foregoing paragraphs, we would delineate the
following steps to determine the veracity of a
prayer for quashment raised by an accused by
invoking the power vested in the High Court
under Section 482 CrPC:
30.1. Step one : whether the material
relied upon by the accused is sound,
reasonable, and indubitable i.e. the
material is of sterling and impeccable
quality?
30.2. Step two : whether the material
relied upon by the accused would rule
out the assertions contained in the
charges levelled against the accused
i.e. the material is sufficient to
reject and overrule the factual
assertions contained in the complaint
i.e. the material is such as would
persuade a reasonable person to dismiss
and condemn the factual basis of the
accusations as false?
30.3. Step three : whether the material
relied upon by the accused has not been
refuted by the prosecution/complainant;
and/or the material is such that it
cannot be justifiably refuted by the
prosecution/complainant?
30.4. Step four : whether proceeding with
the trial would result in an abuse of
process of the court, and would not
serve the ends of justice?
30.5. If the answer to all the steps is
in the affirmative, the judicial
conscience of the High Court should
persuade it to quash such criminal
proceedings in exercise of power vested
in it under Section 482 CrPC. Such
exercise of power, besides doing justice
to the accused, would save precious
court time, which would otherwise be
wasted in holding such a trial (as well
as proceedings arising therefrom)
specially when it is clear that the same
would not conclude in the conviction of
the accused.”
(emphasis supplied by this Court)
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 299 OF 2016
(Arising out of SLP (Crl.) No.2866 of 2011)
AMANULLAH AND ANR.
Vs.
STATE OF BIHAR AND ORS.
V.GOPALA GOWDA, J.
Dated;12th April, 2016
2.This criminal appeal by special leave is directed
against the impugned judgment and order dated
08.12.2010 in Crl. Misc. No. 5777 of 2009 passed by
the High Court of Judicature at Patna whereby it
allowed the said criminal miscellaneous petition
filed by the respondent nos.2 to 9 herein, by setting
aside the cognizance order dated 10.11.2008 passed by
the learned Addl. Chief Judicial Magistrate, Rosera,
Bihar in Singhia Police Case No.37/2008 and quashed
the criminal prosecution.
3.Brief facts of the case are stated hereunder to
appreciate the rival legal contentions urged on
behalf of the parties:
The case of the prosecution is that on
29.03.2008, the informant-Mukhtar went to the house
of his relative at village-Navdega and stayed there.
On 30.03.2008, at about 12.00 noon, his uncle Md.
Hasim informed him on telephone that his wife’s
condition was serious and she was being taken to
Singhia for treatment. Mukhtar was asked to reach
Singhia. It is alleged by the informant that on
reaching Singhia, he neither found his wife nor his
uncle. On enquiry from his uncle, he was informed
about the death of his wife. Thereafter, he reached
his house and saw the dead body of his wife. His
uncle disclosed him that his wife-Tamanna Khatoon
(since deceased) had gone to maize field wherein she
was found lying with her mouth and nose tied with herPage 3
Crl.A.@ SLP(Crl.)No.2866 of 2011 3
dupatta. She was spotted by one Hira Sada (PW-2), who
was returning with her daughter. Upon hearing the
noise made by the deceased she raised alarm and upon
hearing the same informant’s uncle-Md. Hasim along
with others reached the spot and took Tamanna Khatoon
to Singhia for treatment. She died on the way to
Singhia. On 30.03.2008 FIR was lodged by Mukhtar,
husband of the deceased against Md. Raju and Md.
Halim @ Mangnu- appellant no.2 herein for the
offences punishable under Sections 302 and 120B read
with Section 34 of the Indian Penal Code (for short
“IPC”).
4.During investigation, many witnesses deposed before
the Judicial Magistrate, Rosera under Section 164 of
the CrPC wherein it has been alleged that Mukhtar,
husband of the deceased has killed his wife.
5.On 30.09.2008 charge sheet no.111/2008 in respect of
FIR No. 37/2008 was filed in the Court of Chief
Judicial Magistrate (CJM), Rosera by the police
against Md. Hasim, Md. Noor Hasan, Md. Safique and
Jhothi Sada.
6.After filing of the charge sheet, Mukhtar started
threatening the witnesses. With a view to threaten
the appellant no.1 on 17.10.2008, he reached his
house with pistol and dagger. The appellant no.1
raised hue and cry and upon hearing the same, covillagers
caught Mukhtar with arms, after a chase.
FIR No. 104/08 was registered against him for the
offence punishable under Sections 25 and 26 of the
Arms Act, 1959 at Singhia Police Station.
7.On 31.10.2008, a supplementary charge sheet
no.126/2008, in respect of FIR No. 37/2008 was filed
before the learned CJM by the police against Md.
Mukhtar @ Munna, Md. Nazre Alam and Md. Farukh.
8.The learned CJM after considering the material placed
before him vide order dated 10.11.2008.took
cognizance under Sections 302 and 120B read with
Section 34 of the IPC against Mukhtar and other
accused-persons. Page 5
Crl.A.@ SLP(Crl.)No.2866 of 2011 5
9.Aggrieved by the cognizance order passed by the
learned CJM in PS Case No. 37/2008, respondent nos. 2
to 9 approached the High Court of Judicature at Patna
by preferring Crl. Misc. No. 5777/2009 under Section
482 of Cr.PC for quashing the order of learned CJM
dated 10.11.2008.
10. The High Court by its order dated 08.12.2010
allowed the said petition by setting aside the
cognizance order passed by the learned CJM and also
quashed the criminal prosecution. Aggrieved by the
said order, the appellants herein, who are interested
private parties, have filed this appeal urging
various grounds.
11. Mr. Neeraj Shekhar, the learned counsel for the
appellants contended that the High Court has failed
to appreciate that the FIR and the charge sheet
establish a prima-facie case against the respondent
nos. 2-9. He submitted that when the allegations made
against the accused person show a prima-facie case,
criminal proceedings ought not to have been quashedPage 6
Crl.A.@ SLP(Crl.)No.2866 of 2011 6
by the High Court in exercise of its power under
Section 482 of Cr.PC.
12. It was further contended that the High Court has
erred in setting aside the cognizance order passed by
the learned CJM as the extraordinary or inherent
powers do not confer an arbitrary jurisdiction to act
according to whim or caprice. He further submitted
that the power of quashing criminal proceedings is to
be exercised sparingly and with circumspection and
that too in rarest of rare cases.
13. It was further contended by the learned counsel
that at the stage of taking cognizance of the offence
it would not be proper, simply on the basis of
material placed before the court by investigating
agency, to determine whether a conviction is
sustainable or not. The High Court has erred in
appreciating the same by quashing the cognizance
order passed by the learned CJM. He further submitted
that the inherent power to quash the proceedings can
be exercised only in a case where the material placedPage 7
Crl.A.@ SLP(Crl.)No.2866 of 2011 7
before the court does not disclose any offence or the
allegations made therein are found frivolous,
vexatious or oppressive. At this stage there should
not be any meticulous analysis of the case, before
the trial, to find out whether the case would end in
conviction or acquittal.
14. It was further contended that in the instant case
the charge sheet and FIR clearly establish the
involvement and active participation of the accusedpersons
which the High Court has failed to
appreciate.
15. It was further submitted by the learned counsel
that the appellants have locus standi to maintain
this appeal for the reason that the appellants have
connection with matter at hand as appellant no.1 was
threatened by the informant-Mukhtar and appellant
no.2 was falsely implicated by the informant-Mukhtar
in the case of murder of his wife. Both the
appellants are aggrieved by the impugned order passed
by the High Court setting aside the cognizance orderPage 8
Crl.A.@ SLP(Crl.)No.2866 of 2011 8
passed by the Trial Court. In support of the
aforesaid he placed reliance upon the Constitution
Bench decision of this Court in the case of P.S.R
Sadhanantham v. Arunanchalam1. He further placed
reliance upon the decisions of this Court in Ramakant
Rai v. Madan Rai & Ors2, Esher Singh v. State of
A.P.3, Ramakant Verma v. State of U.P.
4 and Ashish
Chadha v. Asha Kumari & Ors5.
16. Per contra, Mr. Shivam Singh, the learned counsel
appearing on behalf of the respondents contended that
the answering respondents have not been named in the
FIR. The FIR in this case is based on the statement
of Mukhtar against two persons, namely Md. Raju and
Md. Halim for the murder of his wife and it was
registered under Sections 302 and 120B read with
Section 34 of the IPC. He further submitted that on
11.04.2008, the informant-Mukhtar filed a protest
1
(1980) 3 SCC 141
2
(2003) 12 SCC 395
3
(2004) 11 SCC 585
4
(2008) 17 SCC 257
5
(2012) 1 SCC 680Page 9
Crl.A.@ SLP(Crl.)No.2866 of 2011 9
petition before the learned CJM, Rosera. In the said
protest petition it was brought to the notice of the
court that originally he had given a written
complaint to the police about the murder of his wife
against five persons, namely Md. Raju, Md. Halim @
Mangnu, Khalid Gulab, Abu Quaiyum and Md. Amid
Hussain for offences under Sections 376, 302 read
with Section 34 of the IPC. However, the local police
in collusion with the accused-persons dropped the
names of three accused persons and also dropped
charge under Section 376 of the IPC against them
knowingly and intentionally. The course of
investigation was diverted in wrong direction to
falsely implicate the respondent nos. 2-9.
17. It was further contended by the learned counsel
that the instant case is a unique case as the
accused-persons are made prosecution witnesses and
apart from them another set of tutored witnesses have
been introduced in the case, who are not eye
witnesses to the incident and have in their
deposition under Section 164 of the CrPC, before the
Judicial Magistrate deposed that the informant-Page 10
Crl.A.@ SLP(Crl.)No.2866 of 2011 10
husband might have killed his wife. The High Court
has rightly taken a very serious view of the whole
matter and after proper scrutiny of the documents and
material placed on record has come to an appropriate
finding that the case against the respondent nos.2-9
is merely based on suspicion and therefore, it has
rightly quashed the proceedings against them.
18. He further submitted that after the incident
Manjoor Alam father of the deceased in his statement
before the police did not blame Mukhtar husband of
the deceased for the murder of his daughter. As far
as other respondents are concerned, apart from the
informant, they all are strangers to the matter and
have been falsely implicated in this case by the
local police at the behest of the real accused
persons.
19. It was further submitted by the learned counsel
that the father and mother of the deceased have
given their statement on a stamp paper before the
Notary Public that their daughter was having aPage 11
Crl.A.@ SLP(Crl.)No.2866 of 2011 11
cordial matrimonial life with her husband and she
was not being tortured by her husband or his family
members in connection with any dowry demand.
20. By placing reliance upon the decision of this
Court in J.K. International v. State (Govt. of
Delhi) and Ors6 and HDFC Bank Ltd. & Anr. v. Nagpur
District Security Guard Board & Anr.7, it was
further submitted by the learned counsel that the
appellants have failed to disclose their bonafide
connection with the cause of action, to be precise
with the victim and thus, have no locus standi to
maintain this appeal. Therefore, this appeal
deserves to be dismissed on this score.
21. While concluding his contentions he submitted
that the order passed by the High Court is a well
reasoned order and the same does not suffer from
any ambiguity. The decision of the High Court is
also justified in the light of decision of this
Court in the case of State of Haryana v. Bhajan
6
(2001) 3 SCC 462
7
2008 Cri. L.J. 995Page 12
Crl.A.@ SLP(Crl.)No.2866 of 2011 12
Lal8. Therefore, no interference of this Court is
required in exercise of its appellate jurisdiction.
22. After considering the rival legal contentions
urged on behalf of both the parties, following
issues would arise for our consideration:
1.Whether this appeal is maintainable by the
appellants on the ground of the locus standi?
2.Whether the High Court, in the instant case,
has exceeded its jurisdiction while
exercising its inherent power under Section
482 of the CrPC?
3.What order?
Answer to Point No.1
23. The term ‘locus standi’ is a latin term, the
general meaning of which is ‘place of standing’.
The Concise Oxford English Dictionary, 10th Edn., at
8
1992 Supp(1) SCC 335Page 13
Crl.A.@ SLP(Crl.)No.2866 of 2011 13
page 834, defines the term ‘locus standi’ as the
right or capacity to bring an action or to appear
in a court. The traditional view of ‘locus standi’
has been that the person who is aggrieved or
affected has the standing before the court, i.e.,
to say he only has a right to move the court for
seeking justice. Later, this Court, with justiceoriented
approach, relaxed the strict rule with
regard to ‘locus standi’, allowing any person from
the society not related to the cause of action to
approach the court seeking justice for those who
could not approach themselves. Now turning our
attention towards the criminal trial, which is
conducted, largely, by following the procedure laid
down in the CrPC. Since, offence is considered to
be a wrong committed against the society, the
prosecution against the accused person is launched
by the State. It is the duty of the State to get
the culprit booked for the offence committed by
him. The focal point, here, is that if the State
fails in this regard and the party having bonafide
connection with the cause of action, who is
aggrieved by the order of the court cannot be leftPage 14
Crl.A.@ SLP(Crl.)No.2866 of 2011 14
at the mercy of the State and without any option to
approach the appellate court for seeking justice.
In this regard, the Constitution Bench of this
Court in the case of P.S.R. Sadhanantham’s case
(supra) has elaborately dealt with the aforesaid
fact situation. The relevant paras 13, 14 and 25 of
which read thus:
“13. It is true that the strictest
vigilance over abuse of the process of the
court, especially at the expensively
exalted level of the Supreme Court, should
be maintained and ordinarily meddlesome
bystanders should not be granted “visa”. It
is also true that in the criminal
jurisdiction this strictness applies a
fortiori since an adverse verdict from this
Court may result in irretrievable injury to
life or liberty.
14. Having said this, we must emphasise
that we are living in times when many
societal pollutants create new problems of
unredressed grievance when the State
becomes the sole repository for initiation
of criminal action. Sometimes, pachydermic
indifference of bureaucratic officials, at
other times politicisation of higher
functionaries may result in refusal to take
a case to this Court under Article 136 even
though the justice of the lis may well
justify it. While “the criminal law should
not be used as a weapon in personal
vendettas between private individuals”, as
Lord Shawcross once wrote, in the absence
of an independent prosecution authority
easily accessible to every citizen, a wider
connotation of the expression “standing” isPage 15
Crl.A.@ SLP(Crl.)No.2866 of 2011 15
necessary for Article 136 to further its
mission. There are jurisdictions in which
private individuals — not the State alone —
may it statute criminal proceedings. The
Law Reforms Commission (Australia) in its
Discussion Paper No. 4 on “Access to Courts
— I Standing: Public Interest Suits” wrote:
“The general rule, at the present
time, is that anyone may commence
proceedings and prosecute in the
Magistrate court. The argument for
retention of that right arises at
either end of the spectrum — the
great cases and the frequent petty
cases. The great cases are those
touching Government itself — a
Watergate or a Poulson. However
independent they may legally be any
public official, police or
prosecuting authority, must be
subject to some government
supervision and be dependent on
Government funds; its officers will
inevitably have personal links with
government. They will be part of the
‘establishment’. There may be cases
where a decision not to prosecute a
case having political ramifications
will be seen, rightly or wrongly, as
politically motivated. Accepting the
possibility of occasional abuse the
Commission sees merit in retaining
some right of a citizen to ventilate
such a matter in the courts.”
Even the English System, as pointed by the
Discussion Paper permits a private citizen
to file an indictment. In our view the
narrow limits set in vintage English Law,
into the concept of person aggrieved and
“standing” needs liberalisation in our
democratic situation. In Dabholkar case
this Court imparted such a wider meaning.
The American Supreme Court relaxed thePage 16
Crl.A.@ SLP(Crl.)No.2866 of 2011 16
restrictive attitude towards “standing” in
the famous case of Baker v. Carr. Lord
Denning, in the notable case of the
Attorney-General of the Gambia v. Pierra
Sarr N’jie, spoke thus:
“... the words “person aggrieved”
are of wide import and should not be
subjected to a restrictive
interpretation. They do not include,
of course, a mere busybody who is
interfering in things which do not
concern him;”
Prof. S.A. de Smith takes the same view:
“All developed legal systems have
had to face the problem of adjusting
conflicts between two aspects of the
public interest — the desirability
of encouraging individual citizens
to participate actively in the
enforcement of the law, and the
undesirability of encouraging the
professional litigant and the
meddlesome interloper to invoke the
jurisdiction of the courts in
matters that do not concern him.”
Prof. H.W.R. Wade strikes a similar note:
“In other words, certiorari is not
confined by a narrow conception of
locus standi. It contains an element
of the actio popularis. This is
because it looks beyond the personal
rights of the applicant; it is
designed to keep the machinery of
justice in proper working order by
preventing inferior tribunals and
public authorities from abusing
their powers.”
In Dabholkar case, one of us wrote in his
separate opinion: Page 17
Crl.A.@ SLP(Crl.)No.2866 of 2011 17
“ The possible apprehension that
widening legal standing with a
public connotation may unloose a
flood of litigation which may
overwhelm the Judges is misplaced
because public resort to court to
suppress public mischief is a
tribute to the justice system.”
This view is echoed by the Australian Law
Reforms Commission.
XX XX XX
25. In India also, the criminal law envisages
the State as a prosecutor. Under the Code of
Criminal Procedure, the machinery of the
State is set in motion on information
received by the police or on a complaint
filed by a private person before a
Magistrate. If the case proceeds to trial and
the accused is acquitted, the right to appeal
against the acquittal is closely
circumscribed. Under the Code of Criminal
Procedure, 1898, the State was entitled to
appeal to the High Court, and the complainant
could do so only if granted special leave to
appeal by the High Court. The right of appeal
was not given to other interested persons.
Under the Code of Criminal Procedure 1973,
the right of appeal vested in the States has
now been made subject to leave being granted
to the State by the High Court. The
complainant continues to be subject to the
prerequisite condition that he must obtain
special leave to appeal. The fetters so
imposed on the right to appeal are prompted
by the reluctance to expose a person, who has
been acquitted by a competent court of a
criminal charge, to the anxiety and tension
of a further examination of the case, even
though it is held by a superior court. The
Law Commission of India gave anxious thought
to this matter, and while noting that the
Code recognised a few exceptions by way of
permitting a person aggrieved to initiatePage 18
Crl.A.@ SLP(Crl.)No.2866 of 2011 18
proceedings in certain cases and permitting
the complainant to appeal against an
acquittal with special leave of the High
Court, expressed itself against the general
desirability to encourage appeals against
acquittal. It referred to the common law
jurisprudence obtaining in England and other
countries where a limited right of appeal
against acquittal was vested in the State and
where the emphasis rested on the need to
decide a point of law of general importance
in the interests of the general
administration and proper development of the
criminal law. But simultaneously the Law
Commission also noted that if the right to
appeal against acquittal was retained and
extended to a complainant the law should
logically cover also cases not instituted on
complaint. It observed:
“Extreme cases of manifest
injustice, where the Government
fails to act, and the party
aggrieved has a strong feeling that
the matter requires further
consideration, should not, in our
view, be left to the mercy of the
Government. To inspire and maintain
confidence in the administration of
justice, the limited right of appeal
with leave given to a private party
should be retained, and should
embrace cases initiated on private
complaint or otherwise at the
instance of an aggrieved person.”
However, when the Criminal Procedure Code,
1973 was enacted the statute, as we have
seen, confined the right to appeal, in the
case of private parties to a complainant.
This is, as it were, a material indication of
the policy of the law.”
(emphasis supplied by this Court)Page 19
Crl.A.@ SLP(Crl.)No.2866 of 2011 19
24. Further, this Court in the case of Ramakant
Rai’s case (supra) has held thus:
“12. A doubt has been raised about the
competence of a private party as
distinguished from the State, to invoke the
jurisdiction of this Court under Article 136
of the Constitution of India, 1950 (in short
“the Constitution”) against a judgment of
acquittal by the High Court. We do not see
any substance in the doubt. The appellate
power vested in this Court under Article 136
of the Constitution is not to be confused
with the ordinary appellate power exercised
by appellate courts and Appellate Tribunals
under specific statutes. It is a plenary
power, “exercisable outside the purview of
ordinary law” to meet the pressing demands of
justice (see Durga Shankar Mehta v. Raghuraj
Singh). Article 136 of the Constitution
neither confers on anyone the right to invoke
the jurisdiction of this Court nor inhibits
anyone from invoking the Court’s
jurisdiction. The power is vested in this
Court but the right to invoke the Court’s
jurisdiction is vested in no one. The
exercise of the power of this Court is not
circumscribed by any limitation as to who may
invoke it. Where a judgment of acquittal by
the High Court has led to a serious
miscarriage of justice, this Court cannot
refrain from doing its duty and abstain from
interfering on the ground that a private
party and not the State has invoked the
Court’s jurisdiction. We do not have
slightest doubt that we can entertain appeals
against judgments of acquittal by the High
Court at the instance of interested private
parties also. The circumstance that the
Criminal Procedure Code, 1973 (in short “the
Code”) does not provide for an appeal to the
High Court against an order of acquittal by aPage 20
Crl.A.@ SLP(Crl.)No.2866 of 2011 20
subordinate court, at the instance of a
private party, has no relevance to the
question of the power of this Court under
Article 136. We may mention that in Mohan Lal
v. Ajit Singh this Court interfered with a
judgment of acquittal by the High Court at
the instance of a private party. An
apprehension was expressed that if appeals
against judgments of acquittal at the
instance of private parties are permitted
there may be a flood of appeals. We do not
share the apprehension. Appeals under Article
136 of the Constitution are entertained by
special leave granted by this Court, whether
it is the State or a private party that
invokes the jurisdiction of this Court, and
special leave is not granted as a matter of
course but only for good and sufficient
reasons, on well-established practice of this
Court.”
In Esher Singh’s case (supra), it has been held by
this Court that Article 136 of the Constitution of
India neither confers on anyone the right to invoke
the jurisdiction of this Court nor inhibits anyone
from invoking it. The relevant para 29 of the case
reads thus:
“29. A doubt has been raised in many cases
about the competence of a private party as
distinguished from the State, to invoke the
jurisdiction of this Court under Article 136 of
the Constitution against a judgment of
acquittal by the High Court. We do not see any
substance in the doubt. The appellate power
vested in this Court under Article 136 of the
Constitution is not to be confused with
ordinary appellate power exercised by appellate
courts and appellate tribunals under specificPage 21
Crl.A.@ SLP(Crl.)No.2866 of 2011 21
statutes. It is a plenary power “exercisable
outside the purview of ordinary law” to meet
the pressing demands of justice. (See Durga
Shankar Mehta v. Raghuraj Singh.) Article 136
of the Constitution neither confers on anyone
the right to invoke the jurisdiction of this
Court nor inhibits anyone from invoking the
Court’s jurisdiction. The power is vested in
this Court but the right to invoke the Court’s
jurisdiction is vested in no one. The exercise
of the power of this Court is not circumscribed
by any limitation as to who may invoke it.
Where a judgment of acquittal by the High Court
has led to a serious miscarriage of justice,
this Court cannot refrain from doing its duty
and abstain from interfering on the ground that
a private party and not the State has invoked
the Court’s jurisdiction. We do not have the
slightest doubt that we can entertain appeals
against judgments of acquittal by the High
Court at the instance of interested private
parties also. The circumstance that the Code
does not provide for an appeal to the High
Court against an order of acquittal by a
subordinate court, at the instance of a private
party, has no relevance to the question of the
power of this Court under Article 136. We may
mention that in Mohan Lal v. Ajit Singh this
Court interfered with a judgment of acquittal
by the High Court at the instance of a private
party. An apprehension was expressed that if
appeals against judgments of acquittal at the
instance of private parties are permitted,
there may be a flood of appeals. We do not
share the apprehension. Appeals under Article
136 of the Constitution are entertained by
special leave granted by this Court, whether it
is the State or a private party that invokes
the jurisdiction of this Court, and special
leave is not granted as a matter of course but
only for good and sufficient reasons, well
established by the practice of this Court.”
(emphasis supplied by this Court)Page 22
Crl.A.@ SLP(Crl.)No.2866 of 2011 22
Further, in Rama Kant Verma’s case (supra) this Court
has reiterated the aforesaid view that the appellate
power of this Court under Article 136 of the
Constitution of India is not just an ordinary
appellate power exercised by appellate courts and
appellate tribunals under specific statutes. It is a
plenary power which can be exercised outside the
purview of ordinary law to meet the ends of justice.
The relevant para 16 of the case reads thus:
“16. In Ramakant Rai v. Madan Rai it was
inter alia observed as follows: (SCC p. 402,
para 12)
“12. A doubt has been raised about the
competence of a private party as
distinguished from the State, to invoke
the jurisdiction of this Court under
Article 136 of the Constitution of
India, 1950 (in short ‘the
Constitution’) against a judgment of
acquittal by the High Court. We do not
see any substance in the doubt. The
appellate power vested in this Court
under Article 136 of the Constitution is
not to be confused with the ordinary
appellate power exercised by appellate
courts and Appellate Tribunals under
specific statutes. It is a plenary
power, ‘exercisable outside the purview
of ordinary law’ to meet the pressing
demands of justice (see Durga Shankar
Mehta v. Thakur Raghuraj Singh ). Article
136 of the Constitution neither confers
on anyone the right to invoke the
jurisdiction of this Court nor inhibitsPage 23
Crl.A.@ SLP(Crl.)No.2866 of 2011 23
anyone from invoking the Court’s
jurisdiction. The power is vested in
this Court but the right to invoke the
Court’s jurisdiction is vested in no
one. The exercise of the power of this
Court is not circumscribed by any
limitation as to who may invoke it.
Where a judgment of acquittal by the
High Court has led to a serious
miscarriage of justice, this Court
cannot refrain from doing its duty and
abstain from interfering on the ground
that a private party and not the State
has invoked the Court’s jurisdiction. We
do not have slightest doubt that we can
entertain appeals against judgments of
acquittal by the High Court at the
instance of interested private parties
also. The circumstance that the Criminal
Procedure Code, 1973 (in short ‘the
Code’) does not provide for an appeal to
the High Court against an order of
acquittal by a subordinate court, at the
instance of a private party, has no
relevance to the question of the power
of this Court under Article 136. We may
mention that in Mohan Lal v. Ajit Singh
this Court interfered with a judgment of
acquittal by the High Court at the
instance of a private party. An
apprehension was expressed that if
appeals against judgments of acquittal
at the instance of private parties are
permitted there may be a flood of
appeals. We do not share the
apprehension. Appeals under Article 136
of the Constitution are entertained by
special leave granted by this Court,
whether it is the State or a private
party that invokes the jurisdiction of
this Court, and special leave is not
granted as a matter of course but only
for good and sufficient reasons, on
well-established practice of this
Court.””Page 24
Crl.A.@ SLP(Crl.)No.2866 of 2011 24
(emphasis supplied by this Court)
25. After considering the case law relied upon by
the learned counsel for the appellants as well as the
respondents, in the light of the material placed on
record, we are of the view that the appellants have
locus standi to maintain this appeal. From the
material placed on record, it is clear that the
appellants have precise connection with the matter at
hand and thus, have locus to maintain this appeal.
The learned counsel for the appellants has rightly
placed reliance upon the Constitution Bench judgment
of this Court, namely, P.S.R Sadhanantham (supra) and
other decisions of this Court in Ramakant Rai, Esher
Singh, Ramakant Verma (supra). Further, it is
pertinent here to observe that it may not be possible
to strictly enumerate as to who all will have locus
to maintain an appeal before this Court invoking
Article 136 of the Constitution of India, it depends
upon the factual matrix of each case, as each case
has its unique set of facts. It is clear from the
aforementioned case law that the Court should be
liberal in allowing any third party, having bonafidePage 25
Crl.A.@ SLP(Crl.)No.2866 of 2011 25
connection with the matter, to maintain the appeal
with a view to advance substantial justice. However,
this power of allowing a third party to maintain an
appeal should be exercised with due care and caution.
Persons, unconnected with the matter under
consideration or having personal grievance against
the accused should be checked. A strict vigilance is
required to be maintained in this regard.
Answer to Point No.2
26. A careful reading of the material placed on
record reveals that the learned CJM took cognizance
of the offences alleged against the accused-persons
after a perusal of case diary, chargesheet and other
material placed before the court. The cognizance was
taken, as a prima facie case was made out against the
accused-persons. It is well settled that at the stage
of taking cognizance, the court should not get into
the merits of the case made out by the police, in the
chargesheet filed by them, with a view to calculate
the success rate of prosecution in that particular
case. At this stage, the court’s duty is limited toPage 26
Crl.A.@ SLP(Crl.)No.2866 of 2011 26
the extent of finding out whether from the material
placed before it, offence alleged therein against the
accused is made out or not with a view to proceed
further with the case. The proposition of law
relating to Section 482 of the CrPC has been
elaborately dealt with by this Court in Bhajan Lal’s
case (supra). The relevant paras 102 and 103 of which
read thus:
“102. In the backdrop of the interpretation
of the various relevant provisions of the
Code under Chapter XIV and of the principles
of law enunciated by this Court in a series
of decisions relating to the exercise of the
extraordinary power under Article 226 or the
inherent powers under Section 482 of the Code
which we have extracted and reproduced above,
we give the following categories of cases by
way of illustration wherein such power could
be exercised either to prevent abuse of the
process of any court or otherwise to secure
the ends of justice, though it may not be
possible to lay down any precise, clearly
defined and sufficiently channelised and
inflexible guidelines or rigid formulae and
to give an exhaustive list of myriad kinds of
cases wherein such power should be exercised.
(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 anPage 27
Crl.A.@ SLP(Crl.)No.2866 of 2011 27
investigation by police officers under
Section 156(1) of the Code except under an
order of a Magistrate within the purview
of Section 155(2) of the Code.
(3) Where the uncontroverted allegations
made in the FIR or complaint and the
evidence collected in support of the same
do not disclose the commission of any
offence and make out a case against the
accused.
(4) Where, the allegations in the FIR do
not constitute a cognizable offence but
constitute only a non-cognizable offence,
no investigation is permitted by a police
officer without an order of a Magistrate
as contemplated under Section 155(2) of
the Code.
(5) Where the allegations made in the FIR
or complaint are so absurd and inherently
improbable on the basis of which no
prudent person can ever reach a just
conclusion that there is sufficient ground
for proceeding against the accused.
(6) Where there is an express legal bar
engrafted in any of the provisions of the
Code or the concerned Act (under which a
criminal proceeding is instituted) to the
institution and continuance of the
proceedings and/or where there is a
specific provision in the Code or the
concerned Act, providing efficacious
redress for the grievance of the aggrieved
party.
(7) Where a criminal proceeding is
manifestly attended with mala fide and/or
where the proceeding is maliciously
instituted with an ulterior motive for
wreaking vengeance on the accused and with
a view to spite him due to private and
personal grudge.
103. We also give a note of caution to the
effect that the power of quashing a criminal
proceeding should be exercised very sparinglyPage 28
Crl.A.@ SLP(Crl.)No.2866 of 2011 28
and with circumspection and that too in the
rarest of rare cases; that the court will not
be justified in embarking upon an enquiry as
to the reliability or genuineness or
otherwise of the allegations made in the FIR
or the complaint and that the extraordinary
or inherent powers do not confer an arbitrary
jurisdiction on the court to act according to
its whim or caprice.”
Further, this Court in the case of Rajiv Thapar v.
Madan Lal Kapoor9 has laid down certain parameters to
be followed by the High Court while exercising its
inherent power under Section 482 of the CrPC, in the
following manner:
“29. The issue being examined in the instant
case is the jurisdiction of the High Court under
Section 482 CrPC, if it chooses to quash the
initiation of the prosecution against an accused
at the stage of issuing process, or at the stage
of committal, or even at the stage of framing of
charges. These are all stages before the
commencement of the actual trial. The same
parameters would naturally be available for
later stages as well. The power vested in the
High Court under Section 482 CrPC, at the stages
referred to hereinabove, would have far-reaching
consequences inasmuch as it would negate the
prosecution’s/complainant’s case without
allowing the prosecution/complainant to lead
evidence. Such a determination must always be
rendered with caution, care and circumspection.
To invoke its inherent jurisdiction under
Section 482 CrPC the High Court has to be fully
satisfied that the material produced by the
9
(2013) 3 SCC 330
accused is such that would lead to the
conclusion that his/their defence is based on
sound, reasonable, and indubitable facts; the
material produced is such as would rule out and
displace the assertions contained in the charges
levelled against the accused; and the material
produced is such as would clearly reject and
overrule the veracity of the allegations
contained in the accusations levelled by the
prosecution/complainant. It should be sufficient
to rule out, reject and discard the accusations
levelled by the prosecution/complainant, without
the necessity of recording any evidence. For
this the material relied upon by the defence
should not have been refuted, or alternatively,
cannot be justifiably refuted, being material of
sterling and impeccable quality. The material
relied upon by the accused should be such as
would persuade a reasonable person to dismiss
and condemn the actual basis of the accusations
as false. In such a situation, the judicial
conscience of the High Court would persuade it
to exercise its power under Section 482 CrPC to
quash such criminal proceedings, for that would
prevent abuse of process of the court, and
secure the ends of justice.
30. Based on the factors canvassed in the
foregoing paragraphs, we would delineate the
following steps to determine the veracity of a
prayer for quashment raised by an accused by
invoking the power vested in the High Court
under Section 482 CrPC:
30.1. Step one : whether the material
relied upon by the accused is sound,
reasonable, and indubitable i.e. the
material is of sterling and impeccable
quality?
30.2. Step two : whether the material
relied upon by the accused would rule
out the assertions contained in the
charges levelled against the accused
i.e. the material is sufficient to
reject and overrule the factual
assertions contained in the complaint
i.e. the material is such as would
persuade a reasonable person to dismiss
and condemn the factual basis of the
accusations as false?
30.3. Step three : whether the material
relied upon by the accused has not been
refuted by the prosecution/complainant;
and/or the material is such that it
cannot be justifiably refuted by the
prosecution/complainant?
30.4. Step four : whether proceeding with
the trial would result in an abuse of
process of the court, and would not
serve the ends of justice?
30.5. If the answer to all the steps is
in the affirmative, the judicial
conscience of the High Court should
persuade it to quash such criminal
proceedings in exercise of power vested
in it under Section 482 CrPC. Such
exercise of power, besides doing justice
to the accused, would save precious
court time, which would otherwise be
wasted in holding such a trial (as well
as proceedings arising therefrom)
specially when it is clear that the same
would not conclude in the conviction of
the accused.”
(emphasis supplied by this Court)
27. After considering the rival legal contentions
urged by both the parties, case law referred to supra
and the material placed on record, we are of the view
that the High Court has exceeded its jurisdiction
under Section 482 of the CrPC. It has erred in
quashing the cognizance order passed by the learned
CJM without appreciating the material placed before
it in correct perspective. The High Court has ignored
certain important facts, namely, that on 17.10.2008,
the appellant no.1 was allegedly threatened by the
accused-Mukhtar for which FIR No. 104/08 was
registered against him for offences punishable under
Sections 25 and 26 of the Arms Act, 1959. Further,
there are statements of various witnesses made under
Section 164 of the CrPC, before a judicial
magistrate, to the effect that the deceased has been
murdered by none other than her husband-Mukhtar. The
evidence collected by the I.O. by recording the
statement of prosecution witnesses, filed alongwith
the chargesheet was duly considered by the learned
CJM before taking cognizance and therefore, the same
should not have been interfered with by the High
Court in exercise of its inherent power under Section
482 of the CrPC.
28. Further, the High Court has failed to take into
consideration another important aspect that the case
at hand relates to the grave offence of murder and
that the criminal proceedings related thereto should
not lightly be interfered with, which is a well
settled proposition of law.
Answer to Point No.3
29. Thus, for the aforesaid reasons, this Court is
of the view that the High Court in the instant case
has failed to appreciate the material placed before
it in the light of law laid down by this Court in
Bhajan Lal’s case (supra) and has exceeded its
jurisdiction while exercising its power under Section
482 of the CrPC. Therefore, the impugned judgment and
order passed by the High Court is liable to be set
aside by this Court.
30. The impugned judgment and order of the High Court
is set aside and the matter is remitted to the
learned CJM for proceeding further in accordance with
law. The appeal is allowed.
………………………………………………………J.
[V. GOPALA GOWDA]
………………………………………………………J.
[UDAY UMESH LALIT]
New Delhi,
12th April, 2016
No comments:
Post a Comment