex facie cognizance of an offence is barred under the law of
limitation or any other law and prolongation of proceedings before the
Court would tantamount to undue harassment to the accused, quashing of
proceedings would be necessary to prevent the abuse of the process of
law. In regard to the above settled principles of law, reference can be
made to the judgments of the Supreme Court in the cases of (i)
Madhavrao Jiwaji Rao Scindia and Anr. v. Sambhajirao Chandrojirao Angre
and Ors. , (ii) State of Bihar v. Murad AH Khan and
Ors. , (iii) Chand Dhawan v. Jawahar Lal and Ors.
, and (iv) Pepsi Foods Ltd. and Anr. v. Special
Judicial Magistrate and Ors. .
5.11 Before, we proceed any further to discuss the exposition of legal
principles in relation to exercise of inherent powers and quashing of
proceedings, it will be useful to refer to the detailed principles
spelled out by the Supreme Court in the case of State of Haryana and
Ors. v. Ch. Bhajan Lal and Ors. , which has been, with
approval, followed by the Supreme Court and various High Courts. Thus
reference to this fundamental judgment of the Supreme Court is
essential. The Supreme Court categorised the following cases by way of
illustration in which the Courts can exercise power for quashing.
108. …(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 F.I.R. 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 purview of Section 155(2) 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 F.I.R. 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 155(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 concerned Act (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 concerned Act, providing efficacious redress for the
grievance of the aggrieved party.
7. Where a criminal proceeding 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.” 5.12 In the
case of Inspector of Police, CBI v. B. Raja Gopal and Ors.
, the Supreme Court while setting aside the High
Court order of quashing the criminal proceedings held that merely
because the parties had compromised the case and the payment was
made in proceedings charged under Sections 420, 468 and 471 of the
IPC, the premature quashing made by the High Court was not in
accordance with law.
5.13 In the case of Union of India v. Prakash P. Hinduja and Anr.
, the Supreme Court while setting aside the order of
the High Court clarified the directions issued by the Supreme Court in
the case of Vineet Narain v. Union of India .
Discussing the scope of inherent powers for quashing of proceedings,
the Supreme Court held as follows:
Section 482 Cr PC gives inherent powers of the High Court and such a
power can be exercised to prevent abuse of the process of any court
or otherwise to secure the ends of justice. The power can therefore
be exercised to quash the criminal proceedings. The grounds on which
the prosecution initiated proceedings against an accused can be
quashed by the High Court in exercise of power conferred by Section
482 CrPC has been settled by a catena of decisions of this Court
rendered in R.P. Kapur v. State of Punjab, Madhu Limaye v. State of
Maharashtra, Municipal Corporation of Delhi v. Ram Kishan Rohtagi
and Raj Kapoor v. State. The matter was examined in considerable
detail in State of Haryana v. Bhajan Lal and after review of
practically all the earlier decisions, the Court in para 108 of the
report laid down the grounds on which power under Section 482 Cr PC
can be exercised to quash the criminal proceedings and basically
they are: (1) where the allegations made in the FIR or 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 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, (3) where there is an express legal
bar engrafted in any of the provisions of the Code of Criminal
Procedure or the Act concerned to the institution and continuance of
the proceedings. But this power has to be exercised in a rare case
and with great circumspection.
15. The question whether the High Court can exercise its inherent
powers under Section 561-A of the Code of Criminal Procedure, 1898,
which was similar to Section 482 of the 1973 Code, was considered by
the Privy Council in Emperor v. Khwaja Nazir Ahmad. It will be
useful to reproduce the relevant part of the observations made by
their Lordships as this decision has been approved and has been
referred to in several decisions of this Court (AIR p.22):
In India as has been shown there is a statutory right on the part of
the police to investigate the circumstances of an alleged cognizable
crime without requiring any authority from the judicial authorities,
and it would, as their Lordships think, be an unfortunate result if
it should be held possible to interfere with those statutory rights
by an exercise of the inherent jurisdiction of the Court. The
functions of the judiciary and the police are complementary not
overlapping and the combination of individual liberty with a due
observance of law and order is only to be obtained by leaving each
to exercise its own function, always, of course, subject to the
right of the court to intervene in an appropriate case when moved
under Section 491 of the Criminal Procedure Code, to give directions
in the nature of habeas corpus. In such a case as the present,
however, the court’s functions begin when a charge is preferred
before it and not until then.
5.14 When the Court has to consider whether the criminal proceedings
should be allowed to continue or the same should be quashed, two
aspects are to be satisfied, (i) whether the uncontroverted
allegations, as made in the complaint, prima facie establish the
offence, and (ii) whether it is expedient and in the interest of
justice to permit a prosecution to continue. Applying these two tests,
the Supreme Court in the case of M.N. Damani v. S.K. Sinha and Ors.
, where the accused was charged with offences
punishable under Sections 499 and 500 of the IPC, held that the order
of the High Court quashing the proceedings was not sustainable. The
Supreme Court also relied upon its earlier judgment in the case of
Shatrughna Prasad Sinha v. Rajbhau Surajmal Rathi and
held that on cumulative reading of the complaint, offence was prima
facie established and it was not expedient and in the interest of
justice to quash the proceedings. The Court also indicated that no
special circumstances existed so as to justify the quashing of the
proceedings.
5.15 In the case of Indian Oil Corporation v. NEPC India Limited and
Ors. , the Supreme Court, while referring to all its
earlier judgments, restated the principles relating to exercise of
jurisdiction under Section 482 of the Criminal Procedure Code to quash
complaints and criminal proceedings and reiterated the principles as
follows:
(i) A complaint can be quashed where the allegations made in 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 the case alleged against the accused.
For this purpose, the complaint has to be examined as a whole, but
without examining the merits of the allegations. Neither a detailed
inquiry nor a meticulous analysis of the material nor an assessment
of the reliability or genuineness of the allegations in the
complaint, is warranted while examining prayer for quashing of a
complaint.
(ii) A complaint may also be quashed where it is a clear abuse of
the process of the court, as when the criminal proceeding is found
to have been initiated with mala fides/malice for wreaking vengeance
or to cause harm, or where the allegations are absurd and inherently
improbable. (iii) The power to quash shall not, however, be used to
stifle or scuttle a legitimate prosecution. The power should be used
sparingly and with abundant caution. (iv) The complaint is not
required to verbatim reproduce the legal ingredients of the offence
alleged. If the necessary factual foundation is laid in the
complaint, merely on the ground that a few ingredients have not been
stated in detail, the proceedings should not be quashed. Quashing of
the complaint is warranted only where the complaint is so bereft of
even the basic facts which are absolutely necessary for making out
the offence. (v) A given set of facts may make out: (a) purely a
civil wrong; or (b) purely a criminal offence; or (c ) a civil wrong
as also a criminal offence. A commercial transaction or a
contractual dispute, apart from furnishing a cause of action for
seeking remedy in civil law, may also involve a criminal offence. As
the nature and scope of a civil proceeding are different from a
criminal proceeding, the mere fact that the complaint relates to a
commercial transaction or breach of contract, for which a civil
remedy is available or has been availed, is not by itself a ground
to quash the criminal proceedings. The test is whether the
allegations in the complaint disclose a criminal offence or not.
5.16 Exercise of inherent powers for quashing the proceedings has
always been sustained by the Courts. However, under what circumstances
the power is to be exercised would depend on the facts of each case.
Quashing could be only when the Court comes to the conclusion that a
triable case was not made out and merely because the State was
proposing to withdraw the prosecution being taken the sole ground for
quashing the proceedings would not be an order sustainable in law. In
Balkar Singh v. Jagdish Kumar and Ors. AIR 2005 SC 1567, the Supreme
Court held as under:
9. …The decision of the Government to withdraw the prosecution is
an irrelevant ground so far as High Court is concerned to allow a
petition for quashing. It is rather surprising why further
directions were issued by the High Court to the police and the
Magistrate not to prosecute the petitioners once it quashed the
complaint. The direction issued in the impugned order by the High
Court in our opinion is wholly without jurisdiction even under
Section 482 of the Code. The High Court ought to have noticed the
fact that but for the grant of stay order, there was a possibility
of the trial Court even framing charge against the respondents
accused as far back as on 25th October, 2000 when the case was
listed for the said purpose in which event there could have been
room for argument that even a Section 321 petition would not be
maintainable.
5.17 A recent judgment of the Supreme Court in Didigam Bikshapathi and
Anr. v. State of AP. 2007 AIR SCW 7411, reiterates the principle that
inherent powers of the Court under Section 482 were very vast and such
powers should be exercised where it is necessary to do right and to
undo wrong in course of administration of justice. The principle is
that when the law gives a person anything it gives him that without
which it cannot exist. Endorsing the view of the High Court, the
Supreme Court held as under.
10. As noted above, the powers possessed by the High Court under
Section 482 of the Code are very wide and the very plenitude of the
power requires great caution in its exercise. Court must be careful
to see that its decision in exercise of this power is based on sound
principles. The inherent power should not be exercised to stifle a
legitimate prosecution. The High Court being the highest court of a
State should normally refrain from giving a prima facie decision in
a case where the entire facts are incomplete and hazy, more so when
the evidence has not been collected and produced before the Court
and the issues involved, whether factual or legal, are of magnitude
and cannot be seen in their true perspective without sufficient
material. Of course, no hard and fast rule can be laid down in
regard to cases in which the High Court will exercise its
extraordinary jurisdiction of quashing the proceeding at any stage.
(See State of Orissa v. Saroj Kumar Sahoo and Minu
Kumari v. State of Bihar ).
12. In the instant case the suicide note clearly refers to the acts
of the accused-appellants and the roles played by’ them. Therefore,
the High Court rightly rejected the prayer of exercise of power
under Section 482 of the Code. We make it clear that any observation
made by the High Court and by us while dismissing the present appeal
shall be construed to be determinative factor in the trial.” 5.18
Still in a more recent judgment of the Supreme Court in the case of
Sanapareddy Mahedhar Seshagiri and Anr. v. State of Andhra Pradesh
and Anr. 2008 AIR SCW 11, the Supreme Court again permitted quashing
of proceedings taken out against the husband under Sections 498A of
the Code, 106 I.P.C. read with Sections 4 and 6 of the Dowry
Prohibition Act, 1961, on the ground that the continuation of the
proceedings amounted to harassment to the husband and also abuse of
the process of the Court. The Court while referring to different
judgments of the Supreme Court concluded as under:
A careful reading of the above noted judgments makes it clear that
the High Court should be extremely cautious and slow to interfere
with the investigation and/or trial of criminal cases and should not
stall the investigation and/or prosecution except when it is
convinced beyond any manner of doubt that the FIR does not disclose
commission of any offence or that the allegations contained in the
FIR do not constitute any cognizable offence or that the prosecution
is barred by law or the High Court is convinced that it is necessary
to interfere to prevent abuse of the process of the Court. In
dealing with such cases, the High Court has to bear in mind that
judicial intervention at the threshold of the legal process
initiated against a person accused of committing offence is highly
detrimental to the larger public and societal interest. The people
and the society have a legitimate expectation that those committing
offences either against an individual or the society are
expeditiously brought to trial and, if found guilty, adequately
punished. Therefore, while deciding a petition filed for quashing
the FIR or complaint or restraining the competent authority from
investigating the allegations contained in the FIR or complaint or
for stalling the trial of the case, the High Court should be
extremely careful and circumspect. If the allegations contained in
the FIR or complaint discloses commission of some crime, then the
High Court must keep its hand off and allow the investigating agency
to complete the investigation without any fetter and also refrain
from passing order which may impede the trial. The High Court should
not go into the merits and demerits of the allegations simply
because the petitioner alleges malus animus against the author of
the FIR or the complainant. The High Court must also refrain from
making imaginary journey in the realm of possible harassment which
may be caused to the petitioner on account of investigation of the
FIR or complaint. Such a course will result in miscarriage of
justice and would encourage those accused of committing crimes to
repeat the same. However, if the High Court is satisfied that the
complaint does not disclose commission of any offence or prosecution
is barred by limitation or that the proceedings of criminal case
would result in failure of justice, then it may exercise inherent
power under Section 482 Cr.P.C.
5.19 Upon plain analysis of the principles of law, stated supra, it can
safely be concluded that the court can exercise its inherent power
vested in it for quashing the FIR or criminal proceedings free of
limitations but with caution, circumspection and sparingly, with
reference to the facts and circumstances and the special features of a
given case. The language of this provision invites liberal construction
keeping in view the objects sought to be achieved that no person should
be permitted to abuse the process of court or process of law. The penal
code is intended to protect society against crime but it certainly,
should not be permitted to be used as an instrument to frustrate the
very purpose by incorrectly or illegally implicating other persons and
thus, abusing the process of court and law both. Power to quash is the
discretion of the court and may be exercised sparingly but there will
be no occasion for the court to impose on itself unspecified
restrictions or limitations in exercise of such powers. Power to quash
is an ancillary or essential aspect of inherent powers of the court.
The definition of the ‘court’ under Section 20 of the Indian Penal Code
is not restricted and it includes, obviously, the appellate and
revisional court. When a court is exercising its appellate or
revisional jurisdiction, it is not divested of its inherent powers. In
a given case, the revision petition or even a petition under Article
226 of the Constitution of India would be treated as a petition under
Section 482 in the discretion of the court and upon satisfaction of the
prescribed tests. As already stated above, nomenclature of the petition
is not a determinative factor. Essentially, all the courts exercising
jurisdiction under the Code of Criminal Procedure could always have the
inherent power and could pass such order which may be necessary to
achieve the ends of any of the three objects stated in Section 482.
5.20 In the case of Inder Mohan Goswami and Anr. v. State of
Uttaranchal and Ors. while referring to the law, both
on scope and ambit of court’s power under Section 482 and the
principles governing for quashing of the criminal proceedings, the
court said that every High Court has inherent power to act ‘ex debito
justitiae’ to do real and substantial justice for the administration of
which alone it exists, or to prevent abuse of the process of the court.
Authority of the court exists for the advancement of justice and if any
abuse of the process leading to injustice is brought to the notice of
the court, then the court would be justified in preventing injustice by
invoking inherent powers in absence of specific provisions in the
Statute. In that case, the Supreme Court had quashed the proceedings
taken out under Sections 420, 120B and 467 of the Indian Penal Code
against the accused.
5.21 The fundamental rudiments of the criminal jurisprudence requires
that rule of strict construction has to be applied to the provisions of
the Code as far as they are not prejudicial to the accused but the
provisions which are procedural and are intended to be beneficial
provisions to protect and ensure pure and fair administration of
criminal justice need to be constructed liberally. Quashing is one of
the forms of exercise of power to prevent an abuse of process of law to
pass orders to give effect to any order under the Code or otherwise to
secure the ends of justice. Being an expression of wide magnitude, it
cannot be unnecessarily restricted. In the wisdom of the Legislature,
powers under Section 482 of the Code were not to be limited by any
other provisions of the Code. The expression ‘ nothing in this code
shall be deemed to limit the inherent powers of the High Court’ is a
legislative legal command which cannot, by judicial process, be
interpreted so as to obstruct or frustrate the very object sought to be
achieved by the legislature by enacting Section 482 of the Code. It
would not be even proper to argue that in face of the non-obstante
language of the provision, the requirements of Section 320 of the
Criminal Procedure Code have a direct or indirect impact on the
inherent powers. Compounding is a different concept of criminal
jurisprudence in comparison with the inherent power of the court to
quash proceedings. On the aspect of compounding of offences, we will
discuss in some elaboration shortly hereinafter but we must notice that
FIR or criminal proceedings which are compoundable in terms of Section
320 are not the only offences in which the court can exercise its power
of quashing such proceedings. If the interpretation that Section 320
controls or has an inbuilt check upon exercise of powers contemplated
under Section 482 of the Code is adopted, then it will ex facie be an
interpretation contrary to the legislative intent. The use of the word
‘ ‘shall be deemed to limit’ has sufficiently indicated the mind of the
framers of the statutory provision that though they were aware of the
provisions of Section 320, revisional and appellate jurisdiction of the
court as contemplated in Sections 401, 377 and 378, they introduced
Section 482 in such wide language. On a plain reading of the provisions
of this Section, we have no hesitation in coming to the conclusion that
the provisions of Section 320 would in no way control or limit the
powers of the court under Section 482 of the Code, to quash a
prosecution.
5.22 Different provisions of the Criminal Procedure Code operate in
their own fields without in any way being influenced by other
provisions of the Code. A Public Prosecutor has been vested with the
power to withdraw from prosecution of all or any of the accused
involved in any crime including serious crimes. The scheme of the Code,
therefore, accepts withdrawal from prosecution and consequential
acquittal of the accused without following the prescribed procedure of
enquiry, investigation and trial, culminating into a judgment on merits
by a Court of competent jurisdiction. Exercise of such statutory power
by the Public Prosecutor can usefully be referred to buttress the
approach we have taken in the present case. Section 321 empowers the
public prosecutor to withdraw from the prosecution. This provision does
not admit to any limitation relatable to the nature of offence. There
also the court has to give its consent for withdrawal of the
prosecution. This power again is a wide power but has to be exercised
by the court only when the settled principles governing withdrawal from
prosecution are satisfied. Withdrawal from prosecution vested in the
public prosecutor is discretionary where he chooses to apply to the
court for grant of its consent and grant of such consent would result
in an order of discharge or acquittal as the case may be. It is a well
settled principle of law that in cases of withdrawal, the public
prosecutor should inform the court and it shall be the duty of the
court to appraise itself of the reasons which prompt the public
prosecutor to withdraw from the prosecution. The court has a
responsibility in the administration of criminal justice and so has the
public prosecutor, as officer of the court. Both have a duty to protect
administration of criminal justice against the possible abuse or misuse
by the executive by resort to the provisions of Section 321 (Rajender
Kumar Jain v. State through Spl. Police Establishment and Ors.
). It is also stated that the initiative for
withdrawal is that of the Public Prosecutor and the Court does not
determine any matter judicially on merits of the case but grants its
consent judiciously and in accordance with law. The judicial function
implicit in the exercise of the judicial discretion for granting the
consent would normally mean that the Court has to satisfy itself that
the executive function of the Public Prosecutor has not been improperly
exercised, or that it is not an attempt to interfere with the normal
course of justice for illegitimate reasons or purposes. (Sheo Nandan
Paswan v. State of Bihar and Ors. ). The court has to
ensure that the grounds of withdrawal are valid and the application for
withdrawal is bonafide and not in colourable exercise of powers vested
in the Public Prosecutor.
5.23 The power for withdrawal is a power vested in the discretion of
the public prosecutor which can only be exercised in consonance with
settled law and subject to the satisfaction of the reasons stated above
and that too with the consent of the court. The power to quash in
exercise of its inherent powers is vested in the court alone and it
needs to be exercised by the court sparingly with caution and subject
to the satisfaction of the objects stated in the language of the
Section. Result of exercising of any of these powers is discharge or
acquittal of the accused. It needs to be appreciated by the court that
both the provisions under Sections 482 and 321 have not been subjected
to any limitation as regards nature of the offence. This principle,
obviously, is subject to the proviso that the power is being exercised
in accordance with settled principles and upon due satisfaction of the
condition precedent for exercise of such power. Judicial discretion is
not a discretion to be exercised arbitrarily but judiciously. Thus, the
power of quashing in exercise of inherent jurisdiction can be exercised
by the court. The principle was senunciated by the Supreme Court in
B.S. Joshi’case supra, where the court affirmed this principle and held
that the FIR registered under Section 498A, 323 and 406 IPC could be
quashed in the facts and circumstances of the case. The court also
stated that the penal provisions of Section 498A which are intended to
protect women should not be used to harass relatives. The court also
answered in the negative the argument that it would be proper to
decline to exercise power of quashing on the ground that it would be
permitting the parties to compound non-compoundable offences. It
clarified the principle that Section 320 does not limit or affect the
powers under Section 482 of the the Code.
6. Compounding The expression “compounding” has been explained in Law
Lexicon by P. Ramanatha Aiyer (General Editor Justice Y.V.
Chandrachud), 1997 Edition, as under:
Compounding: Arranging, coming to terms; condone for money;
arranging with the creditor to his satisfaction.
The Black’s Law Dictionary, Sixth Edition, defines “compound” as under:
“Compound” : To compromise, to effect a composition with a creditor,
to obtain discharge from a debt by the payment of a smaller sum. To
put together as elements, ingredients, or parts, to form a whole, to
combine, to unite. To form or make up as a composite product by
combining different elements, ingredients, or parts, as to combine a
medicine.
Compounding crime: Compounding crime consists of the receipt of some
property or other consideration in return for an agreement not to
prosecute or inform on one who has committed a crime. There are
three elements to this offence at common law, and under the typical
compounding statute:
(1) the agreement not to prosecute;
(2) knowledge of the actual commission of a crime; and
(3) the receipt of some consideration.
As is apparent from the above language, compounding is primarily an
agreement between the parties, which in accordance with the language of
Section 320 of the Code, would have the effect of settling a dispute
wherever necessary with the leave of the Court. Quashing is a power
which is exclusively vested in the Court where, when exercising its
inherent powers, the Court could quash the FIR or the criminal
proceedings initiated in furtherance thereto, of course, within the
specified limitation of judicial pronouncements.
6.1 The concept of compounding is primarily based upon mutuality
between the parties. Mutual desire to put an end to prosecution in
certain offences may be settled by action of the parties while in
certain other offences it has to be compounded only with the permission
of the Court. The table annexed to the provisions of Section 320 of the
Code states the offences, the person by whom the offence may be
compounded and the offences which are compoundable but only with the
permission of the Court. No other offence will be compoundable by the
consent of parties or even with the leave of the Court which is beyond
the purview of Section 320 of the Code. Once the legislature has
expressly mentioned the offences which are compoundable simpliciter or
with the leave of the Court, it leads to an obvious result that other
offences are excluded by necessary implication from the ambit of the
Section. This, in any case, is put beyond doubt by the provisions of
Sub-section (9) of Section 320 which reads as under:
9. No offence shall be compounded except as provided by this
Section.
6.2 In addition to the above provision, even the High Court while
exercising its powers of revision under Section 401, could allow any
person who is competent to compound any offence within the provisions
of this Section. The scheme of Section 320 and its language clearly
suggests that compounding of any offences not specified in Section 320
is not permissible in law. Once the law prohibits such compounding,
then the inherent powers of the Court cannot be exercised to frustrate
the bar contained under Section 320(9) of the Code. It is a settled
rule of interpretation that a statutory provision cannot be rendered
redundant or repugnant by interpretative process in judicial dicta. Any
approach to the contrary would also be contrary to public policy.
6.3 We have already discussed that the provisions of Section 320 of the
Code do not control or restrict exercise of inherent powers under
Section 482 of the Code. In other words, in a given case where the
offence is one which is not stated as compoundable under Section 320 of
the Code, the Court may, still in exercise of its inherent powers,
quash an FIR or criminal proceedings subject to satisfaction of the
principles enumerated for exercise of such powers. But the Court would
not be in a position to permit the parties to compound such an offence.
To illustratively examine, one may consider Section 326 of the Indian
Penal Code and for that matter even Section 498A of the Indian Penal
Code which are neither compoundable by the parties nor with the leave
of the Court. Thus, the Court may not be in a position to grant its
permission and pass an order permitting the parties to compound the
offence because of the bar contained in Section 320(9) of the Code as
well as on accepted principles of interpretation. However, the Court
does not lose its inherent powers under Section 482 of the Code for
quashing such a complaint or FIR or criminal proceedings on the ground
that it would be necessary to meet the ends of justice or that further
prosecution of the accused would amount to permitting the complainant
to abuse the process of the Court or law.
6.4 As early as in the year 1970, a Division Bench of this Court in the
case of Sholapur Municipal Corporation and Anr. v. Ramkrishna V.
Relekar and Anr. took the following view.
The real question, therefore, is not whether the Commissioner has
got the power to compound the particular offence under Clause (b)
but whether as contemplated by that clause there is any law for the
time being in force under which the offence may be legally
compounded. The only other law which in this behalf would be
relevant is the Code of Criminal Procedure. Now, in order to
determine whether an offence of the present nature, viz. Importation
of the goods without the payment of octroi duty, can be legally
compounded under the Code of Criminal Procedure, it is necessary to
bear in mind the scheme of Section 345 of the Code. The scheme is
that offences specified in Sub-sections (1) and (2) can alone be
compounded and that too by the persons who are specified in the
sub-sections as being entitled to compound the offences. The
additional limitation on the power of composition is that the
offences specified in Sub-section (2) of Section 345 can be
compounded with the permission of the Court only. Under Sub section
(7) of Section 345, no offence can be compounded except as provided
by the Section and, therefore, it is clear that the scheme of
Section 345 is that offences which are not specified in any of the
sub sections of Section 345 cannot be compounded. The scheme of
Section 345 is not that all offences can be compounded except those
which are specified. This aspect is important for the reason that in
view of the provisions contained in Section 345 an offence can be
legally compounded under the Code only if the Code specifically
provides that the offence can be compounded.
6.5 The Full Bench of Rajasthan High Court in the case of Mohan Singh
(supra) clearly enunciated the principle in relation to compounding of
offences under Section 320 of the Code and the Court held as under:
In Madhu Limaye v. State of Maharashtra the
Supreme Court expressed that the High Court possessed and possesses
the inherent powers to be exercised ‘ex-debito justitiae’ to do real
and substantial justice for the administration of which alone court
exists. However, in relation to the exercise of such inherent
powers, the following principles were laid down:( i) That the power
is not to be resorted to if there is a specific provision in the
Code for the redress of the grievance of the aggrieved party. (ii)
That it should be exercised very sparingly to prevent abuse of
process of any court or otherwise to secure the ends of justice.
(iii) That it should not be exercised as against the express bar of
law engrafted in any other provision of the Code. In Sooraj Devi v.
Pyarelal it has been reiterated that inherent
power could not be exercised for doing that which is specifically
prohibited by the Code.
In Mst. Simrikhia v. Smt. Dolley Mukherjee , the
apex Court of the country has again held:
The inherent powers, however, as such are controlled by principle
and precedent as are its express powers by statute. If a matter is
covered by an express letter of law, the Court cannot give a go-by
to the statutory provisions and instead evolve a new provision in
the garb of inherent jurisdiction.
It was then observed:
inherent power under Section 482 Cr. P.C. is intended to prevent the
abuse of the process of the court and to secure ends of justice.
Such power cannot be exercised to do something which is expressly
barred under the Code
15. Applying the above principles, question No. 1 is answered in
negative, and it is held that in view of express bar contained in
Sub-section (9) of Section 320 Cr.P.C. the High Court cannot, in
exercise of its inherent power under Section 482, permit composition
of an offence which is not compoundable under Sub-section (1) or
Sub-section (2) of Section 320 of the Code.
6.6 Construing the provisions of Section 320 of the Code strictly, a
Bench of the Kerala High Court in the case of P. Damodaran and Ors v.
State represented by S.I. of Police 1993 Cri. LJ 404 held that where an
order of conviction and sentence had been passed and which had attained
finality, the High Court under Section 482 of the Code could not
exercise its inherent powers and permit compounding of offence, while a
Division Bench of the Andhra Pradesh High Court in the case of Smt.
Daggupati Jayalakshmi v. The State 1993 Cri LJ 3162 held that a
complaint under Section 498A of the Code being a matrimonial offence
could be permitted to be compounded in exceptional circumstances.
6.7 In the case of Central Bureau of Investigation, Spe. SIU (X) New
Delhi v. Duncans Agro Industries Ltd. , Calcutta , at
the very initial stage of the criminal proceedings where the parties
had compromised civil suits for recovery as well as agreed to compound
the offences under Sections 405, 420, 468 and 471 of the Code, such
compromise having been already entered into in civil proceedings,
particularly keeping in mind the delay in completion of investigation,
the Supreme Court upheld the order of the High Court quashing the
complaint where it had in fact recorded a finding that basically the
disputes were of civil nature.
6.8 The Supreme Court in the case of Ram Lal and Anr. v. State of Jammu
and Kashmir , while not accepting the earlier view of
the Court in Mahesh Chand and Anr. v. State of Rajasthan (1990) SCC
(Suppl.) 681 stating that the decision in the case of Y. Suresh Babu v.
State of A.P. and Anr. (1987) 2 JT 361 was not to be treated as
precedent, held as under:
We are unable to follow the said decision as a binding precedent
Section 320 which deals with “compounding of offences” provides two
tables therein, one containing descriptions of offences which can be
compounded by the person mentioned in it and the other containing
description of offences which can be compounded with the permission
of the Court by the persons indicated therein. Only such offences as
are included in the said two tables can be compounded and none else.
Sub section (9) of Section 320 of the Code of Criminal Procedure,
1973 imposes a legislative ban in the following terms.
(9) No offence shall be compounded except as provided by this
Section.
It is apparent that when the decision in Mahesh Chand (supra) was
rendered attention of the learned Judges was not drawn to the
aforesaid legal prohibition. Nor was attention of the learned Judges
who rendered the decision in Y. Suresh Babu (supra) drawn. Hence,
those were decisions rendered per incuriam. We hold that an offence
which law declares to be non-compoundable even with the permission
of the Court cannot be compounded at all. The offence under Section
326 IPC is, admittedly, non- compoundable and hence we cannot accede
to the request of the learned Counsel to permit the same to be
compounded.
6.9 The above view was followed by the three Judge Bench of the Supreme
Court in the case of Surendra Nath Mohanty and Anr. v. State of Orissa
. While reiterating the principles with approval, the
Supreme Court held as under:
In our view, the submission of the learned Counsel for the
respondent requires to be accepted. For compounding of the offences
punishable under the Indian Penal Code, a complete scheme is
provided under Section 320 of the Code of Criminal Procedure, 1973.
Sub-Section (1) of Section 320 provides that the offences mentioned
in the table provided thereunder can be compounded by the persons
mentioned in the table provided thereunder can be compounded by the
persons mentioned in column 3 of the said table. Further,
Sub-section (2) provides that the offences mentioned in the table
could be compounded by the victim with the permission of the Court.
As against this, Sub section (9) specifically provides that ” no
offence shall be compounded except as provided by this Section”. In
view of the aforesaid legislative mandate, only the offences which
are covered by Table 1 or Table 2 as stated above can be compounded
and the rest of the offences punishable under the Indian Penal Code
could not be compounded.
6.10 In some of the cases, different Benches of this Court have also
taken the view by relying upon the judgment of the Supreme Court in
B.S. Joshi’scase (supra) that offences under Section 498A of the Code
could be quashed and conviction and sentence against the applicant were
set aside. (Gambhir Rajaram Chaudhari v. Nirmala &
Anant v. State of Maharashtra ). In relation to
compounding of offences, the Supreme Court again reiterated the
principle with approval in Bankat and Anr. v. State of Maharashtra
, that the rest of the offences punishable under the
Indian Penal Code which are not specified in Section 320 of the Code
cannot be compounded primarily due to the bar contained in Sub-section
(9) of Section 320 of the Code.
6.11 A Bench of the Orissa High Court in the case of Sisupala Duria and
Anr. v. State of Orissa 2004 Cri.L.J. 1007, not only declined to grant
permission to compound an offence under Section 307 being not
compoundable but even declined to quash the proceedings as it was not
considered by the Court to be in the interest of justice.
6.12 In the case of Hasi Mohan Barman and Anr. v. State of Assam and
Anr. , the Supreme Court cautioned the Courts not to
enlarge the scope of Section 320 of the Code and stated that
complainant’s consent to withdraw could not be utilised to acquit an
accused who was convicted. While reducing the sentence, the Court held
as under:
8. Section 320 of the Code of Criminal Procedure says that the
offences punishable under the Sections of the Indian Penal Code (45
of 1860) specified in the first two columns of the table next
following may be compounded by the persons mentioned in the third
column of that table. A perusal of Section 320 will show that the
offence under Section 313 IPC is not compoundable. Therefore, the
consent given by the wife PW-1 or the affidavit filed by her cannot
be utilised for the purpose of recording a finding of acquittal in
favour of the accused appellants.
9. There are some decisions of this Court wherein the factor of
compromise between the accused and the complainant (or injured or
person aggrieved) has been taken into consideration for reducing the
sentence. ]
10. The first decision on this point was rendered by this Court in
Ram Pujan and Ors. v. State of Uttar Pradesh ,
wherein the trial Court had convicted the accused under Section 326
IPC which is a on-compoundable offence and had sentenced the accused
to four years R.I. The High Court took into consideration the
compromise between the accused appellant and the injured and reduced
the sentence to two years R.I. This Court, after observing that the
fact of compromise can be taken into account in determining the
quantum of sentence, reduced the sentence to the period already
undergone which was little more than four months and further imposed
a fine of Rs. 1500/-on each of the appellants. Surendra Nath Mohanty
and Anr. v. State of Orissa is a decision of a
Bench of three learned Judges. It was observed that in view of the
legislative mandate contained in Section 320 Cr.P.C., an offence can
be compounded only in accordance with the provisions of the said
Section. The Court followed the view taken in the case of Ram Pujan
(supra) and having regard to the fact that the parties had
compromised and a period of ten years had elapsed from the date of
the incident reduced the sentence of five years R.I. Imposed under
Sections 307 and 326 IPC to the period of sentence already undergone
which was three months and also imposed fine of Rs. 5,000/-.
6.13 The power of compounding is strictly regulated by statutory powers
while the inherent powers of the Court are guided by judicial
pronouncements within the scope of Section 482 of the Code. Another
very important facet of criminal jurisprudence which has developed in
the present time is with regard to the impact of compounding and/or
quashing criminal proceedings in relation to an offence, its impact on
the victim, witnesses and the society at large. This must be treated as
a relevant consideration. The Indian Penal Code has been subjected to
various amendments in order to ensure that society becomes a much safer
place for human existence and various offences which affect large
Sections of society have been incorporated as penal offences. For
example, the object of Section 498A was to strike at the root of menace
of dowry and to prevent crimes against women. There are various
examples of a similar kind where penal provisions have been introduced
to sub-serve the purpose of proper administration of justice and
protection to individuals. Every crime committed has dual consequences.
Firstly it affects the victim adversely. Secondly it disturbs the
fabric of the society. It may even introduce an element of fear
psychosis in human relationships and thus prejudice harmony in
humanity. In the case of Vinay Devanna Nayak v. Ryot Seva Sahakari Bank
Ltd. , the Supreme Court while dealing with an offence
under Section 138 of the Negotiable Instruments Act observed as under:
11. It is no doubt true that every crime is considered to be an
offence against the society as a whole and not only against an
individual even though an individual might have suffered thereby. It
is, therefore, the duty of the State to take appropriate action
against the offender. It is equally the duty of a Court of law
administering criminal justice to punish a criminal. But there are
offences and offences. Certain offences are very serious in which
compromise or settlement is not permissible. Some other offences, on
the other hand, are not to serious and the law may allow the parties
to settle them by entering into a compromise. The compounding of an
offence signifies that the person against whom an offence has been
committed has received some gratification to an act as an inducement
for his abstaining from proceeding further with the case.
Earlier, an offence punishable under Section 138 of the Negotiable
Instruments Act was not compoundable and it was so held by the courts.
Parliament felt the necessity to make the offence compoundable and thus
inserted Section 147 by the Negotiable Instruments (Amendment and
Miscellaneous Provisions) Act, 2002 (Act 55 of 2002). This clearly
indicates that the power of compounding has to be exercised within its
restricted scope. A crime being a public wrong in breach and violation
of public rights and duties, it affects the whole community and is
harmful to society in general. Courts have always been considered to
have an overriding duty to maintain public confidence in the
administration of justice, often referred to as the duty to vindicate
and uphold the ‘majesty of the law’. Due administration of justice has
always been viewed as a continuous process, not confined to the
determination of the particular case, protecting its ability to
function as a court of law in the future.
7. Summing up and conclusions
7.1 Over a span of time the judgments of the Courts, particularly the
Supreme Court, innovatively and clearly have stated the principles,
giving new dimensions to criminal law, having a direct impact on
administration of criminal justice and upon Society. The obligation of
the Court to exercise its inherent powers to do justice carry in itself
a rider that such powers are to be exercised cautiously and only to
achieve the ends of justice. The judicial discretion vested in the
Court while exercising powers to grant permission as required under
Section 320 of the Code is very limited, while the scope of inherent
powers emerging from Section 482 of the Code is very wide. The Court
may consider effect of its order on administration of criminal justice
as a relevant factor, while using its discretion. These two concepts
are homogenous but their distinction is founded on intelligible
differentia. Therefore, they must be applied in their own field without
intermingling the respective principles applicable to each one of them.
7.2 We are not required to deal with the facts in detail of each case
separately. Suffice it to note the collective factual matrix of the
cases so as to deal with the principal and/or ancillary questions
arising in those cases with the object of effectively answering the
questions of law referred to the larger Bench. In all these cases,
complaints were filed or FIRs were registered in relation to the
offences punishable under Sections 498A, 304B, 306, 313, 326, 363, 392,
and 495 of the IPC. In criminal application No. 3567 of 2007, the
applicant has prayed for quashing of the FIR registered under Sections
498A, 304B, 306, 323, 504 of the IPC on the ground that the complainant
has agreed in such prayer and all cases between the parties are
proposed to be settled. In most of the other cases, the court of
competent jurisdiction has framed the charge and cases are pending for
further proceedings or recording of the evidence. The cases in hand are
primarily relating to the disputes arising from the matrimonial
relationships. Thus, in all these cases, the appellants-applicants had
prayed for quashing of the FIR and/or criminal proceedings pending
before the court of competent jurisdiction, while in Criminal
Application No. 766 of 2007, the parties have prayed for grant of leave
of the Court for compounding of the offence punishable under Section
495 of the Penal Code.
7.3 The Court has to keep in mind the principle that penal provisions
are to be construed strictly. The mandatory provisions of the Code
would also have to be interpreted strictly unless the provisions have
been worded with liberal language having wide ramifications by the
Legislature itself. Rule of liberal construction can safely be applied
to these provisions with an intent to achieve public interest and
larger interest of justice. When the Legislature introduced Section
498A in the Indian Penal Code, it intentionally did not incorporate
that Section in any of the tables appended to Section 320 of the
Criminal Procedure Code. Realising the impact of such non-inclusion on
the matrimonial relationship, increasing inconveniences to the parties
and the resultant effects on criminal justice system and the society as
a whole, the Legislature provided an alternative statute. The
Protection of Women from Domestic Violence Act, 2005, thus was
introduced to provide greater safeguard and protection to the women, by
providing a chance for resettlement of matrimonial home and
relationship prior to actual registration of the crime under Section
498A of the Code. The Legislature still chose not to bring the offence
under Section 498A within the cover of Section 320 of the Code. It can
very well be presumed that the Legislature, when it enacts a provision,
is aware of the existing laws and the difficulties faced in
implementation of such law. While interpreting and implementing the
law, the legislative wisdom is given preference.
7.4 In the case of B.S. Joshi (supra), the Supreme Court, while stating
that the object of introducing Chapter XX-A in IPC is to prevent
torture to a woman by her husband or by relatives of her husband, also
spelled out the need for caution by adding that a hyper-technical view
would be counterproductive and would act against the interests of the
women and against the object for which this provision was added. There
is every likelihood that non-exercise of inherent power to quash
proceedings to meet the ends of justice may amount to preventing women
from settling earlier. This would not be the object of Chapter XXA of
the IPC. Thus, the Supreme Court had exercised its power for quashing
criminal proceedings under Section 482 of the Code and has not granted
consent for compounding the offence under Section 320 of the Code.
7.5 The courts have to apply the principle of ‘plain interpretation’ of
statutory provisions to such Sections. Lex nil frustra jubet – means
that the law commands nothing vainly, so also orders of the court are
not passed in vacuum or contrary to statute. Unless the provision is
held to be ultra vires of any other law or the Constitution, normally
the courts would ensure the orders of the court, while determining the
rights and obligations of the parties and/or holding them guilty of a
particular offence, are passed in consonance with the legislative
scheme and in conformity with the statutory provisions. The power of
compounding being a restricted power limited to offences stated in the
tables of Section 320, its expansion by interpretative process would
not be permissible particularly in face of the provision enacted by the
Legislature in Section 320(9) of the Criminal Procedure Code.
7.6 The exercise of inherent powers under Section 482 of the Code
cannot be circumvented or effaced either by judicial dictum or with
reference to other provisions of the Code. These powers vested in a
court by law are of a great magnitude and moment and their wide scope
justifiably cannot be curtailed. Of course, these powers are to be
exercised sparingly with caution and to ensure that either of the
principal objects stated in the Section are satisfied as a condition
precedent to the exercise of such powers. Criminal proceedings are
initiated by reporting to the concerned Police Station the commission
of a criminal act, by registration of an FIR and/or by institution of a
complaint before the court of competent jurisdiction. Enquiry,
investigation and judicial proceedings including trial and judgment are
different stages in relation to criminal investigation and
administration of criminal justice system.
7.7 The powers vested in the court under Section 482 of the Code could
be exercised at any stage but preferably at the initial stage of the
proceedings. The Section does not contemplate or specify any particular
stage when powers under Section 482 could be invoked. Vesting of these
powers in the High Court itself is indicative of the fact that these
powers could be invoked by the High Court at any stage of the
proceedings pending before itself or any Court subordinate to it.
Similarly, Section 320 also does not contemplate any stage or specific
mode by which Court can permit compounding of the offences. These
powers could be exercised at any stage by any court of competent
jurisdiction, but subject to the satisfaction of the conditions stated
in the Section itself.
7.8 Sanctity of criminal justice is not alien to Section 482 of the
Criminal Procedure Code. Fair and proper administration of criminal
justice is the whole object of the constitutional mandate and the
provisions of the Criminal Procedure Code. Thus, it would be difficult
for the courts not to take into consideration the impact of its
decision on administration of criminal justice system. The inherent
powers of the court can be utilised both for supplying lacunae in the
scheme of the Code or to regulate proceedings during the enquiry,
investigation and trial, so as to further the object of the Code and to
ensure that process of law is not defeated and ends of justice are
achieved. The Court, while exercising such power, essentially has to
calibrate that such exercise does not offend the basic canons stated
under the Code that investigation and enquiry primarily fall in the
domain of the investigating agency. The rule of law contemplates that
every provision of law should be given its normal meaning and should be
interpreted with objectivity. The law is not static and is mutable.
Tenets of criminal jurisprudence have been evaluated by judicial
pronouncements to achieve the object of ascertaining legislative intent
for a fair criminal investigation and trial. It is a settled principle
that even the legal conscience is founded upon the law and nothing
should be done or ought to be done which is contrary to statute. Where
the offences, for which an FIR has been instituted, are not
compoundable, there, the court will not be in a position to permit
compounding of those offences. As already noticed, compounding is
possible by mutual agreement between the parties and in certain limited
cases, it could be allowed only with the permission of the court. Even
when the first ingredient of mutuality of parties is satisfied, it
would not be permissible for the trial Court or even the Appellate
Court to compound non-compoundable offences. Invoking of the inherent
powers for compounding of offences which are not compoundable under
Section 320 in the Code would tantamount to exercising the powers
contrary to the specific provisions of the Code. A verbis legis non est
recedendumfrom the words of the law, there must be no departure.
Despite being prefaced by the non-obstante clause and liberal language
of Section 482, the statutory command contained in Section 320
particularly the absolute bar contained in Section 320(9), the inherent
powers cannot be invoked to compound cases which are not compoundable.
7.9 Recourse to inherent powers under Section 482 would be permissible
even in non-compoundable offences for quashing an FIR and/or criminal
proceedings and this power of the court is not controlled and/or
moderated by any of the provisions of the Code including Section 320 of
the Code.
7.10 We have held that the inherent powers should be used in cases
falling in either of the three categories stated in Section 482 itself.
This wide power must be exercised with caution and circumspection. The
inherent powers of the Court of competent jurisdiction can be invoked
for quashing the FIR or criminal proceedings but the Court would pass
such orders only if the principles laid down in judicial dicta are
satisfied and either of the three objects stated in Section 482 of the
Code are achieved by exercise of such power. It is neither permissible
nor proper for the court to provide a strait-jacket formula regulating
exercise of inherent powers under Section 482 of the Code, particularly
in relation to quashing, as it would depend upon the facts and
circumstances of a given case. No precise and inflexible guidelines or
strait-jacket formula or catalogue of the circumstances in which power
should or should not be exercised, may be laid down. Still, while
recapitulating the enunciated principles in the judgments of the
Courts, particularly the Supreme Court in the cases of (i) State of
Haryana v. BhajanLal , (ii) Indian Oil Corporation v.
NEPC India Ltd. , (iii) Central Bureau of
Investigation v. Ravi Shankar , (iv) Popular Muthiah
v. State represented by Inspector of Police , (v)
Sanapareddy Maheedhar v. State of A.P. 2008 AIR SCW 11, and (vi) Som
Mittal v. Government of Karnataka (Criminal Appeal No. 206 of 2008
decided on 21st February, 2008) , and other well accepted canons of
criminal jurisprudence, we state the principles as under:
1. The High Court, in exercise of its inherent powers under Section
482 of the Code, may interfere in proceedings relating to cognizable
offences to prevent abuse of the process of any court or otherwise
to secure the ends of justice very sparingly and with
circumspection;
2. Inherent power under Section 482 of the Criminal Procedure Code
should not be exercised to stifle a legitimate prosecution.
3. Power under Section 482 of the Criminal Procedure Code is not
unlimited. It can inter alia be exercised where the Code is silent,
where the power of the court is not treated as exhaustive, or there
is a specific provision in the Code; or the statute does not fall
within the purview of the Code because it involves application of a
special law;
4. The inherent power of the High Court can be invoked in respect of
matters covered by the provisions of the Code unless there is
specific provision to redress the grievance of the aggrieved party;
5. Inherent power under Section 482 of the Code overrides provisions
of the Code but evidently cannot be exercised in
violation/contravention of a statutory provision or power created
under any other enactment;
6. Power under Section 482 to quash proceeding should not be used
mechanically or routinely, but with care and caution;
7. Such power should be used only when a clear case for quashing is
made out and failure to interfere would lead to a miscarriage of
justice;
8. Inherent jurisdiction under Section 482 Cr.P.C. may be exercised
in following three circumstances.
(i)to give effect to an order under the Cr. P.C.
(ii)to prevent abuse of the process of court; and
(iii)to otherwise secure the ends of justice.
9. Inherent power should be exercised to do the right and undo a
wrong;
10. In exercise of inherent power under Section 482 of the Code,
Court would be justified to quash any proceeding if the
initiation/continuation of such proceeding amounts to ‘abuse of the
process’ of court or quashing of the proceeding would otherwise
serve the ends of justice’;
11. While exercising inherent power under Section 482 of the Code,
High Court must refrain from making imaginary journey in the realm
of possible harassment which may be caused to concerned petitioner
on account of investigation of FIR or complaint;
12. While exercising inherent power under Section 482 of the Code,
the High Court must all the while be conscious of the fact that its
exercise of such power will not result in miscarriage of justice and
will not encourage those accused to repeat the crimes;
13. The inherent powers of High Court under Section 482 of the Code,
cannot be exercised in regard to matters specifically covered by the
other provisions of the Criminal Procedure Code;
14. For the purpose of quashing, the complaint has to be examined as
a whole, but without examining the merits of the allegations.
Neither a detailed inquiry nor a meticulous analysis of the material
nor an assessment of the reliability or genuineness of the
allegations in the complaint, is warranted while examining prayer
for quashing of a complaint;
15. The exercise of inherent jurisdiction under Section 482 of the
Code should not be such as to harm legitimate expectation of the
people and the society, that the persons committing offence are
expeditiously brought to trial and if found guilty are adequately
punished;
16. Inherent powers may be used only when reasonably necessary for
the court to be able to function and courts may not exercise
inherent powers merely because their use would be convenient or
desirable;
17. The exercise of inherent power would be necessary whenever it is
just or equitable and it should be to ensure observance of the due
process of law, to prevent improper vexation or oppression and to do
justice between the parties and to secure a fair trial; and
18. While passing an order quashing FIR or criminal proceedings, as
the case may be, it may be appropriate for the Court to examine the
impact of such an order upon the system of administration of
criminal justice and the social fabric. This, of course, is not a
determinative factor but only a relevant consideration.
8. With great respect, we may notice that the facts of B.S. Joshi’s
case (supra) as well as the law laid down therein have not been
correctly appreciated in the order of reference. As noticed in
paragraph 3 of that judgment, the aggrieved parties, after filing a
petition for mutual divorce, had filed a petition for quashing the FIR
in appeal which was declined by the High Court on the ground that as
the offences were non- compoundable, powers under Section 482 could not
be exercised. This finding of law was disturbed by the Supreme Court
clearly noticing in its judgment the position of law that
non-compoundable offences under Section 320 cannot be compounded and
also that Section 320 of the Code does not limit or affect the powers
under Section 482 of the Code. The order of reference in the present
case proceeds on the basis that in B.S. Joshi’scase (supra) the Supreme
Court had permitted compounding of the offence under Section 498A of
the IPC and raises further questions as to whether such principle of
permissive compounding, on this analogy, could be applied to serious
offences under Sections 306, 307, 326, 376, 406 and 495 of the IPC.
This does not appear to us to be correct appreciation of legal and
factual matrix of that case. The other question which is not dependent
on the earlier part of the reference order relates to, as to whether
the Courts could exercise power of compounding at the trial or at the
appellate stage also.
9. We have already held that power of the Court to compound offences
and power to quash the FIR or criminal proceedings are distinct and
different. They operate in different spheres and are different concepts
of criminal jurisprudence. Power to quash an FIR or criminal
proceedings under Section 482 of the Code finds its source from judge
made law, while power to compound is a statutory power granted by the
language of Section 320 of the Code. Both these powers have nothing in
common except the ultimate result, that is, acquittal. They have to be
exercised upon satisfaction of different criteria, fulfilment of
relevant ingredients and satisfaction of the object of legislative
intent behind these provisions. Power to quash the criminal proceedings
is a power which springs from the generality of the provisions of
Section 482 of the Code and to be exercised in consonance with the
judicial pronouncements.
10. For the purpose of answering the referred questions, it was
necessary for the Bench to examine the ancillary questions which arise
from the facts of the referred cases and which alone could help to
determine the principal question posed in the order of reference. The
ancillary questions thus squarely fall within the purview of the
principal question. Therefore, we have dealt with and answered the
principal as well as the ancillary questions which are, in fact,
interdependent and interlinked. Even otherwise, these are the questions
of public importance and arise very often in the administration of
criminal justice.
11. We have attempted to synthesize the enunciated principles by
providing it an unambiguous terminology for better reference and
application of such principles. Right from Ram Pujan’s case,(supra),
the power of the court to grant its permission for compounding an
offence under Section 320 of the Code is considered to be a restricted
power and cannot be exercised for such offences under the IPC which are
non- compoundable. Legislative mandate contained in Section 320 has to
be respected and offences can be compounded strictly in accordance with
the provisions of the Section. Recourse to inherent powers under
Section 482, thus, would not be permissible for defeating the statutory
character of Section 320
. This view has been reiterated with approval and emphasised by the
Supreme Court right from the case of Ram Pujan (1973) , Surendranath
Mohanty (1999), B.S. Joshi (2004) , Bankat (2005) to Hasi Mohan Barman
(2008). This enunciated cannon of law is binding on all courts and is
required to be followed without exception.
12. We have already noticed that the prayer in B.S. Joshi’scase by the
parties was for quashing of the proceedings and not for grant of
consent for compounding of the offences under Section 498A, etc. The
Supreme Court, while following the principles stated in its earlier
judgment, stated thus:
9. The High Court has also relied upon the decision in case of
Surendra Nath Mohanty case for the proposition that offence declared
to be non-compoundable cannot be compounded at all even with the
permission of the court. That is of course so.
It also clearly reiterated the principle that provisions of Section 320
do not limit or affect the inherent powers of the High Court under
Section 482 and the High Court in exercise of its inherent powers can
quash the proceedings (paras 9, 10, 14 and 15 of the judgment).
13. The view expressed by a Division Bench of this Court in the case of
Madhu Bhisham Bhatia (supra) thus cannot be stated to be an entirely
correct exposition of law. The judgment of the Supreme Court in Joshi’s
case does not give any power to the High Courts to compound
non-compoundable offences, even if they relate to matrimonial offences.
To that extent, that judgment has to be necessarily followed. Of
course, quashing is the facet emerging from inherent powers under
Section 482 of the Code, which is not controlled by Section 320 and
could be invoked at any stage.
14. The power of compounding on one hand and quashing of criminal
proceedings in exercise of inherent powers on the other, are incapable
of being treated as synonymous or even inter-changeable in law. The
conditions precedent and satisfaction of criteria in each of these
cases are distinct and different. May be, the only aspect where they
have any commonality is the result of exercise of such power in favour
of the accused, as acquittal is the end result in both these cases.
Both these powers are to be exercised for valid grounds and with some
element of objectivity. Particularly, the power of quashing the FIR or
criminal proceedings by the court by taking recourse to inherent powers
is expected to be used sparingly and that too without losing sight of
impact of such order on the criminal justice delivery system. It may be
obligatory upon the Court to strike a balance between the nature of the
offence and the need to pass an order in exercise of inherent powers,
as the object of criminal law is protection of public by maintenance of
law and order. Edmund Davies, J. (Smith & Hogan Criminal Law, 5th
Edition) has said:
It seems to me that accordingly every court sentence should
primarily be surveyed in the light of one test: is that the best
thing to do in the interest of the community?-always remembering, of
course, that the convicted person, despite his wrongdoing remains a
member of the community.
15. Punishment for an offence is the essence of any Penal Code. Every
offender upon being proved guilty, may have to be punished. In order to
ensure that process of law is not abused or to achieve ends of justice,
the court may exercise its inherent powers. Simply put, the principle
of criminal jurisprudence can be stated that courts in exercise of
their inherent powers under Section 482, are not controlled or checked
by the provisions of Section 320 or any other provisions of the Code of
Criminal Procedure. These powers are to be exercised particularly, with
reference to power of quashing of proceedings in consonance with the
principles aforestated in paragraph 7.10. Normally, there may be no
occasion to truncate the normal course of judicial process in criminal
law but once the case falls in any of the three categories stated in
Section 482 of the Criminal Procedure Code and in the opinion of the
court, the conditions for exercise of such powers are satisfied then
the powers vested by the legislature in the courts cannot be curtailed
by implying the restrictions which do not exist either in the Code or
even in the judicial pronouncements.
16. In the light of the above detailed analysis of the principles of
law involved in the case, now, we would revert back to the order of
reference and the questions referred therein. The order can discernly
be dissected into three different portions:
(a) what were the facts and law laid down by the Supreme Court in
the case of B.S. Joshi (supra);
(b) does the High Court under its inherent powers under Section 482
of the Criminal Procedure Code have the power to allow compounding
of offences other than offences punishable under Section 498A of the
IPC, particularly, for the offences punishable under Sections 306,
307, 326, 376, 406, 495 IPC, and (c) whether such a power can be
exercised at the trial stage or at the appellate stage.
17. We record our answer to the above three portions of the reference
order as follows: Answer to (a) : As already noticed, the facts of B.S.
Joshi’scase have been recorded in paragraphs 3 and 4 of that judgment.
The parties had not prayed for compounding of an offence in terms of
Section 320 of the Code but had prayed for quashing of the FIR in view
of the terms and conditions recorded in the petition for mutual divorce
in furtherance to which statements of the parties on first and second
motion were recorded by the Additional District Judge, Delhi. The High
Court had dismissed the petition for quashing of the FIR on the ground
that the offence was not one compoundable under Section 320 and,
therefore, it could not be quashed in exercise of powers under Section
482. The Supreme Court, in fact, at the outset of the judgment in
paragraph two formulated the question that it was examining the ambit
of the inherent powers of the High Court under Section 482 of the
Criminal Procedure Code and whether Section 320 could restrict such
powers of the court. The Supreme Court concluded and, with approval,
stated the view which had consistently been taken since Ram Pujan’s
case (1973) that only those offences could be compounded which are
mentioned in Section 320 and, those which are not mentioned therein
cannot be permitted to be compounded. Consistent with its earlier view
the Supreme Court also held that powers under Section 482 of the Code
are not limited or affected by the provisions of Section 320 of the
Code. Answer to (b): It is thus answered in the negative. Neither an
offence under Section 498A nor any other offence under the IPC which is
not specifically enumerated in Section 320 of the Code can be
compounded by the court in exercise of its powers under Section 320 and
for that matter by High Court in exercise of its inherent powers under
Section 482 of the Code.
However, we hasten to add here that the inherent powers under Section
482 of the Code include powers to quash FIR, investigation or any
criminal proceedings pending before the High Court or any Courts
subordinate to it and are of wide magnitude and ramification. Such
powers can be exercised to secure ends of justice, prevent abuse of the
process of any court and to make such orders as may be necessary to
give effect to any order under this Code, depending upon the facts of a
given case. These powers are neither limited nor curtailed by any other
provisions of the Code including Section 320 of the Code. The Court
could exercise this power in offences of any kind, whether compoundable
or non-compoundable. However, such inherent powers are to be exercised
sparingly and with caution and in conformity with the precepts
indicated in paragraph 7.10 of this judgment. Further, the Court should
ensure that object and purpose of passing any order in exercise of its
inherent powers should be confined to one of the three categories
stated in Section 482 of the Code. Answer to (c ):The power to compound
can be exercised at the trial stage or even at the appellate stage
subject to satisfaction of the conditions postulated by the legislature
under Section 320 of the Code.
18. Having answered the above-referred questions as aforestated, we now
direct that all the criminal appeals, writ petitions and applications
be placed before the appropriate Bench for their disposal in accordance
with law.