REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE/ORIGINAL JURISDICTION

CRIMINAL APPEAL NO. 1755  OF 2008 (Arising out of S.L.P. (Crl.) No. 861 of 2007)

M/s. Eicher Tractor Ltd. & Ors. …Appellants

Versus

Harihar Singh & Anr. …Respondents

With

T.P. (Crl.) No.  199 OF 2008

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the order of a learned Single Judge of

Allahabad  High  Court  dismissing  the  petition  under  Section  482  of  the

Code  of  Criminal  Procedure,  1973  (in  short  the  ‘Code’).   By  the  said

1

petition appellants had prayed for quashing the proceedings initiated on the

basis of complaint filed by respondent No.1 and the order of learned Civil

Judge, Junior Division/Judicial Magistrate, R. S. Ghat, Barabanki, dated 8th

February,  2005 taking cognizance  of  offences  punishable  under  Sections

420, 468 and 471 of the Indian Penal Code, 1860 (in short the ‘IPC’) and

issuance of summons to  the appellants.   The learned magistrate  recorded

statements of the complainant under Section 200 of Code as well as of the

witness under Section 202 of the Code and thereafter issued summons to the

appellants  to  start  proceedings.   The  appellants  took  the  stand  that  the

proceedings  were  nothing  but  an  abuse  of  the  process  of  Court.   It  was

pointed out that the summons issued were never served and bailable warrant

of arrest and subsequently non-bailable warrant has been issued and even

proceedings under Section 82 of the Code have been initiated.  The High

Court accepted that without service of summons the issuance of bailable as

well as non-bailable warrant was uncalled for.  It was also directed that the

proceedings initiated under Section 82 of the Code was to be stayed and on

the appellants appearing before the concerned court the proceedings shall

continue.  The application was accordingly disposed of.                         

2

3. Learned counsel for the appellant submitted that the background facts

clearly show that the proceedings were initiated with a view to harass the

appellants  and  as  a  counterblast  to  the  proceedings  initiated  by  the

appellants.  The order is supported by learned counsel for the respondent

No.1.

4. In order to appreciate the stand taken by the appellant it is necessary

to take note of the factual position, the same is as follows:

On 1.4.1994 the Respondent no.1 approached the Petitioner no.1 for

dealership, and a Letter of Intent appointment of dealer was issued to the

Respondent.

On March 2000 the tenure of dealership of the Respondent no.1 was

ended as the same was not  doing business,  incurring  heavy debts  to  the

appellant no.1.

On  January,  2001  the  Respondent  no.1  issued  cheque  bearing  no

628701  dated  30.12.2000  for  Rs.50,00,000/-(Fifty  Lacs)  discharging  his

liability towards the debt incurred against the appellant No.1.

3

On January, 2001 the Respondent presented the cheque bearing No.

628701 to his bank for withdrawal.

On 23.01.2001 the bank returned the cheque with an endorsement on

the return memo i.e. refer to the drawer.

On 05.02.2001 the appellant issued a Legal Notice under Section 138

Negotiable Instrument Act, 1882 (in short the ‘NI Act’)

On January 2001,  the appellant  filed a complaint  u/s  138/442 read

with Section 141 of the NI Act before the Court of judicial Magistrate-I,

Faridabad.

On 12.04.2001, the Trial Court after considering the Complaint and

the pre-summoning evidence took cognizance and issued summons against

the  Respondent.  The  Respondent  no.1  appeared  and  subsequently  was

released on bail.

4

On 04.10.2002 the Respondent No.1 filed a private complaint under

section  200  Cr.P.C.  before  the  Civil  Judge,  (J.D.)/District  Barabanki

alleging that the officials of Petitioner no.1 herein had stolen the cheques

bearing No. 0628701 'to 0628704, It was further mentioned by him that in

the complaint that in the year 1998 he had informed the Bank of Baroda,

Barabanki that he has lost the aforesaid cheques and also reported to the

same to the SHO, Barabanki. He further alleged that the appellants herein

forged the cheques bearing No. 0628701 and presented the same in the bank

at Faridabad, and thereby alleged that they had committed an offence under

Sections 468 & 471 IPC.

On 08.02.2005 the complaint bearing No. 1343 of 2004 filed by the

Respondent No.1 herein came up for hearing before the Civil Judge, (J.D.)/

Judicial Magistrate, R.S. Ghat, Uttar Pradesh, and the Learned Magistrate

vide its order dated 08.02.2005 took cognizance of the matter and issued

summons to the Appellants.

In January 2007, to their utter shock and surprise, the appellants came

to know that the Learned Civil Judge, (J.D.)/Judicial Magistrate, R.S.Ghat,

Barabanki,  Uttar  Pradesh  had  issued  non-bailable  warrant  and  had  also

5

initiated  proceedings  under  Section  82  Cr.P.C.  against  them  in  the

complaint case No. 1343 of 2004 filed by the Respondent herein.

5. Exercise of power under Section 482 of the Code in a case of this

nature is an exception and not the rule. The section does not confer any new

powers on the High Court. It only saves the inherent power which the Court

possessed  before  the  enactment  of  the  Code.  It  envisages  three

circumstances  under  which  the  inherent  jurisdiction  may  be  exercised,

namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of

the process of court, and (iii) to otherwise secure the ends of justice. It is

neither possible nor desirable to lay down any inflexible rule which would

govern  the  exercise  of  inherent  jurisdiction.  No  legislative  enactment

dealing with  procedure can provide for all  cases that  may possibly arise.

Courts,  therefore,  have inherent  powers  apart  from express  provisions  of

law  which  are  necessary  for  proper  discharge  of  functions  and  duties

imposed upon them by law. That is the doctrine which finds expression in

the section which merely recognizes and preserves inherent powers of the

High Courts. All courts, whether civil or criminal, possess, in the absence of

any express provision, as inherent in their constitution, all such powers as

are  necessary  to  do  the  right  and  to  undo  a  wrong  in  the  course  of

6

administration of justice on the principle quando lex aliquid alicui concedit,

concedere videtur id sine quo res ipsa esse non potest (when the law gives a

person  anything  it  gives  him that  without  which  it  cannot  exist).  While

exercising powers under the section, the Court does not function as a court

of appeal or revision. Inherent jurisdiction under the section though wide

has to  be exercised  sparingly,  carefully and with  caution and only when

such exercise is justified by the tests specifically laid down in the section

itself.  It  is  to  be  exercised  ex  debito  justitiae to  do  real  and  substantial

justice for the administration of which alone courts exist. Authority of the

court exists for advancement of justice and if any attempt is made to abuse

that authority so as to produce injustice, the court has power to prevent such

abuse.  It  would be an abuse of  process  of  the  court  to  allow any action

which would result in injustice and prevent promotion of justice. In exercise

of the powers, court would be justified to quash any proceeding if it finds

that initiation/continuance of it amounts to abuse of the process of court or

quashing of these proceedings would otherwise serve the ends of justice.

When no offence is disclosed by the complaint, the court may examine the

question of fact. When a complaint is sought to be quashed, it is permissible

to look into the materials to assess what the complainant has alleged and

whether any offence is made out even if the allegations are accepted in toto.

7

6. In  R.P.  Kapur v.  State  of  Punjab [AIR  1960  sc  866] this  Court

summarized some categories of cases where inherent power can and should

be exercised to quash the proceedings:

(i)  where it  manifestly appears  that there is  a legal  bar  against  the institution or continuance e.g. want of sanction;

(ii) where the allegations in the first information report or complaint taken at their face value and accepted in their entirety do not constitute the offence alleged;

(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge. (AIR para 6)

7. In  dealing  with  the  last  case,  it  is  important  to  bear  in  mind  the

distinction between a case where there is no legal evidence or where there is

evidence which is clearly inconsistent with the accusations made, and a case

where  there  is  legal  evidence  which,  on  appreciation,  may  or  may  not

support the accusations. When exercising jurisdiction under Section 482 of

the Code,  the  High Court  would  not  ordinarily  embark upon an enquiry

whether  the  evidence  in  question  is  reliable  or  not  or  whether  on  a

reasonable appreciation of it accusation would not be sustained. That is the

function  of  the  trial  Judge.  Judicial  process,  no  doubt,  should  not  be  an

instrument  of  oppression  or  needless  harassment.  Court  should  be

circumspect  and  judicious  in  exercising  discretion  and  should  take  all

8

relevant facts and circumstances into consideration before issuing process,

lest  it  would  be  an  instrument  in  the  hands  of  a  private  complainant  to

unleash  vendetta  to  harass  any person  needlessly.  At  the  same time  the

section is  not  an instrument handed over to an accused to short-circuit  a

prosecution  and  bring  about  its  sudden  death.  The  scope  of  exercise  of

power under Section 482 of the Code and the categories of cases where the

High Court may exercise its power under it relating to cognizable offences

to prevent abuse of process of any court or otherwise to secure the ends of

justice  were set  out  in  some detail  by this  Court  in  State of  Haryana v.

Bhajan Lal [1992  Supp (1)  SCC 335].  A note  of  caution  was,  however,

added that the power should be exercised sparingly and that too in the rarest

of the rare cases. The illustrative categories indicated by this Court are as

follows: (SCC pp. 378-79, para 102)

“(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not  prima facie constitute  any offence or  make out  a case against the accused.

(2)  Where  the  allegations  in  the  first  information  report  and  other materials,  if  any, accompanying the FIR do not  disclose  a cognizable offence, justifying an investigation by police officers under Section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3)  Where  the  uncontroverted  allegations  made  in  the  FIR  or complaint  and  the  evidence  collected  in  support  of  the  same do  not disclose the commission of any offence and make out a case against the accused.

9

(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 Act concerned (under which a criminal proceeding  is  instituted)  to  the  institution  and  continuance  of  the proceedings and/or where there is a specific provision in the Code or the Act  concerned,  providing  efficacious  redress  for  the  grievance  of  the aggrieved party.

(7)Where  a  criminal  proceeding  is  manifestly  attended  with  mala fides  and/or  where  the  proceeding  is  maliciously  instituted  with  an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”

8. As  noted  above,  the  powers  possessed  by  the  High  Court  under

Section 482 of the Code are very wide and the very plenitude of the power

requires great caution in its exercise. Court must be careful to see that its

decision in exercise of this power is based on sound principles. The inherent

power should not be exercised to stifle a legitimate prosecution. The High

Court being the highest court of a State should normally refrain from giving

a prima facie decision in a case where the entire facts are incomplete and

hazy,  more  so,  when  the  evidence  has  not  been  collected  and  produced

before the Court and the issues involved, whether factual or legal,  are of

10

magnitude and cannot be seen in their true perspective without sufficient

material.  Of course,  no hard-and-fast  rule  can be laid  down in  regard  to

cases in which the High Court will exercise its extraordinary jurisdiction of

quashing the proceedings at any stage. It would not be proper for the High

Court to analyse the case of the complainant in the light of all probabilities

in  order  to  determine whether  a conviction  would be sustainable  and on

such premises, arrive at a conclusion that the proceedings are to be quashed.

It would be erroneous to assess the material before it and conclude that the

complaint cannot be proceeded with. In proceedings instituted on complaint,

exercise of the inherent powers to quash the proceedings is called for only

in a case where the complaint does not disclose any offence or is frivolous,

vexatious or oppressive. If the allegations set out in the complaint do not

constitute  the  offence  of  which  cognizance  has  been  taken  by  the

Magistrate, it is open to the High Court to quash the same in exercise of the

inherent  powers  under  Section  482  of  the  Code.  It  is  not,  however,

necessary that  there should be meticulous analysis of the case before the

trial to find out whether the case would end in conviction or acquittal. The

complaint has to be read as a whole. If it appears that on consideration of

the allegations in the light of the statement made on oath of the complainant

that the ingredients of the offence or offences are disclosed and there is no

11

material to show that the complaint is mala fide, frivolous or vexatious, in

that event there would be no justification for interference by the High Court.

When  an  information  is  lodged  at  the  police  station  and  an  offence  is

registered,  then  the  mala  fides  of  the  informant  would  be  of  secondary

importance. It is the material collected during the investigation and evidence

led  in  the  court  which  decides  the  fate  of  the  accused  person.  The

allegations of mala fides against the informant are of no consequence and

cannot by itself be the basis for quashing the proceedings.  

9. These  aspects  were  also  highlighted  in  State  of  Karnataka v.  M.

Devendrappa [ 2002(3) SCC 89].

10. The  case  at  hand squarely  falls  within  the  parameters  indicated  in

category (7) of Bhajan Lal’s case (supra).  The factual  scenario as noted

above clearly shows that the proceedings were initiated as a counterblast to

the  proceedings  initiated  by  the  appellants.  Continuance  of  such

proceedings will be nothing but an abuse of the process of law.  Proceedings

are accordingly quashed.   

11. Appeal is allowed.

12

……………………………………J. (Dr. ARIJIT PASAYAT)

……………………………………J. (C.K. THAKKER)

New Delhi:  November 7, 2008

13

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

TRANSFER PETITION (Crl.) No.  199 OF 2008

Harihar Singh & Anr. …Appellants

Versus

M/s. Eicher Limited …Respondent

JUDGMENT

Dr. ARIJIT PASAYAT, J.

In view of the order passed in Criminal Appeal relating to SLP(Crl.)

No.861 of 2007 allowed today, this Transfer Petition is dismissed.

……………………………………J. (Dr. ARIJIT PASAYAT)

……………………………………J. (C.K. THAKKER)

14

New Delhi:  November 7, 2008

15