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CASE NO.: Appeal (crl.)  1242 of 2007

PETITIONER: Pratibha

RESPONDENT: Rameshwari Devi & Ors

DATE OF JUDGMENT: 17/09/2007

BENCH: A.K. MATHUR & TARUN CHATTERJEE

JUDGMENT:

J U D G M E N T

CRIMINAL APPEAL NO. 1242 OF 2007  [Arising out of SLP [Crl] No. 6334 of 2004]

TARUN CHATTERJEE, J.

1.      Leave granted. 2.      This appeal by special leave is preferred against the  judgment and order dated 14th September, 2004 of the High  Court of Judicature for Rajasthan at Jaipur Bench, whereby the  High Court had quashed an FIR dated 31st December, 2001  lodged at the instance of the appellant in the exercise of its  inherent powers under Section 482 of Code of Criminal  Procedure (hereinafter referred to as ’the Code’). The said FIR  was registered by the complainant/appellant (in short "the  appellant") against the accused/respondents (in short "the  respondents") for the alleged offences under Section 498-A and  406 of IPC. 3.      Before we take up the questions that were posed before  us by the learned counsel for the parties, it is necessary at this  stage to state the facts giving rise to the filing of this appeal.  Accordingly, the facts in a nutshell are stated below : 4.      The appellant had entered into wedlock with the  respondent No.2 on 25th January, 2000. The respondent Nos.1,  3, 4 and 5 are the mother-in-law, brother-in-law, maternal  father-in-law and the father-in-law of the appellant respectively.  The appellant left her matrimonial home on 25th May, 2001  with her father and brother. In the FIR, the appellant alleged  that during her stay in her matrimonial home, she was subjected  to harassment and cruelty by all the respondents as they were  dissatisfied with the articles that the appellant had brought as  stridhan. The respondents also forced her to bring Rs.5 lacs  more in dowry from her father which she could not bring from  her parents nor could her parents afford to pay such a huge  amount. The respondents also did not allow the appellant to  take back her ornaments and other articles, which were gifted to  her as stridhan when she left her matrimonial home. On 31st  July, 2001, the husband, namely, respondent No.2 filed a  petition before the Family Court praying for a decree for  divorce on the ground of mental cruelty. On 31st December,  2001, the appellant lodged an FIR No.221 of 2001 against the  respondents for the alleged offences under Section 498A and  406 of IPC. This FIR was challenged by way of a criminal  miscellaneous petition under Section 482 of the Code in which  the respondents prayed for quashing of the said FIR. The  respondents had also obtained an order granting anticipatory

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bail from the Sessions Judge, Jhunjhunu, Rajasthan on 8th  February, 2002. While the petition under Section 482 of the  Code was pending, a final investigation report was submitted  on 13th February, 2004 in the High Court. The High Court by  the impugned order had quashed the FIR No.221 of 2001 on the  basis of the report of the Investigating Officer submitted before  it and concluded that no offence under Section 498A and 406 of  the IPC was made out by the appellant against the respondents.  The High Court also observed that the FIR must be quashed to  avoid undue harassment and mental agony to the respondents,  more so when the divorce petition was still pending before the  Family Court. It is this order of the High Court, quashing the  FIR in the exercise of its inherent power under Section 482 of  the Code, which is now under challenge before us in this  appeal. 5.      Having heard the learned counsel for the parties and after  considering the materials on record and the complaint filed by  the appellant under Sections 498A and 406 of the IPC, we are  of the view that the High Court had exceeded its jurisdiction by  quashing the FIR No.221 of 2001 in the exercise of its inherent  powers under Section 482 of the Code. Before we consider the  scope and power of the High Court to quash an FIR in the  exercise of its inherent powers under Section 482 of the Code  even before the parties are permitted to adduce evidence in  respect of the offences alleged to have been made under the  aforesaid two sections (namely, Sections 498A and 406 of IPC),  we may keep it on record that two questions merit our  determination in the present case: -   (i) whether the High Court  while quashing the FIR in the exercise of its inherent powers  under Section 482 of the Code was entitled to go beyond the  complaint filed by the complainant; and           (ii) whether the  High Court was entitled to look into and consider the  investigation report submitted by four officers of the rank of  Dy. Superintendent of Police for quashing the FIR even before  the same could be filed before the concerned Magistrate.   Before we do that, we may first consider how and when the  High Court, in its inherent powers under Section 482 of the  Code, would be justified in quashing an FIR. It is at this stage  appropriate to refer Section 482 of the Code itself which runs as  under: "482. Saving of inherent powers of High Court \026 Nothing in this Code shall be deemed to limit or  affect the inherent powers of the High Court to  make such orders as may be necessary to give  effect to any order under this Code, or to prevent  abuse of the process of any Court or otherwise to  secure the ends of justice."

A bare look at this provision would show that while exercising  such inherent powers, the High Court must be satisfied that  either:- (i)     An order passed under the Code would be rendered  ineffective; or (ii)    The process of any court would be abused; or (iii)   The ends of justice would not be secured. In State of West Bengal Vs. Swapan Kumar Guha [1982 [1]  SCC 561] Chandrachud, C.J. [as His Lordship then was] had  observed that if the FIR did not disclose the commission of a  cognizable offence, the court would be justified in quashing the  investigation on the basis of the information as laid or received.   In the same judgment, Justice A.N. Sen [as His Lordship then  was] who has written the main judgment, has laid down the  legal propositions as follows: "...the legal position is well-settled. The legal position  appears to be that if an offence is disclosed, the Court

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will not normally interfere with an investigation into  the case and will permit investigation into the offence  alleged to be completed; if, however, the materials do  not disclose an offence, no investigation should  normally be permitted.... Once an offence is disclosed,  an investigation into the offence must necessarily  follow in the interests of justice. If, however, no  offence is disclosed, an investigation cannot be  permitted, as any investigation, in the absence of any  offence being disclosed, will result in unnecessary  harassment to a party, whose liberty and property  may be put to jeopardy for nothing. The liberty and  property of any individual are sacred and sacrosanct  and the court zealously guards them and protects  them. An investigation is carried on for the purpose of  gathering necessary materials for establishing and  proving an offence which is disclosed. When an  offence is disclosed, a proper investigation in the  interests of justice becomes necessary to collect  materials for establishing the offence, and for  bringing the offender to book. In the absence of a  proper investigation in a case where an offence is  disclosed, the offender may succeed in escaping from  the consequences and the offender may go unpunished  to the detriment of the cause of justice and the society  at large. Justice requires that a person who commits  an offence has to be brought to book and must be  punished for the same. If the court interferes with the  proper investigation in a case where an offence has  been disclosed, the offence will go unpunished to the  serious detriment of the welfare of the society and the  cause of justice suffers. It is on the basis of this  principle that the court normally does not interfere  with the investigation of a case where an offence has  been disclosed\005\005 Whether an offence has been  disclosed or not must necessarily depend on the facts  and circumstances of each particular case.... If on a  consideration of the relevant materials, the court is  satisfied that an offence is disclosed, the court will  normally not interfere with the investigation into the  offence and will generally allow the investigation into  the offence to be completed for collecting materials  for proving the offence".

In Pratibha Rani Vs. Suraj Kumar and Anr. [1985] 2 SCC  370, this Court at page 395 observed as follows: " It is well settled by a long course of decisions of this  Court that for the purpose of exercising its power  under Section 482 Cr PC to quash a FIR or a  complaint the High Court would have to proceed  entirely on the basis of the allegations made in the  complaint or the documents accompanying the same  per se. It has no jurisdiction to examine the  correctness or otherwise of the allegations".  [emphasis supplied]

In Madhavrao Jiwaji Rao Scindia and Ors. v. Sambhajirao  Chandrojirao Angre and Ors.  [1988 [1] SCC 692], this Court  has reiterated the same principle and laid down that when a  prosecution at the initial stage is asked to be quashed, the test to  be applied by the court is as to whether the uncontroverted  allegations as made prima facie establish the offence. Again in the case of State of Bihar Vs. Murad Ali Khan &  Ors. [1988 [4] SCC 655], Venkatachaliah, C.J.  [as His  Lordship then was] has laid down that the jurisdiction under

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Section 482 of the Code has to be exercised sparingly and with  circumspection and has observed that in exercising that  jurisdiction, the High Court should not embark upon an inquiry  whether the allegations in the complaint are likely to be  established by evidence or not. 6.      From the principles laid down in the abovementioned  decisions, it is clear that the Court is entitled to exercise its  inherent jurisdiction for quashing a criminal proceeding or an  FIR when the allegations made in the same do not disclose the  commission of an offence and that it depends upon the facts and  circumstances of each particular case.  We also feel it just and  proper to refer to a leading decision of this court reported in  State of Haryana Vs. Bhajan Lal [1992 Suppl. {1} SCC 335]  in which this court pointed out certain category of cases by way  of illustrations wherein the inherent power under Section 482 of  the Code can be exercised either to prevent abuse of the process  of any court or otherwise to secure the ends of justice. The  same 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  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 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 malafide 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. 7.      Keeping the aforesaid principles in mind and considering  the decisions as referred to hereinearlier, let us now apply them  in the facts of the present case.  But before we do that, it would  be apt for us to consider the findings arrived at by the High  Court for quashing the FIR which are as under: -  (i)     The complainant-wife left the marital  house with her father and brother on 25th  May, 2001. The Divorce Petition was  filed by the husband on the ground of  mental cruelty on 31st July, 2001. It was

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only on 31st December, 2001 that the  FIR for offences under Sections 498A  and 406 of IPC was lodged by the  complainant-wife; (ii)    A registered letter was sent to the  appellant wife for receiving all her  articles on 13th August, 2001 which was  duly received by the father of the  appellant; (iii)   The family court also issued directions  to the appellant to receive her articles on  2nd February, 2002 and the same were  declined by her;  (iv)    In view of the above and also in view of  the detailed report submitted by the  investigating officer, even prima facie  no offence under Section 498A and 406  IPC is made out against the respondent; (v)     The conduct of the appellant wife was  depreciable and there had been a  continuing effort by her of avoiding the  proceedings before the Court; (vi)    The appellant wife leveled false  allegations against the Court itself apart  from adopting all sorts of unhealthy  tactics by creating gimmicks and scenes  in the Court; (vii)   Merely because one of the respondents  is a judicial officer and others being his  family members, it did not preclude  them from seeking justice from a court  of law; (viii)  The High Court is empowered to quash  the FIR to avoid undue harassment and  mental agony to the respondents, more  so when the divorce petition is still  pending before the Family Court. 8.      From a plain reading of the findings arrived at by the  High Court while quashing the FIR, it is apparent that the High  Court had relied on extraneous considerations and acted beyond  the allegations made in the FIR for quashing the same in the  exercise of its inherent powers under Section 482 of the Code.   We have already noted the illustrations enumerated in Bhajan  Lal’s case and from a careful reading of these illustrations, we  are of the view that the allegations emerging from the FIR are  not covered by any of the illustrations as noted hereinabove.  For example, we may take up one of the findings of the High  Court as noted herein above. The High Court has drawn an  adverse inference on account of the FIR being lodged on 31st  December, 2001 while the appellant was forced out of the  matrimonial home on 25th May, 2001. In our view, in the facts  and circumstance of the case, the High Court was not justified  in drawing an adverse inference against the appellant- wife for  lodging the FIR on 31st December, 2001 on the ground that she  had left the matrimonial home atleast six months before that.  This is because, in our view, the High Court had failed to  appreciate that the appellant and her family members were,  during this period, making all possible efforts to enter into a  settlement so that the respondent No.2-husband would take her  back to the matrimonial home. If any complaint was made  during this period, there was every possibility of not entering  into any settlement with the respondent No.2-husband. It is  pertinent to note that the complaint was filed only when all  efforts to return to the matrimonial home had failed and the  respondent No.2-husband had filed a divorce petition under

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Section 13 of the Hindu Marriage Act, 1955. That apart, in our  view, filing of a divorce petition in a Civil Court cannot be a  ground to quash criminal proceedings under Section 482 of the  Code as it is well settled that criminal and civil proceedings are  separate and independent and the pendency of a civil  proceeding cannot bring to an end a criminal proceeding even if  they arise out of the same set of facts. Such being the position,  we are, therefore, of the view that the High Court while  exercising its powers under Section 482 of the Code has gone  beyond the allegations made in the FIR and has acted in excess  of its jurisdiction and, therefore, the High Court was not  justified in quashing the FIR by going beyond the allegations  made in the FIR or by relying on extraneous considerations.  9.      This takes us to the second question which merits our  determination, namely whether the High Court was entitled to  consider the investigation report submitted before it by four  officers of the rank of Dy. Superintendent of Police even before  the same could be filed before the concerned Magistrate. As  noted herein earlier, a bare perusal of the judgment of the High  Court would also show that the High Court had relied on the  investigation report in quashing the FIR.  Now, the question is  whether the High Court while exercising its powers under  Section 482 of the Code was justified in relying on the  investigation report which was neither filed before the  Magistrate nor a copy of the same supplied to the appellant.  In  our view, the High Court has acted in excess of its jurisdiction  by relying on the investigation report and the High Court was  also wrong in directing the report to be submitted before it.  It is  now well settled that it is for the investigating agency to submit  the report to the Magistrate.  In this connection, we may refer to  sub-section (2) of Section 173 of the Code which runs as under  :  "(i) As soon as it is completed the officer in charge  of the police station shall forward to a Magistrate  empowered to take cognizance of the offence on a  police report \005\005\005\005\005(not necessary therefore  omitted)."                  From a bare reading of this provision, it cannot be  disputed that after completion of the investigation, the officer- in-charge of the police station shall forward the report not to the  High Court where the proceedings under Section 482 of the  Code is pending but  to a Magistrate empowered to take  cognizance of the offence on such police report. Therefore, the  High Court had acted beyond its power to direct the  investigating agency to file the said report before it in the  exercise of power under Section 482 of the Code.  The  procedure for submitting an investigation report has been  considered by this Court in the case of  M.C. Abraham and  Anr. Vs. State of Maharashtra [ 2003] 2 SCC 649.  While  considering the law on the question as to when the report of the  investigating agency shall be submitted before the Magistrate  where the case is pending, an observation made in the case of  Abhinandan Jha Vs. Dinesh Mishra [AIR 1968 SC117] was  quoted with approval by B.P.Singh, J. in M.C. Abraham’s case  (supra) with which we are also in full agreement and which is  as follows: "  Then the question is, what is the position, when the  Magistrate is dealing with a report submitted by the  police, under Section 173, that no case is made out for  sending up an accused for trial, which report, as we  have already indicated, is called, in the area in  question, as a final report’? Even in those cases, if the  Magistrate agrees with the said report, he may accept  the final report and close the proceedings. But there

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may be instances when the Magistrate may take the  view, on a consideration of the final report, that the  opinion formed by the police is not based on a full  and complete investigation, in which case, in our  opinion, the Magistrate will have ample jurisdiction  to give directions to the police, under Section 156(3),  to make a further investigation. That is, if the  Magistrate feels, after considering the final report,  that the investigation is unsatisfactory, or incomplete,  or that there is scope for further investigation, it will  be open to the Magistrate to decline to accept the  final report and direct the police to make further  investigation under Section 156(3). The police, after  such further investigation, may submit a charge-sheet,  or, again submit a final report, depending upon the  further investigation made by them. If ultimately, the  Magistrate forms the opinion that the facts, set out in  the final report, constitute an offence, he can take  cognizance of the offence, under Section 190(1)(b),  notwithstanding the contrary opinion of the police,  expressed in the final report.  

The function of the Magistracy and the police, are  entirely different, and though, in the circumstances  mentioned earlier, the Magistrate may or may not  accept the report, and take suitable action, according  to law, he cannot certainly infringe (sic impinge)  upon the jurisdiction of the police, by compelling them  to change their opinion, so as to accord with his view.

Therefore, to conclude, there is no power, expressly  or impliedly conferred under the Code, on a  Magistrate to call upon the police to submit a charge- sheet, when they have sent a report under Section 169  of the Code, that there is no case made out for  sending up an accused for trial."

This court in M.C. Abraham’s case (supra) observed in para 17  as under:

"The principle, therefore, is well settled that it is for  the investigating agency to submit a report to the  Magistrate after full and complete investigation. The  investigating agency may submit a report finding the  allegations substantiated. It is also open to the  investigating agency to submit a report finding no  material to support the allegations made in the first  information report. It is open to the Magistrate  concerned to accept the report or to order further  enquiry. But what is clear is that the Magistrate  cannot direct the investigating agency to submit a  report that is in accord with his views. Even in a case  where a report is submitted by the investigating  agency finding that no case is made out for  prosecution, it is open to the Magistrate to disagree  with the report and to take cognizance, but what he  cannot do is to direct the investigating agency to  submit a report to the effect that the allegations have  been supported by the material collected during the  course of investigation."

In our view, applying the principles laid down in the case of  Abhinandan Jha (supra) and M.C.Abrahim  (supra) as  indicated herein above, using the report of the investigating

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agency for quashing the FIR or a criminal proceeding cannot be  sustained.  It was impermissible for the High Court to entertain  the report of the investigating agency before the same could be  forwarded and filed before the concerned Magistrate in  compliance with Section 173(2) of the Code. In Union of India  vs. Prakash P.Hinduja & Anr. [(2003) 6 SCC 195], this Court  in para 20 observed as follows : "Thus the legal position is absolutely clear and also  settled by judicial authorities that the court would not  interfere with the investigation or during the course of  investigation which would mean from the time of the  lodging of the First Information Report till the  submission of the report by the officer-in-charge of  the police station in court under Section 173 (2) Code,  this field being exclusively reserved for the  investigating agency."   

Therefore, in view of our discussions made herein above,  while exercising power under Section 482 of the Code, it is not  open to the High Court to rely on the report of the investigating  agency nor can it direct the report to be submitted before it as  the law is very clear that the report of the investigating agency  may be accepted by the Magistrate or the Magistrate may reject  the same on consideration of the material on record.  Such  being the position, the report of the investigating agency cannot  be relied on by the High Court while exercising powers under  Section 482 of the Code.  Accordingly, we are of the view that  the High Court has erred in quashing the FIR on consideration  of the investigation report submitted before it even before the  same could be submitted before the Magistrate. For the reasons  aforesaid, we are inclined to interfere with the order of the High  Court and hold that the High Court in quashing the FIR in the  exercise of its inherent powers under Section 482 of the Code  by relying on the investigation report and the findings made  therein has acted beyond its jurisdiction. For the purpose of  finding out the commission of a cognizable offence, the High  Court was only required to look into the allegations made in the  complaint or the FIR and to conclude whether a prima facie  offence had been made out by the complainant in the FIR or the  complaint or not.   10.     Before parting with this judgment, we may also remind  ourselves that the power under Section 482 of the Code has to  be exercised sparingly and in the rarest of rare cases.  In our  view, the present case did not warrant such exercise by the High  Court. For the reasons aforesaid, we are unable to sustain the  order of the High Court and the impugned order is accordingly  set aside.  The appeal is allowed to the extent indicated above.   The learned Magistrate is directed to proceed with the case in  accordance with law. It is expected that the Magistrate shall  dispose of the criminal proceedings as expeditiously as possible  preferably within six months from the date of communication  of this judgment.