REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.                OF 2008 (Arising out of S.L.P.(Crl.) No.2625 of 2006)

State of Andhra Pradesh ...Appellant

Versus

Bajjoori Kanthaiah and Anr.                                       …Respondents

With Crl. A. No............../2008 @ SLP(Crl.) No.2627/2006 Crl. A. No............../2008 @ SLP(Crl.) No.2631/2006 Crl. A. No............../2008 @ SLP(Crl.) No.3372/2006 Crl. A. No............../2008 @ SLP(Crl.) No.3371/2006 Crl. A. No............../2008 @ SLP(Crl.) No.2892/2006 Crl. A. No…........../2008 @ SLP(Crl.) No.3639/2006 Crl. A. No............/2008 @ SLP(Crl.) No.5841/2008

J U D G M E N T

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Dr. ARIJIT PASAYAT, J.

1. Leave granted in all these cases.

2. By  the  impugned  judgments  the  High  Court  of  Andhra

Pradesh  has  quashed  the  FIR filed by  Prohibition and  Excise officers

alleging  commission  of   offences  punishable  under  Andhra  Pradesh

Excise Act, 1968 (in short the 'Act') and the Andhra Pradesh Prohibition

Act, 1995  (in short the 'Prohibition Act'). In all the cases the allegation

was that the concerned accused was either transporting or storing black

jaggery/molasses for the purpose of manufacturing illicit distilled liquor

or was an abettor so far as the offence of manufacturing illicit liquor is

concerned.   On being moved by application under  Section 482  of the

Code of Criminal Procedure, 1973 (in short the ‘Code’) by the concerned

accused for quashing the FIR, the High Court accepted the plea holding

that there was no material to show that the seized articles were intended

to be used for manufacturing of illicit distilled liquor. Accordingly, the

FIR in each case was quashed.

3. In support  of the appeals,  learned counsel appearing for the

State  of Andhra  Pradesh  submitted  that  the  High Court's  approach  is

clearly erroneous. These are not cases where there was total absence of

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material to show the commission of a crime. Whether there was adequate

material already in existence or which could have been collected during

investigation and their relevance is essentially a matter of trial. The High

Court was not, therefore, justified in quashing the FIR.  The exercise of

power under Section 482 of the Code is clearly indefensible.

4. There is no appearance on behalf of the respondents in spite of

service of notice.

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

this nature is the 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

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of functions and duties imposed upon them by law.  That is the doctrine

which  finds  expression  in  the  Section  which  merely  recognizes  and

preserves inherent powers of the High Courts.  All courts, whether civil or

criminal possess, in the absence of any express provision, as inherent in

their constitution, all such powers as are necessary to do the right and to

undo  a  wrong  in  course  of  administration  of  justice  on  the  principle

quando lex aliquid alique concedit, conceditur et 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

exercises of the powers court would be justified to quash any proceeding

if it  finds  that  initiation or  continuance of it  amounts  to abuse of the

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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.

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  its 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.

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7. In dealing with  the last  category, 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  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

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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 rarest of rare cases.  The

illustrative categories indicated by this Court are as follows:  

"(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 F.I.R.  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.  

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(4)   Where the allegations in the F.I.R. 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 S. 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.”  

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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.  High  Court  being  the  highest  Court  of  a  State  should

normally refrain from giving a prima facie decision in a case where the

entire facts are incomplete and hazy, more so when the evidence has not

been collected and produced before the Court  and  the issues involved,

whether factual or legal, are of magnitude and cannot be seen in their true

perspective without sufficient material. Of course, no hard and fast rule

can be laid down in regard to cases in which the High Court will exercise

its  extraordinary  jurisdiction of quashing the  proceeding at  any stage.

(See: The Janata Dal etc. v. H.S. Chowdhary and others, etc. (AIR 1993

SC 892), Dr. Raghubir Saran v. State of Bihar and another (AIR 1964 SC

1)). 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

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to assess the material before it and conclude that the complaint cannot be

proceeded with.  In proceeding 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/F.I.R.  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 or disclosed in the F.I.R. that  the ingredients of the

offence or offences are disclosed and there is no material to show that the

complaint/F.I.R. 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 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

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the basis for quashing the proceeding. (See :  Mrs. Dhanalakshmi v.  R.

Prasanna  Kumar  and  others (AIR 1990  SC 494),  State  of Bihar  and

another v. P. P. Sharma, I.A.S. and another (1992 Suppl (1) SCC 222),

Rupan  Deol Bajaj  (Mrs.)  and  another v.  Kanwar  Pal  Singh  Gill and

another (1995 (6) SCC 194),  State of Kerala and others v. O.C. Kuttan

and others (1999 (2) SCC 651), State of U.P. v. O. P. Sharma (1996 (7)

SCC 705),   Rashmi Kumar (Smt.) v.  Mahesh Kumar Bhada (1997 (2)

SCC 397),  Satvinder Kaur v. State (Govt. of NCT of Delhi) and another

(1999 (8) SCC 728), Rajesh Bajaj v. State NCT of Delhi and others AIR

1999  SC 1216),  State  of  Karnataka v.  M.  Devendrappa  and  another

(2002 (3) SCC 89).

9. In all these cases there was either statements of  witnesses or

seizure of black jaggery and olum materials being used for manufacturing

illicit  distilled  liquor   which  factors  cannot  be  said  to  be  without

relevance.  Whether the material already in existence or to be collected

during  investigation  would  be  sufficient  for  holding  the  concerned

accused persons guilty has to be considered at the time of trial.  At the

time of framing the charge it can be decided  whether  prima facie case

has been made out showing commission of an offence and involvement of

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the charged persons.   At that  stage also evidence cannot  be gone into

meticulously.   It  is  immaterial  whether  the  case is  based  on direct  or

circumstantial  evidence.  Charge can  be framed,  if there are  materials

showing  possibility  about  the  commission  of  the  crime  as  against

certainty.  That being so, the interference at the threshold with the F.I.R.

is to be in very exceptional circumstances as  held in R.P.  Kapoor and

Bhajan Lal cases (supra).

10. Ultimately,  the  acceptability  of  the  materials  to  fasten

culpability on the accused persons is a matter of trial. These are not the

cases where it can be said that the FIR did not disclose commission of an

offence.  Therefore, the High Court was not justified in quashing the FIR

in the concerned cases.  

11. Keeping in view the principles of law as enunciated above, the

action of the High Court  in quashing the FIR in  each case cannot  be

maintained and are set aside.

12. Learned  counsel for  the  State  submitted  that  there shall  be

early investigation in the matter and submission of Report under Section

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173 of the Code shall be done without delay and in any event, not later

than  the end of February,  2009.   We make it  clear  that  we have not

expressed any opinion on the merits of the case.

13. All the appeals are allowed, as indicated above.

……..…….............................J.                                                       (Dr. ARIJIT PASAYAT)

……...…….............................J.

(Dr. MUKUNDAKAM SHARMA)  

New Delhi:

October 20, 2008

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