Supreme Court: Against which orders court can entertain criminal revision?

 There are three categories of orders that a court can pass—final, intermediate and interlocutory. There is no doubt that in respect of a final order, a court can exercise its revision jurisdiction—that is in respect of a final order of acquittal or conviction. There is equally no doubt that in respect of an interlocutory order, the court cannot exercise its revision jurisdiction. As far as an intermediate order is concerned, the court can exercise its revision jurisdiction since it is not an interlocutory order.{Para 16}

21. The concept of an intermediate order was further elucidated in Madhu Limaye v. State of Maharashtra [Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551 : 1978 SCC (Cri) 10] by contradistinguishing a final order and an interlocutory order. This decision lays down the principle that an intermediate order is one which is interlocutory in nature but when reversed, it has the effect of terminating the proceedings and thereby resulting in a final order. Two such intermediate orders immediately come to mind—an order taking cognizance of an offence and summoning an accused and an order for framing charges. Prima facie these orders are interlocutory in nature, but when an order taking cognizance and summoning an accused is reversed, it has the effect of terminating the proceedings against that person resulting in a final order in his or her favour. Similarly, an order for framing of charges if reversed has the effect of discharging the accused person and resulting in a final order in his or her favour. Therefore, an intermediate order is one which if passed in a certain way, the proceedings would terminate but if passed in another way, the proceedings would continue.

24. The second reason why Amar Nath [Amar Nath v. State of Haryana, (1977) 4 SCC 137 : 1977 SCC (Cri) 585] is important is that it invokes the principle, in the context of criminal law, that what cannot be done directly cannot be done indirectly. Therefore, when Section 397(2) CrPC prohibits interference in respect of interlocutory orders, Section 482 CrPC cannot be availed of to achieve the same objective. In other words, since Section 397(2) CrPC prohibits interference with interlocutory orders, it would not be permissible to resort to Section 482 CrPC to set aside an interlocutory order. This is what this Court held : (SCC p. 140, para 3)

“3. While we fully agree with the view taken by the learned Judge that where a revision to the High Court against the order of the Subordinate Judge is expressly barred under sub-section (2) of Section 397 of the 1973 Code the inherent powers contained in Section 482 would not be available to defeat the bar contained in Section 397(2). Section 482 of the 1973 Code contains the inherent powers of the Court and does not confer any new powers but preserves the powers which the High Court already possessed. A harmonious construction of Sections 397 and 482 would lead to the irresistible conclusion that where a particular order is expressly barred under Section 397(2) and cannot be the subject of revision by the High Court, then to such a case the provisions of Section 482 would not apply. It is well settled that the inherent powers of the Court can ordinarily be exercised when there is no express provision on the subject-matter. Where there is an express provision, barring a particular remedy, the Court cannot resort to the exercise of inherent powers.”

Supreme Court of India

Girish Kumar Suneja vs Cbi on 13 July, 2017

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Whether petition U/S 482 of CRPC is maintainable under Domestic violence Act?

In Manish Tandon (supra), challenge before the High Court was to an ex-parte order granting interim maintenance to the wife under Section 23(2) of the Act. Bypassing the remedy of Section 29 of the Act, a Petition was filed under Section 482 Cr.P.C. Court held as under:-

"I totally and absolutely disagree with the aforesaid contention of Mr. Sharma. The word 'order' used in Section 29 connotes all types of orders passed by the Magistrates under the 2005 Act including orders granting interim maintenance under Sub Section (1) of Section 23 as well as ex-parte interim maintenance granted under Sub-Section (2) of Section 23. Since the word 'order' has not been qualified by any suffix or prefix in Section 29, the clear legislative intent is that each and every type of order, irrespective of its description and nature, passed by a Magistrate has been made appealable to the court of Session Judge under Section 29. The remedy of filing an appeal under Section 29, therefore, being an attentive and equally efficacious remedy, this petition under Section 482 Cr.P.C. was not at all maintainable. It was not open to the Petitioner to have bypassed the appeal forum by straightway approaching this Court under Section 482 Cr.P.C.

I have, therefore, no hesitation in holding that on the ground of availability of an alternative and efficacious remedy of appeal under Section 29 (supra), this petition is not maintainable in this Court under Section 482 Cr.P.C."

33. It was vehemently argued by Ms. Rajkotia that since the matter relates to custody of minor girls, remedy of appeal is not efficacious. I am afraid that this Court cannot accept this argument for more than one reason. Legislature in its wisdom has provided for Appeal under Section 29 of the Act against all 'orders' and has not made any exception to orders relating to custody. Secondly, it is not shown why the Petitioner cannot resort to the remedy of an Appeal and why the Appellate Court is incapable of or incompetent to exercise its jurisdiction to deal with an impugned order of temporary custody, both in law and facts. As held in Manish Tandon (supra), the word 'Order' used in Section 29 of the Act connotes all types of Orders passed by the Learned Metropolitan Magistrate irrespective of whether they relate to maintenance, custody, etc.

34. For all the aforesaid reasons, the present petition cannot be entertained. It is open to the Petitioner to avail the remedy of Appeal available to her in law, if so advised.

IN THE HIGH COURT OF DELHI

Crl. M.C. 1554/2020 and Crl. M.A. 8821/2020

Decided On: 20.07.2020

Sirisha Dinavahi Bansal  Vs.  Rajiv Bansal

Hon'ble Judges/Coram:

Jyoti Singh, J.

Citation: MANU/DE/1388/2020

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What are powers of high court U/S 482 of CRPC in proceeding under domestic violence Act?

A plain reading of Section 482 of Cr.P.C., which saves inherent power of the High Court, indicates that the power is to be exercised by the High Court not just to quash the proceedings, rather it has to be exercised for specific as well as broader purposes. The exercise of the inherent power has been delimited to such purposes as giving 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. This would show that the inherent power of the High Court can be invoked not only to seek quashing of a proceeding, but also to give effect to any order under the Code or to challenge any order of the Court, which amounts to abuse of the process of the Court or generally to secure the ends of justice. This would mean that not only the respondent-man but also the aggrieved person-woman may feel like approaching the High Court to give effect to any order or to prevent abuse of the process of Court or to secure ends of justice. This would show that this power is capable of being used by either of the parties and not just by the respondent seeking quashing of the proceedings under Section 12 of the D.V. Act. If this power is removed from Section 28 of the D.V. Act, the affected woman may as well or equally get adversely hit, and this is how, the very object of the D.V. Act may get defeated.

59. Now, one incidental question would arise as to from what stage the provisions of the Cr.P.C. would become applicable and in our view, the answer could be found out from the provisions of Sections 12 and 13 of the D.V. Act. A combined reading of these provisions shows that the commencement of the proceedings would take place the moment, the Magistrate applies his mind to the contents of the application and passes any judicial order including that of issuance of notice. Once, the proceeding commences, the procedure under Section 28 of the D.V. Act, subject to the exceptions provided in the Act and the rules framed thereunder, would apply. In other words, save as otherwise provided in the D.V. Act and the rules framed thereunder and subject to the provisions of sub-section (2) of Section 28, the provisions of the Cr.P.C. shall govern the proceedings under Sections 12 to 23 and also those relating to an offence under Section 31 of the D.V. Act on their commencement.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Criminal Application [APL] No. 578 of 2011

Decided On: 03.05.2018

Nandkishor Pralhad Vyawahare Vs. Mangala

Hon'ble Judges/Coram:

B.P. Dharmadhikari, S.B. Shukre and Swapna Joshi, JJ.

Citation: 2018(3) MHLJ 913

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Whether police can make investigation even though permission for further investigation was declined by magistrate?

There is no doubt that section 173(8) Cr.P.C. does not talk about prior permission of the Magistrate even Vinay Tyagi's case (Supra) also does not mandate that further investigation without prior permission of the Magistrate is illegal or vitiated. But, in the instant case, the permission was indeed applied for and same was rejected by the Magistrate. No body asked the Police personnel to seek permission from the Magistrate but once they sought permission from the Magistrate and same was denied, there was no occasion for them to initiate further investigation in utter disregard and in violation of order of Magistrate dated 17.9.2012. Surprisingly, permission was sought and denied, yet investigation was conducted. In the instant case, several investigations have been conducted. First investigation resulted into final report. Second investigation resulted into charge-sheet under non-bailable and non-cognizable offences. The procedure laid down under Section 2(d) Cr.P.C. says in explanation annexed with this provision that a report made by Police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint and police officer by whom such report is made shall be deemed to be the complainant. But, this did not satisfy bigwigs of Police department and they again ordered investigation by a different officer and made sure that charge-sheet is filed under cognizable and non-bailable offences.

28. I have absolutely no doubt that once a permission was sought and declined, then Police department Gautam Buddh Nagar did not have any authority to continue the investigation. Subsequent investigation illegal and vitiated. The charge-sheet dated 17.9.2013 subsequent to this investigation, is not sustainable. The procedure adopted by the Gautam Buddh Nagar Police reeks of mala fide and arbitrariness. The Apex Court in State of Haryana versus Bhajan Lal MANU/SC/0115/1992 : 1990 Lawsuit (SC) 701 has held that 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, the High Court would be justified in exercising the powers under section 482 Cr.P.C. in quashing the charge-sheet.

IN THE HIGH COURT OF ALLAHABAD

Application No. 3384 of 2014

Decided On: 08.07.2016

 Arun Kumar Vs. State of U.P. and Ors.

Hon'ble Judges/Coram:

Bharat Bhushan, J.

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Whether prosecution U/S 498A and S 294 of IPC can be quashed?

 Thus, in our opinion, while it is true that ordinarily defence material cannot be looked into by the court while framing of the charge in view of D.N. Padhi case [(2005) 1 SCC 568 : 2005 SCC (Cri) 415] , there may be some very rare and exceptional cases where some defence material when shown to the trial court would convincingly demonstrate that the prosecution version is totally absurd or preposterous, and in such very rare cases the defence material can be looked into by the court at the time of framing of the charges or taking cognizance. In our opinion, therefore, it cannot be said as an absolute proposition that under no circumstances can the court look into the material produced by the defence at the time of framing of the charges, though this should be done in very rare cases i.e. where the defence produces some material which convincingly demonstrates that the whole prosecution case is totally absurd or totally concocted.

38. In my view, therefore, there is no scope for the accused to produce any evidence in support of the submissions made on his behalf at the stage of framing of charge and only such materials as are indicated in Section 227 CrPC can be taken into consideration by the learned Magistrate at that stage. However, in a proceeding taken therefrom under Section 482 CrPC the court is free to consider material that may be produced on behalf of the accused to arrive at a decision whether the charge as framed could be maintained. This, in my view, appears to be the intention of the legislature in wording

 Sections 227 and 228 the way in which they have been worded and as explained in Debendra Nath Padhi case (2005) 1 SCC 568 : 2005 SCC (Cri) 415 by the larger Bench therein to which the very same question had been referred."

12. Accordingly, the documents referred to by the applicants with regard to vehicles owned by them can be looked into. Furthermore, the offence under Section 294 of the IPC is not made out as the incident has taken place within the house of the complainant-wife. It appears that the prosecution has been initiated on account of scuffle which has taken place on 8.9.2013. However, in order to drag more offences against the applicants, the allegations with regard to demand of Indica car have been made. Further, the reliance has been placed by learned counsel for respondent No.2 on the judgment of Hon'ble Supreme Court in Taramani Parakh's case (supra), wherein the Court in paragraph 11 has observed that if the allegations are absurd and do not make any case or if it can be held that there is abuse of process then the proceedings can be quashed. However, the Court has been cautioned from entering into the reliability of the evidence and to discuss about the version and counter version.

13. In the considered opinion of this Court, in the case at hand, as discussed above, the allegations are absurd and have been levelled to make the case more grave. Therefore, following the mandate of Hon'ble the Supreme Court, the powers under Section 482 CrPC are exercised for quashing the FIR to the extent it relates to the offences under Section 498-A and 294 of the IPC.

Madhya Pradesh High Court

Kunaldev Singh Rathore @ Kunal Dev ... vs State Of M.P on 2 December, 2016

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Whether petition U/S 482 CRPC is maintainable even though availability of remedy of revision?

 As mentioned supra, the powers of the revisional courts u/s. 397 of the Code and the power of the High Court u/s. 482 of Cr.P.C, may overlap to certain extent because both are aimed at securing the ends of justice and both have an element of discretion. But, at the same time, inherent power u/s. 482 of the Code being an extraordinary and residuary power, it is inapplicable in regard to matters which are specifically provided for under other provisions of the Code. To put it simply, normally the High Court will not invoke its power u/s. 482 of the Code where a party could have availed of the remedy available u/s. 397 of the Code. The inherent power u/s. 482 of the Code are of a wide magnitude and are not as limited as the power u/s.397 of the Code. Therefore, Section 482 of the Code can be invoked where the order in question is to be tested on the touch stone of the purpose and object of Section 482 of the Code to ascertain whether there was any abuse of process of law and that the circumstances need for securing the ends of justice. The limitation in fact is only self restraint, nothing more. The provisions of Section 482 of Cr.P.C. are pervasive. However, inherent powers of the Court unquestionably have to be read and construed as not free from restrictions, but are subject to the restrictions as mentioned supra. However, it is left to the sound discretion of the learned Judges to consider as to whether the material on records are sufficient to compel the court to exercise powers, u/s. 482 of Cr.PC.

32. With these observations, we answer the question referred to us in the following manner:

"The petition filed u/s. 482 of Cr.PC. is maintainable under extraordinary circumstances mentioned supra, though remedy is available against the order of the Criminal court u/s. 397 of Cr.PC. However, jurisdiction under Section 482 of Cr.P.C. will be exercised in such an event by the High Court with utmost care and caution, sparingly and under extraordinary circumstances.

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

Criminal Petition No. 4478/2015

Decided On: 31.03.2016

Anjula Divedi and Ors.Vs. State

Hon'ble Judges/Coram:Mohan M. Shantanagoudar and K.N. Phaneendra, JJ.

Citation:2016 CRLJ (NOC)320 KAR

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Whether quashing of prosecution is not permissible if revisional jurisdiction is available?

 In our considered view any attempt to explain the law further as regards the issue
relating to inherent power of High Court under Section 482 Cr.P.C. is
unwarranted. We would simply reiterate that Section 482 begins with a
non-obstante clause to state: “Nothing in this Code shall be deemed to limit or
affect the inherent powers of the High Court to make such orders as may be
necessary to give effect to any order under this Code, or to prevent abuse of the
process of any Court or otherwise to secure the ends of justice.” A fortiori, there
can be no total ban on the exercise of such wholesome jurisdiction where, in the
words of Krishna Iyer, J. “abuse of the process of the Court or other extraordinary
situation excites the court’s jurisdiction. The limitation is self-restraint, nothing
more.” We venture to add a further reason in support. Since Section 397 Cr.P.C.
is attracted against all orders other than interlocutory, a contrary view would limit
the availability of inherent powers under Section 482 Cr.P.C. only to petty
interlocutory orders! A situation wholly unwarranted and undesirable.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 842 OF 2016
[Arising out of S.L.P.(Crl.) No. 3314 of 2009]
Prabhu Chawla
V
State of Rajasthan & Anr
Citation: 2016 SCCONLINESC905

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Whether doctors can be prosecuted for minor errors in record keeping under PCPNDT Act?

 If   we   consider   the   discrepancies   as   noted   above,   then   it   is
nowhere the case of respondent No. 2 that, the petitioner has not maintained
the record as mandatorily required under the provisions of the said Act &
Rules thereunder.   What has been alleged is certain omissions, mistakes or
lacunae on the part of petitioner in maintaining the record as envisaged under
the provisions of the said Act & Rules. The discrepancies as noted are mainly
refers to omission to mention full address, mobile number etc. of patients
underwent sonography.  If we consider the over all discrepancies noted by the
Vigilance Committee, then same cannot be termed as act committed with
intention to violate the provisions of the said Act & Rules made thereunder.  In
fact, there are no allegations against the petitioner that the discrepancies
noted were made with ulterior motive or with a view to suppress certain
information  about  patients or to misuse  the  ultrasonography machine  for
determination of sex of foetus.  
15. The   petitioner   has   started   ultrasonography   centre   in   the   year
2013.   It   is   nowhere   the   case   of   the   respondent   No.2   that   she   has   not
maintained   the   record.   The   allegations   made   against   the   petitioner   that,

certain information which was to be recorded in the particular manner has not
been recorded.  The omissions of a nature not to mention the mobile number
of the patient, full address of the patient with mobile number, difference in
signature of the Doctor & other inadvertent mistakes cannot be termed as a
discrepancy or act of inaccuracy amounting to violation of the Sections 4, 5 or
6   or   29   of   the   PCPNDT   Act.     The   petitioner   has   offered   satisfactory
explanation to each & every deficiency in Inspection Report. 
Thus, if we read the provisions of sections 17, 17­A and 28 of the
said Act together, then the role of the Appropriate Authority is very important.

The Appropriate Authority has to act as an investigator to inquire into the
allegations of violation of the PCPNDT Act and Rules thereunder either on the
basis of complaint received as well as to act  suo motu.   The role of the
Appropriate   Authority   is   not   just   to   receive   the   complaint   and   file   the
proceeding in the Court of law.   Section 17(4)(c) specifically provides that,
one   of   the   function   of   the   Appropriate   Authority   is   to   investigate   the
complaints of breach of provisions of the act and the rules made thereunder
and   take   legal   action.     Section   17(4)(e)   provides   that,   the   Appropriate
Authority  to take legal action against the use of any sex selection technique
by any person at any place, suo motu or brought to to its notice or also to
initiate independent investigation in such matter.   Thus, to investigate the
complaints received against the persons violating the provisions of PCPNDT
Act   is   the   job   of   Appropriate   Authority.     Outcome   of   such   investigation
provides   basis   either   to   drop   the   proceeding   or   to   initiate   appropriate
proceeding   which   includes   initiation   of   criminal   prosecution   by   filing
complaint u/s 28 of PCPNDT Act.  Mere report or complaint or information
received cannot be sole basis to prosecute the person.   If the complaint is
inquired   and   investigated   results   into   collection   of   evidence   sufficient   to
prosecute the person for violation of the provisions of PCPNDT Act, then only
criminal proceeding is expected to be filed u/s 28 of the PCPNDT Act.  There
appears to be specific legislative intent behind introducing Section 17­A in the
PCPNDT   Act   (incorporated   by   amended   act   of   2003)   to   vest   full­fledged
powers of inquiry and Appropriate Authority to investigate the matter.   Thus,
the role of the Appropriate Authority is much more than the authority to file
complaint.  

18. In the light of role of the  Appropriate Authority discussed as
above, it was expected on the part of the Appropriate Authority to have
investigated the information received in the form of inspection report from the
Vigilance Squad to find out there was any violation of provisions of PCPNDT
Act on the part of the petitioner.  It was expected on the part of Appropriate
Authority to have summoned the persons referred in the inspection report to
verify as to whether the petitioner had complied with the requirement of
obtaining written consent as contemplated under Section 5 r/w Rule 9 of the
PCPNDT   Act   and   there   was   any   violation   in   observing   the   mandatory
conditions.   Simply certain lacunae, omission detected in the consent form
could not be the basis to prosecute the person.  By exercising the powers u/s
17­A,   certainly   the   Appropriate   Authority   could   have   summoned   those
persons,   recorded   their   statement   and   conducted   further   investigation   as
deemed fit and proper to collect the evidence to sustain the prosecution in the
Court   of   law.     However,   in   the   instant   case,   it   appears   that   Appropriate
Authority has failed to discharge its statutory obligations as contemplated u/s
17(4) of PCPNDT Act i.e. to investigate the report of inspection received from
Vigilance Squad which restricts to noting of certain lacunae, omission and
certain mistakes in maintenance of record.   The report of inspection itself
could not be the basis to arrive at the conclusion that such lacunae, omission
and mistake were deliberate and acts of omission and commission committed
on the part of the petitioner with an intention to violate the provisions of
PCPNDT Act.   It was also expected on the part of Appropriate Authority to
look into explanation given by the petitioner vide reply dt. 09.03.2015 and
opportunity of personal hearing and then to arrive at just decision.   The

communication dt. 15.04.2015 which, in fact is an order communicated to the
petitioner  as to suspension of sonography centre finds no reasons for taking
such action.  The expected role of Appropriate Authority u/s 17(4) of PCPNDT
Act is to probe the matter and then to arrive at a proper decision as to
whether prima facie case of violation of the provisions of the PCPNDT Act and
Rules   framed   thereunder   is   made   out   or   not.     In   the   case   of  Dr.   Uma
Shankarrao Rachewad Vs. Appropriate Authority reported in 2012 Cri.L.J.
2634 decided by one of us (Coram : A. V. Nirgude, J.), dealing with the case
more or less identical to the facts of the case, has observed in para 14 as
under: 
“14. In view of the discussion above, the case filed against the petitioner does not
disclose prima facie case and therefore should fail. Before I conclude this
judgment, I think I must also hold that when the Competent Authority visits
a clinic for inspection, after inspection he should record statement of the
person against whom he intends to file the case. In such statement, such
person would get ample opportunity to put­forward his or her explanation.
The Competent Authority under this Act, in my view, should consider each
case on its merits, examine it meticulously, preferably with the help of a
Legal Advisor and then file complaint in the Court. At least in this case, it
appears   that   the   necessary   care   was   not   taken   and   the   case   was   filed
hurriedly, without examining its strength.” 
. It appears that in the instant case what has been observed as
above, not followed.  The case has been instituted solely on the basis of report
of the Vigilance Committee without investigating the matter and collecting the
requisite material to prosecute the petitioner.  The Appropriate Authority has
failed to discharge its obligation as contemplated u/s 17(4) of PCPNDT Act
before lodging the complaint against the petitioner.  It is not out of place to
observe that sometime such casual approach of the Authority to invariably file

complaints without proper inquiry, investigation & due application of mind
leads to unnecessary criticism of the provisions of PCPNDT Act & Rules framed
thereunder by the persons from the field of Medical profession.  It is expected
that the legal action must follow based upon sufficient material to establish
that there was a violation of provisions of PCPNDT Act and Rules thereunder.
Inadvertent   mistakes   committed   during   the   course   of   maintaining   record,
lacunae and omission in filling up certain information in detail in the requisite
forms needs to be considered in a proper perspective.   Only after holding
inquiry, if it is found that such lapses have been committed with any intent or
motive to misuse the  techniques and such professioner indulges into acts
prohibited   under   the   law,   then   stringent   provisions   of   such   act   must   be
invoked   and   Appropriate   Authority   shall   ensure   that   such   persons   are
punished.  Mistakes committed without any criminal intent and merely in the
nature of procedural lapses needs to be properly understood before taking
drastic action of initiating criminal prosecution against a person in the field of
Medical profession.  In an appropriate case, if the authority is satisfied that the
mistakes  were   inadvertent   and  there  was  no  criminal   intent  behind  such
procedural mistakes then such person be asked to rectify the mistakes and if
necessary, such person be appropriately given understanding not to commit
such procedural lapse. If there is persistent defaults and lapses on the part of
such person, then recourse to stringent provision to prosecute such person
may be taken.  If such precautions are taken before lodging the prosecution
against a person in the field of Medical profession, it would help to remove
the fear in the mind of medical profession doing their work with utmost
honesty, sincerity and due observance of medical ethics and code of conduct

laid   down   under   the   PCPNDT   Act   being   subjected   to   face   unnecessary
humiliation, harassment and criminal prosecution. 
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 1381 OF 2015
Dr. Sai W/o Santosh Shiradkar,

V
 The State of Maharashtra,
through the Appropriate Authority
Under PCPNDT Act,
CORAM :  A. V. NIRGUDE  & 
V.L. ACHLIYA, J.

DATED  :  27.09.2016. 

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What are steps for determining veracity of prayer for quashing of prosecution by accused?

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.”

 REPORTABLE

IN THE SUPREME COURT OF INDIA

 CRIMINAL APPELLATE JURISDICTION

 CRIMINAL APPEAL NO. 775 OF 2013

Manoj Kumar Sharma & Ors. .... Appellant(s)

Versus

State of Chhattisgarh & Anr. .... Respondent(s)

Citation:AIR 2016 SC 3930

R.K. Agrawal, J.

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Guidelines for exercise of power of quashing of prosecution By high court U/S 482 of CRPC

 In State of Haryana and Ors. v. Bhajan Lal and
Ors. reported in 1992 Supp(1) SCC 335, this Court
laid down the following guidelines where the power
under Section 482 should be exercised. They are:-
“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 an investigation
by police officers under Section
156(1) of the Code except under an order
of a Magistrate within the purview of Section
155(2) of the Code.
(3) Where the uncontroverted allegations
made in the FIR or complaint and the evidence
collected in support of the same do
not disclose the commission of any offence
and make out a case against the accused.
(4) Where, the allegations in the FIR do
not constitute a cognizable offence but
constitute only a non-cognizable offence,
no investigation is permitted by a police
officer without an order of a Magistrate
as contemplated under Section 155(2) of
the Code.
(5) Where the allegations made in the FIR
or complaint are so absurd and inherently
improbable on the basis of which no prudent
person can ever reach a just conclusion
that there is sufficient ground for
proceeding against the accused.
(6) Where there is an express legal bar
engrafted in any of the provisions of the
Code or the concerned Act (under which a
criminal proceeding is instituted) to the
institution and continuance of the proceedings
and/or where there is a specific
provision in the Code or the concerned
Act, providing efficacious redress for the
grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly
attended with 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.”
We find that the High Court ought to have exercised
its power under Clause (1), (3) and (5) of the above
said judgment.
17. In Madhavrao Jiwajirao Scindia and Ors. v.
Sambhajirao Chandrojirao Angre and Ors., reported in
(1988) 1 SCC 692, this Court observed as follows:-
“7. The legal position is well settled
that when a prosecution at the initial stage is
asked to be quashed, the test to be applied by
the court is as to whether the uncontroverted
allegations as made prima facie establish the
offence. It is also for the court to take into
consideration any special features which appear
in a particular case to consider whether it is
expedient and in the interest of justice to permit
a prosecution to continue. This is so on the
basis that the court cannot be utilised for any
oblique purpose and where in the opinion of the
court chances of an ultimate conviction are
bleak and, therefore, no useful purpose is
likely to be served by allowing a criminal prosecution
to continue, the court may while taking
into consideration the special facts of a case
also quash the proceeding even though it may be
at a preliminary stage.”
18. This Court in Janata Dal v. H.S. Chowdhary and
Ors., reported in (1992) 4 SCC 305, observed as
follows:-
“132. The criminal courts are clothed with
inherent power to make such orders as may be
necessary for the ends of justice. Such power
though unrestricted and undefined should not
be capriciously or arbitrarily exercised, but
should be exercised in appropriate cases, ex
debito justitiae to do real and substantial
justice for the administration of which alone
the courts exist. 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. Courts
must be careful to see that its decision in
exercise of this power is based on sound principles.”
We reiterate the same caution having found that this
is an appropriate case for the exercise of such
powers.
19. The entire law on the subjects was reviewed by a
three Judges Bench of this Court in Inder Mohan
Goswami and Anr. v. State of Uttaranchal and Ors.,
reported in (2007) 12 SCC 1 vide paragraphs 23 to 39.
Thereafter, the law was reiterated in R. Kalyani v.
Janak C. Mehta and Ors. reported in (2009) 1 SCC 516
vide paragraphs 15 and 16.
20. In all the cases the principle that the accused
must be relieved from the prosecution, even if the
allegations are taken at their face value and
accepted in their entirety do not constitute any
offence has been upheld, and thereafter in Umesh
Kumar v. State of Andhra Pradesh and anr., reported
in (2013) 10 SCC 591.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

 CRIMINAL APPEAL NO. 133 OF 2016
(Arising out of S.L.P.(Crl.) No.2554 of 2011)
RAMESH RAJAGOPAL Appellant(s)
 Versus
DEVI POLYMERS PRIVATE LIMITED Respondent(s)
Citation: 2016 ALLSCR (CRI)757:(2016) 6 SCC310
S.A.BOBDE, J.

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Whether court can set aside order of discharge of accused on application of third party?

It is also pertinent to note that the respondent no.1 was discharged by

the order dated 30.12.2014. The CBI had not challenged the said order.

The aggrieved person, Rubabuddin had also not filed any revision

application within the period of limitation. Despite which the applicant,

who claims to be a socially responsible citizen, had not taken any steps to

challenge the said order. It is to be noted that one Shri Rajesh Kamble, who

was also not a party to the proceedings had opposed the withdrawal

application filed by Rubabuddin Shaikh, in his capacity of being "an alert

citizen". The said application was dismissed vide order dated 21.10.2015.

The Applicant has shown interest in this matter only after the dismissal of

the application filed by Rajesh Kamble.

42. It is also pertinent to note that several other accused in the said crime

have also been discharged, but the applicant has not challenged the said

orders, but has sought to challenge only the order whereby the present

respondent no.1 has been discharged. The social interest and responsibility

proclaimed by the Applicant is thus restricted only to the relief sought

against the Respondent No.1 and does not even extend to other accused in

the said case much less having larger implications beyond the case. This

is a predominant distinguishing feature in the relief sought in the present

case vis- a-vis a relief in Subramanian Swami (supra). The above facts

coupled with the fact that applicant has shown sudden interest in matter

after a period of over 10 years gives an indication of lack of bonafides.

Needless to state that the criminal law cannot be permitted to be used as an

instruments to wreck vengeance due to personal or political grudge or to

spite the accused for any other oblique purpose.

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPLICATION NO.1248 OF 2015

Harsh Mander Har Mander Singh

v/s.

Amit Anilchandra Shah

 CORAM : SMT. ANUJA PRABHUDESSAI, J.

 PRONOUNCED ON : MARCH 11, 2016.

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Whether high court can quash prosecution for dishonour of cheque on ground that it was issued as security?

 Having heard learned counsel for the parties, we are of

the view that the accused (respondent no.1) challenged the

proceedings of criminal complaint cases before the High

Court, taking factual defences. Whether the cheques were

given as security or not, or whether there was outstanding

liability or not is a question of fact which could have been

determined only by the trial court after recording evidence

of the parties. In our opinion, the High Court should not have

expressed its view on the disputed questions of fact in a

petition under Section 482 of the Code of Criminal

Procedure, to come to a conclusion that the offence is not

made out. The High Court has erred in law in going into the

factual aspects of the matter which were not admitted

between the parties. 

Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 471 OF 2015

HMT Watches Ltd. V M.A. Abida & Anr.

Citation:AIR 2015 SC (Supp)901

Dated:March 19, 2015

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Whether inherent power U/S 482 of CRPC can be exercised to recall a matter which has been finally disposed of by court?

There is no power of review with the criminal court after the judgment has been rendered. The High Court can alter or review its judgment before it is signed. When an order is passed, it cannot be reviewed. Section 362 Cr.P.C is based on an acknowledged principle of law that once a matter is finally disposed of by a court, the said court in the absence of a specific statutory provision becomes functus officio and is dis-entitled to entertain a fresh prayer for any relief unless the former order of final disposal is set aside by a court of competent jurisdiction in a manner prescribed by law. The court becomes functus officio the moment the order for disposing of a case is signed. Such an order cannot be altered except to the extent of correcting a clerical or arithmetical error. There is also no provision for modification of the judgment. ( Vide Hari singh Mann Vs. Harbhajan Singh Bajwa, 2001 (1) SCC 169).

Moreover the prohibition contained in Section 362 Cr.P.C is absolute; after the judgement is signed, even the High Court in exercise of its inherent power under Section 482 CrP.C has no authority or jurisdiction to alter/review the same ( vide Moti Lal Vs. State of M.P. (2012) 11 SCC 427).

If a judgement has been pronounced without jurisdiction or in violation of principle of natural justice or where the order has been pronounced without giving an opportunity of being heard to a party affected by it or where an order was obtained by abuse of the process of court which would really amount to its being without jurisdiction, inherent powers can be exercised to recall such order for the reason that in such an eventuality the order becomes a nullity and the provisions ofSection 362 Cr.P.C would not operate. In such an eventuality, the judgment is manifestly contrary to the audi alteram partem rule of natural justice. The power of recall is different from the power of altering/reviewing the judgment. However, the party seeking recall/alteration has to establish that it was not at fault.( vide Chitawan Vs. Mahboob Ilahi, 1970 Cri. LJ 378( All), Asit Kumar Kar Vs. State of West Bengal (2009) 2 SCC 703 ).

Supreme Court by virtue of Article 137 of the Constitution has been invested with an express power to review any judgment in criminal law and while no such power has been conferred on the High Court, inherent power of the court cannot be exercised for doing that which is specifically prohibited by the Code itself ( Vide State Vs. K.v. Rajendran, 2008(8) SCC 673.

In Sooraj Devi Vs. Pyare Lal, 1981 (1) SCC 500, apex court held that the prohibition in Section 362 CrPC against the court altering or reviewing its judgment, is subject to what is "otherwise provided by this code or by any other law for the time being in force". These words, however, refer to those provisions only where the Court has been expressly authorized by the code or other law to alter or review its judgement. The inherent power of the court is not contemplated by the saving provision contained in Section 362 CrPC and, therefore, the attempt to invoke that power can be of no avail.

Thus, the law on the issue can be summarized to the effect that the criminal justice delivery system does not clothe the court to add or delete any words, except to correct the clerical or arithmetical error as specifically been provided under the statute itself after pronouncement of the judgment as the Judge becomes functus officio. Any mistake or glaring omission is left to be corrected only by the appropriate forum in accordance with law (Refer State of Punjab Vs. Davinder Pal singh Bhullar, (2011) 14 SCC 770).

The same principle is applicable while considering an application for recall /modification/review of an order passed under Section 482 Cr.P.C.

The inherent power under Section 482 Cr.PC is intended to prevent the abuse of the process of the court and to secure the 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 are 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 view which is expressly barred under Section 362 CrPC.

Allahabad High Court

Virendra Kumar Anand @ V.K. Anand vs State Of U.P. And 2 Others on 30 May, 2016

Bench: Suneet Kumar

Crl. Misc. Recall Application No. 126367 of 2016
 
IN
 
Case :- APPLICATION U/S 482 No. - 5938 of 2016
 

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Whether proceeding under Domestic violence Act can be quashed U/S 482 of CRPC?

In view of the discussion and the observations made by
us herein above, once the provision of the Code has been

made applicable, it cannot be said that remedy under
Section 482 of the Code would be unavailable to the
aggrieved person. But the said aspect is again subject to
self-imposed restriction of power of the High Court that
when there is express remedy of appeal available under
Section 29 before the court of Session or revision under
Section 397, the Court may decline entertainment of the
petition under Section 482 of the Code. But such in any
case would not limit or affect the inherent power of the
High Court under Section 482 of the Code. 
 The aforesaid remedial measures provided under
the Code of Criminal Procedure would also include the
powers of this Court under Section 482 of the Code, but
the Court may, in a given case, decline entertainment of
the petition when there is express remedy provided
under the Code of Criminal Procedure or no case is made
out to prevent the abuse of process of any Court, or no
case is made out to secure the ends of justice.
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL REFERENCE NO. 6 of 2015
IN
SPECIAL CRIMINAL APPLICATION NO. 5313 of 2015

SUO MOTU. Vs  USHABEN KISHORBHAI MISTRY..

CORAM: ACTING CHIEF JUSTICE MR.
JAYANT PATEL
and
 MR.JUSTICE N.V.ANJARIA
 Date : 27/11/2015
Citation: 2016 ALLMR(CRI)JOURNAL 293

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Four steps necessary for quashing of prosecution

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)
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

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When prosecution under PCPNDT Act should not quashed under S 482 of CRPC?

 As analyzed, the trial Court has not taken
cognizance on mere perusal of complaint and statements
of two witnesses. It has applied mind on relevant record
also. Hence, the judgment of Pepso Foods Ltd. (supra) is of no
assistance to the petitioner in the present case.
 In Sharad Kumar Sanghi (supra), the Apex Court
considered the words "sufficient ground for proceeding".
It means that grounds should be made out in the
complaint for proceeding against the respondent. In my
view, neither the allegations in the complaint are vague
nor it can be said that it does not constitute an offence
under the Act. There were sufficient grounds for
proceeding against the petitioner and, therefore, this
judgment has no application. Same is the view about the
judgment of Monju Roy (supra). The said matter also deals
with omnibus statement. In the present case, there are
specific allegations against the petitioner in the
complaint. Hence, this judgment is of no help to the
petitioner. In D.P. Gulati (supra), the Apex Court was dealing
with vexatious complaint. At this stage, it cannot be said
that the complaint is vexatious. In Rishipal Singh (supra), the
Supreme Court dealt with the scope of Section 482 CrPC.
No doubt, powers under Section 482 CrPC are wide and
proceedings can be quashed if certain parameters are
satisfied. However, it is noteworthy that the Apex Court
in (2012) 9 SCC 460 (Amit Kapoor vs. Ramesh Chander and another),
laid down broad principles for exercise the jurisdiction
under Section 397/482 CrPC. It is held that the principles
to be considered for proper exercise of jurisdiction,
particularly with regard to quashing of a charge either in
exercise of jurisdiction under Section 397 or Section 482
CrPC or together, as the case may be, can be
summarised. Though there are no limits of the powers of
the Court under Section 482 CrPC but the more the
power, the more due care and caution is to be exercised
in invoking these powers. The power of quashing criminal
proceedings, particularly, the charge framed in terms of
Section 228 CrPC should be exercised very sparingly and
with circumspection and that too in the rarest of rare
cases. Another very significant caution that the courts
have to observe is that it cannot examine the facts,
evidence and materials on record to determine whether
there is sufficient material on the basis of which the case
would end in a conviction; the court is concerned
primarily with the allegations taken as a whole whether
they will constitute an offence and, if so, as it an abuse of
the process of court leading to injustice. It is neither
necessary nor is the court called upon to hold a full-
fledged enquiry or to appreciate evidence collected by
the investigating agencies to find out whether it is a case
of acquittal or conviction. In exercise of its jurisdiction
under Section 228 and/or under Section 482, the court
cannot take into consideration external materials given
by an accused for reaching the conclusion that no
offence was disclosed or that there was possibility of his
acquittal. The court has to consider the record and
documents annexed with by the prosecution. Quashing of
a charge is an exception to the rule of continuous
prosecution. Where the offence is even broadly satisfied,
the court should be more inclined to permit continuation
of prosecution rather than its quashing at that initial
stage. The court is not expected to marshal the records
with a view to decide admissibility and reliability of the
documents or records but is an opinion formed prima
facie.
27. If the litmus test of the judgment in Amit Kapoor
(supra) is applied in the factual matrix of the present
matter, it cannot be said that the court below has
committed any legal error in taking cognizance of the
matter. Thus, no interference is required by this Court at
this stage.
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
JUSTICE SUJOY PAUL.
Misc. Criminal Case No. 5967/09
Dr.(Smt) Pooja Agrawal
Vs.
Shivbhan Singh Rathore & Anr.

 O R D E R
 (14/ 10 /2015)

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