Delhi High Court
Nrupalbhai Narendrabhai Shah vs State Of Nct Of Delhi on 10 December, 2024
Author: Subramonium Prasad
Bench: Subramonium Prasad
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 10th DECEMBER, 2024
IN THE MATTER OF:
+ CRL.M.C. 769/2022 & CRL.M.A. 3211/2022
NRUPALBHAI NARENDRABHAI SHAH .....Petitioner
Through: Mr. Purvish Jitendra Malkan, Sr.
Advocate with Ms. Yashasvi
Virendra, Ms. Nandini Chabbra, Ms.
Neha Ambasta, Mr. Anany Virendra
Mishra and Ms. Gitika Dixit,
Advocates.
versus
STATE OF NCT OF DELHI .....Respondent
Through: Mr. Yudhvir Singh Chauhan, APP for
the State.
Mr. Pankaj Kumar Sharma, Advocate
for Respondent No.2.
SI Kiran Dayal, D-2009, PS Moti
Nagar
CORAM:
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
JUDGMENT
1. Petitioner has approached this Court seeking quashing of FIR
No.716/2021, dated 20.11.2021, registered at Police Station Moti Nagar for
offences under Sections 376/506/509 IPC.
2. It is pertinent to mention that charge-sheet has already been filed in
the FIR. The Petitioner has filed an application under Section 227 Cr.P.C.,
seeking discharge which has been dismissed vide Order dated 06.06.2023
passed by the learned Trial Court. This Court vide Order dated 10.12.2024
has affirmed the said Order. The present petition challenging the FIR has
been filed after the application for discharge has been dismissed by the
learned Trial Court.
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3. The facts, in brief, leading to the present Petition, are that the present
FIR was registered on the complaint of the Respondent No.2 herein who
stated that she used to work as a guard in Santoshi Mata Mandir at Jail
Road. It is stated that she became friends with one Savita in 2017, who told
the Prosecutrix about the Petitioner herein. It is stated that when the
Petitioner visited Delhi, Savita introduced him to the Prosecutrix. It is stated
that the Petitioner asked the Prosecutrix to invite him to her house. It is
further stated that one day when the Prosecutrix was outside the temple, the
Petitioner herein asked her that he wants to come to her house for having
tea. It is stated that the Petitioner came to the house of the Prosecutrix and
finding the Prosecutrix alone, the Petitioner herein committed rape on the
Prosecutrix. It is stated that the Petitioner herein promised marriage to the
Prosecutrix and asked her not to tell anyone about the incident. It is stated
that after the incident, the Petitioner came to Delhi twice and on both the
occasions, he made physical relations with the Prosecutrix on the pretext of
marriage. It is stated that the last such act was committed by the Petitioner
on 13.11.2020, when the Petitioner came to the house of the Prosecutrix and
made physical relations with her. It is further stated that during lockdown,
the Petitioner herein stopped talking with the Prosecutrix and coming to
Delhi. It is stated that on 31.10.2021, the Prosecutrix reached Ahmedabad to
meet the Petitioner at his office. It is stated that the Petitioner stopped her
outside his office and threatened her with dire consequences. It is stated that
on coming back to Delhi, the Prosecutrix lodged the complaint against the
Petitioner herein and the present FIR was registered.
4. It is stated that during the course of investigation, medical
examination of the Prosecutrix was done vide MLC No.7476/2021,
however, the Prosecutrix refused to undergo internal examination. It is
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stated that on 22.01.2022 the statement of the Prosecutrix under Section 164
Cr.P.C was recorded.
5. It is stated that the Petitioner filed an application before the Trial
Court seeking anticipatory bail. The Trial Court vide Order dated
05.01.2022 granted anticipatory bail to the Petitioner herein. It is stated that
the Petitioner joined investigation on 07.01.2022 and his medical
examination was conducted.
6. It is stated that during further investigation, Notice under Section 92
Cr.P.C. was served to get the CDR, CAF and location of the Petitioner and
the Prosecutrix. Material on record discloses that on analysis of the CDR,
CAF and location of the Petitioner and the Prosecutrix, no contact between
the Petitioner and the Prosecutrix was found. It is stated that investigation
was carried out to get the details of Savita from the Santoshi Mata Mandir,
Jail Road, but no details could be found as the register was destroyed. It is
further stated that during investigation the details from airlines has also been
verified and it was found that on 13.11.2020, the Petitioner herein along
with one Raj Guru Radhe Bapu and one Bharvad Ranubhai Bhaikabhai
came to Delhi by flight from Surat. It is stated that the statements of Raj
Guru Radhe Bapu and Bharvad Ranubhai Bhaikabhai were recorded under
Section 161 Cr.P.C wherein they stated that after coming to Delhi the
Petitioner was not with them and he went somewhere. In their statements
both Raj Guru Radhe Bapu and Bharvad Ranubhai Bhaikabhai have stated
that they along with the Petitioner herein reached Delhi on 13.11.2020 at
about 11 AM and they had a flight to Patna at about 3:55 PM on the very
same day. It is stated that while Raj Guru Radhe Bapu and Bharvad
Ranubhai Bhaikabhai stayed back at the Delhi Airport, the Petitioner herein
went somewhere stating that he has to meet someone. It is stated that the
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Petitioner returned after some time and then all the three boarded the flight
for Patna at 03:55 PM. It is stated that in his statement under Section 161
Cr.P.C, the son of the Prosecutrix has stated that the Petitioner knew the
Prosecutrix.
7. It is stated that after completion of investigation, chargesheet under
Sections 376/506/509 IPC has been filed.
8. Petitioner filed an application under Section 227 of the Cr.P.C before
the learned Additional Sessions Judge, Tis Hazari Courts, seeking discharge
from the charge-sheet. The learned Additional Sessions Judge vide Order
dated 06.06.2023 dismissed the application of the Petitioner herein by
holding that a prima facie case under Sections 376(2)(n) IPC and 506 IPC is
made out against the Petitioner. However, the learned Additional Sessions
Judge discharged the Petitioner of offences under Section 509 IPC.
9. The Petitioner has, thereafter, approached this Court seeking quashing
of FIR No.716/2021, dated 20.11.2021, registered at Police Station Moti
Nagar for offences under Sections 376/506/509 IPC.
10. Learned Counsel appearing for the Petitioner contends that the only
person who could depose the fact that the Petitioner knew the Prosecutrix
was the friend of the Prosecutrix – Savita, who allegedly had introduced the
Prosecutrix to the Petitioner herein. He states that Savita has not been
included as a witness in the charge-sheet, rather, there is no information
regarding that lady as all the registers of Santoshi Mata Mandir have been
destroyed. He, therefore, states that there is nothing to show that the
Petitioner knew the Prosecutrix. He states that the statement of the son of the
Prosecutrix under Section 161 Cr.P.C cannot be believed as he is related to
the Prosecutrix. He further states that the FIR is vague regarding date and
time on which the Petitioner has made forceful physical relationship with the
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Prosecutrix. He states that the only date that is relevant to the present case is
13.11.2020. He states that on 13.11.2020, the Petitioner was travelling from
Surat to Patna via Delhi. He states that the Petitioner landed in Delhi at
11:00 AM and boarded the flight for Patna from Delhi Airport at 03:55 PM
and there is nothing on record to show that the Petitioner left the airport
between 11:00 AM – 03:55 PM. He has taken this Court through the
transactional history of the Petitioner on 13.11.2020 to state that while the
Petitioner was in the airport he bought some refreshments and, therefore, it
cannot be said that the Petitioner has left the airport after completing the
formalities and he came back to the airport at least one hour before boarding
the flight to Patna. He, therefore, states that the present FIR be quashed.
Other than submitting that the story of the prosecution regarding the incident
occurred on 13.11.2020 is not a probable story, no arguments were advanced
regarding the allegation of promise to marry.
11. Per contra, learned APP for the State and the learned Counsel for the
Prosecutrix state that while exercising jurisdiction under Section 482 Cr.P.C
the Court must be cautious in exercising its power to quash an FIR. They
state that the statement of the Prosecutrix under Section 164 Cr.P.C. coupled
with the statement under Section 161 Cr.P.C of Raj Guru Radhe Bapu and
Bharvad Ranubhai Bhaikabhai, who accompanied the Petitioner to Patna,
shows that the Petitioner was not with them between 11:00 AM -03:55 PM
and he had told them that he has to meet someone makes out a prima facie
case against the Petitioner and, therefore, the present FIR should not be
quashed.
12. Heard the Counsels for the parties and perused the material on record.
13. It is well settled that the High Court must exercise its power under
Section 482 Cr.P.C with circumspection. It is well established that the power
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of quashing should be exercised very sparingly and with circumspection and
in rare cases and at the time of quashing an FIR the Court should not embark
upon any enquiry as made in the FIR. Way back in 1960 the Apex Court in
R.P. Kapur v. State of Punjab, 1960 SCC OnLine SC 21, has laid down the
principle for quashing any criminal proceedings. Relevant portion of the said
Judgment reads as under:
“14. In R.P. Kapur v. State of Punjab [AIR 1960 SC
866] this Court summarised some categories of cases
where inherent power can and should be exercised to
quash the proceedings:
(i) where it manifestly appears that there is a legal bar
against the institution or continuance of the
proceedings;
(ii) where the allegations in the first information report
or complaint taken at their 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.”
14. The said Judgment has been followed by the Apex Court in Gorige
Pentaiah v. State of A.P., (2008) 12 SCC 531, wherein the Apex Court has
observed as under:
“12. This Court in a number of cases has laid down the
scope and ambit of courts’ powers under Section 482
CrPC. 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. Inherent
power under Section 482 CrPC can be exercised:
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(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.
Inherent powers under Section 482 CrPC though wide
have to be exercised sparingly, carefully and with
great caution and only when such exercise is justified
by the tests specifically laid down in this section itself.
Authority of the court exists for the advancement of
justice. 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.”
15. In State of A.P. v. Golconda Linga Swamy, (2004) 6 SCC 522, the
Apex Court has 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,
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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.”
16. In Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque,
(2005) 1 SCC 122, the Apex Court has held as under:
“11. The scope of exercise of power under Section 482
of the Code and the categories of cases where the High
Court may exercise its power under it relating to
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cognizable offences to prevent abuse of process of any
court or otherwise to secure the ends of justice were set
out in some detail by this Court in State of Haryana v.
Bhajan Lal [1992 Supp (1) SCC 335 : 1992 SCC (Cri)
426] . A note of caution was, however, added that the
power should be exercised sparingly and that too in
rarest of rare cases. The illustrative categories
indicated by this Court are as follows : (SCC pp. 378-
79, para 102)“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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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 fides 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.”
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 Janata Dal v. H.S. Chowdhary
[(1992) 4 SCC 305 : 1993 SCC (Cri) 36] and Raghubir
Saran (Dr.) v. State of Bihar [AIR 1964 SC 1 : (1964)
Signature Not Verified 2 SCR 336 : (1964) 1 Cri LJ 1] .] It would not be
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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 cognizance 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 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
that the ingredients of the offence or offences are
disclosed and there is no material to show that the
complaint 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
proceedings. [See Dhanalakshmi v. R. Prasanna
Kumar [1990 Supp SCC 686 : 1991 SCC (Cri) 142] ,
State of Bihar v. P.P. Sharma [1992 Supp (1) SCC 222
: 1992 SCC (Cri) 192 : AIR 1991 SC 1260] , Rupan
Deol Bajaj v. Kanwar Pal Singh Gill [(1995) 6 SCC
194 : 1995 SCC (Cri) 1059] , State of Kerala v. O.C.
Kuttan [(1999) 2 SCC 651 : 1999 SCC (Cri) 304 : AIR
Signature Not Verified 1999 SC 1044] , State of U.P. v. O.P. Sharma [(1996)
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7 SCC 705 : 1996 SCC (Cri) 497] , Rashmi Kumar v.
Mahesh Kumar Bhada [(1997) 2 SCC 397 : 1997 SCC
(Cri) 415] , Satvinder Kaur v. State (Govt. of NCT of
Delhi) [(1999) 8 SCC 728 : 1999 SCC (Cri) 1503 : AIR
1999 SC 3596] and Rajesh Bajaj v. State NCT of Delhi
[(1999) 3 SCC 259 : 1999 SCC (Cri) 401] .]
17. In State of Maharashtra v. Arun Gulab Gawali, (2010) 9 SCC 701, the
Apex Court has observed as under:
“13. The power of quashing criminal proceedings has
to be exercised very sparingly and with circumspection
and that too in the rarest of rare cases and the Court
cannot be justified in embarking upon an enquiry as to
the reliability or genuineness or otherwise of
allegations made in the FIR/complaint, unless the
allegations are so patently absurd and inherently
improbable so that no prudent person can ever reach
such a conclusion. The extraordinary and inherent
powers of the Court do not confer an arbitrary
jurisdiction on the Court to act according to its whims
or caprice. However, the Court, under its inherent
powers, can neither intervene at an uncalled for stage
nor can it “soft-pedal the course of justice” at a
crucial stage of investigation/proceedings. The
provisions of Articles 226, 227 of the Constitution of
India and Section 482 of the Code of Criminal
Procedure, 1973 (hereinafter called as “CrPC”) are a
device to advance justice and not to frustrate it. The
power of judicial review is discretionary, however, it
must be exercised to prevent the miscarriage of justice
and for correcting some grave errors and to ensure
that stream of administration of justice remains clean
and pure. However, there are no limits of power of the
Court, but the more the power, the more due care and
caution is to be exercised in invoking these powers.
(Vide State of W.B. v. Swapan Kumar Guha [(1982) 1
SCC 561 : 1982 SCC (Cri) 283 : AIR 1982 SC 949] ,
Pepsi Foods Ltd. v. Special Judicial Magistrate
[(1998) 5 SCC 749 : 1998 SCC (Cri) 1400] , G. Sagar
Signature Not Verified Suri v. State of U.P. [(2000) 2 SCC 636 : 2000 SCC
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(Cri) 513 : AIR 2000 SC 754] and Ajay Mitra v. State
of M.P. [(2003) 3 SCC 11 : 2003 SCC (Cri) 703] )”
18. In State of Odisha v. Pratima Mohanty, (2022) 16 SCC 703, the Apex
Court has held as under:
“8.2. It is trite that the power of quashing should be
exercised sparingly and with circumspection and in
rare cases. As per the settled proposition of law while
examining an FIR/complaint quashing of which is
sought, the court cannot embark upon any enquiry as
to the reliability or genuineness of allegations made in
the FIR/complaint. Quashing of a complaint/FIR
should be an exception rather than any ordinary rule.
Normally the criminal proceedings should not be
quashed in exercise of powers under Section 482CrPC
when after a thorough investigation the charge-sheet
has been filed. At the stage of discharge and/or
considering the application under Section 482CrPC
the courts are not required to go into the merits of the
allegations and/or evidence in detail as if conducting
the mini-trial. As held by this Court the powers under
Section 482CrPC are very wide, but conferment of
wide power requires the court to be more cautious. It
casts an onerous and more diligent duty on the Court.”
19. The Apex Court in Neeharika Infrastructure Private Limited v. State
of Maharashtra & Ors., (2021) 19 SCC 401, has culled out the entire law till
the time of passing of the judgment as to when an FIR can be quashed.
Paragraph 10 of the said judgment reads as under:-
“10. While considering the aforesaid issue, law on the
exercise of powers by the High Court under Section
482CrPC and/or under Article 226 of the Constitution
of India to quash the FIR/complaint and the
parameters for exercise of such powers and scope and
ambit of the power by the High Court under Section
482CrPC and/or under Article 226 of the Constitution
of India are required to be referred to as the very
Signature Not Verified parameters which are required to be applied while
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quashing the FIR will also be applicable while
granting interim stay/protection.
10.1. The first case on the point which is required to be
noticed is the decision of this Court in R.P. Kapur
[R.P. Kapur v. State of Punjab, 1960 SCC OnLine SC
21 : AIR 1960 SC 866] . While dealing with the
inherent powers of the High Court under Section 561-
A of the earlier Code (which is in pari materia with
Section 482 of the Code), it is observed and held that
the inherent powers of the High Court under Section
561 of the earlier Code cannot be exercised in regard
to the matters specifically covered by the other
provisions of the Code; the inherent jurisdiction of the
High Court can be exercised to quash proceedings in
a proper case either to prevent the abuse of the
process of any court or otherwise to secure the ends
of justice; ordinarily criminal proceedings instituted
against an accused person must be tried under the
provisions of the Code, and the High Court would be
reluctant to interfere with the said proceedings at an
interlocutory stage. After observing this, thereafter this
Court then carved out some exceptions to the
abovestated rule, which are as under : (AIR p. 866)“(i) Where it manifestly appears that there is a legal
bar against the institution or continuance of the
criminal proceeding in respect of the offence
alleged. Absence of the requisite sanction may, for
instance, furnish cases under this category.
(ii) Where the allegations in the first information
report or the complaint, even if they are taken at
their face value and accepted in their entirety, do
not constitute the offence alleged; in such cases no
question of appreciating evidence arises; it is a
matter merely of looking at the complaint or the first
information report to decide whether the offence
alleged is disclosed or not.
Signature Not Verified (iii) Where the allegations made against the
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accused person do constitute an offence alleged but
there is either no legal evidence adduced in support
of the case or the evidence adduced clearly or
manifestly fails to prove the charge. In dealing with
this class of cases it is important to bear in mind the
distinction between a case where there is no legal
evidence or where there is evidence which is
manifestly and clearly inconsistent with the
accusation made and cases where there is legal
evidence which on its appreciation may or may not
support the accusation in question. In exercising its
jurisdiction under Section 561-A the High Court
would not embark upon an enquiry as to whether the
evidence in question is reliable or not. That is the
function of the trial Magistrate, and ordinarily it
would not be open to any party to invoke the High
Court’s inherent jurisdiction and contend that on a
reasonable appreciation of the evidence the
accusation made against the accused would not be
sustained.” (emphasis supplied)
10.2. In Kurukshetra University [Kurukshetra
University v. State of Haryana, (1977) 4 SCC 451 :
1977 SCC (Cri) 613] , this Court observed and held
that inherent powers under Section 482CrPC 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. In the case before this
Court, the High Court quashed the first information
report filed by the Kurukshetra University through
Warden and that too without issuing notice to the
University, in exercise of inherent powers under
Section 482CrPC. This Court noticed and observed
that the High Court was not justified in quashing the
FIR when the police had not even commenced
investigation into the complaint filed by the Warden of
the University and no proceedings were at all pending
before any Court in pursuance of the FIR.
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10.3. Then comes the celebrated decision of this Court
in Bhajan Lal [State of Haryana v. Bhajan Lal, 1992
Supp (1) SCC 335 : 1992 SCC (Cri) 426] . In the said
decision, this Court considered in detail the scope of
the High Court powers under Section 482CrPC and/or
Article 226 of the Constitution of India to quash the
FIR and referred to several judicial precedents and
held that the High Court should not embark upon an
inquiry into the merits and demerits of the allegations
and quash the proceedings without allowing the
investigating agency to complete its task. At the same
time, this Court identified the following cases in which
FIR/complaint can be quashed:
“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.
Signature Not Verified (5) Where the allegations made in the FIR or
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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 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 fides 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.”
10.4. In Golconda Linga Swamy [State of A.P. v.
Golconda Linga Swamy, (2004) 6 SCC 522 : 2004
SCC (Cri) 1805] , after considering the decisions of
this Court in R.P. Kapur [R.P. Kapur v. State of
Punjab, 1960 SCC OnLine SC 21 : AIR 1960 SC 866]
and Bhajan Lal [State of Haryana v. Bhajan Lal, 1992
Supp (1) SCC 335 : 1992 SCC (Cri) 426] and other
decisions on the exercise of inherent powers by the
High Court under Section 482CrPC, in paras 5, 7 and
8, it is observed and held as under : (Golconda Linga
Swamy case [State of A.P. v. Golconda Linga Swamy,
(2004) 6 SCC 522 : 2004 SCC (Cri) 1805] , SCC pp.
526-29)
“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
Signature Not Verified enactment of the Code. It envisages three
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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
Signature Not Verified it finds that initiation or continuance of it amounts
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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.
***
7. In dealing with the last category, it is important
to bear in mind the distinction between a case
where there is no legal evidence or where there is
evidence which is clearly inconsistent with the
accusations made, and a case where there is legal
evidence which, on appreciation, may or may not
support the accusations. When 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. Judicial process, no
doubt should not be an instrument of oppression, or,
needless harassment. Court should be circumspect
and judicious in exercising discretion and should
take all relevant facts and circumstances into
consideration before issuing process, lest it would
be an instrument in the hands of a private
complainant to unleash vendetta to harass any
person needlessly. At the same time the section is not
an instrument handed over to an accused to short-
circuit a prosecution and bring about its sudden
death. …
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
Signature Not Verified caution in its exercise. Court must be careful to see
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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 Janata Dal v. H.S.
Chowdhary [Janata Dal v. H.S. Chowdhary, (1992)
4 SCC 305 : 1993 SCC (Cri) 36] and Raghubir
Saran v. State of Bihar [Raghubir Saran v. State of
Bihar, 1963 SCC OnLine SC 102 : AIR 1964 SC 1]
.] 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
Signature Not Verified complaint/FIR has to be read as a whole. If it
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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.”
10.5. In Zandu Pharmaceutical Works Ltd. [Zandu
Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque,
(2005) 1 SCC 122 : 2005 SCC (Cri) 283] , in para 11,
this Court has observed and held as under : (SCC pp.
129-30)
“11. … 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
Signature Not Verified cases in which the High Court will exercise its
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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. 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 cognizance 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 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
that the ingredients of the offence or offences are
disclosed and there is no material to show that the
complaint 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 proceedings.”
10.6. In Sanapareddy Maheedhar Seshagiri
Signature Not Verified [Sanapareddy Maheedhar Seshagiri v. State of A.P.,
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(2007) 13 SCC 165 : (2009) 1 SCC (Cri) 170] , in para
31, it is observed and held as under : (SCC p. 180)
“31. A careful reading of the abovenoted
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 FIR does not disclose
commission of any offence or that the allegations
contained in 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 FIR or complaint or
restraining the competent authority from
investigating the allegations contained in 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 FIR or
complaint disclose commission of some crime, then
the High Court must keep its hands 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 FIR or the
complainant. The High Court must also refrain from
Signature Not Verified making imaginary journey in the realm of possible
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harassment which may be caused to the petitioner
on account of investigation of 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
482CrPC.”
10.7. In Arun Gulab Gawali [State of Maharashtra v.
Arun Gulab Gawali, (2010) 9 SCC 701 : (2010) 3 SCC
(Cri) 1459] , this Court set aside the order [Arun
Gulab Gawali v. State of Maharashtra, 2006 SCC
OnLine Bom 1524] passed by the High Court quashing
the criminal complaint/FIR which was even filed by the
complainant. In the case before this Court, prayer for
quashing the FIR before the High Court was by the
complainant himself and the High Court quashed the
FIR/complaint in exercise of the powers under Section
482CrPC. Quashing and setting aside the judgment
and order passed by the High Court quashing the FIR,
this Court in paras 13 and 27 to 29 has observed as
under : (Arun Gulab Gawali case [State of
Maharashtra v. Arun Gulab Gawali, (2010) 9 SCC 701
: (2010) 3 SCC (Cri) 1459] , SCC pp. 706 & 710)
“13. The power of quashing criminal proceedings
has to be exercised very sparingly and with
circumspection and that too in the rarest of rare
cases and the court cannot be justified in
embarking upon an enquiry as to the reliability or
genuineness or otherwise of allegations made in
the FIR/complaint, unless the allegations are so
patently absurd and inherently improbable so that
no prudent person can ever reach such a
conclusion. The extraordinary and inherent powers
of the Court do not confer an arbitrary jurisdiction
Signature Not Verified on the Court to act according to its whims or
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caprice. However, the Court, under its inherent
powers, can neither intervene at an uncalled for
stage nor can it “soft-pedal the course of justice” at
a crucial stage of investigation/proceedings. The
provisions of Articles 226, 227 of the Constitution of
India and Section 482 of the Code of Criminal
Procedure, 1973 (hereinafter called as “CrPC”) are
a device to advance justice and not to frustrate it.
The power of judicial review is discretionary,
however, it must be exercised to prevent the
miscarriage of justice and for correcting some
grave errors and to ensure that stream of
administration of justice remains clean and pure.
However, there are no limits of power of the Court,
but the more the power, the more due care and
caution is to be exercised in invoking these powers.
(Vide State of W.B. v. Swapan Kumar Guha [State of
W.B. v. Swapan Kumar Guha, (1982) 1 SCC 561 :
1982 SCC (Cri) 283] , Pepsi Foods Ltd. v. Special
Judicial Magistrate [Pepsi Foods Ltd. v. Special
Judicial Magistrate, (1998) 5 SCC 749 : 1998 SCC
(Cri) 1400] , G. Sagar Suri v. State of U.P. [G.
Sagar Suri v. State of U.P., (2000) 2 SCC 636 : 2000
SCC (Cri) 513] and Ajay Mitra v. State of M.P.
[Ajay Mitra v. State of M.P., (2003) 3 SCC 11 : 2003
SCC (Cri) 703] )***
27. The High Court proceeded [Arun Gulab Gawali
v. State of Maharashtra, 2006 SCC OnLine Bom
1524] on the perception that as the complainant
himself was not supporting the complaint, he would
not support the case of the prosecution and there
would be no chance of conviction, thus the trial itself
would be a futile exercise. Quashing of
FIR/complaint on such a ground cannot be held to
be justified in law. Ordinarily, the Court of Session
is empowered to discharge an accused under Section
227CrPC even before initiating the trial. The
Signature Not Verified accused can, therefore, move the trial court itself for
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such a relief and the trial court would be in a better
position to analyse and pass an order as it is
possessed of all the powers and the material to do
so. It is, therefore, not necessary to invoke the
jurisdiction under Section 482CrPC for the
quashing of a prosecution in such a case. The
reliance on affidavits by the High Court would be a
weak, hazy and unreliable source for adjudication
on the fate of a trial. The presumption that an
accused would never be convicted on the material
available is too risky a proposition to be accepted
readily, particularly in heinous offences like
extortion.
28. A claim founded on a denial by the complainant
even before the trial commences coupled with an
allegation that the police had compelled the lodging
of a false FIR, is a matter which requires further
investigation as the charge is levelled against the
police. If the prosecution is quashed, then neither
the trial court nor the investigating agency has any
opportunity to go into this question, which may
require consideration. The State is the prosecutor
and all prosecution is the social and legal
responsibility of the State. An offence committed is a
crime against society and not against the victim
alone. The victim under undue pressure or influence
of the accused or under any threat or compulsion
may resile back but that would not absolve the State
from bringing the accused to book, who has
committed an offence and has violated the law of the
land.
29. Thus, while exercising such power the Court has
to act cautiously before proceeding to quash a
prosecution in respect of an offence which hits and
affects the society at large. It should be a case where
no other view is possible nor any investigation or
inquiry is further required. There cannot be a
general proposition of law, so as to fit in as a
Signature Not Verified straitjacket formula for the exercise of such power.
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Each case will have to be judged on its own merit
and the facts warranting exercise of such power.
More so, it was not a case of civil nature where
there could be a possibility of compromise or
involving an offence which may be compoundable
under Section 320CrPC, where the Court could
apply the ratio of Madhavrao Jiwajirao Scindia v.
Sambhajirao Chandrojirao Angre [Madhavrao
Jiwajirao Scindia v. Sambhajirao Chandrojirao
Angre, (1988) 1 SCC 692 : 1988 SCC (Cri) 234] .”
(emphasis in original)
10.8. Thereafter in a catena of decisions, this Court
has reiterated the parameters for exercise of inherent
powers under Section 482CrPC and/or under Article
226 of the Constitution of India in the matter of
quashing the FIR/complaint.”
(emphasis supplied)
20. It is trite law that an accused gets several stages to close the
proceedings, however, the Court must keep in mind the rights of the victim
as the victim cannot be left remediless.
21. Applying the law laid down by the Apex Court to the facts of the
present case, this Court is of the opinion that the fact that the Prosecutrix in
her statement under 164 Cr.P.C has stated that she became friends with the
Petitioner herein and he made forceful physical relations with the
Prosecutrix on several occasions on the pretext of marriage and the fact that
the Prosecutrix has very specifically stated that on 13.11.2020 the Petitioner
came and made forceful physical relations with her coupled with the
statement of Raj Guru Radhe Bapu and Bharvad Ranubhai Bhaikabhai, who
stated that the Petitioner was not with them between 11:00 AM – 03:55 PM
on 13.11.2020 and that he had told them that he has to go meet someone,
Signature Not Verified makes out a prima facie case against the Petitioner. The fact as to whether
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the transactions, as shown by the learned Counsel for the Petitioner, took
place during the interregnum when the Petitioner was in the Airport is a
matter of trial and it cannot be said to be an evidence which is
unimpeachable in nature and sterling in quality for this Court to exercise its
jurisdiction under Section 482 Cr.P.C to quash the present FIR at this
juncture. As stated before, arguments were not advanced on the question of
promise to marry by the learned Counsel for the Petitioner.
22. In view of the above, the Petition is dismissed along with the pending
application(s), if any.
SUBRAMONIUM PRASAD, J
DECEMBER 10, 2024
Rahul
Signature Not Verified
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