http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

CASE NO.: Appeal (crl.)  427 of 2008

PETITIONER: K.L.E Society and Ors

RESPONDENT: Siddalingesh

DATE OF JUDGMENT: 03/03/2008

BENCH: Dr. ARIJIT PASAYAT & AFTAB ALAM

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO.     427     OF 2008 (Arising out of SLP (Crl.) No.63 of 2007)

Dr. ARIJIT PASAYAT, J.

1.      Leave granted.

2.      Challenge in this appeal is to the order passed by the  learned Single Judge of the Karnataka High Court dismissing  the application filed before it in terms of Section 482 of the  Code of Criminal Procedure, 1973 (in short ’Cr.P.C.’). Prayer in  the application before the High Court was for quashing the  proceedings in C.C.No.273/2006 including the complaint on  the file of learned Judicial Magistrate First Class, Gulbarga.     

3.      Background facts in a nutshell are as under:

       Respondent was appointed as a Peon in K.L.E. Society’s  Women Arts and Commerce College in the year 1992 of which  the appellant no.3 was the Principal at the relevant point of  time.  Appellant no.2 was the Secretary at the relevant point of  time and the Society was represented by its Chairman,  Board  of Management. He resigned from service on 17.12.2003. The  complaint was filed on 13.1.2006 alleging  commission of  offence punishable under Section 403, 405 and 415 read with  Section 34 of the Indian Penal Code, 1860 (in short ’IPC’). The  learned Judicial Magistrate took cognizance and issued  process. The same was questioned by the appellants. The  stand before the High Court was that the complaint was  misconceived, no offence was made out even on indepth  scrutiny of the complaint. In fact, the respondent had filed  petition in terms of Section 33 (C) (2) of the Industrial  Disputes Act, 1947 (in short ’ID’ Act) and also filed writ  petition claiming parity in salary which was disposed of by  giving the direction to consider the respondents’ case.  In the  petition in terms of Section 33-(C)(2) of the ID Act the  respondent had stated that lesser amounts were paid and  signatures for higher amounts were taken.  The said petition is  pending.  In the writ petition before the High Court there was  no mention about any deduction. It is stated in the complaint  that the complainant was given to understand that certain  amounts were being deducted for repayment at the time of  retirement or cessation of his job. In the notice issued on  23.11.2004, there is no mention about this aspect.  It was,  therefore, submitted that the complaint was nothing but an

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

abuse of process of law.

4.      The complainant-respondent resisted the stand by  stating that the offences are clearly spelt out.

5.      The High Court dismissed the petition holding as follows:

"The respondent lodged a private  complaint against the petitioner on 13.1.2006  along with six supporting documents.  After  perusing the complaint, the documents and  the sworn statement of the respondent,  process is issued against the petitioners for the  aforesaid offences.  This petition is filed for  quashing the proceedings."                       

6.      Learned counsel for the appellants reiterated the stand  taken before the High Court.  On the other hand, respondent  also reiterated the stand taken before the High Court.     

7.      One thing is clear on reading of High Court’s reasoning  that the High Court came to the conclusion that deductions  were made without any rhyme and reason and without any  basis.  That was not the case of the complainant.  On the  other hand, it tried to make out a case that the deduction was  made with an object.  That obviously, was the foundation to  substantiate claim of entrustment.  On a close reading of the  complaint it is clear that the ingredients of Sections 403, 405  and 415 do not exist.  The statement made in the complaint  runs contrary to the averments made in the petition in terms  of Section 33-(C) (2).   8.      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 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 alicui concedit, concedere  videtur et id sine quo res ipsae 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

to prevent 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.  9.      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.

10.     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 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 some detail by this Court in State of  Haryana v. Bhajan Lal (1992 Supp (1) 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

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 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 Act  concerned, 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."  11.     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  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: Janata Dal v. H. S. Chowdhary  (1992 (4) SCC 305), and Raghubir Saran (Dr.) v. State of Bihar  (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  to assess the material before it and conclude that the  complaint cannot be proceeded with. In a 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5  

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 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 court which decides the fate of the accused  person. The allegations of mala fides against the informant are  of no consequence and cannot by themselves be the basis for  quashing the proceedings. (See: Dhanalakshmi v. R. Prasanna  Kumar (1990 Supp SCC 686), State of Bihar v. P. P. Sharma  (AIR 1996 SC 309), Rupan Deol Bajaj v. Kanwar Pal Singh Gill  (1995 (6) SCC 194), State of Kerala v. O. C. Kuttan (AIR 1999  SC 1044), State of U.P. v. O. P. Sharma (1996 (7) SCC 705),  Rashmi Kumar v. Mahesh Kumar Bhada (1997 (2) SCC 397),  Satvinder Kaur v. State (Govt. of NCT of Delhi) (AIR 1996 SC  2983) and Rajesh Bajaj v. State NCT of Delhi (1999 (3) SCC  259, State of Karnataka v. M. Devendrappa and Another (2002  (3) SCC 89) and Zandu Pharmaceutical Works Ltd. v. Mohd.  Sharaful Haque and Anr. (2005 (1) SCC 122).

12.     When the factual scenario is examined in the background  of the legal principles set out above, the inevitable conclusion  is that the complaint was nothing but an abuse of the process  of law.  We, therefore, allow this appeal and set aside the  proceedings in C.C.No.273/2006 pending before learned  Judicial Magistrate First Class, Gulbarga.

13.     We make it clear that we have not expressed any opinion  on the merits so far as the petition under Section 33-(C)(2) of  the ID Act is concerned, which is stated to be pending.