REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.   725     OF 2009 (Arising out of SLP (Crl.) No.5419 of 2008)

MANOJ NARAIN AGRAWAL … APPELLANT

VERSUS

SHASHI AGRAWAL & ORS.       … RESPONDENTS

WITH CRIMINAL APPEAL NOS. 726-727 OF 2009 (Arising out of SLP (Criminal) Nos.6061-6062)

SHASHI AGRAWAL & ANR. …APPELLANTS  

VERSUS  

STATE OF UTTARAKHAND & ORS.        …RESPONDENTS

WITH CRIMINAL APPEAL NOS.728-729 OF 2009 (@ SLP (Criminal) Nos. 6136-6137 of 2008)]

STATE OF UTTARAKHAND & ETC. ETC.     ...APPELLANTS

VERSUS  

SHASHI AGRAWAL & ORS.    …RESPONDENTS

J U D G M E N T

S.B. SINHA, J.

1. Leave granted.

2. These three appeals involving common questions of fact and law

were  taken  up for  hearing  together  and  are  being  disposed  of  by this

common judgment.

3. The parties hereto are related to each other.   

Indisputably in relation to an incident which took place on or about

4.11.1999, two First Information Reports were lodged; one on 4.11.1999

and the other on the next day, i.e., 5.11.1999.  The first FIR was lodged

by  Meenaxi  Agrawal,  (for  short,  “Meenaxi”)  inter  alia,  alleging  that

Manoj  Narain  Agrawal  (for  short,  “Manoj”)  along  with  forty  others

raided their farm house and attacked Shashi Agrawal (for short, “Shashi”)

and Meenaxi (Appellant Nos.1 and 2 in Criminal Appeals arising out of

Special  Leave Petition (Criminal)  No.6061-6062 of 2008) as  also staff

members  thereof  as  a  result  whereof  one  R.K.  Yadav,  an  employee

suffered  grievous  injuries.   FIR  No.960/99  in  relation  to  the  said

purported incident was lodged under Sections 147, 148, 149, 452, 323,

427,  and  506,  of  the  Indian  Penal  Code  (for  short,  “the  IPC”)  at  the

Kichha Police Station.  The accused were allegedly arrested on the spot

by the local police.

Another  FIR  was,  however,  lodged  by  Manoj  (Appellant  in

Criminal  Appeal  arising  out  of  Special  Leave  Petition  (Criminal)

No.5419  of  2008)  alleging  that  D.S.  Sirohi,  Manager  of  Parag  Farm,

2

Kichha uttered filthy language over his mobile calling names to mother,

sister and also threatened to kill him and when he reached there, some

guards  of  the  Farm,  namely,  Hans  Pal,  Munna  Lal,  Dharmender,  etc.

opened fire at him indiscriminately in order to kill him on the order of

D.S. Sirohi, Manager of Farm, R.K. Yadav and Meenaxi.  One pellet hit

him near his heart.  It was also stated that he was mercilessly beaten up by

some of the employees of Meenaxi.  The second complaint was registered

as FIR No.960A/99.  The FIR lodged by Manoj contained two principal

allegations,  viz.,  (a)  overt  acts  on  the  part  of  the  accused  as  a  result

whereof he suffered grievous injuries; and (b) forgery of some documents

on the basis whereof some orders had been obtained by them in getting

their names mutated in the revenue record.

4. On  the  basis  of  the  said  FIRs,  investigations  were  carried  out.

Upon completion thereof, a charge sheet was filed in relation to the case

arising out of FIR No.960/99 lodged by Meenaxi against Manoj and 39

others under Sections 147, 148, 149, 452, 323, 427, 506 and 307 of the

IPC;  but  a  final  report  dated  29.11.1999  was  filed  in  respect  of  FIR

No.960A/99,  stating  that  no  case  was  made  out  against  Shashi  and

Meenaxi.

5. However, on or about 1.12.1999, Manoj had filed a writ petition

being Writ  Petition No. 7230 of 1999 in  the High Court  of Allahabad

praying  for  a  fair  investigation  and  also  for  appointment  of  another

3

investigating officer in the Crime No. 960A/99.  By reason of an order

dated  1.12.1999,  the  High  Court  disposed  of  the  said  Writ  Petition

directing  the  DIG (Kumaun  Region)  Udham Singh  Nagar,  Nainital  to

ensure fair and impartial investigation with respect to the Crime Case No.

960A/99 by another  agency. In view of the said order,  the final report

dated  29.11.1999  was  sent  to  the  office  of  Circle  Officer  (Deputy

Superintendent of Police) on 3.12.1999.  The Deputy Superintendent of

Police sought for the opinion of the Senior Public Prosecutor on or about

13.12.1999.  It was opined that as a part of the allegation has not been

investigated  into,  a  further  investigation  would  be  required.   On

apprehending their arrest, Shashi and Meenaxi filed a Writ Petition No.

310 of 2000 before the High Court of Allahabad praying for stay of their

arrest in Crime No. 960A/99.  

6. On or about 3.4.2000, an application was moved by Shashi before

the Chief Secretary UP and DG, UP Police praying the investigation to be

conducted by CBCID.  As no action was taken thereupon, another Writ

Petition No. 1747 of 2000 was filed by Shashi before the Allahabad High

Court with a prayer that the investigation in Crime Case No. 960A/99 be

directed to be carried out by CBCID.    

Indisputably, a direction was issued by the State of U.P that Crime

No.  960A/99  be  investigated  by  CBCID  pursuant  whereto  the

investigation  was  taken  over  by CBCID.   On or  about  11.5.2000,  the

4

investigation in Crime Case No. 960A/99 was transferred from CBCID to

local police by the State of U.P.  Shashi thereafter filed a Writ Petition

No. 2996 of 2000 in the High Court  with a prayer for direction to set

aside the order dated 11.5.2000 passed by the State of U.P.   Manoj also

filed  a  Writ  Petition  No.  3848  of  2000  questioning  the  order  dated

6.4.2000  whereby  the  investigation  was  transferred  by  the  State

Government from local police to CBCID.  On or about 4.7.2000, the High

Court passed an interim order in Writ Petition No. 2996 of 2006 staying

the arrest of the petitioners.  All the connected matters with Writ Petition

No.  310  of  2000  were  disposed  of  by  the  High  Court  on  or  about

13.9.2000 directing the investigating agency to carry out the investigation

fairly and honestly and not to take any coercive steps against the parties.   

7. A Special Leave Petition (Criminal) Nos.4054-4057 of 2000 was

filed by Meenaxi & anr.  before this Court  questioning the  order  dated

13.9.2000 passed in Writ Petition No. 310 of 2000 and other connected

matters.  This court by reason of an order dated 7.9.2001 passed in the

said Special Leave Petition quashed the order directing investigation by

the local police and directed the CBCID to conclude the investigation and

to submit its report. However, the protection afforded by the High Court

to Meenaxi was directed to be continued.  Local police was directed to

handover all the materials to CBCID.   

5

8. In the meanwhile, trial against Manoj began.  By a judgment and

order  dated  24.7.2003,  passed  by  the  learned  Additional  District  &

Sessions Judge, Udham Singh Nagar, he was convicted under Section 324

of the IPC.  However, other accused were acquitted.   

9. An appeal was preferred thereagainst which is pending before the

High Court.  The sentence passed against Manoj has also been suspended

and he has been granted bail.  On or about 2.5.2006, a charge sheet was

filed against Shashi and Meenaxi under Sections 147, 148, 149, 307, 504

and 506 of the IPC.  Shashi was said to have been named therein for the

first time.  By an order dated 14.6.2006, cognizance of the said offence

was taken by the Judicial Magistrate, Rudrapur and summons were said to

have been issued against them.  

10. A Criminal Miscellaneous Application No. 620 of 2006 was filed

before the High court of Uttarakhand at Nainital under Section 482 of the

Code  of  Criminal  Procedure  for  quashing  of  the  said  criminal

proceedings.  By  reason  of  an  order  dated  22.7.2008,  the  High  Court

dismissed the said application, stating:

“1. After  hearing  the  detailed  arguments  of the  learned  Senior  Counsel  appearing  for  the petitioners  as  well  as  learned  Senior  Counsel appearing for the respondent no.2 and Mr. G.S. Sandhu,  learned  Government  Advocate appearing for respondent No.1 and upon perusal of various documents in this case as well as the counter affidavit and the supplementary counter

6

affidavit  filed  by  the  respondent  No.2,  I  feel totally  disinclined  to  interfere  in  this  matter while exercising this Court’s jurisdiction under Section  482  of  Cr.  P.  C.   The  petition accordingly is liable to be dismissed.  

2. Both the petitioners are ladies.  Petitioner No.1 is stated to be quite unwell and she is also an  old  lady  aged  about  80  years.   Both  the petitioners  being  ladies,  particularly  Petitioner No.1  being  an  old  lady,  I  am convinced  that both of them deserve some protection from this court even though I have declined to interfere in the trial  in  exercise of  this  court’s jurisdiction under Sec. 482 of Cr.P.C.

3. Therefore,  even  while  dismissing  the petition,  I  direct  the  learned  Trial  Court  as under:-

‘(1) To dispose of the bail applications of  both  the  petitioners  on  the same day these are filed.  Having gone through the papers of this case, I am quite convinced that valid grounds exist for granting bail to the petitioners.  

(2) It is  upto petitioner  No.1 to make an  application  for  exemption  from personal  appearance in  the  trial  court  in terms of Section 205 of Cr. P.C. if such an application  is  made by the  petitioner no.1 even without appearing in the Trial Court  on  any date  hereafter,  the learned Trial  Court  is  directed  to  consider  this application  and  pass  appropriate  orders thereupon.  While  disposing  of  the  said application, the learned Trial Court shall be  influenced  by  the  fact  that  the petitioner  no.1  is  old  lady  and  she  is keeping  quite  unwell.   After  granting exemption  from personal  appearance,  of course,  the  learned  Trial  Court,  at  the same time, shall ensure that the petitioner no.1 is made to appear personally in the

7

Trial Court if in the opinion of the learned Trial Court, for reasons to be recorded in writing,  her  presence  for  a  particular purpose  and  on  a  particular  occasion  is essential.’

4. Before parting with the case, I do wish to observe and direct that the Trial Court shall take all  possible  steps  to  ensure  very-very expeditious trial.  No unnecessary adjournment on any date shall be granted during the trial.”

11. The third respondent  herein,  i.e.,  Inspector  of CBCID moved an

application before the Chief Judicial Magistrate, Udham Singh Nagar on

the same day with a prayer that he may be permitted to investigate the

matter further with regard to the embezzlement of the alleged amount of

Rs.13,50,000/-  from Sehkari  Vikas Ganna Samiti,  Kichha by Meenaxi,

Madhvi, Manisha and Shashi by making forged signature of Manoj.   

12. A Criminal Appeal  arising out  Special  Leave Petition (Criminal)

No. 5419 of 2008 has been filed by Manoj against the said order dated

22.7.2008 in this Court.  

13. By  an  order  dated  31.7.2008,  the  learned  Magistrate,  Rudrapur

permitted  the  third  respondent  to  investigate  into  the  matter  further

against Shashi and Meenaxi.        

8

14. A  Criminal  Miscellaneous  Application  No.  518  of  2008  was

thereafter  filed  under  Section  482  of  the  Code  of  Criminal  Procedure

against  the  said  order  dated  31.7.2008  before  the  High  Court  of

Uttaranchal at Nainital, which by reason of an order dated 11.8.2008 was

dismissed, observing:

“After  hearing  the  detailed  arguments  of  Mr. Suri, I feel convinced that in this matter relating to and arising out of Section 173 (8) Cr. P.C., the impugned order passed by the learned court below  based  upon  the  applications  of prosecution, cannot be faulted on any ground.  I need not say more because of the pendency of the litigation, lest any observations made by me adversely  or  otherwise  may  prejudice  or influence  the  outcome  of  the  trial  court  or litigation.  

I  am  convinced  that  no  interference  in  the exercise  of  this  Court’  jurisdiction  under Section 482 Cr. P.C. is warranted with regard to the  impugned  order.   Petition,  is  accordingly, dismissed.  

Mr.  Suri,  at  this  stage,  submits  that  he  has apprehensions  that  the  petitioners  might  be denied  bail  because  of  the  aforesaid supervening  and  intervening  development  of circumstances.  To allay of Mr. Suri’s aforesaid apprehension, I just have to refer to this Court’s order dated 22nd July, 2008 passed in Criminal Misc. Applications No. 620 of 2006.”

15. Against the said order dated 22.7.2008 and order dated 11.8.2008,

Criminal  Appeals  arising out  of  Special  Leave Petition (Criminal)  No.

9

6061-62  of  2008  and  Criminal  Appeals  arising  out  of  Special  Leave

Petition (Criminal) Nos.6136-37 have been filed.  

16. Mr.  Ranjit Kumar, learned Senior Counsel appearing on behalf of

Manoj  and Mr. Dinesh  Dwivedi,  learned Senior  Counsel  appearing  on

behalf of the State of Uttarakhand would contend:

i. The High Court committed a serious error in passing

the  impugned  judgments  insofar  as  it  failed  to  take

into  consideration  that  in  the  applications  filed  by

Shashi and Meenaxi, no prayer for grant of bail having

been made, the High Court could not have issued such

a direction.   

ii. The jurisdiction to exempt the accused from personal

appearance before the Court being within the domain

of the learned Magistrate, the directions issued by the

High Court must be held to be wholly illegal.   

17. Mr. Sushil Kumar, learned Senior Counsel appearing on behalf of

Shashi and Meenaxi, on the other hand, urged:

i. As the investigations have been carried out for fairly a long

time,  a  new  case  is  sought  to  be  made  out  which  is

impermissible in law.

10

ii. The  investigation  having  started  in  the  year  2001  and  the

final report having been filed on 2.5.2006, it is improbable

that  the  investigation  has  not  been  fully  conducted  by

CBCID.

iii. The prayer contained in the application dated 22.7.2008 must

be  held  to  be  wholly  illegal  as  no  investigation  has  been

sought  to  be  carried  out  for  commission  of  offence  under

Section  409  of  the  IPC  although  initially  allegations  for

commission of offence under Section 307 of the IPC have

been made.   

iv. When a  final  report  was  filed,  the  learned Magistrate  had

three options, namely, (1) to accept the said final report; or

(2) direct  further  investigation upon rejecting the same; or

(3) take cognizance of the offence alleged.   

Neither  of  the  said  course  of  action  having  been

resorted to, the impugned judgment cannot be sustained.  

v. In the Writ Petitions filed by Shashi and another, the State

did not file any counter affidavit.  It was the duty of the State

to point out that a final report had already been filed and as

such transfer of investigation to CBCID could not have been

directed at that stage.   

11

vi. Having regard to the provisions contained in Section 169 of

the Code of Criminal Procedure, Final report submitted by

the  Investigating  Officer  could  not  have  been  sent  to  the

public prosecutor for his opinion.    

18. The learned counsel also drew our attention to a statement made by

Manoj  in  his  examination  under  Section  313 of  the  Code  of  Criminal

Procedure which would go to show that he raised a plea therein that he

was not present at the place of occurrence.   

19. The  parties  as  noticed  hereinbefore  are  related  to  each  other.

Manoj  is  the son of  Shashi.   Meenaxi  is  his  sister.   It  is  evident  that

disputes relate to a farm house.  Allegations and counter allegations have

been made.  Both sides lodged FIRs.  Whereas the FIR lodged by Manoj

is concerned, only charge sheet had been filed in the case charged against

him, he has since been convicted.  As correctness of the said conviction is

pending  before  the  High  Court  and  the  sentence  of  Manoj  has  been

suspended,  it  is  neither  desirable  nor  permissible  in  law to  make  any

observation thereupon.  The facts of the matter, as noticed hereinbefore,

clearly show that the investigation in the connected matter being Crime

No. 960A of 1999 run from one extreme end to the other.  Final reports

were  prepared  twice.   However,  the  Deputy Superintendent  of  Police,

12

CBCID on the second final report so prepared sought to obtain the legal

opinion of the public prosecutor.  Such a course adopted may be irregular

but  it  is  not  denied or disputed that  a vital  aspect of the matter of the

investigation had not been carried out.  It is not the case of the appellants,

i.e., Shashi and Meenaxi that the opinion given by the public prosecutor

was  incorrect.   We have  noticed  hereinbefore  that  even  otherwise  the

learned Magistrate has granted such permission.   

20. In Kamlapati Trivedi vs. State of West Bengal [(1980) 2 SCC 91],

this Court held:

“50.  Section  169  and  170  do  not  talk  of  the submission  of  any report  by the  police  to  the Magistrate,  although  they  do  state  what  the police has to do short of such submission when it finds at the conclusion of the investigation (1) that  there  is  not  sufficient  evidence  or reasonable  ground  of  suspicion  to  justify  the forwarding  of  the  accused  to  a  Magistrate (Section  169)  or  (2)  that  there  is  sufficient evidence  or  reasonable  ground  as  aforesaid (Section 170). In either case the final report of the police is to be submitted to the Magistrate under  Sub-section  (1)  of  Section  173.  Sub- section (3) of that section further provides that in  the  case  of  a  report  by  the  police  that  the accused has been released on his bond (which is the  situation  envisaged  by  Section  169),  the Magistrate  shall  make  "such  order  for  the discharge  of  such  bond  or  otherwise  as  he thinks  fit".  Now what  are  the  courses  open to the Magistrate in such a situation? He may, as held by this Court in Abhinandan Jha and Ors. v. Dinesh Mishra [1967] 3 SCR 668.

13

(1) agree with the report of the police and file the proceedings, or

(2) not agree with the police report and

(a) order  further  investigation, or  

(b) hold  that  the  evidence  is sufficient  to  justify  the forwarding of the accused to the  Magistrate  and  take cognizance  of  the  offence complained of.”

21. It is, however, not the case of Shashi that the learned Magistrate

had accepted the report.  Even in such a case, the learned Magistrate was

bound to give notice to the complainant who could have objected thereto.

A protest petition was also maintainable.    

In  this  case,  this  Court  had  directed  CBCID  to  complete  the

investigation.   It  was,  thus,  obligatory  on  its  part  to  complete  the

investigation and submit an appropriate report to the court.   

22. In Ram Lal Narang vs. State (Delhi Adminstration) [(1979) 2 SCC

322], this court held:

“…..The criticism that a further investigation by the  police  would  trench  upon  the  proceedings before  the  Court  is  really  not  of  very  great

14

substance, since whatever the police may do, the final  discretion  in  regard  to  further  action  is with the Magistrate. That the final word is with the  Magistrate  is  sufficient  safeguard  against any excessive use or abuse of the power of the police to make further investigation. We should not,  however,  be  understood  to  say  that  the police  should  ignore  the  pendency  of  a proceeding before a Court and investigate every fresh fact that comes to light as if no cognizance had been taken by the Court of any offence. We think that in the interests of the independence of the magistracy and the judiciary, in the interests of  the  purity of  the administration of  criminal justice and in the interests of the comity of the various agencies and institutions entrusted with different stages of such administration, it would ordinarily  be  desirable  that  the  police  should inform the Court and seek formal permission to make  further  investigation  when  fresh  facts come to light.

21 ....In  our  view,  notwithstanding  that  a Magistrate had taken cognizance of the offence upon  a  police  report  submitted  under  Section 173 of the 1898 Code, the right of the police to further  investigate  was  not  exhausted  and  the police  could  exercise  such  right  as  often  as necessary when fresh information came to light. Where  the  police  desired  to  make  a  further investigation,  the  police  could  express  their regard and respect for the Court by seeking its formal permission to make further investigation.

22. As  in  the  present  case,  occasions  may arise  when  a  second  investigation  started independently of the first  may disclose a wide range  of  offences  including  those  covered  by the first  investigation.  Where the report of the second  investigation  is  submitted  to  a Magistrate  other  than  the  Magistrate  who  has already taken cognizance of the first case, it is up  to  the  prosecuting  agency  or  the  accused

15

concerned to take necessary action by moving the appropriate superior Court to have the two cases tried together. The Magistrates themselves may take action suo motu.”  

{See also  State of Andhra Pradesh  vs.  A.S. Peter [(2008) 2 SCC

383]},  

23. In  Sri  Bhagwan  Samardha  Sreepada  Vallabha  Venkata

Vishwanandha Maharaj [(1999) 5 SCC 740], this Court held:

“10. Power  of  the  police  to  conduct  further investigation,  after  laying  final  report,  is recognised  under  Section  173(8)  of  the  CrPC. Even  after  the  court  took  cognizance  of  any offence on the strength of the police report first submitted,  it  is  open  to  the  police  to  conduct further investigation. This has been so stated by this  Court  in  Ram Lal  Narang v.  State  (Delhi Admn.).  The  only  rider  provided  by  the aforesaid decision is that it would be desirable that the police should inform the court and seek formal  permission  to  make  further investigation.”

24. It is, therefore, too late in the day to raise a contention as has been

done by Mr. Sushil Kumar that in Writ Petition No. 7230 of 1999, that the

State should have disclosed that a final report had been filed in regard to

the complaint made by him, for more than one reason; firstly, the same

16

has become academic; secondly, whereas final report had been filed on

29.11.1999, the Writ Petition was filed on that date itself.  What would

have been the effect of the said final report that no case has been made

out, again is a matter of no significance, as even the High Court while

exercising  its  jurisdiction  under  Section  482  of  the  Code  of  Criminal

Procedure did not find so.   

25. The jurisdiction of the High Court under Section 482 of the Code

of Criminal Procedure is limited.  

In Arun Shankar Shukla vs. State of U.P. and ors.  [(1999) 6 SCC

146], it was held:

“2. It appears that unfortunately the High Court by  exercising  its  inherent  jurisdiction  under Section  482  of  the  Criminal  Procedure  Code (for short "the Code") has prevented the flow of justice  on  the  alleged  contention  of  the convicted  accused  that  it  was  polluted  by  so called  misconduct  of  the  judicial  officer.  It  is true  that  under  Section  482  of  the  Code,  the High Court  has inherent  powers to make such orders as may be necessary to give effect to any order under the Code or to prevent the abuse of process of any Court or otherwise to secure the ends  of  justice.  But  the  expressions  "abuse of the  process  of  law" or  "to  secure  the  ends  of justice" do not confer unlimited jurisdiction on the  High  Court  and  the  alleged  abuse  of  the process of law or the ends of justice could only be  secured  in  accordance  with  law  including procedural  law  and  not  otherwise.  Further, inherent  powers  are  in  the  nature  of extraordinary  powers  to  be  used  sparingly for achieving the object mentioned in Section 482

17

of the Code in cases where there is no express provision  empowering  the  High  Court  to achieve the said object. It is well neigh settled that  inherent  power  is  not  to  be  invoked  in respect  of  any  matter  covered  by  specific provisions of the Code or if its exercise would infringe any specific provision of the Code. In the present case, the High Court overlooked the procedural law which empowered the convicted accused  to  prefer  statutory  appeal  against conviction  of  the  offence.  High  Court  has intervened  at  an  uncalled  for  stage  and  soft- pedaled the  course of  justice  at  a  very crucial stage of the trial.”

In  Hamida  vs.  Rashid alias Rasheed & ors. [(2008) 1 SCC 474],

this Court held:

“7. It is well established principle that inherent power  conferred  on  the  High  Courts  under Section  482  Cr.P.C.  has  to  be  exercised sparingly with circumspection and in rare cases and that too to correct patent illegalities or when some miscarriage of justice is done. The content and scope of power under Section 482 Cr.P.C. were examined in considerable detail in Madhu Limaye v. State of Maharashtra [(1977) 4 SCC 551] and it was held as under:

The following principles may be stated in relation  to  the  exercise  of  the  inherent power of the High Court -  

(1) That  the  power is  not  to  be resorted to if there is a specific provision in  the  Code  for  the  redress  of  the grievance of the aggrieved party;  

18

(2) That  it  should  be  exercised very sparingly to prevent abuse of process of  any Court  or  otherwise  to  secure  the ends of justice;  

(3) That it should not be exercised as  against  the  express  bar  of  law engrafted  in  any  other  provision  of  the Code.”

26. It is not necessary for us to deal with the large volume of cases as

to the jurisdiction of the High Court to quash the criminal proceedings in

exercise of its  jurisdiction under Section 482 of  the Code of  Criminal

Procedure, as the principles in respect thereof are well known.    

The jurisdiction of the High Court is limited.  It can interfere with

an order of summoning an accused by the learned Magistrate inter alia in

the event if a finding is arrived at that the accused were being prosecuted

mala fide and/or even if the allegations contained in the FIR are given

face value and taken to be correct in their entirety, no case has been made

out for taking cognizance of the offence.   

27. We may only notice that in State of Haryana & Ors. vs. Bhajan Lal

& ors.  [1992 Suppl. (1) SCC 335], it has, inter alia, been held:

“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

19

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.”

28. In Ruchi Agarwal vs. Amit Kumar Agrawal & ors. [(2005) 3 SCC

299], this Court took into consideration subsequent events for the purpose

of exercising its jurisdiction under Section 482 of the Code of Criminal

Procedure, stating:

“9. In  view  of  the  above  said  subsequent events and the conduct of the appellant, it would be an abuse of  the  process  of  the court  if  the criminal  proceedings  from  which  this  appeal arises is allowed to continue. Therefore, we are of  the  considered  opinion  to  do  complete justice, we should while dismissing this appeal also  quash  proceedings  arising  from  the Criminal Case No.Cr.No.224/2003 registered in Police  Station,  Bilaspur,  (Distt.Rampur)  filed under  Sections  498A,  323  and  506  IPC  and under Sections 3 and 4 of the Dowry Prohibition Act against the respondents herein.”

20

29. Contention of Mr. Sushil Kumar is that while filing a charge sheet,

the Investigating Officer did not follow the directions given by this Court

in  its  order  dated  7.9.2001  whereby and  whereunder  the  Investigating

Agency was directed to consider the report dated 29.11.1999 submitted

by Mr. Naresh Pal.  It is again not a matter to take which requires serious

consideration at this stage.  It does not appear that any such contention

was raised before the High Court, the effect thereof must be considered

by the courts at an appropriate stage.  It is also difficult for us to arrive at

a positive decision that the FIR lodged by Manoj was only retaliatory in

nature as he had not suffered any bullet injury.  It is a matter of trial.  

Submission  of  Mr.  Sushil  Kumar  that  the  order  passed  by  the

Judicial Magistrate, Rudrapur on the final report filed in FIR No. 960A of

1999  has  not  been  brought  on  record  is  not  very  significant  as  the

appellants also could have filed a certified copy of the said order if the

said final report had been accepted.  When the charge sheet was filed, the

learned  Magistrate,  of  course,  should  have  been  informed that  further

investigation was to be carried out but it is now well known that a further

investigation can be directed to be made in terms of Section 173(8) of the

Code of Criminal Procedure even after an order taking cognizance has

been passed.  Mr. Sushil Kumar may be right in his contention that even

after  disposal  of  the  matter  an  application  was  filed  for  carrying  out

further  investigation  after  a  period  of  seven  and  a  half  years,  but  the

21

question as to whether the learned Magistrate should have passed the said

order dated 31.7.2008 or not had not been considered by the High Court.

Therefore, we request the High Court to consider the matter afresh.  

30. We, therefore, set aside the orders passed by the High Court in its

order dated 11.8.2008 opining that the same was beyond its jurisdiction

under  Section  482 of  the  Code of  Criminal  Procedure.  It  is,  however,

made clear  that  all  contentions  of  the  parties  shall  remain open.   It  is

furthermore made clear  that  the  parties  hereto  may approach  the High

Court  in  Criminal  Miscellaneous  Application  No.  518  of  2008.

Allegations of mala fide made against the State may also be gone into.

The  High  Court  can  pass  any such  interim order  as  it  may think  and

proper.  For a period of four weeks, however, the interim order passed by

this Court shall continue.  

31. So far as the Criminal Appeals arising out of Special Leave Petition

(Criminal) No. 6061-6062 of 2008 and Special Leave Petition (Criminal)

No. 6136-37 are concerned, there cannot be any doubt whatsoever that

the  jurisdiction  of  the  High  Court  under  Section  482  of  the  Code  of

Criminal Procedure is limited.  It is ordinarily for the learned Magistrate

to consider as to whether a case for grant of bail has been made out or

not,  the High Court,  therefore, may not  be correct  in observing, “I am

quite  convinced  that  valid  grounds  exist  for  granting  bail  to  the

petitioners.”  Similarly, the High Court should not have, for all intent and

22

purport,  issued  the  direction  for  grant  of  exemption  from  personal

appearance.  Such a matter undoubtedly shall be left for the consideration

before the  learned Magistrate.   We are sure that  the Magistrate  would

exercise his jurisdiction in a fair and judicious manner.  The impugned

directions are set aside and the maters are remitted to the High court for

consideration of the application filed before it  by the parties afresh on

merit.  

32. The appeals are disposed of to the aforementioned extent.  

……………….…..………….J. [S.B. Sinha]

..………………..……………J.    [Cyriac Joseph]

New Delhi; April 15, 2009

23