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Avnish Kaur (Consultant)     25 December 2010

SC on cases which can be quashed -7 categories

CASE NO.: 
Appeal (crl.) 1242 of 2007 
https://www.judis.nic.in/supremecourt/qr … name=29556
PETITIONER: 
Pratibha 

RESPONDENT: 
Rameshwari Devi & Ors 

DATE OF JUDGMENT: 17/09/2007 

BENCH: 
A.K. MATHUR & TARUN CHATTERJEE 

JUDGMENT: 
J U D G M E N T 


CRIMINAL APPEAL NO. 1242 OF 2007 
[Arising out of SLP [Crl] No. 6334 of 2004] 


TARUN CHATTERJEE, J. 
1. Leave granted. 
2. This appeal by special leave is preferred against the 
judgment and order dated 14th September, 2004 of the 
High Court of Judicature for Rajasthan at Jaipur Bench, 
whereby the High Court had quashed an FIR dated 31st 
December, 2001 lodged at the instance of the appellant in 
the exercise of its inherent powers under Section 482 of 
Code of Criminal Procedure (hereinafter referred to as 
the Code). The said FIR was registered by the 
complainant/appellant (in short the appellant) against 
the accused/respondents (in short the respondents) for 
the alleged offences under Section 498-A and 406 of IPC. 
3. Before we take up the questions that were posed 

before us by the learned counsel for the parties, it is 
necessary at this stage to state the facts giving rise to the 
filing of this appeal. Accordingly, the facts in a nutshell are 
stated below : 
4. The appellant had entered into wedlock with the 
respondent No.2 on 25th January, 2000. The respondent 
Nos.1, 3, 4 and 5 are the mother-in-law, brother-in-law, 
maternal father-in-law and the father-in-law of the 
appellant respectively. The appellant left her matrimonial 
home on 25th May, 2001 with her father and brother. In 
the FIR, the appellant alleged that during her stay in her 
matrimonial home, she was subjected to harassment and 
cruelty by all the respondents as they were dissatisfied 
with the articles that the appellant had brought as 
stridhan. The respondents also forced her to bring Rs.5 
lacs more in dowry from her father which she could not 
bring from her parents nor could her parents afford to pay 
such a huge amount. The respondents also did not allow 
the appellant to take back her ornaments and other 
articles, which were gifted to her as stridhan when she left 
her matrimonial home. On 31st July, 2001, the husband, 
namely, respondent No.2 filed a petition before the Family 
Court praying for a decree for divorce on the ground of 
mental cruelty. On 31st December, 2001, the appellant 
lodged an FIR No.221 of 2001 against the respondents 
for the alleged offences under Section 498A and 406 of 
IPC. This FIR was challenged by way of a criminal 
miscellaneous petition under Section 482 of the Code in 
which the respondents prayed for quashing of the said 
FIR. The respondents had also obtained an order 
granting anticipatory bail from the Sessions Judge, 
Jhunjhunu, Rajasthan on 8th February, 2002. While the 
petition under Section 482 of the Code was pending, a 
final investigation report was submitted on 13th February, 
2004 in the High Court. The High Court by the impugned 
order had quashed the FIR No.221 of 2001 on the basis 
of the report of the Investigating Officer submitted before 
it and concluded that no offence under Section 498A and 
406 of the IPC was made out by the appellant against the 
respondents. The High Court also observed that the FIR 
must be quashed to avoid undue harassment and mental 
agony to the respondents, more so when the divorce 
petition was still pending before the Family Court. It is this 
order of the High Court, quashing the FIR in the exercise 
of its inherent power under Section 482 of the Code, 
which is now under challenge before us in this appeal. 
5. Having heard the learned counsel for the parties 
and after considering the materials on record and the 
complaint filed by the appellant under Sections 498A and 
406 of the IPC, we are of the view that the High Court had 
exceeded its jurisdiction by quashing the FIR No.221 of 
2001 in the exercise of its inherent powers under Section 
482 of the Code. Before we consider the scope and 
power of the High Court to quash an FIR in the exercise 
of its inherent powers under Section 482 of the Code 
even before the parties are permitted to adduce evidence 
in respect of the offences alleged to have been made 
under the aforesaid two sections (namely, Sections 498A 
and 406 of IPC), we may keep it on record that two 
questions merit our determination in the present case: - 
(i) whether the High Court while quashing the FIR in the 
exercise of its inherent powers under Section 482 of the 
Code was entitled to go beyond the complaint filed by the 
complainant; and (ii) whether the High Court was 
entitled to look into and consider the investigation report 
submitted by four officers of the rank of Dy. 
Superintendent of Police for quashing the FIR even 
before the same could be filed before the concerned 
Magistrate. Before we do that, we may first consider how 
and when the High Court, in its inherent powers under 
Section 482 of the Code, would be justified in quashing 
an FIR. It is at this stage appropriate to refer Section 482 
of the Code itself which runs 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. 

A bare look at this provision would show that while 
exercising such inherent powers, the High Court must be 
satisfied that either:- 
(i) An order passed under the Code would be 
rendered ineffective; or 
(ii) The process of any court would be abused; or 
(iii) The ends of justice would not be secured. 
In State of West Bengal Vs. Swapan Kumar Guha [1982 
[1] SCC 561] Chandrachud, C.J. [as His Lordship then 
was] had observed that if the FIR did not disclose the 
commission of a cognizable offence, the court would be 
justified in quashing the investigation on the basis of the 
information as laid or received. In the same judgment, 
Justice A.N. Sen [as His Lordship then was] who has 
written the main judgment, has laid down the legal 
propositions as follows: 
…the legal position is well-settled. The legal 
position appears to be that if an offence is 
disclosed, the Court will not normally interfere 
with an investigation into the case and will permit 
investigation into the offence alleged to be 
completed; if, however, the materials do not 
disclose an offence, no investigation should 
normally be permitted…. Once an offence is 
disclosed, an investigation into the offence must 
necessarily follow in the interests of justice. If, 
however, no offence is disclosed, an 
investigation cannot be permitted, as any 
investigation, in the absence of any offence 
being disclosed, will result in unnecessary 
harassment to a party, whose liberty and 
property may be put to jeopardy for nothing. The 
liberty and property of any individual are sacred 
and sacrosanct and the court zealously guards 
them and protects them. An investigation is 
carried on for the purpose of gathering necessary 
materials for establishing and proving an offence 
which is disclosed. When an offence is disclosed, 
a proper investigation in the interests of justice 
becomes necessary to collect materials for 
establishing the offence, and for bringing the 
offender to book. In the absence of a proper 
investigation in a case where an offence is 
disclosed, the offender may succeed in escaping 
from the consequences and the offender may go 
unpunished to the detriment of the cause of 
justice and the society at large. Justice requires 
that a person who commits an offence has to be 
brought to book and must be punished for the 
same. If the court interferes with the proper 
investigation in a case where an offence has 
been disclosed, the offence will go unpunished to 
the serious detriment of the welfare of the society 
and the cause of justice suffers. It is on the basis 
of this principle that the court normally does not 
interfere with the investigation of a case where 
an offence has been disclosed Whether an 
offence has been disclosed or not must 
necessarily depend on the facts and 
circumstances of each particular case…. If on a 
consideration of the relevant materials, the court 
is satisfied that an offence is disclosed, the court 
will normally not interfere with the investigation 
into the offence and will generally allow the 
investigation into the offence to be completed for 
collecting materials for proving the offence. 

In Pratibha Rani Vs. Suraj Kumar and Anr. [1985] 2 SCC 
370, this Court at page 395 observed as follows: 
 It is well settled by a long course of decisions of 
this Court that for the purpose of exercising its 
power under Section 482 Cr PC to quash a FIR 
or a complaint the High Court would have to 
proceed entirely on the basis of the allegations 
made in the complaint or the documents 
accompanying the same per se. It has no 
jurisdiction to examine the correctness or 
otherwise of the allegations. [emphasis supplied] 

In Madhavrao Jiwaji Rao Scindia and Ors. v. Sambhajirao 
Chandrojirao Angre and Ors. [1988 [1] SCC 692], this 
Court has reiterated the same principle and laid down that 
when a prosecution at the initial stage is asked to be 
quashed, the test to be applied by the court is as to 
whether the uncontroverted allegations as made prima 
facie establish the offence. 
Again in the case of State of Bihar Vs. Murad Ali Khan & 
Ors. [1988 [4] SCC 655], Venkatachaliah, C.J. [as His 
Lordship then was] has laid down that the jurisdiction 
under Section 482 of the Code has to be exercised 
sparingly and with circumspection and has observed that 
in exercising that jurisdiction, the High Court should not 
embark upon an inquiry whether the allegations in the 
complaint are likely to be established by evidence or not. 
6. From the principles laid down in the 
abovementioned decisions, it is clear that the Court is 
entitled to exercise its inherent jurisdiction for quashing a 
criminal proceeding or an FIR when the allegations made 
in the same do not disclose the commission of an offence 
and that it depends upon the facts and circumstances of 
each particular case. We also feel it just and proper to 
refer to a leading decision of this court reported in State of 
Haryana Vs. Bhajan Lal [1992 Suppl. {1} SCC 335] in 
which this court pointed out certain category of cases by 
way of illustrations wherein the inherent power under 
Section 482 of the Code can be exercised either to 
prevent abuse of the process of any court or otherwise to 
secure the ends of justice. The same are as follows :- 
(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 
FIR 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 FIR 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 malafide 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. 
7. Keeping the aforesaid principles in mind and 
considering the decisions as referred to hereinearlier, let 
us now apply them in the facts of the present case. But 
before we do that, it would be apt for us to consider the 
findings arrived at by the High Court for quashing the FIR 
which are as under: - 
(i) The complainant-wife left the marital 
house with her father and brother on 
25th May, 2001. The Divorce Petition 
was filed by the husband on the 
ground of mental cruelty on 31st July, 
2001. It was only on 31st December, 
2001 that the FIR for offences under 
Sections 498A and 406 of IPC was 
lodged by the complainant-wife; 
(ii) A registered letter was sent to the 
appellant wife for receiving all her 
articles on 13th August, 2001 which 
was duly received by the father of 
the appellant; 
(iii) The family court also issued 
directions to the appellant to receive 
her articles on 2nd February, 2002 
and the same were declined by her; 
(iv) In view of the above and also in view 
of the detailed report submitted by 
the investigating officer, even prima 
facie no offence under Section 498A 
and 406 IPC is made out against the 
respondent; 
(v) The conduct of the appellant wife 
was depreciable and there had been 
a continuing effort by her of avoiding 
the proceedings before the Court; 
(vi) The appellant wife leveled false 
allegations against the Court itself 
apart from adopting all sorts of 
unhealthy tactics by creating 
gimmicks and scenes in the Court; 
(vii) Merely because one of the 
respondents is a judicial officer and 
others being his family members, it 
did not preclude them from seeking 
justice from a court of law; 
(viii) The High Court is empowered to 
quash the FIR to avoid undue 
harassment and mental agony to the 
respondents, more so when the 
divorce petition is still pending 
before the Family Court. 
8. From a plain reading of the findings arrived at by the 
High Court while quashing the FIR, it is apparent that the 
High Court had relied on extraneous considerations and 
acted beyond the allegations made in the FIR for 
quashing the same in the exercise of its inherent powers 
under Section 482 of the Code. We have already noted 
the illustrations enumerated in Bhajan Lals case and from 
a careful reading of these illustrations, we are of the view 
that the allegations emerging from the FIR are not 
covered by any of the illustrations as noted hereinabove. 
For example, we may take up one of the findings of the 
High Court as noted herein above. The High Court has 
drawn an adverse inference on account of the FIR being 
lodged on 31st December, 2001 while the appellant was 
forced out of the matrimonial home on 25th May, 2001. In 
our view, in the facts and circumstance of the case, the 
High Court was not justified in drawing an adverse 
inference against the appellant- wife for lodging the FIR 
on 31st December, 2001 on the ground that she had left 
the matrimonial home atleast six months before that. This 
is because, in our view, the High Court had failed to 
appreciate that the appellant and her family members 
were, during this period, making all possible efforts to 
enter into a settlement so that the respondent No.2- 
husband would take her back to the matrimonial home. If 
any complaint was made during this period, there was 
every possibility of not entering into any settlement with 
the respondent No.2-husband. It is pertinent to note that 
the complaint was filed only when all efforts to return to 
the matrimonial home had failed and the respondent 
No.2-husband had filed a divorce petition under Section 
13 of the Hindu Marriage Act, 1955. That apart, in our 
view, filing of a divorce petition in a Civil Court cannot be 
a ground to quash criminal proceedings under Section 
482 of the Code as it is well settled that criminal and civil 
proceedings are separate and independent and the 
pendency of a civil proceeding cannot bring to an end a 
criminal proceeding even if they arise out of the same set 
of facts. Such being the position, we are, therefore, of the 
view that the High Court while exercising its powers under 
Section 482 of the Code has gone beyond the allegations 
made in the FIR and has acted in excess of its jurisdiction 
and, therefore, the High Court was not justified in 
quashing the FIR by going beyond the allegations made 
in the FIR or by relying on extraneous considerations. 
9. This takes us to the second question which merits 
our determination, namely whether the High Court was 
entitled to consider the investigation report submitted 
before it by four officers of the rank of Dy. Superintendent 
of Police even before the same could be filed before the 
concerned Magistrate. As noted herein earlier, a bare 
perusal of the judgment of the High Court would also 
show that the High Court had relied on the investigation 
report in quashing the FIR. Now, the question is whether 
the High Court while exercising its powers under Section 
482 of the Code was justified in relying on the 
investigation report which was neither filed before the 
Magistrate nor a copy of the same supplied to the 
appellant. In our view, the High Court has acted in 
excess of its jurisdiction by relying on the investigation 
report and the High Court was also wrong in directing the 
report to be submitted before it. It is now well settled that 
it is for the investigating agency to submit the report to the 
Magistrate. In this connection, we may refer to sub- 
section (2) of Section 173 of the Code which runs as 
under : 
(i) As soon as it is completed the officer in 
charge of the police station shall forward to a 
Magistrate empowered to take cognizance of 
the offence on a police report (not 
necessary therefore omitted). 

From a bare reading of this provision, it cannot be 
disputed that after completion of the investigation, the 
officer-in-charge of the police station shall forward the 
report not to the High Court where the proceedings under 
Section 482 of the Code is pending but to a Magistrate 
empowered to take cognizance of the offence on such 
police report. Therefore, the High Court had acted beyond 
its power to direct the investigating agency to file the said 
report before it in the exercise of power under Section 
482 of the Code. The procedure for submitting an 
investigation report has been considered by this Court in 
the case of M.C. Abraham and Anr. Vs. State of 
Maharashtra [ 2003] 2 SCC 649. While considering the 
law on the question as to when the report of the 
investigating agency shall be submitted before the 
Magistrate where the case is pending, an observation 
made in the case of Abhinandan Jha Vs. Dinesh Mishra 
[AIR 1968 SC117] was quoted with approval by 
B.P.Singh, J. in M.C. Abrahams case (supra) with which 
we are also in full agreement and which is as follows: 
 Then the question is, what is the position, 
when the Magistrate is dealing with a report 
submitted by the police, under Section 173, that 
no case is made out for sending up an accused 
for trial, which report, as we have already 
indicated, is called, in the area in question, as a 
final report? Even in those cases, if the 
Magistrate agrees with the said report, he may 
accept the final report and close the proceedings. 
But there may be instances when the Magistrate 
may take the view, on a consideration of the final 
report, that the opinion formed by the police is 
not based on a full and complete investigation, in 
which case, in our opinion, the Magistrate will 
have ample jurisdiction to give directions to the 
police, under Section 156(3), to make a further 
investigation. That is, if the Magistrate feels, after 
considering the final report, that the investigation 
is unsatisfactory, or incomplete, or that there is 
scope for further investigation, it will be open to 
the Magistrate to decline to accept the final 
report and direct the police to make further 
investigation under Section 156(3). The police, 
after such further investigation, may submit a 
charge-sheet, or, again submit a final report, 
depending upon the further investigation made 
by them. If ultimately, the Magistrate forms the 
opinion that the facts, set out in the final report, 
constitute an offence, he can take cognizance of 
the offence, under Section 190(1)(b), 
notwithstanding the contrary opinion of the 
police, expressed in the final report. 

The function of the Magistracy and the police, 
are entirely different, and though, in the 
circumstances mentioned earlier, the Magistrate 
may or may not accept the report, and take 
suitable action, according to law, he cannot 
certainly infringe (sic impinge) upon the 
jurisdiction of the police, by compelling them to 
change their opinion, so as to accord with his 
view. 

Therefore, to conclude, there is no power, 
expressly or impliedly conferred under the Code, 
on a Magistrate to call upon the police to submit 
a charge-sheet, when they have sent a report 
under Section 169 of the Code, that there is no 
case made out for sending up an accused for 
trial. 


This court in M.C. Abrahams case (supra) observed in 
para 17 as under: 

The principle, therefore, is well settled that it is 
for the investigating agency to submit a report to 
the Magistrate after full and complete 
investigation. The investigating agency may 
submit a report finding the allegations 
substantiated. It is also open to the investigating 
agency to submit a report finding no material to 
support the allegations made in the first 
information report. It is open to the Magistrate 
concerned to accept the report or to order further 
enquiry. But what is clear is that the Magistrate 
cannot direct the investigating agency to submit 
a report that is in accord with his views. Even in a 
case where a report is submitted by the 
investigating agency finding that no case is made 
out for prosecution, it is open to the Magistrate to 
disagree with the report and to take cognizance, 
but what he cannot do is to direct the 
investigating agency to submit a report to the 
effect that the allegations have been supported 
by the material collected during the course of 
investigation. 

In our view, applying the principles laid down in the case 
of Abhinandan Jha (supra) and M.C.Abrahim (supra) as 
indicated herein above, using the report of the 
investigating agency for quashing the FIR or a criminal 
proceeding cannot be sustained. It was impermissible for 
the High Court to entertain the report of the investigating 
agency before the same could be forwarded and filed 
before the concerned Magistrate in compliance with 
Section 173(2) of the Code. In Union of India vs. Prakash 
P.Hinduja & Anr. [(2003) 6 SCC 195], this Court in para 
20 observed as follows : 
Thus the legal position is absolutely clear and 
also settled by judicial authorities that the court 
would not interfere with the investigation or 
during the course of investigation which would 
mean from the time of the lodging of the First 
Information Report till the submission of the 
report by the officer-in-charge of the police 
station in court under Section 173 (2) Code, this 
field being exclusively reserved for the 
investigating agency. 


Therefore, in view of our discussions made herein 
above, while exercising power under Section 482 of the 
Code, it is not open to the High Court to rely on the report 
of the investigating agency nor can it direct the report to 
be submitted before it as the law is very clear that the 
report of the investigating agency may be accepted by the 
Magistrate or the Magistrate may reject the same on 
consideration of the material on record. Such being the 
position, the report of the investigating agency cannot be 
relied on by the High Court while exercising powers under 
Section 482 of the Code. Accordingly, we are of the view 
that the High Court has erred in quashing the FIR on 
consideration of the investigation report submitted before 
it even before the same could be submitted before the 
Magistrate. For the reasons aforesaid, we are inclined to 
interfere with the order of the High Court and hold that the 
High Court in quashing the FIR in the exercise of its 
inherent powers under Section 482 of the Code by relying 
on the investigation report and the findings made therein 
has acted beyond its jurisdiction. For the purpose of 
finding out the commission of a cognizable offence, the 
High Court was only required to look into the allegations 
made in the complaint or the FIR and to conclude whether 
a prima facie offence had been made out by the 
complainant in the FIR or the complaint or not. 
10. Before parting with this judgment, we may also 
remind ourselves that the power under Section 482 of the 
Code has to be exercised sparingly and in the rarest of 
rare cases. In our view, the present case did not warrant 
such exercise by the High Court. For the reasons 
aforesaid, we are unable to sustain the order of the High 
Court and the impugned order is accordingly set aside. 
The appeal is allowed to the extent indicated above. The 
learned Magistrate is directed to proceed with the case in 
accordance with law. It is expected that the Magistrate 
shall dispose of the criminal proceedings as expeditiously 
as possible preferably within six months from the date of 
communication of this judgment.



Learning

 6 Replies


(Guest)

Nice attempt, such type of knowledge will decrease the number of fake petitions.

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     25 December 2010

Very good ,    please QUASH EXPERTS READ IT.

girishankar (manager)     16 January 2011

hmmm

Arup (UNEMPLOYED)     16 January 2011

THANKS FOR KIND INFORMATION.


(Guest)

Nice sharing of info.

vinay kumar (ludhiana )     31 July 2012

very useful information given and sharing  by a nice ,kind and great LAWYER in this place.He is just like GOD  for me and like me husbands in INDIA.very-2 thanks to all of u.


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