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CASE NO.: Appeal (crl.)  964 of 2002

PETITIONER: Balkar Singh                                     

RESPONDENT: Jagdish Kumar & Ors.                             

DATE OF JUDGMENT: 22/02/2005

BENCH: N. Santosh Hegde & P.K. Balasubramanyan

JUDGMENT: J U D G M E N T WITH

Criminal Appeal No.334 of 2005 (@ SLP(crl.) No. 510 of 2004)

SANTOSH HEGDE, J.

                The appellant is the complainant in FIR No. 26 dated  10.2.1998 registered with the Police Station, Majitha in Punjab.    In the said complaint he alleged that the respondent herein   Jagdish Kumar and some others of M/s  Bhalla Kheti Store  and  the respondent Rakesh Kumar  and others of M/s. Bina Khad  Store had committed criminal acts punishable under Section   382, 353, 506, 186 of the Indian Penal Code (hereinafter referred  to as the ’IPC’) when he along with the staff had gone to check  the stock register and quality of the goods namely super  phosphate sold by them.  After registering the case  the  concerned police authorities were investigating the same.   During the pendency of the investigation  the accused Jagdish  Kumar and Rakesh Kumar named herein above filed two  separate Criminal Misc. Petitions under Section 482 of the Code  of Criminal Procedure (hereinafter referred to as ’the Code’)  before the High Court of Punjab and Haryana at Chandigarh.   When the High Court was seized of the above criminal misc.  petitions, in both the petitions a statement was made on behalf of  the State that a decision has been taken by the Government to  withdraw the complaint filed in FIR No. 26 dated 10.2.1998  registered at the police station, Majitha (Punjab)  for the above  said offence.  Recording the said statement the High Court in two  identical orders quashed the said FIR and gave directions to the  police and the learned Magistrate not to prosecute  the respective  petitioners on the basis of the said FIR.  It is these two orders  which are challenged before us in the above criminal appeal.          Before we proceed to examine the correctness of the  impugned orders of the High Court it is necessary to note certain  other developments that took place during the pendency of the  quashing petition in the High Court.   On the very day the  complaint was lodged in the police station, the two concerned  accused sent complaints to the State Government making certain  allegations against the appellant herein who was then the  Agricultural Development Officer (Enforcement) in the  Department of Agriculture, Punjab State alleging among other  things, demand of bribe and consequent harassment meted out by  him to them for non-payment  of bribe.            On the basis of the above-mentioned complaints of the  respondents herein  the Government initiated certain inquiries  and based on the report received  on such inquiries  the opinion

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of the District Attorney was sought  who as per his opinion  recommended  to file an application under Section 321 of the  Code for withdrawal of the prosecution.  The State also  consulted the Addl. Public Prosecutor  who was appearing in the  trial, who also recommended the withdrawal of the prosecution.   It is at this stage when Section 321 application was still pending,  the High Court by the impugned orders  quashed the proceedings   and directed to the police authorities and the learned Magistrate  not to prosecute the petitioners on the basis of the above said  FIR.         It is also noticed from the material on record that   immediately on coming to know of the recommendation made by  the authorities for withdrawal of the prosecution, the appellant  herein filed reply to the application  opposing such withdrawal  and sought for permission to prosecute the case personally as a  complainant in the event of State Government was not desiring  to pursue the prosecution.          In view of the order of the stay granted by the High Court  in the quashing proceedings the proposed framing of the charge  by the trial court fixed for 25th October, 2000 could not be  proceeded with and in view of the impugned order made by the  High Court on 19th October, 2001 consideration of  an  application under Section 321 of the Code by the trial court  became futile.   It is in this background the appellant in criminal appeal  No. 964 of 2002 first preferred the said appeal which was  entertained by this court and after issuance of notice, leave was  granted on 13th  September, 2002.  Criminal Appeal No. 964/02   which pertains only to the complaint against Jagdish Kumar  was  listed for hearing  before this Court when this Court found the  technical problem in granting relief to the appellant only as  against Jagdish Kumar  since the appellant had not challenged  the quashing of the criminal complainant made against Rakesh  Kumar.   In this fact situation, criminal appeal  No. 964 of 2002  was adjourned by 6 weeks  to facilitate the appellant to prefer a  special leave petition against the order of the High Court in Crl.  M.P. No. 11127/03 pertaining to Rakesh Kumar  also and when  such a special leave petition was filed the same was tagged along  with the criminal appeal No. 964 of 2002 and the said special  leave petition is also before us today for hearing.          The learned counsel appearing for the appellant submitted   the High Court without going into the merits of the complaint  that was sought to be quashed under Section 482 of the Code  erred in accepting the statement  made on behalf of the  State  Government and then proceedings to quash the complaint solely  on the ground that the government had decided to drop the  prosecution.  He further contended that the High Court further  erred in issuing a direction to the police authorities and the  learned Magistrate not to prosecute the petitioners on the basis of  the concerned FIR even before an application under Section 321  of the Code was entertained by the trial court.  Therefore, the  learned counsel submitted  that the impugned orders of quashing  the complaint  are liable to be dismissed  on the ground of non- application of mind itself.   He relied  upon the judgment of this  Court in the case of Sheo Nandan Paswan  Vs.  State of Bihar  and Ors. [AIR 1987 (74) SC 877] to contend that in what  circumstances an application under Section 321 of the Code  could be allowed by the trial court and submitted that since the  Magistrate did not even have an opportunity of looking into such  application, the High Court could not exercise such power.  He  also submitted that the allegations made in the complaint   specifically established the various criminal acts of the  respondents, therefore, High court could not have quashed  the  complaint on the basis  of a proposed withdrawal of the  prosecution.  The learned counsel also pointed out that there was  

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some   other inquiry conducted by the superior officers of the  police in regard to the prima facie case against the respondents  and the said  officers after inquiry had reported that the  allegations made in the complaint were true.          He also submitted that the opinion of the learned Addl.  Public Prosecutor  to withdraw the complaint is basically  influenced by the desires of the higher officers of the  Government and the reasons given by the learned Addl. Public  Prosecutor for withdrawing the complaint cannot be accepted  without there being a trial.          Shri Dhruv Mehta, learned counsel appearing for the  respondent-accused in criminal appeal no. 964/02 submitted  whether the complaint filed by the appellant is motivated by co- lateral  consideration and the respondent accused had already  made a complaint in this regard and it is only after making   proper inquiry and seeking proper legal advice the Government  had decided to withdraw the case hence, filing of an application  under Section 321 before the Magistrate  and an order thereon  being only a formality,  the High Court was justified in passing  the impugned order based on the statement made by the learned  counsel for the State.  He also submitted that if the High Court  only had gone into the merits of the complaint, a plain reading of  the said complaint could have  convinced the High Court that  there was absolutely no case made out to pursue the said  complaint hence, the petitioner before the High Court was  entitled to the quashing of the complaint on merits also.  He also  submitted that presuming for argument sake that the appellant  has been able to point out some error in the judgment of the High  court even then this court ipso facto would not interfere with the  erroneous orders of the High Court because exercise of powers  under Article 136 is discretionary  and it is only  in a case when  the appellant is able to show exceptional circumstances exist in  his case and that non-interference would cause grave injustice,  then alone, this Court could exercise its power under Article 136  of the Constitution.  For this proposition, he relied on a decision  of this Court in Taherakhatoon ( D) by Lrs. Vs.  Salambin  Mohammad [ 1999 (2) SCC 635].   The learned counsel tried to  point out the complaint in question  was of the year 1998 and  there  has been no progress before the trial court and assuming  that the High  Court  is technically wrong in quashing the  complaint based on the submission of the learned advocate for  the State no injustice would be caused to the appellant. In the  facts of the present case, therefore, on the basis of the decision in   Taherakhatoon ( D) by Lrs.(supra)  we should refuse to  exercise our discretion  vested under Article 136 of the  Constitution.  Though, we are in agreement with the ratio laid  down by this Court in Taherakhatoon ( D) by Lrs.u (supra) we  do not think the facts of this case would persuade  us to refuse  relief sought for by the appellant.  As stated above, what is  pending before the High court was a quashing petition filed  under Section 482 of the Code wherein the scope of  interference  the High Court is quite restricted. In such a petition in our  opinion, accepting a statement made by the counsel for the State,  High Court could not have quashed the petition solely on that  ground.  It could only have quashed the petition if it came to the  conclusion that the complaint of the appellant did not make out a  triable case against the petitioners before it.  The decision of the  Government to withdraw the prosecution is an irrelevant ground  so far as High Court is concerned to allow a petition for  quashing.  It is rather surprising why further directions were  issued by the High Court to the police and the Magistrate not to  prosecute the petitioners once it quashed the complaint. The  direction issued in the impugned order by the High Court in our  opinion is wholly without jurisdiction even under Section 482 of  the Code.  The High Court ought to have noticed the fact that but

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for the grant of stay order, there was a possibility of the trial  court even framing charge against the respondents accused as for  back as on 25th October, 2000 when the case was listed  for the  said purpose in which event there could  have been room for  argument that even a Section 321 petition would not be  maintainable.          Noticing this error in the judgment of the  High Court Shri  Dhruv Mehta, learned counsel submitted  that in the interest of  justice we should remand the matter back to the High Court to  consider the quashing petition on merits since according to him  the complainant did not make out any triable case at all.  We do  not think that this prayer can be granted.    Since we have come  to the conclusion that the impugned judgment is unsustainable in  law, it must suffer  the consequences. Shri Dharuv Mehta,  learned counsel then submitted that a direction may be given to  the Magistrate to dispose of the application filed by the Addl.  Asstt. Public Prosecutor under Section 321 of the Code for  withdrawing the prosecution. On the material on record it is not  clear whether such an application has already been filed or not.   Assuming that such an application is filed, then such an  application will have to be dealt with  by the trial court in  accordance with law as interpreted by various judgments of this  Court  in the cases of Abdul Karim & Ors. Vs. State of  Karnataka & Ors.[ 2000 (8) SCC 710], N. Natarajan Vs. B.K.  Subba Rao [2003 (2) SCC 76] and  Ayyub  Vs. Abdul Jabbar  [2002 (3) SCC 510] wherein this Court has consistently laid  down the parameters,   the duty of the Law Officer and the Court  in filing and considering such an application under Section 321  of the Code. Any direction from our side at this stage  would  only hinder an independent application of mind by the concerned  court if and when such application is taken up for consideration.  Therefore, without expressing any opinion on the merits of the  complaint filed by the appellant or the application for withdrawal  filed or to be filed by the Asstt. Public Prosecutor under Section  321 of the Code, we think it prudent to merely quash the  impugned order of the High Court and leave the parties to pursue  their remedies available in law.          The appeal, therefore, stands allowed.  

Criminal Appeal No.334of 2005

       Heard learned counsel for the parties.          There is a delay of 680 days in preferring this petition   which as noted above came to be filed only after criminal appeal  No. 964 of 2002 came up for hearing  before this Court.  At that  point of time itself the court felt  that there was an error on the  part of the appellant not to have challenged the impugned order  which error was considered as a technical error since the  complaint against the accused  in criminal appeal no. 964/02 and  in the above special leave petition was a joint complaint with a  single no. 26. And what was challenged before the High Court  was also a single FIR, though  by way of two petitions even the  High Court on an identical date by an identical order allowed the  petitions, quashing the complaint against both the accused.  In  such circumstances, though  Shri M.N. Krishnamani, learned Sr.  counsel  very strongly opposed the condonation of delay,  we do  not think interest of justice would be served by refusing to  condone the delay, the consequence of which would be to  perpetuate an illegal order and more so, in the background of the  fact when we have today quashed an identical order arising from  the complaint. In the said view of the matter we are of the  opinion, that the delay in filing the special leave petition should  be condoned and it is ordered accordingly.          Leave granted.          Heard learned counsel for the parties on merits.

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       Shri M.N. Krishnamani, learned Sr. counsel  for the  respondent herein submitted that the petitioner herein has no  locus standi  to file this appeal.  We fail to see how an aggrieved  complainant who was a respondent before the High Court  and  has suffered  an adverse order, which according to us cannot be  sustained; can be prevented from agitating his grievance by way  of this appeal. Hence we reject this contention.  The other  arguments of the learned Sr. counsel for the respondent in this   appeal being similar to the one addressed by Shri Mehta, learned  counsel for the respondent in the above said connected appeal,   we reject the same for the very same reasons recorded herein  above.           For the reasons stated in Criminal appeal No. 964 of 2002  and the additional reasons recorded in this appeal, this appeal  also succeeds and is allowed.