Madhya Pradesh High Court
Nikhil Rastogi vs The State Of Madhya Pradesh on 23 January, 2025
Author: Vijay Kumar Shukla
Bench: Vijay Kumar Shukla
NEUTRAL CITATION NO. 2025:MPHC-IND:1774
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
ON THE 23rd OF JANUARY, 2025
MISC. CRIMINAL CASE No. 56367 of 2023
NIKHIL RASTOGI
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Nikhil Rastogi, applicant in person.
Shri Mukesh Parwal, learned counsel for the respondent/state.
Shri H.Y. Mehta, learned counsel for the respondent no.2.
ORDER
The present petition is filed under section 482 of Cr.P.C for quashment
of FIR No.148/2022 registered at police station Vijay Nagar, Indore under
section 420, 406, 498-A of IPC and 3 and 4 of Dowry Prohibition Act, 1961
and criminal proceedings instituted by the respondent no.2 against the
petitioner vide RCT No.1809/2023 pending before the JMFC, Indore.
2. In the year 2017, the marriage was performed between the
petitioner and respondent no.2 as per Indian customs and traditions in New
Delhi, India. After the solemnization of marriage on 25.11.2017, the
complainant and the petitioner stayed at the petitioners’ father residence in
Pant Nagar, Uttarakhand for a period of 1 week. On 07.12.2017 the
petitioner and the complainant travelled to United States of America. It is
submitted that there was a mutual agreement between the parties that the
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complainant will be staying with petitioner in USA after the marriage.
3. On 03.03.2022, the complainant had sent a legal notice to the
petitioner seeking divorce by mutual consent and asking for Rs.1 crores
alimony. The petitioner filed a petition under section 13(1)(ia) of Hindu
Marriage Act for dissolution of marriage by decree of divorce on the ground
of cruelty before the Principal Judge, Family Court, Saket New Delhi. The
complainant has also filed application under section 9 of Hindu Marriage Act
for restitution of conjugal rights with the petitioner before the District Court,
Indore. Thereafter, she lodged report against the petitioner and his father as
FIR No.148/2022 at Police Station Vijay Nagar, Indore for commission of
offence 420, 406, 498-A of IPC and 3 and 4 of Dowry Prohibition Act.
4. It is argued that bare reading of the FIR shows that the ingredients of
offence under section 406, 420, 498-A of IPC and section 3 and 4 of Dowry
Prohibition Act do not exist and therefore, FIR is liable to be quashed. It is
also argued that the marriage had taken place in November, 2017 and the
FIR was lodged on 02.02.2022. In the FIR, the correct facts were not
mentioned and they misrepresented the facts. It is submitted that the said FIR
was lodged after filing of the divorce petition by the petitioner. Further he
submits that the allegation of not paying the amount of 30,000/- US Dollars
to the aunt of the complainant is false as the said amount was paid to the
account of the aunt of the complainant. The petitioner submitted that the FIR
and the criminal case is nothing but is a result of abuse of process of law.
Hence, the same is liable to be quashed.
5. It is further submitted that the allegations are prominently of civil
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nature which have been given colour of a criminal case on the said ground
also the FIR is liable to be quashed.
6. In support of his submission, he has placed reliance on the
judgment of the co-ordinate bench at Jabalpur in the case of Ganpat Meena
and Ors Vs. State of MP and Anr passed in M.Cr.C No.44242/2023 decided
on 14.11.2024. He also placed reliance on the judgment passed by the Apex
Court in the case of Kailashben Mahendrabhai Patel Vs. State of
Maharashtra and Anr passed in Criminal Appeal No.4003/2024.
7. Learned counsel for the state and respondent no.2 opposed the
prayer and vehemently argued that the same FIR was challenged by the
father of the applicant Sunil Rastogi in M.Cr.C No.45474/2022 and this
Court examined the facts of the case and also the allegation contained in FIR
in para no.27 of the judgment and also made observation not only against the
father of the applicant but also against the applicant that prima facie
allegation are available for constituting the offence. The said order has not
been challenged. The charge sheet has already been filed and the court has
rejected his application for discharge. The applicant has chosen not to
challenge the aforesaid orders.
8. After hearing learned counsel for the parties, I do not find any
merit in the petition and all the submissions made by the applicant cannot be
considered in the light of the judgment passed by this court in the case of his
father Sunil Rastogi in M.Cr.C No.45474/2022. In para no.27, this Court has
considered the contents and material available in the record.
9. Para no.27 of the said judgment is reproduced as under :-
“On the anvil of the aforesaid law, if the facts of the present case
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are examined, there is specific allegation of demand of dowry by
the petitioner alongwith his son and also demand of money to
provide assistance of financial support of respondent no.2. An
amount of 30,000/- US Dollar was paid to the account of the
petitioner. There is allegation that the petitioner demanded the
respondent no.2 to obtain her share in the parental property. There
is specific allegation in the FIR that the petitioner with his wife
came to Indore and in conference to their son reiterated demand of
Rs.50,00,000/- on the pretext of F/1 visitor visa which could not
be met. Petitioner, despite being aware that neither his son nor the
Respondent No 2 were law student at any point of time, in
collusion to his son instructed the Respondent No 2 that
Respondent No 2 must write a thesis on US Immigration law,
which would be examined by Petitioner’s son adjudicating her
suitability for providing SAVISID to the Respondent No 2. The
property of Stree Dhan of the respondent no.2 was refused to be
returned and was sold by them for their personal gains. The
respondent no.2 was being harassed by her husband and family
members. Thus, prima facie the ingredients of alleged offence are
existing. The legal position in relation to quashment of FIR is no
longer res-integra if the allegations made in the FIR or the
complaint even if they are taken on their face value and accepted
in their entirety do not prima facie constitute any offence or make
out a case against the accused. The allegation contained in the FIR
is examined in the light of para no.102 of Bhajanlal case (Supra),
followed in subsequent judgments this Court find that no case is
made out for interference.”
10. The applicant cited the judgments and the case of Ganpat (supra)
by co-ordinate bench. So far the legal proposition is concerned, it is no res-
integra that the power under section 482 of Cr.P.C for quashment of FIR or
criminal proceedings has to be exercised rarely and sparingly only in
exceptional circumstances. This Court is oblivious that if the FIR prima facie
does not disclose any ingredients of the offence the alleged the FIR can be
quashed.
11. The applicant relied on the judgment passed by the Apex Court
in the case of Kailashben (supra) in which the Apex Court has considered the
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earlier judgments relating to the scope of interference in a petition under
section 482 of Cr.P.C for quashment of FIR and the criminal proceedings. It
is held that there is no provision against quashing of the criminal proceedings
even after the charge sheet has been filed.
12. After holding the aforesaid judgments, each case has been
examined on facts of its case and then only the court has exercised its
inherent powers under section 482 of Cr.P.C to quash the FIR or criminal
proceedings. This court while dismissing the petition under section 482 of
Cr.P.C filed by the father of the applicant has made a survey of the
judgments in respect of scope of interference in a petition under section 482
of Cr.P.C.
13. The Supreme Court in the case of Munshiram v. State of Rajasthan,
reported in (2018) 5 SCC 678 has held as under :
10. Having heard the learned counsel for both the parties
and perusing the material available on record we are of the
opinion that the High Court has prematurely quashed the
FIR without proper investigation being conducted by the
police. Further, it is no more res integra that Section 482
CrPC has to be utilised cautiously while quashing the FIR.
This Court in a catena of cases has quashed FIR only after
it comes to a conclusion that continuing investigation in
such cases would only amount to abuse of the process……..
14. The Supreme Court in the case of Teeja Devi v. State of Rajasthan
reported in (2014) 15 SCC 221 has held as under :
5. It has been rightly submitted by the learned counsel for
the appellant that ordinarily power under Section 482 CrPC
should not be used to quash an FIR because that amounts to
interfering with the statutory power of the police to
investigate a cognizable offence in accordance with the
provisions of CrPC. As per law settled by a catena of
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disclose a cognizable offence, interference with the
investigation is not proper and it can be done only in the
rarest of rare cases where the court is satisfied that the
prosecution is malicious and vexatious.
15. The Supreme Court in the case of State of Orissa v. Ujjal Kumar
Burdhan, reported in (2012) 4 SCC 547 has held as under:
9. In State of W.B. v. Swapan Kumar Guha, emphasising
hat the Court will not normally interfere with an
investigation and will permit the inquiry into the alleged
offence, to be completed, this Court highlighted the
necessity of a proper investigation observing thus: (SCC
pp. 597-98, paras 65-66)
“65. … 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 the 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. …
66. 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.” (emphasis supplied)
10. On a similar issue under consideration, in Jeffrey J.
Diermeier v. State of W.B., while explaining the scope and
ambit of the inherent powers of the High Court under
Section 482 of the Code, one of us (D.K. Jain, J.) speaking
for the Bench, has observed as follows: (SCC p. 251,para
20)
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“20. … The section itself 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.
Nevertheless, it is neither possible nor desirable
to lay down any inflexible rule which would
govern the exercise of inherent jurisdiction of
the court. Undoubtedly, the power possessed by
the High Court under the said provision is very
wide but it is not unlimited. It has to be
exercised sparingly, carefully and cautiously, ex
debito justitiae to do real and substantial justice
for which alone the court exists. It needs little
emphasis that the inherent jurisdiction does not
confer an arbitrary power on the High Court to
act according to whim or caprice. The power
exists to prevent abuse of authority and not to
produce injustice.”
16. The Supreme Court in the case of XYZ v. State of Gujarat reported
in (2019) 10 SCC 337 has held as under :
14. Having heard the learned counsel for the parties and
after perusing the impugned order and other material placed
on record, we are of the view that the High Court exceeded
the scope of its jurisdiction conferred under Section 482
CrPC, and quashed the proceedings. Even before the
investigation is completed by the investigating agency, the
High Court entertained the writ petition, and by virtue of
interim order granted by the High Court, further
investigation was stalled. Having regard to the allegations
made by the appellant/informant, whether the 2nd
respondent by clicking inappropriate pictures of
theappellant has blackmailed her or not, and further the 2nd
respondent has continued to interfere by calling Shoukin
Malik or not are the matters for investigation. In view of the
serious allegations made in the complaint, we are of the
view that the High Court should not have made a roving
inquiry while considering the application filed under
Section 482 CrPC. Though the learned counsel have made
elaborate submissions on various contentious issues, as we
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recording any findings on such issues. From a perusal of
the order of the High Court, it is evident that the High
Court has got carried away by the agreement/settlement
arrived at, between the parties, and recorded a finding that
the physical relationship of the appellant with the 2nd
respondent was consensual. When it is the allegation of the
appellant, that such document itself is obtained under threat
and coercion, it is a matter to be investigated. Further, the
complaint of the appellant about interference by the 2nd
respondent by calling Shoukin Malik and further
interference is also a matter for investigation. By looking at
the contents of the complaint and the serious allegations
made against 2nd respondent, we are of the view that the
High Court has committed error in quashing the
proceedings.
17. The Supreme Court in the case of S. (Supra) has held as under :
7. In our view the assessment made by the High Court at a
stage when the investigation was yet to be completed, is
completely incorrect and uncalled for……………..
18. The Supreme Court in the case of S. Khushboo v. Kanniammal reported in
(2010) 5 SCC 600 has held as under :
17. In the past, this Court has even laid down some
guidelines for the exercise of inherent power by the High
Courts to quash criminal proceedings in such exceptional
cases. We can refer to the decision in State of Haryana v.
Bhajan Lal to take note of two such guidelines which are
relevant for the present case:(SCC pp. 378-79, para 102)
“(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.
***
(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.”
18. It is of course a settled legal proposition that in a case
where there is sufficient evidence against the accused,
which may establish the charge against him/her, the
proceedings cannot be quashed. In Medchl Chemicals &
Pharma (P) Ltd. v. Biological E. Ltd. this Court observed
that a criminal complaint or a charge-sheet can only be
quashed by superior courts in exceptional circumstances,
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such as when the allegations in a complaint do not support
a prima facie case for an offence.
19. Similarly, in Zandu Pharmaceutical Works Ltd. v.
Mohd. Sharaful Haque this Court has held that criminal
proceedings can be quashed but such a power is to be
exercised sparingly and only when such an exercise is
justified by the tests that have been specifically laid down
in the statutory provisions themselves. It was further
observed that superior courts “may examine the questions
of fact” when the use of the criminal law machinery could
be in the nature of an abuse of authority or when it could
result in injustice.
20. In Shakson Belthissor v. State of Kerala this Court
relied on earlier precedents to clarify that a High Court
while exercising its inherent jurisdiction should not
interfere with a genuine complaint but it should certainly
not hesitate to intervene in appropriate cases. In fact it was
observed: (SCC pp. 478, para 25)
“25. … 16. … One of the paramount duties of the superior
courts is to see that a person who is apparently innocent is
not subjected to persecution and humiliation on the basis of
a false and wholly untenable complaint.
19. The Supreme Court in the case of Sangeeta Agrawal v. State of U.P.,
reported in (2019) 2 SCC 336 has held as under :
8. In our view, the Single Judge ought to have first set out
the brief facts of the case with a view to understand the
factual matrix of the case and then examined the challenge
made to the proceedings in the light of the principles of law
laid down by this Court and then recorded his finding as to
on what basis and reasons, a case is made out for any
interference or not.
20. The Supreme Court in the case of Amit Kapoor v. Ramesh
Chander reported in (2012) 9 SCC 460 has held as under :
27. Having discussed the scope of jurisdiction under these
two provisions i.e. Section 397 and Section 482 of the Code
and the fine line of jurisdictional distinction, now it will be
appropriate for us to enlist the principles with reference to
which the courts should exercise such jurisdiction.
However, it is not only difficult but is inherently
impossible to state with precision such principles. At best
and upon objective analysis of various judgments of this
Court, we are able to cull out some of the principles to be
considered for proper exercise of jurisdiction, particularly,
with regard to quashing of charge either in exercise of
jurisdiction under Section 397 or Section 482 of the Code
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or together, as the case may be:
27.1. Though there are no limits of the powers of the Court
under Section 482 of the Code but the more the power, the
more due care and caution is to be exercised in invoking
these powers. The power of quashing criminal proceedings,
particularly, the charge framed in terms of Section 228 of
the Code should be exercised very sparingly and with
circumspection and that too in the rarest of rare cases.
27.2. The Court should apply the test as to whether the
uncontroverted allegations as made from the record of the
case and the documents submitted therewith prima facie
establish the offence or not. If the allegations are so
patently absurd and inherently improbable that no prudent
person can ever reach such a conclusion and where the
basic ingredients of a criminal offence are not satisfied then
the Court may interfere.
27.3. The High Court should not unduly interfere. No
meticulous examination of the evidence is needed for
considering whether the case would end in conviction or
not at the stage of framing of charge or quashing of charge.
27.4. Where the exercise of such power is absolutely
essential to prevent patent miscarriage of justice and for
correcting some grave error that might be committed by the
subordinate courts even in such cases, the High Court
should be loath to interfere, at the threshold, to throttle the
prosecution in exercise of its inherent powers.
27.5. Where there is an express legal bar enacted in any of
the provisions of the Code or any specific law in force to
the very initiation or institution and continuance of such
criminal proceedings, such a bar is intended to provide
specific protection to an accused.
27.6. The Court has a duty to balance the freedom of a
person and the right of the complainant or prosecution to
investigate and prosecute the offender.
27.7. The process of the court cannot be permitted to be
used for an oblique or ultimate/ulterior purpose.
27.8. Where the allegations made and as they appeared
from the record and documents annexed therewith to
predominantly give rise and constitute a “civil wrong” with
no “element of criminality” and does not satisfy the basic
ingredients of a criminal offence, the court may be justified
in quashing the charge. Even in such cases, the court would
not embark upon the critical analysis of the evidence.
27.9. Another very significant caution that the courts have
to observe is that it cannot examine the facts, evidence and
materials on record to determine whether there is sufficient
material on the basis of which the case would end in a
conviction; the court is concerned primarily with the
allegations taken as a whole whether they will constitute an
offence and, if so, is it an abuse of the process of court
leading to injustice.
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27.10. It is neither necessary nor is the court called upon to
hold a full-fledged enquiry or to appreciate evidence
collected by the investigating agencies to find out whether
it is a case of acquittal or conviction.
27.11. Where allegations give rise to a civil claim and also
amount to an offence, merely because a civil claim is
maintainable, does not mean that a criminal complaint
cannot be maintained.
27.12. In exercise of its jurisdiction under Section 228
and/or under Section 482, the Court cannot take into
consideration external materials given by an accused for
reaching the conclusion that no offence was disclosed or
that there was possibility of his acquittal. The Court has to
consider the record and documents annexed therewith by
the prosecution.
27.13. Quashing of a charge is an exception to the rule of
continuous prosecution. Where the offence is even broadly
satisfied, the Court should be more inclined to permit
continuation of prosecution rather than its quashing at that
initial stage. The Court is not expected to marshal the
records with a view to decide admissibility and reliability
of the documents or records but is an opinion formed prima
facie.
27.14. Where the charge-sheet, report under Section 173(2)
of the Code, suffers from fundamental legal defects, the
Court may be well within its jurisdiction to frame a charge.
27.15. Coupled with any or all of the above, where the
Court finds that it would amount to abuse of process of the
Code or that the interest of justice favours, otherwise it may
quash the charge. The power is to be exercised ex debito
justitiae i.e. to do real and substantial justice for
administration of which alone, the courts exist. [Ref. State
of W.B. v. Swapan Kumar Guha Madhavrao Jiwajirao
Scindia v. Sambhajirao Chandrojirao Angre; Janata Dal v.
H.S. Chowdhary; Rupan Deol Bajaj v. Kanwar Pal Singh
Gill; G. Sagar Suri v. State of U.P.; Ajay Mitra v. State of
M.P.; Pepsi Foods Ltd. v. Special Judicial Magistrate; State
of U.P. v. O.P. Sharma; Ganesh Narayan Hegde v. S.
Bangarappa; Zandu Pharmaceutical Works Ltd. v. Mohd.
Sharaful Haque; Medchl Chemicals & Pharma (P) Ltd. v.
Biological E. Ltd.; Shakson Belthissor v. State of Kerala;
V.V.S. Rama Sharma v. State of U.P.; Chunduru Siva Ram
Krishna v. Peddi Ravindra Babu; Sheonandan Paswan v.
State of Bihar; State of Bihar v. P.P. Sharma; Lalmuni Devi
v. State of Bihar; M. Krishnan v. Vijay Singh; Savita v.
State of Rajasthan and S.M. Datta v. State of Gujarat.]
27.16. These are the principles which individually and
preferably cumulatively (one or more) be taken into
consideration as precepts to exercise of extraordinary and
wide plenitude and jurisdiction under Section 482 of the
Code by the High Court. Where the factual foundation for
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an offence has been laid down, the courts should be
reluctant and should not hasten to quash the proceedings
even on the premise that one or two ingredients have not
been stated or do not appear to be satisfied if there is
substantial compliance with the requirements of the
offence.
28. At this stage, we may also notice that the principle
stated by this Court in Madhavrao Jiwajirao Scindia was
reconsidered and explained in two subsequent judgments of
this Court in State of Bihar v. P.P. Sharma and
M.N.Damani v. S.K. Sinha. In the subsequent judgment,
the Court held that, that judgment did not declare a law of
universal application and what was the principle relating to
disputes involving cases of a predominantly civil nature
with or without criminal intent.
21. The Supreme Court in the case of Ajay Kumar Das v. State of
Jharkhand, reported in (2011) 12 SCC 319 has held as under :
12. The counsel appearing for the appellant also drew our
attention to the same decision which is relied upon in the
impugned judgment by the High Court i.e. State of Haryana
v. Bhajan Lal. In the said decision, this Court held that it
may not be possible to lay down any specific guidelines or
watertight compartment as to when the power under
Section 482 CrPC could be or is to be exercised. This
Court, however, gave an exhaustive list of various kinds of
cases wherein such power could be exercised. In para 103
of the said judgment, this Court, however, hastened to add
that as a note of caution it must be stated 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 for the Court would not be justified in
embarking upon an inquiry as to the reliability or
genuineness or otherwise of the allegations made in the first
information report or in the complaint and that the
extraordinary or the inherent powers do not confer an
arbitrary jurisdiction on the Court to act according to whim
or caprice.
22. The Supreme Court in the case of Mohd. Akram Siddiqui v.
State of Bihar reported in (2019) 13 SCC 350 has held as under :
5. Ordinarily and in the normal course, the High Court
when approached for quashing of a criminal proceeding
will not appreciate the defence of the accused; neither
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out by this Court in Yin Cheng Hsiung v. Essem Chemical
Industries; State of Haryana v. Bhajan Lal and Harshendra
Kumar D. v. Rebatilata Koley to the effect that in an
appropriate case where the document relied upon is a
public document or where veracity thereof is not disputed
by the complainant, the same can be considered.
23. The Supreme Court in the case of State of A.P. v. Gourishetty
Mahesh reported in (2010) 11 SCC 226 has held as under :
18. While exercising jurisdiction under Section 482 of the
Code, the High Court would not ordinarily embark upon an
enquiry whether the evidence in question is reliable or not
or whether on a reasonable appreciation of it accusation
would not be sustained. That is the function of the trial
Judge/Court. It is true that the Court should be circumspect
and judicious in exercising discretion and should take all
relevant facts and circumstances into consideration before
issuing process, otherwise, it would be an instrument in the
hands of a private complainant to unleash vendetta to
harass any person needlessly. At the same time, Section
482 is not an instrument handed over to an accused to
short-circuit a prosecution and brings about its closure
without full-fledged enquiry.
19. Though the High Court may exercise its power relating
to cognizable offences to prevent abuse of process of any
court or otherwise to secure the ends of justice, the power
should be exercised sparingly. For example, 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 or allegations in the FIR do not disclose
a cognizable offence or do not disclose commission of any
offence and make out a case against the accused or where
there is express legal bar provided in any of the provisions
of the Code or in any other enactment under which a
criminal proceeding is initiated or sufficient material to
show that the criminal proceeding is maliciously instituted
with an ulterior motive for wreaking vengeance on the
accused due to private and personal grudge, the High Court
may step in.
20. Though the powers possessed by the High Court under
Section 482 are wide, however, such power requires
care/caution in its exercise. The interference must be on
sound principles and the inherent power should not be
exercised to stifle a legitimate prosecution. We make it
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by the Magistrate, it is open to the High Court to quash the
same in exercise of inherent powers under Section 482.
24. The Supreme Court in the case of Padal Venkata RamaReddy Vs.
Kovuri Satyanarayana Reddy reported in (2012) 12 SCC 437 has held as under :
11. Though the High Court has inherent power and its
scope is very wide, it is a rule of practice that it will only
be exercised in exceptional cases. Section 482 is a sort of
reminder to the High Courts that they are not merely courts
of law, but also courts of justice and possess inherent
powers to remove injustice. The inherent power of the High
Court is an inalienable attribute of the position it holds with
respect to the courts subordinate to it. These powers are
partly administrative and partly judicial. They are
necessarily judicial when they are exercisable with respect
to a judicial order and for securing the ends of justice. The
jurisdiction under Section 482 is discretionary, therefore
the High Court may refuse to exercise the discretion if a
party has not approached it with clean hands.
12. In a proceeding under Section 482, the High Court will
not enter into any finding of facts, particularly, when the
matter has been concluded by concurrent finding of facts of
the two courts below. Inherent powers under Section 482
include powers to quash FIR, investigation or any criminal
proceedings pending before the High Court or any court
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. The Court can always take note of any miscarriage of
justice and prevent the same by exercising its powers under
Section 482 of the Code. These powers are neither limited
nor curtailed by any other provisions of the Code.
However, such inherent powers are to be exercised
sparingly, carefully and with caution.
13. It is well settled that the inherent powers under Section
482 can be exercised only when no other remedy is
available to the litigant and not in a situation where a
specific remedy is provided by the statute. It cannot be used
if it is inconsistent with specific provisions provided under
the Code (vide Kavita v. State and B.S. Joshi v. State of
Haryana). If an effective alternative remedy is available,
the High Court will not exercise its powers under this
section, specially when the applicant may not have availed
of that remedy.
14. The inherent power is to be exercised ex debito
justitiae, to do real and substantial justice, for
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administration of which alone courts exist. Wherever any
attempt is made to abuse that authority so as to produce
injustice, the Court has power to prevent the abuse. It is,
however, not necessary that at this stage there should be a
meticulous analysis of the case before the trial to find out
whether the case ends in conviction or acquittal. (Vide
Dhanalakshmi v. R. Prasanna Kumar; Ganesh Narayan
Hegde v. S. Bangarappa and Zandu Pharmaceutical Works
Ltd. v. Mohd. Sharaful Haque.)
15. It is neither feasible nor practicable to lay down
exhaustively as to on what ground the jurisdiction of the
High Court under Section 482 of the Code should be
exercised. But some attempts have been made in that behalf
in some of the decisions of this Court vide State of Haryana
v. Bhajan Lal, Janata Dal v. H.S. Chowdhary, 1 7 Rupan
Deol Bajaj v. Kanwar Pal Singh Gill and Indian Oil Corpn.
v. NEPC India Ltd.
16. In the landmark case of State of Haryana v. Bhajan Lal
this Court considered in detail the provisions of Section
482 and the power of the High Court to quash criminal
proceedings or FIR. This Court summarised the legal
position by laying down the following guidelines to be
followed by the High Courts in exercise of their inherent
powers to quash a criminal complaint: (SCC pp. 378-79,
para 102)
“(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
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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 Act
concerned (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 Act
concerned, 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.”
17. In Indian Oil Corpn. v. NEPC India Ltd. a petition
under Section 482 was filed to quash two criminal
complaints. The High Court by a common judgment
allowed the petition and quashed both the complaints. The
order was challenged in appeal to this Court. While
deciding the appeal, this Court laid down the following
principles: (SCC p. 748, para 12)
1. The High Courts should not exercise their
inherent powers to repress a legitimate
prosecution. The power to quash criminal
complaints should be used sparingly and with
abundant caution. 2. The criminal complaint is
not required to verbatim reproduce the legal
ingredients of the alleged offence. If the
necessary factual foundation is laid in the
criminal complaint, merely on the ground that a
few ingredients have not been stated in detail,
the criminal proceedings should not be quashed.
Quashing of the complaint is warranted only
where the complaint is bereft of even the basic
facts which are absolutely necessary for making
out the alleged offence.
3. It was held that 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.
18. In State of Orissa v. Saroj Kumar Sahoo it has been
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held that probabilities of the prosecution version cannot be
analysed at this stage. Likewise, the allegations of mala
fides of the informant are of secondary importance. The
relevant passage reads thus: (SCC p. 550, para 11)
“11. … 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.”
19. In Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao
Angre this Court held as under: (SCC p. 695, para 7)
“7. The legal position is well settled 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. It is also
for the court to take into consideration any
special features which appear in a particular
case to consider whether it is expedient and in
the interest of justice to permit a prosecution to
continue. This is so on the basis that the court
cannot be utilised for any oblique purpose and
where in the opinion of the court chances of an
ultimate conviction is bleak and, therefore, no
useful purpose is likely to be served by allowing
a criminal prosecution to continue, the court
may while taking into consideration the special
facts of a case also quash the proceeding even
though it may be at a preliminary stage.”
22. This Court, while reconsidering the
judgment in Madhavrao Jiwajirao Scindia, has
consistently observed that where matters are
also of civil nature i.e. matrimonial, family
disputes, etc., the Court may consider “special
facts”, “special features” and quash the criminal
proceedings to encourage genuine settlement of
disputes between the parties.
21. The said judgment in Madhavrao case was
reconsidered and explained by this Court in
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State of Bihar v. P.P. Sharma which reads as
under: (SCC p. 271, para 70)
“70. Madhavrao Jiwajirao Scindia v.
Sambhajirao Chandrojirao Angre
also does not help the respondents. In
that case the allegations constituted
civil wrong as the trustees created
tenancy of trust property to favour
the third party. A private complaint
was laid for the offence under
Section 467 read with Section 34 and
Section 120-B IPC which the High
Court refused to quash under Section
482. This Court allowed the appeal
and quashed the proceedings on the
ground that even on its own
contentions in the complaint, it
would be a case of breach of trust or
a civil wrong but no ingredients of
criminal offence were made out. On
those facts and also due to the
relation of the settler, the mother, the
appellant and his wife, as the son and
daughter-in-law, this Court interfered
and allowed the appeal. …
Therefore, the ratio therein is of no
assistance to the facts in this case. It
cannot be considered that this Court
laid down as a proposition of law that
in every case the court would
examine at the preliminary stage
whether there would be ultimate
chances of conviction on the basis of
allegation and exercise of the power
under Section 482 or Article 226 to
quash the proceedings or the
charge-sheet.”
22. Thus, the judgment in Madhavrao Jiwajirao
Scindia does not lay down a law of universal
application. Even as per the law laid down
therein, the Court cannot examine the
facts/evidence, etc. in every case to find out as
to whether there is sufficient material on the
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basis of which the case would end in conviction.
The ratio of Madhavrao Jiwajirao Scindia is
applicable in cases where the Court finds that
the dispute involved therein is predominantly
civil in nature and that the parties should be
given a chance to each a compromise e.g.
matrimonial, property and family disputes, etc.
etc. The superior courts have been given
inherent powers to prevent the abuse of the
process of court; where the Court finds that the
ends of justice may be met by quashing the
proceedings, it may quash the proceedings, as
the end of achieving justice is higher than the
end of merely following the law. It is not
necessary for the Court to hold a fullfledged
inquiry or to appreciate the evidence, collected
by the investigating agency to find out whether
the case would end in conviction or acquittal.
25. The Supreme Court in the case of M. Srikanth v. State of Telangana,
reported in (2019) 10 SCC 373 has held as under :
17. It could thus be seen, that this Court has held, that
where the allegations made in the FIR or the complaint,
even if they are taken at their face value and accepted in
their entirety do not prima facie constitute a case against
the accused, the High Court would be justified in quashing
the proceedings. Further, it has been held that where the
uncontroverted allegations in the FIR and the evidence
collected in support of the same do not disclose any offence
and make out a case against the accused, the Court would
be justified in quashing the proceedings.
26. The Supreme Court in the case of M.N. Ojha v. Alok Kumar Srivastav
reported in (2009) 9 SCC 682 has held as under :
30. Interference by the High Court in exercise of its
jurisdiction under Section 482 of the Code of Criminal
Procedure can only be where a clear case for such
interference is made out. Frequent and uncalled for
interference even at the preliminary stage by the High
Courtmay result in causing obstruction in progress of the
inquiry in a criminal case which may not be in the public
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required where the allegations made in the FIR or
complaint are so absurd and inherently improbable on the
basis of which no fair minded and informed observer can
ever reach a just and proper conclusion as to the existence
of sufficient grounds for proceeding. In such cases refusal
to exercise the jurisdiction may equally result in injustice
more particularly in cases where the complainant sets the
criminal law in motion with a view to exert pressure and
harass the persons arrayed as accused in the complaint.
31. It is well settled and needs no restatement that the
saving of inherent power of the High Court in criminal
matters is intended 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 persecution.
[If such power is not conceded, it may even lead to
injustice.]” (See State of Karnataka v. L. Muniswamy, SCC
p. 703, para 7.)
32. We are conscious that “inherent powers do not confer
an arbitrary jurisdiction on the High Court to act according
to whim or caprice. That statutory power has to be
exercised sparingly, with circumspection and in the rarest
of rare cases”.(See Kurukshetra University v. State of
Haryana, SCC p.451, para 2.)
27. The Supreme Court in the case of CBI v. Arvind Khanna reported in
(2019) 10 SCC 686 has held as under :
17. After perusing the impugned order and on hearing the
submissions made by the learned Senior Counsel on both
sides, we are of the view that the impugned order passed by
the High Court is not sustainable. In a petition filed under
Section 482 CrPC, the High Court has recorded findings on
several disputed facts and allowed the petition. Defence of
the accused is to be tested after appreciating the evidence
during trial. The very fact that the High Court, in this case,
went into the most minute details, on the allegations made
by the appellant CBI, and the defence put forth by the
respondent, led us to a conclusion that the High Court has
exceeded its power, while exercising its inherent
jurisdiction under Section 482 CrPC.
18. In our view, the assessment made by the High Court at
this stage, when the matter has been taken cognizance of by
the competent court, is completely incorrect and uncalled
for.
28. Thus, it is clear that although this Court cannot make a roving enquiry
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at this stage, but if the un-controverted allegations do not make out any offence,
only then this Court can quash the F.I.R.
29. Further, the Supreme Court in the case of State of MP Vs. Kunwar
Singh by order dated 30.06.2021 passed in Cr.A. No.709/2021 has held that a
detailed and meticulous appreciation of evidence at the stage of 482 of CrPC is
not permissible and should not be done. In the case of Kunwar Singh (supra), the
Supreme Court held as under:-
“8………At this stage, the High Court ought not to be
scrutinizing the material in the manner in which the trial
court would do in the course of the criminal trial after
evidence is adduced. In doing so, the High Court has
exceeded the well-settled limits on the exercise of the
jurisdiction under Section 482 of CrPC. A detailed enquiry
into the merits of the allegations was not warranted. The
FIR is not expected to be an encyclopedia………..”.
30. On the anvil of the aforesaid law, this Court has already
examined the allegation of the present FIR and the criminal case when
decided the petition under section 482 of Cr.P.C filed by the father of the
applicant.
31. In view of the para no.27 of the judgment in the case of father of
the applicant, wherein this Court declined to interfere in respect of same FIR
and criminal proceedings, and this court has considered the submission of the
applicant and on examination of the facts floating on the surface of the case,
finds that prima facie allegation are existing in the FIR. The charges have
already been framed and the trial has already considered the prima facie
material. The said order has not been challenged.
32. In view of the aforesaid, this court does not find any case for
interference.
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33. Accordingly, the present petition stands dismissed.
(VIJAY KUMAR SHUKLA)
JUDGE
Sourabh
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