The position that emerges from the above discussion can be summarised thus: the power of
the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent
jurisdiction is distinct and different from the power given to a criminal court for compounding the
offences under Section 320 of the Code. Inherent power is of wide plenitude with no statutory
limitation but it has to be exercised in accord with the guideline engrafted in such power viz; (i)
to secure the ends of justice or (ii) to prevent abuse of the process of any Court. In what cases
power to quash the criminal proceeding or complaint or F.I.R may be exercised where the
offender and victim have settled their dispute would depend on the facts and circumstances of
each case and no category can be prescribed. However, before exercise of such power, the High
Court must have due regard to the nature and gravity of the crime. Heinous and serious offences
of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even
though the victim or victim’s family and the offender have settled the dispute. Such offences are
not private in nature and have serious impact on society. Similarly, any compromise between the
victim and offender in relation to the offences under special statutes like Prevention of Corruption
Act or the offences committed by public servants while working in that capacity etc; cannot
provide for any basis for quashing criminal proceedings involving such offences. But the criminal
cases having overwhelmingly and pre-dominatingly civil flavour stand on different footing for the
purposes of quashing, particularly the offences arising from commercial, financial, mercantile,
civil, partnership or such like transactions or the offences arising out of matrimony relating to
dowry, etc. or the family disputes where the wrong is basically private or personal in nature and
the parties have resolved their entire dispute. In this category of cases, High Court may quash
criminal proceedings if in its view, because of the compromise between the offender and victim,
the possibility of conviction is remote and bleak and continuation of criminal case would put
accused to great oppression and prejudice and extreme injustice would be caused to him by not
quashing the criminal case despite full and complete settlement and compromise with the victim.
In other words, the High Court must consider whether it would be unfair or contrary to the
interest of justice to continue with the criminal proceeding or continuation of the criminal
proceeding would tantamount to abuse of process of law despite settlement and compromise
between the victim and wrongdoer and whether to secure the ends of justice, it is appropriate that
criminal case is put to an end and if the answer to the above question(s) is in affirmative, the High
Court shall be well within its jurisdiction to quash the criminal proceeding.
Gian Singh Vs. State of Punjab
SUPREME COURT OF INDIA
(R.M. LODHA, ANIL R. DAVE & SUDHANSU JYOTI MUKHOPADHAYA, JJ.)
Decided on 24-09-2012.
Quashing of FIR – Cheating – Compromise
JUDGEMENT
R.M. Lodha, J.-When the special leave petition in Gian Singh v. State of Punjab and another
came up for hearing, a two-Judge Bench (Markandey Katju and Gyan Sudha Misra, JJ.) doubted
the correctness of the decisions of this Court in B.S. Joshi and others v. State of Haryana and
another [(2003) 4 SCC 675], Nikhil Merchant v. Central Bureau of Investigation and
another [(2008) 9 SCC 677] and Manoj Sharma v. State and others [(2008) 16 SCC 1] and
referred the matter to a larger Bench. The reference order reads as follows:
“Heard learned counsel for the petitioner.
The petitioner has been convicted under Section 420 and Section 120B, IPC by the
learned Magistrate. He filed an appeal challenging his conviction before the learned
Sessions Judge. While his appeal was pending, he filed an application before the learned
Sessions Judge for compounding the offence, which, according to the learned counsel,
was directed to be taken up along with the main appeal. Thereafter, the petitioner filed a
petition under Section 482, Cr.P.C. for quashing of the FIR on the ground of
compounding the offence. That petition under Section 482 Cr.P.C. has been dismissed by
the High Court by its impugned order. Hence, this petition has been filed in this Court.
Learned counsel for the petitioner has relied on three decisions of this Court, all by two
Judge Benches. They are B.S. Joshi vs. State of Haryana (2003) 4 SCC 675; Nikhil
Merchant vs. Central Bureau of Investigation and Another (2008) 9 SCC 677; and
Manoj Sharma vs. State and Others (2008) 16 SCC 1. In these decisions, this Court
has indirectly permitted compounding of non-compoundable offences. One of us,
Hon’ble Mr. Justice Markandey Katju, was a member to the last two decisions.
Section 320, Cr.P.C. mentions certain offences as compoundable, certain other offences
as compoundable with the permission of the Court, and the other offences as non-
compoundable vide Section 320(7).
Section 420, IPC, one of the counts on which the petitioner has been convicted, no
doubt, is a compoundable offence with permission of the Court in view of Section 320,
Cr.P.C. but Section 120B IPC, the other count on which the petitioner has been
convicted, is a non-compoundable offence. Section 120B (Criminal conspiracy) is a
separate offence and since it is a non-compoundable offence, we cannot permit it to be
compounded.
The Court cannot amend the statute and must maintain judicial restraint in this
connection. The Courts should not try to take over the function of the Parliament or
executive. It is the legislature alone which can amend Section 320 Cr.P.C.
We are of the opinion that the above three decisions require to be re-considered as, in our
opinion, something which cannot be done directly cannot be done indirectly. In our,
prima facie, opinion, non-compoundable offences cannot be permitted to be compounded
by the Court, whether directly or indirectly. Hence, the above three decisions do not
appear to us to be correctly decided.
It is true that in the last two decisions, one of us, Hon’ble Mr. Justice Markandey Katju,
was a member but a Judge should always be open to correct his mistakes. We feel that
these decisions require re-consideration and hence we direct that this matter be placed
before a larger Bench to reconsider the correctness of the aforesaid three decisions.
Let the papers of this case be placed before Hon’ble Chief Justice of India for
constituting a larger Bench.”
2. This is how these matters have come up for consideration before us. 3. Two provisions of the
Code of Criminal Procedure, 1973 (for short, ‘Code’) which are vital for consideration of the
issue referred to the larger Bench are Sections 320 and 482. Section 320 of the Code provides for
compounding of certain offences punishable under the Indian Penal Code, 1860 (for short, ‘IPC’).
It reads as follows:
“S. 320. Compounding of offences.—
(1) The offences punishable under the sections of the Indian Penal Code, (45 of 1860)
specified in the first two columns of the Table next following may be compounded by the
persons mentioned in the third column of that Table :
TABLE
Offence Section of the Indian Penal
Code applicable
Person by whom
offence may be
compounded
(2) The offences punishable under the sections of the Indian Penal Code (45 of 1860)
specified in the first two columns of the table next following may, with the permission of
the Court before which any prosecution for such offence is pending, be compounded by
the persons mentioned in the third column of that Table:--
TABLE
Offence Section of the Indian Penal Code
applicable
Person by whom offence may
be compounded
1 2 3
(3) When an offence is compoundable under this section, the abatement of such offence
or an attempt to commit such offence (when such attempt is itself an offence) or where
the accused is liable under section 34 or 149 of the Indian Penal Code (45 of 1860) may
be compounded in like manner.
(4) (a) When the person who would otherwise be competent to compound an offence
under this section is under the age of eighteen years or is an idiot or a lunatic, any person
competent to contract on his behalf, may, with the permission of the Court, compound
such offence.
(b) When the person who would otherwise be competent to compound an offence under
this section is dead, the legal representative, as defined in the Code of Civil Procedure,
1908 of such person may, with the consent of the Court, compound such offence.
(5) When the accused has been committed for trial or when he has been convicted and an
appeal is pending, no composition for the offence shall be allowed without the leave of
the Court to which he is committed, or, as the case may be, before which the appeal is to
be heard.
(6) A High Court or Court of Session acting in the exercise of its powers of revision
under section 401 may allow any person to compound any offence which such person is
competent to compound under this section.
(7) No offence shall be compounded if the accused is, by reason of a previous conviction,
liable either to enhanced punishment or to a punishment of a different kind for such
offence.
(8) The composition of an offence under this section shall have the effect of an acquittal
of the accused with whom the offence has been compounded.
(9) No offence shall be compounded except as provided by this section.”
4. Section 482 saves the inherent power of the High Court and it reads as follows:
“S. 482. Saving of inherent power of High Court.—Nothing in this Code shall be deemed
to limit or affect the inherent powers of the High Court to make such orders as may be
necessary to give effect to any order under this Code, or to prevent abuse of the process
of any Court or otherwise to secure the ends of justice.”
5. In B.S. Joshi1 , the undisputed facts were these : the husband was one of the appellants while
the wife was respondent no. 2 in the appeal before this Court. They were married on 21.7.1999 2012 STPL(Web) 521 SC 4
Gian Singh Vs. State of Punjab
Supreme Court Judgements @ www.stpl-india.in
and were living separately since 15.7.2000. An FIR was registered under Sections 498-A/323 and
406, IPC at the instance of the wife on 2.1.2002. When the criminal case registered at the instance
of the wife was pending, the dispute between the husband and wife and their family members was
settled. It appears that the wife filed an affidavit that her disputes with the husband and the other
members of his family had been finally settled and she and her husband had agreed for mutual
divorce. Based on the said affidavit, the matter was taken to the High Court by both the parties
and they jointly prayed for quashing the criminal proceedings launched against the husband and
his family members on the basis of the FIR registered at the wife’s instance under Sections 498-A
and 406 IPC. The High Court dismissed the petition for quashing the FIR as in its view the
offences under Sections 498-A and 406, IPC were non-compoundable and the inherent powers
under Section 482 of the Code could not be invoked to by-pass Section 320 of the Code. It is
from this order that the matter reached this Court. This Court held that the High Court in exercise
of its inherent powers could quash criminal proceedings or FIR or complaint and Section 320 of
the Code did not limit or affect the powers under Section 482 of the Code. The Court in
paragraphs 14 and 15 (Pg. 682) of the Report held as under :
“14. There is no doubt that the object of introducing Chapter XX- A containing Section
498-A in the Indian Penal Code was to prevent torture to a woman by her husband or by
relatives of her husband. Section 498-A was added with a view to punishing a husband
and his relatives who harass or torture the wife to coerce her or her relatives to satisfy
unlawful demands of dowry. The hypertechnical view would be counterproductive and
would act against interests of women and against the object for which this provision was
added. There is every likelihood that non-exercise of inherent power to quash the
proceedings to meet the ends of justice would prevent women from settling earlier. That
is not the object of Chapter XX-A of the Indian Penal Code.
15. In view of the above discussion, we hold that the High Court in exercise of its
inherent powers can quash criminal proceedings or FIR or complaint and Section 320 of
the Code does not limit or affect the powers under Section 482 of the Code.”
6. In Nikhil Merchant2, a company, M/s. Neemuch Emballage Ltd., Mumbai was granted
financial assistance by Andhra Bank under various facilities. On account of default in repayment
of loans, the bank filed a suit for recovery of the amount payable by the borrower company. The
bank also filed a complaint against the company, its Managing Director and the officials of
Andhra Bank for diverse offences, namely, Section 120-B read with Sections 420, 467, 468, 471
of the IPC read with Sections 5(2) and 5(1)(d) of the Prevention of Corruption Act, 1947 and
Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. The suit for
recovery filed by the bank against the company and the Managing Director of the Company was
compromised. The suit was compromised upon the defendants agreeing to pay the amounts due
as per the schedule mentioned in the consent terms. Clause 11 of the consent terms read, “agreed
that save as aforesaid neither party has any claim against the other and parties do hereby
withdraw all the allegations and counter-allegations made against each other”. Based on clause 11
of the consent terms, the Managing Director of the Company, the appellant who was accused no.
3 in charge sheet filed by CBI, made application for discharge from the criminal complaint. The
said application was rejected by the Special Judge (CBI), Greater Bombay, which came to be
challenged before the Bombay High Court. The contention before the High Court was that since
the subject matter of the dispute had been settled between the appellant and the bank, it would be
unreasonable to continue with the criminal proceedings. The High Court rejected the application
for discharge from the criminal cases. It is from this order that the matter reached this Court by
way of special leave. The Court having regard to the facts of the case and the earlier decision of
this Court in B.S. Joshi1, set aside the order of the High Court and quashed the criminal
proceedings by consideration of the matter thus:
“28. The basic intention of the accused in this case appears to have been to misrepresent
the financial status of the Company, M/s Neemuch Emballage Ltd., Mumbai, in order to
avail of the credit facilities to an extent to which the Company was not entitled. In other
words, the main intention of the Company and its officers was to cheat the Bank and
induce it to part with additional amounts of credit to which the Company was not
otherwise entitled.
29. Despite the ingredients and the factual content of an offence of cheating punishable
under Section 420 IPC, the same has been made compoundable under sub-section (2) of
Section 320 CrPC with the leave of the court. Of course, forgery has not been included as
one of the compoundable offences, but it is in such cases that the principle enunciated in
B.S. Joshi case becomes relevant.
30. In the instant case, the disputes between the Company and the Bank have been set at
rest on the basis of the compromise arrived at by them whereunder the dues of the Bank
have been cleared and the Bank does not appear to have any further claim against the
Company. What, however, remains is the fact that certain documents were alleged to
have been created by the appellant herein in order to avail of credit facilities beyond the
limit to which the Company was entitled. The dispute involved herein has overtones of a
civil dispute with certain criminal facets. The question which is required to be answered
in this case is whether the power which independently lies with this Court to quash the
criminal proceedings pursuant to the compromise arrived at, should at all be exercised?
31. On an overall view of the facts as indicated hereinabove and keeping in mind the
decision of this Court in B.S. Joshi case and the compromise arrived at between the
Company and the Bank as also Clause 11 of the consent terms filed in the suit filed by the
Bank, we are satisfied that this is a fit case where technicality should not be allowed to
stand in the way in the quashing of the criminal proceedings, since, in our view, the
continuance of the same after the compromise arrived at between the parties would be a
futile exercise.”
7. In Manoj Sharma3, the Court was concerned with the question whether an F.I.R. under
Sections 420/468/471/34/120-B IPC can be quashed either under Section 482 of the Code or
under Article 226 of the Constitution when the accused and the complainant have compromised
and settled the matter between themselves. Altamas Kabir, J., who delivered the lead judgment
referred to B.S. Joshi1 and the submission made on behalf of the State that B.S. Joshi1 required a
second look and held that the Court was not inclined to accept the contention made on behalf of
the State that the decision in B.S. Joshi1 required reconsideration, at least not in the facts of the
case. It was held that what was decided in B.S. Joshi1 was the power and authority of the High
Court to exercise jurisdiction under Section 482 of the Code or under Article 226 of the
Constitution to quash offences which were not compoundable. The law stated in B.S. Joshi1
simply indicated the powers of the High Court to quash any criminal proceeding or first
information report or complaint whether the offences were compoundable or not. Altamas Kabir,
J. further observed, “The ultimate exercise of discretion under Section 482 CrPC or under Article
226 of the Constitution is with the court which has to exercise such jurisdiction in the facts of
each case. It has been explained that the said power is in no way limited by the provisions of
Section 320 CrPC. We are unable to disagree with such statement of law. In any event, in this
case, we are only required to consider whether the High Court had exercised its jurisdiction under
Section 482 CrPC legally and correctly.” Then in paragraphs 8 and 9 (pg. 5) of the Report,
Altamas Kabir, J., inter alia, held as under :
“8. …..Once the complainant decided not to pursue the matter further, the High Court
could have taken a more pragmatic view of the matter. We do not suggest that while
exercising its powers under Article 226 of the Constitution the High Court could not have
refused to quash the first information report, but what we do say is that the matter could
have been considered by the High Court with greater pragmatism in the facts of the case.
9. ……In the facts of this case we are of the view that continuing with the criminal
proceedings would be an exercise in futility………”
8. Markandey Katju, J. although concurred with the view of Altamas Kabir, J. that criminal
proceedings in that case deserved to be quashed but observed that question may have to be
decided in some subsequent decision or decisions (preferably by a larger Bench) as to which noncompoundable cases can be quashed under Section 482 of the Code or Article 226 of the
Constitution on the basis that the parties have entered into compromise. In paragraphs 27 and 28
(pg. 10) of the report he held as under:
“27. There can be no doubt that a case under Section 302 IPC or other serious offences
like those under Sections 395, 307 or 304- B cannot be compounded and hence
proceedings in those provisions cannot be quashed by the High Court in exercise of its
power under Section 482 CrPC or in writ jurisdiction on the basis of compromise.
However, in some other cases (like those akin to a civil nature), the proceedings can be
quashed by the High Court if the parties have come to an amicable settlement even
though the provisions are not compoundable. Where a line is to be drawn will have to be
decided in some later decisions of this Court, preferably by a larger Bench (so as to make
it more authoritative). Some guidelines will have to be evolved in this connection and the
matter cannot be left at the sole unguided discretion of Judges, otherwise there may be
conflicting decisions and judicial anarchy. A judicial discretion has to be exercised on
some objective guiding principles and criteria, and not on the whims and fancies of
individual Judges. Discretion, after all, cannot be the Chancellor's foot.
28. I am expressing this opinion because Shri B.B. Singh, learned counsel for the
respondent has rightly expressed his concern that the decision in B.S. Joshi case should
not be understood to have meant that Judges can quash any kind of criminal case merely
because there has been a compromise between the parties. After all, a crime is an offence
against society, and not merely against a private individual.”
9. Dr. Abhishek Manu Singhvi, learned senior counsel for the petitioner in SLP(Crl.) No. 6324 of
2009 submitted that the inherent power of the High Court to quash a non-compoundable offence
was not circumscribed by any of the provisions of the Code, including Section 320. Section 482 is
a declaration of the inherent power pre-existing in the High Court and so long as the exercise of
the inherent power falls within the parameters of Section 482, it shall have an overriding effect
over any of the provisions of the Code. He, thus, submitted that in exercise of its inherent powers
under Section 482, the High Court may permit compounding of a non- compoundable offence
provided that in doing so it satisfies the conditions mentioned therein. Learned senior counsel
would submit that the power to quash the criminal proceedings under Section 482 of the Code
exists even in non-compoundable offence but its actual exercise will depend on facts of a
particular case. He submitted that some or all of the following tests may be relevant to decide
whether to quash or not to quash the criminal proceedings in a given case; (a) the nature and
gravity of case; (b) does the dispute reflect overwhelming and pre-dominantly civil flavour; (c)
would the quashing involve settlement of entire or almost the entire dispute; (d) the
compromise/settlement between parties and/or other facts and the circumstances render
possibility of conviction remote and bleak; (e) not to quash would cause extreme injustice and
would not serve ends of justice and (f) not to quash would result in abuse of process of court.
10. Shri P.P. Rao, learned senior counsel for the petitioner in Special Leave Petition (Crl.) No.
5921 of 2009 submitted that Section 482 of the Code is complete answer to the reference made to
the larger Bench. He analysed Section 482 and Section 320 of the Code and submitted that
Section 320 did not limit or affect the inherent powers of the High Court. Notwithstanding
Section 320, High Court can exercise its inherent power, inter alia, to prevent abuse of the
process of any court or otherwise to secure the ends of justice. To secure the ends of justice is a
wholesome and definite guideline. It requires formation of opinion by High Court on the basis of
material on record as to whether the ends of justice would justify quashing of a particular criminal
complaint, FIR or a proceeding. When the Court exercises its inherent power under Section 482
in respect of offences which are not compoundable taking into account the fact that the accused
and the complainant have settled their differences amicably, it cannot be viewed as permitting
compounding of offence which is not compoundable.
11. Mr. P.P. Rao, learned senior counsel submitted that in cases of civil wrongs which also
constitute criminal offences, the High Court may pass order under Section 482 once both parties
jointly pray for dropping the criminal proceeding initiated by one of them to put an end to the
dispute and restore peace between the parties.
12. Mr. V. Giri, learned senior counsel for the respondent (accused) in Special Leave Petition
(Crl.) No. 6138 of 2006 submitted that the real question that needs to be considered by this Court
in the reference is whether Section 320(9) of the Code creates a bar or limits or affects the
inherent powers of the High Court under Section 482 of the Code. It was submitted that Section
320(9) does not create a bar or limit or affect the inherent powers of the High Court in the matter
of quashing any criminal proceedings. Relying upon various decisions of this Court, it was
submitted that it has been consistently held that the High Court has unfettered powers under
Section 482 of the Code to secure the ends of justice and prevent abuse of the process of the
Court. He also submitted that on compromise between the parties, the High Court in exercise of
powers under Section 482 can quash the criminal proceedings, more so the matters arising from
matrimonial dispute, property dispute, dispute between close relations, partners or business
concerns which are predominantly of civil, financial or commercial nature.
13. Learned counsel for the petitioner in Special Leave Petition (Crl.) No. 8989 of 2010 submitted
that the court should have positive view to quash the proceedings once the aggrieved party has
compromised the matter with the wrong doer. It was submitted that if the court did not allow the
quashing of FIR or complaint or criminal case where the parties settled their dispute amicably, it
would encourage the parties to speak lie in the court and witnesses would become hostile and the
criminal proceeding would not end in conviction. Learned counsel submitted that the court could
also consider the two questions (1) can there be partial quashing of the FIR qua accused with
whom the complainant/aggrieved party enters into compromise. (2) can the court quash the
proceedings in the cases which have not arisen from the matrimonial or civil disputes but the
offences are personal in nature like grievous hurt (S.326), attempt to murder (S.307), rape
(S.376), trespassing (S.452) and kidnapping (S.364, 365) etc.
14. Mr. P. P. Malhotra, learned Additional Solicitor General referred to the scheme of the Code.
He submitted that in any criminal case investigated by police on filing the report under Section
173 of the Code, the Magistrate, after applying his mind to the chargesheet and the documents
accompanying the same, if takes cognizance of the offences and summons the accused and/or
frames charges and in certain grave and serious offences, commits the accused to be tried by a
court of Sessions and the Sessions Court after satisfying itself and after hearing the accused
frames charges for the offences alleged to have been committed by him, the Code provides a
remedy to accused to challenge the order taking cognizance or of framing charges. Similar
situation may follow in a complaint case. Learned Additional Solicitor General submitted that
power under Section 482 of the Code cannot be invoked in the non-compoundable offences since
Section 320(9) expressly prohibits the compounding of such offences. Quashing of criminal
proceedings of the offences which are non-compoundable would negative the effect of the order
of framing charges or taking cognizance and therefore quashing would amount to taking away the
order of cognizance passed by the Magistrate.
15. Learned Additional Solicitor General would submit that when the Court takes cognizance or
frames charges, it is in accordance with the procedure established by law. Once the court takes
cognizance or frames charges, the method to challenge such order is by way of appropriate
application to the superior court under the provisions of the Code.
16. If power under Section 482 is exercised, in relation to non- compoundable offences, it will
amount to what is prohibited by law and such cases cannot be brought within the parameters ‘to
secure ends of justice’. Any order in violation and breach of statutory provisions, learned
Additional Solicitor General would submit, would be a case against the ends of justice. He
heavily relied upon a Constitution Bench decision of this Court in Central Bureau of
Investigation and others v. Keshub Mahindra and others [(2011) 6 SCC 216] wherein this
Court held, ‘no decision by any court, this Court not excluded, can be read in a manner as to
nullify the express provisions of an Act or the Code.’ With reference to B.S. Joshi1, learned
Additional Solicitor General submitted that that was a case where the dispute was between the
husband and wife and the court felt that if the proceedings were not quashed, it would prevent the
woman from settling in life and the wife had already filed an affidavit that there were
temperamental differences and she was not supporting continuation of criminal proceedings. As
regards, Nikhil Merchant2, learned Additional Solicitor General submitted that this Court in State
of Madhya Pradesh v. Rameshwar and others [(2009) 11 SCC 424] held that the said decision
was a decision under Article 142 of the Constitution. With regard to Manoj Sharma3, learned
Additional Solicitor General referred to the observations made by Markandey Katju, J. in
paragraphs 24 and 28 of the Report.
17. Learned Additional Solicitor General submitted that the High Court has no power to quash
criminal proceedings in regard to offences in which a cognizance has been taken by the
Magistrate merely because there has been settlement between the victim and the offender because
the criminal offence is against the society.
18. More than 65 years back, in Emperor v. Khwaja Nazir Ahmed [(1945) 47 Bom. L.R. 245],
it was observed by the Privy Council that Section 561A (corresponding to Section 482 of the
Code) had not given increased powers to the Court which it did not possess before that section
was enacted. It was observed, `The section gives no new powers, it only provides that those
which the court already inherently possess shall be preserved and is inserted lest, as their
Lordships think, it should be considered that the only powers possessed by the court are those
expressly conferred by the Criminal Procedure Code and that no inherent power had survived the
passing of the Code’.
19. In Khushi Ram v. Hashim and others [AIR 1959 SC 542], this Court held as under :
“It is unnecessary to emphasise that the inherent power of the High Court under Section
561A cannot be invoked in regard to matters which are directly covered by the specific
provisions of the Code…”
20. The above view of Privy Council in Khwaja Nazir Ahmed6 and another decision in Lala
Jairam Das & Ors. v. Emperor [AIR 1945 PC 94] was expressly accepted by this Court in
State of Uttar Pradesh. v. Mohammad Naim [AIR 1964 SC 703] . The Court said :
“7. It is now well settled that the section confers no new powers on the High Court. It
merely safeguards all existing inherent powers possessed by a High Court necessary
(among other purposes) to secure the ends of justice. The section provides that those
powers which the court inherently possesses shall be preserved lest it be considered that
the only powers possessed by the court are those expressly conferred by the Code and
that no inherent powers had survived the passing of the Code………..”
21. In Pampathy v. State of Mysore [1966 (Suppl) SCR 477], a three-Judge Bench of this Court
stated as follows :
“The inherent power of the High Court mentioned in Section 561A, Criminal Procedure
Code can be exercised only for either of the three purposes specifically mentioned in the
section. The inherent power cannot be invoked in respect of any matter covered by the
specific provisions of the Code. It cannot also be invoked if its exercise would be
inconsistent with any of the specific provisions of the Code. It is only if the matter in
question is not covered by any specific provisions of the Code that s. 561A can come into
operation…….”
22. In State of Karnataka v. L. Muniswamy and others [(1977) 2 SCC 699], a three- Judge
Bench of this Court referred to Section 482 of the Code and in paragraph 7 (pg. 703) of the
Report held as under :
“7. …….. In the exercise of this wholesome power, the High Court is entitled to quash a
proceeding if it comes to the conclusion that allowing the proceeding to continue would
be an abuse of the process of the Court or that the ends of justice require that the
proceeding ought to be quashed. The saving of the High Court's inherent powers, both in
civil and criminal matters, is designed to achieve a salutary public purpose which is that a
court proceeding ought not to be permitted to degenerate into a weapon of harassment or
persecution. In a criminal case, the veiled object behind a lame prosecution, the very
nature of the material on which the structure of the prosecution rests and the like would
justify the High Court in quashing the proceeding in the interest of justice. The ends of
justice are higher than the ends of mere law though justice has got to be administered
according to laws made by the legislature. The compelling necessity for making these
observations is that without a proper realisation of the object and purpose of the provision
which seeks to save the inherent powers of the High Court to do justice between the State
and its subjects, it would be impossible to appreciate the width and contours of that
salient jurisdiction.”
23. The Court then observed that the considerations justifying the exercise of inherent powers for
securing the ends of justice naturally vary from case to case and a jurisdiction as wholesome as
the one conferred by Section 482 ought not to be encased within the straitjacket of a rigid
formula.
24. A three-Judge Bench of this Court in Madhu Limaye v. The State of Maharashtra [(1977)
4 SCC 551], dealt with the invocation of inherent power under Section 482 for quashing
interlocutory order even though revision under Section 397(2) of the Code was prohibited. The
Court noticed the principles in relation to the exercise of the inherent power of the High Court as
under :
“(1) That the power is not to be resorted to if there is a specific provision in the Code for
the redress of the grievance of the aggrieved party;
(2) That it should be exercised very sparingly to prevent abuse of process of any Court or
otherwise to secure the ends of justice;
(3) That it should not be exercised as against the express bar of law engrafted in any other
provision of the Code.”
25. In Raj Kapoor and others v. State and others [(1980) 1 SCC 43], the Court explained the
width and amplitude of the inherent power of the High Court under Section 482 vis-à-vis
revisional power under Section 397 as follows:
“10. …….The opening words of Section 482 contradict this contention because nothing
of the Code, not even Section 397, can affect the amplitude of the inherent power
preserved in so many terms by the language of Section 482. Even so, a general principle
pervades this branch of law when a specific provision is made: easy resort to inherent
power is not right except under compelling circumstances. Not that there is absence of
jurisdiction but that inherent power should not invade areas set apart for specific power
under the same Code. In Madhu Limaye’s case this Court has exhaustively and, if I may
say so with great respect, correctly discussed and delineated the law beyond mistake.
While it is true that Section 482 is pervasive it should not subvert legal interdicts written
into the same Code, such, for instance, in Section 397(2). Apparent conflict may arise in
some situations between the two provisions and a happy solution “would be to say that
the bar provided in sub-section (2) of Section 397 operates only in exercise of the
revisional power of the High Court, meaning thereby that the High Court will have no
power of revision in relation to any interlocutory order. Then in accordance with one or
the other principles enunciated above, the inherent power will come into play, there being
no other provision in the Code for the redress of the grievance of the aggrieved party. But
then, if the order assailed is purely of an interlocutory character which could be corrected
in exercise of the revisional power of the High Court under the 1898 Code, the High
Court will refuse to exercise its inherent power. But in case the impugned order clearly
brings about a situation which is an abuse of the process of the Court or for the purpose
of securing the ends of justice interference by the High Court is absolutely necessary,
then nothing contained in Section 397(2) can limit or affect the exercise of the inherent
power by the High Court. But such cases would be few and far between. The High Court
must exercise the inherent power very sparingly. One such case would be the desirability
of the quashing of a criminal proceeding initiated illegally, vexatiously or as being
without jurisdiction”.
In short, there is no total ban on the exercise of inherent power where abuse of the
process of the court or other extraordinary situation excites the court's jurisdiction. The
limitation is self-restraint, nothing more. The policy of the law is clear that interlocutory
orders, pure and simple, should not be taken up to the High Court resulting in
unnecessary litigation and delay. At the other extreme, final orders are clearly capable of
being considered in exercise of inherent power, if glaring injustice stares the court in the
face. In between is a tertium quid, as Untwalia, J. has pointed out as for example, where it
is more than a purely interlocutory order and less than a final disposal. The present case
falls under that category where the accused complain of harassment through the court's
process. Can we state that in this third category the inherent power can be exercised? In
the words of Untwalia, J.: (SCC p. 556, para 10)
“The answer is obvious that the bar will not operate to prevent the abuse of the
process of the Court and/or to secure the ends of justice. The label of the petition
filed by an aggrieved party is immaterial. The High Court can examine the matter
in an appropriate case under its inherent powers. The present case undoubtedly
falls for exercise of the power of the High Court in accordance with Section 482
of the 1973 Code, even assuming, although not accepting, that invoking the
revisional power of the High Court is impermissible.”
I am, therefore clear in my mind that the inherent power is not rebuffed in the case
situation before us. Counsel on both sides, sensitively responding to our allergy for
legalistics, rightly agreed that the fanatical insistence on the formal filing of a copy of the
order under cessation need not take up this court's time. Our conclusion concurs with the
concession of counsel on both sides that merely because a copy of the order has not been
produced, despite its presence in the records in the court, it is not possible for me to hold
that the entire revisory power stands frustrated and the inherent power stultified.”
26. In Simrikhia v. Dolley Mukherjee and Chhabi Mukherjee and another [(1990) 2 SCC
437], the Court considered the scope of Section 482 of the Code in a case where on dismissal of
petition under Section 482, a second petition under Section 482 of the Code was made. The
contention before this Court was that the second petition under Section 482 of the Code was not
entertainable; the exercise of power under Section 482 on a second petition by the same party on
the same ground virtually amounts to review of the earlier order and is contrary to the spirit of
Section 362 of the Code and the High Court was in error in having quashed the proceedings by
adopting that course. While accepting this argument, this Court held as follows :
“3. ……The inherent power under Section 482 is intended to prevent the abuse of the
process of the court and to secure ends of justice. Such power cannot be exercised to do
something which is expressly barred under the Code. If any consideration of the facts by
way of review is not permissible under the Code and is expressly barred, it is not for the
court to exercise its inherent power to reconsider the matter and record a conflicting
decision. If there had been change in the circumstances of the case, it would be in order
for the High Court to exercise its inherent powers in the prevailing circumstances and
pass appropriate orders to secure the ends of justice or to prevent the abuse of the process
of the court. Where there is no such changed circumstances and the decision has to be
arrived at on the facts that existed as on the date of the earlier order, the exercise of the
power to reconsider the same materials to arrive at different conclusion is in effect a
review, which is expressly barred under Section 362.
5. Section 362 of the Code expressly provides that no court when it has signed its
judgment or final order disposing of a case, shall alter or review the same except to
correct a clerical or arithmetical error save as otherwise provided by the Code. Section
482 enables the High Court to make such order as may be necessary to give effect to any
order under the Code or to prevent abuse of the process of any court or otherwise to
secure the ends of justice. The inherent powers, however, as much are controlled by
principle and precedent as are its express powers by statute. If a matter is covered by an
express letter of law, the court cannot give a go-by to the statutory provisions and instead
evolve a new provision in the garb of inherent jurisdiction.
7. The inherent jurisdiction of the High Court cannot be invoked to override bar of review
under Section 362. It is clearly stated in Sooraj Devi v. Pyare Lal, that the inherent power
of the court cannot be exercised for doing that which is specifically prohibited by the
Code. The law is therefore clear that the inherent power cannot be exercised for doing
that which cannot be done on account of the bar under other provisions of the Code. The
court is not empowered to review its own decision under the purported exercise of
inherent power. We find that the impugned order in this case is in effect one reviewing
the earlier order on a reconsideration of the same materials. The High Court has
grievously erred in doing so. Even on merits, we do not find any compelling reasons to
quash the proceedings at that stage.”
27. In Dharampal & Ors. v. Ramshri (Smt.) and others [1993 Crl. L.J. 1049], this Court
observed as follows :
“……It is now well settled that the inherent powers under Section 482 of the Code
cannot be utilized for exercising powers which are expressly barred by the Code…….”
28. In Arun Shankar Shukla v. State of Uttar Pradesh and ors. [AIR 1999 SC 2554] , a twoJudge Bench of this Court held as under :
“….It is true that under Section 482 of the Code, the High Court has inherent powers to
make such orders as may be necessary to give effect to any order under the Code or to
prevent the abuse of process of any court or otherwise to secure the ends of justice. But
the expressions “abuse of the process of law” or “to secure the ends of justice” do not
confer unlimited jurisdiction on the High Court and the alleged abuse of the process of
law or the ends of justice could only be secured in accordance with law including
procedural law and not otherwise. Further, inherent powers are in the nature of
extraordinary powers to be used sparingly for achieving the object mentioned in Section
482 of the Code in cases where there is no express provision empowering the High Court
to achieve the said object. It is well-neigh settled that inherent power is not to be invoked
in respect of any matter covered by specific provisions of the Code or if its exercise
would infringe any specific provision of the Code. In the present case, the High Court
overlooked the procedural law which empowered the convicted accused to prefer
statutory appeal against conviction of the offence. The High Court has intervened at an
uncalled for stage and soft-pedalled the course of justice at a very crucial stage of the
trial.”
29. In G. Sagar Suri and another v. State of U.P. and others [(2000) 2 SCC 636], the Court
was concerned with the order of the High Court whereby the application under Section 482 of the
Code for quashing the criminal proceedings under Sections 406 and 420 of the IPC pending in the
Court of Chief Judicial Magistrate, Ghaziabad was dismissed. In paragraph 8 (pg. 643) of the
Report, the Court held as under:
“8. Jurisdiction under Section 482 of the Code has to be exercised with great care. In
exercise of its jurisdiction the High Court is not to examine the matter superficially. It is
to be seen if a matter, which is essentially of a civil nature, has been given a cloak of
criminal offence. Criminal proceedings are not a short cut of other remedies available in
law. Before issuing process a criminal court has to exercise a great deal of caution. For
the accused it is a serious matter. This Court has laid certain principles on the basis of
which the High Court is to exercise its jurisdiction under Section 482 of the Code.
Jurisdiction under this section has to be exercised to prevent abuse of the process of any
court or otherwise to secure the ends of justice.”
30. A three-Judge Bench of this Court in State of Karnataka v. M. Devendrappa and another
[(2002) 3 SCC 89] restated what has been stated in earlier decisions that Section 482 does not
confer any new powers on the High Court, it only saves the inherent power which the court
possessed before the commencement of the Code. The Court went on to explain the exercise of
inherent power by the High Court in paragraph 6 (Pg.94) of the Report as under :
“6. ………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 recognizes 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 alicui concedit,
concedere videtur et id sine quo res ipsae 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 abuse. It would be an abuse of 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/continuance of it amounts to abuse of the process of court or quashing
of these proceedings would otherwise serve the ends of justice……..”
The Court in paragraph 9 (Pg. 96) further stated :
“9. ………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……”
31. In Central Bureau of Investigation v. A. Ravishankar Prasad and others [(2009) 6 SCC
351], the Court observed in paragraphs 17,19,20 and 39 (Pgs. 356, 357 and 363) of the Report as
follows :
“17. Undoubtedly, the High Court possesses inherent powers under Section 482 of the
Code of Criminal Procedure. These inherent powers of the High Court are meant 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.
19. This Court time and again has observed that the extraordinary power under Section
482 CrPC should be exercised sparingly and with great care and caution. The Court
would be justified in exercising the power when it is imperative to exercise the power in
order to prevent injustice. In order to understand the nature and scope of power under
Section 482 CrPC it has become necessary to recapitulate the ratio of the decided cases.
20. Reference to the following cases would reveal that the Courts have consistently taken
the view that they must use the court's extraordinary power only to prevent injustice and
secure the ends of justice. We have largely inherited the provisions of inherent powers
from the English jurisprudence, therefore the principles decided by the English courts
would be of relevance for us. It is generally agreed that the Crown Court has inherent
power to protect its process from abuse. The English courts have also used inherent
power to achieve the same objective.
39. Careful analysis of all these judgments clearly reveals that the exercise of inherent
powers would entirely depend on the facts and circumstances of each case. The object of
incorporating inherent powers in the Code is to prevent abuse of the process of the court
or to secure ends of justice.”
32. In Devendra and others v. State of Uttar Pradesh and another [(2009) 7 SCC 495], while
dealing with the question whether a pure civil dispute can be subject matter of a criminal
proceeding under Sections 420, 467, 468 and 469 IPC, a two-Judge Bench of this Court observed
that the High Court ordinarily would exercise its jurisdiction under Section 482 of the Code if the
allegations made in the First Information Report, even if given face value and taken to be correct
in their entirety, do not make out any offence.
33. In Sushil Suri v. Central Bureau of Investigation and another [(2011) 5 SCC 708], the
Court considered the scope and ambit of the inherent jurisdiction of the High Court and made the
following observations in para 16 (pg. 715) of the Report:
“16. Section 482 CrPC itself envisages three circumstances under which the inherent
jurisdiction may be exercised by the High Court, namely, (i) to give effect to an order
under CrPC; (ii) to prevent an abuse of the process of court; and (iii) to otherwise secure
the ends of justice. It is trite that although the power possessed by the High Court under
the said provision is very wide but it is not unbridled. It has to be exercised sparingly,
carefully and cautiously, ex debito justitiae to do real and substantial justice for which
alone the Court exists. Nevertheless, it is neither feasible nor desirable to lay down any
inflexible rule which would govern the exercise of inherent jurisdiction of the Court. Yet,
in numerous cases, this Court has laid down certain broad principles which may be borne
in mind while exercising jurisdiction under Section 482 CrPC. Though it is emphasised
that exercise of inherent powers would depend on the facts and circumstances of each
case, but the common thread which runs through all the decisions on the subject is that
the Court would be justified in invoking its inherent jurisdiction where the allegations
made in the complaint or charge-sheet, as the case may be, taken at their face value and
accepted in their entirety do not constitute the offence alleged.”
34. Besides B.S. Joshi1, Nikhil Merchant2 and Manoj Sharma3, there are other decisions of this
Court where the scope of Section 320 vis-à-vis the inherent power of the High Court under
Section 482 of the Code has come up for consideration.
35. In Madan Mohan Abbot v. State of Punjab [(2008) 4 SCC 582], in the appeal before this
Court which arose from an order of the High Court refusing to quash the FIR against the
appellant lodged under Sections 379, 406, 409, 418, 506/34, IPC on account of compromise
entered into between the complainant and the accused, in paragraphs 5 and 6 (pg. 584) of the
Report, the Court held as under :
“5. It is on the basis of this compromise that the application was filed in the High Court
for quashing of proceedings which has been dismissed by the impugned order. We notice
from a reading of the FIR and the other documents on record that the dispute was purely
a personal one between two contesting parties and that it arose out of extensive business
dealings between them and that there was absolutely no public policy involved in the
nature of the allegations made against the accused. We are, therefore, of the opinion that
no useful purpose would be served in continuing with the proceedings in the light of the
compromise and also in the light of the fact that the complainant has on 11-1-2004 passed
away and the possibility of a conviction being recorded has thus to be ruled out.
6. We need to emphasise that it is perhaps advisable that in disputes where the question
involved is of a purely personal nature, the court should ordinarily accept the terms of the
compromise even in criminal proceedings as keeping the matter alive with no possibility
of a result in favour of the prosecution is a luxury which the courts, grossly overburdened
as they are, cannot afford and that the time so saved can be utilised in deciding more
effective and meaningful litigation. This is a common sense approach to the matter based
on ground of realities and bereft of the technicalities of the law.”
36. In Ishwar Singh v. State of Madhya Pradesh [(2008) 15 SCC 667], the Court was
concerned with a case where the accused – appellant was convicted and sentenced by the
Additional Sessions Judge for an offence punishable under Section 307, IPC. The High Court
dismissed the appeal from the judgment and conviction. In the appeal, by special leave, the
injured – complainant was ordered to be joined as party as it was stated by the counsel for the
appellant that mutual compromise has been arrived at between the parties, i.e. accused on the one
hand and the complainant – victim on the other hand during the pendency of the proceedings
before this Court. It was prayed on behalf of the appellant that the appeal be disposed of on the
basis of compromise between the parties. In para 12 (pg. 670) of the Report, the Court observed
as follows :
“12. Now, it cannot be gainsaid that an offence punishable under Section 307 IPC is not a
compoundable offence. Section 320 of the Code of Criminal Procedure, 1973 expressly
states that no offence shall be compounded if it is not compoundable under the Code. At
the same time, however, while dealing with such matters, this Court may take into
account a relevant and important consideration about compromise between the parties for
the purpose of reduction of sentence.”
37. The Court also referred to the earlier decisions of this Court in Jetha Ram v. State of
Rajasthan [(2006) 9 SCC 255], Murugesan v. Ganapathy Velar [(2001) 10 SCC 504],
Ishwarlal v. State of M.P. [(2008) 15 SCC 671] and Mahesh Chand & another v. State of
Rajasthan [1990 (supp) SCC 681] and noted in paragraph 13 (pg. 670) of the Report as follows:
“13. In Jetha Ram v. State of Rajasthan, Murugesan v. Ganapathy Velar and Ishwarlal v.
State of M.P. this Court, while taking into account the fact of compromise between the
parties, reduced sentence imposed on the appellant-accused to already undergone, though
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