Civil Procedure Code (CPC)

Doubt

This query is : Resolved 
 


Querist : Anonymous (Querist)
22 June 2021

Is quashing of criminal proceedings and quashing of fir same or different?
Please throw some light in this topic.


J K AgrawalOnline (Expert)
23 June 2021

These are different. Quashing of FIR generally when "No case made out at all" and quashing of Trial is when apparently there is sufficient material to frame charge but after charge the Evidence is of such kind that conviction is highly improbable.

P. Venu Online (Expert)
23 June 2021

What are the facts? What is the context?

ashok kumar singhOnline (Expert)
24 June 2021

Quashing of Criminal proceeding and quashing of FIR both are different and do not have any similarity.
if the FIR does not disclose any cognizable nature of offence on face of it, and even though the same has been registered by Police become abusive process of Law therefore the person can seeks for quashing of such FIR.

In the event Criminal proceeding is irregular and not in continuance of the prescribed provisions of the Law, and whereas the proceeding stalled for long period of time unnecessarily, in such even you can seeks for quashing of criminal proceeding.
Quashing application can place only before High Court under its criminal revisional jurisdiction.
Quashing application under Section 482 of Cr.P.C. 1973.

Thanks

ashok kumar singhOnline (Expert)
24 June 2021

Supreme Court Elucidate 10 Points For Quashing Of F.I.R Under Section 482 Of CRPC
Parbatbhai Aahir & Ors. Vs. State of Gujarat & Anr.
A full bench comprising of Hon'ble Mr. Chief Justice Dipak Misra, Hon'ble Mr. Justice AM Khanwilkar and Hon'ble Mr. Justice DY Chandrachud has laid down broad principles from various precedents in relation to Section 482 of the Code of Criminal Procedure (CrPC) for quashing of First Information Reports (FIRs) in the judgment passed in an appeal against a decision of the Gujarat High Court.

Before, the High Court, the plea for quashing the FIR was advanced on the ground that the Appellants had amicably settled the dispute with the Complainant, who had also filed an Affidavit to that effect. On behalf of the prosecution, application for quashing was opposed on two grounds:

The Appellants were absconding and warrants had been issued against them under Section 70 of the Code of Criminal Procedure, 1973.
The Appellants had criminal antecedants.
The High Court observed that it had been given "a fair idea" about the modus operandi adopted by the Appellants for grabbing the land, in the course of which they had opened bogus bank accounts. The High Court held that the case involves extortion, forgery and conspiracy and all the Appellants have acted as a team. Hence, in the view of the High Court, it was not in the interest of society at large to accept the settlement and quash the FIR. The High Court held that the charges are of a serious nature and the activities of the appellants render them a potential threat to society. On this ground, the prayer to quash the First Information Report was rejected by the High Court.

The Hon'ble Supreme Court after discussing various precedents on the subject summarized the following broad principles in relation to Section 482 for quashing FIRs.

Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inhere in the High Court;
The invocation of the jurisdiction of the High Court to quash a First Information Report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973. The power to quash under Section 482 is attracted even if the offence is non-compoundable.
In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power;
While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised;

to secure the ends of justice or
to prevent an abuse of the process of any court;
The decision as to whether a complaint or First Information Report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated;
In the exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences;
As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing in so far as the exercise of the inherent power to quash is concerned;
Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute;
In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice; and
There is yet an exception to the principle set out in propositions (viii) and (ix) above. Economic offences involving the financial and economic well-being of the state have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance.
The Apex Court dismissed the appeal holding that the High Court was justified in declining to entertain the Application for quashing FIR in the exercise of its inherent jurisdiction.

ashok kumar singhOnline (Expert)
24 June 2021

the apex court held that the High Court can under its inherent power quash proceedings pending before the Sessions Judge on ground of insufficiency of evidence. It was further held that saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or prosecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. In exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. 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. It is also 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. 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. So 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.

T. Kalaiselvan, Advocate Online (Expert)
25 June 2021

According to the applicant, Section 482 CrPC power can be exercised for quashing the criminal proceedings of any kind whether compoundable or non-compoundable at any time, even at post-conviction stage, when the convict and the victim had arrived at a settlement.
Quashing of F.I.R.

The High Court may receive petitions under the following provisions to stop further action:-

A writ petition under Article 226 of the constitution of India as follows:-
Writ of mandamus under Article 226 of the constitution of India
Writ of habeas corpus for setting the accused at liberty when the accused is under the custody on the basis of F.I.R
A petition under the Inherent power of high court under section 482 of the code of criminal procedure 1973.

T. Kalaiselvan, Advocate Online (Expert)
25 June 2021

State of Haryana and others

v.

Bhajan Lal AIR 1992 SC 604

The Hon’ble Supreme Court laid down the guideline for exercising the Inherent power as under:-

Where the allegations made in the first information report or the complaint, even if they are taken at their place value and accepted in their entirely do not prima facie constitute any offence or make out the case against the accused.
Where the allegation made in the first information report and other materials, if any, accompanying the Fir do not disclose the cognizable offence, justifying and investigation by the police officer under Sec. 156 clause(1) of the court except under an order of magistrate within the purview of the Sec 155(2) of the code of criminal procedure.
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 as case against the accused.
Where, the allegation in the FIR do not constitute a cognizable offence but constitute only non-cognizable offence, no investigation is permitted by as police officer without an order of magistrate has contemplated under Sec. 155(2) of the code of criminal procedure.
Where the allegation made in the Fir or complaint are so observed and inherently in probable on the basis of which no prudent person can ever adjust conclusion that there is sufficient ground for proceedings against the accused.
Where there is an express bar engrafted in any of the provision of the code or the concerned Act (under which criminal proceeding is instituted) to the institution and continuance of proceeding and/or where there is a specific provision the code or concerned Act, providing efficacious redress for the grievance of aggrieved party.
Where the criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and the view to spite him due to private and personal grudge.
State of Haryana and others

v.

Bhajan Lal AIR 1992 SC 604

The Hon’ble Supreme Court laid down the guideline for exercising the Inherent power as under:-

Where the allegations made in the first information report or the complaint, even if they are taken at their place value and accepted in their entirely do not prima facie constitute any offence or make out the case against the accused.
Where the allegation made in the first information report and other materials, if any, accompanying the Fir do not disclose the cognizable offence, justifying and investigation by the police officer under Sec. 156 clause(1) of the court except under an order of magistrate within the purview of the Sec 155(2) of the code of criminal procedure.
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 as case against the accused.
Where, the allegation in the FIR do not constitute a cognizable offence but constitute only non-cognizable offence, no investigation is permitted by as police officer without an order of magistrate has contemplated under Sec. 155(2) of the code of criminal procedure.
Where the allegation made in the Fir or complaint are so observed and inherently in probable on the basis of which no prudent person can ever adjust conclusion that there is sufficient ground for proceedings against the accused.
Where there is an express bar engrafted in any of the provision of the code or the concerned Act (under which criminal proceeding is instituted) to the institution and continuance of proceeding and/or where there is a specific provision the code or concerned Act, providing efficacious redress for the grievance of aggrieved party.
Where the criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and the view to spite him due to private and personal grudge.




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