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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  \021the Code\022). The said FIR was registered by the  complainant/appellant (in short \023the appellant\024) against  the accused/respondents (in short \023the respondents\024) 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

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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 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: \023482. 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.\024

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

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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: \023...the legal position is well-settled. The legal  position appears to be that if an offence is  disclosed, the Court 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\024.

In Pratibha Rani Vs. Suraj Kumar and Anr. [1985] 2 SCC  370, this Court at page 395 observed as follows: \023 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

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jurisdiction to examine the correctness or  otherwise of the allegations\024. [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 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

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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 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

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the illustrations enumerated in Bhajan Lal\022s 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 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 :  \023(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).\024

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                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\022s case (supra) with which  we are also in full agreement and which is as follows: \023  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\022? Even in those cases, if the  Magistrate agrees with the said report, he may  accept the final report and close the proceedings.  But there 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,

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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.\024

This court in M.C. Abraham\022s case (supra) observed in  para 17 as under:

\023The 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.\024

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 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 : \023Thus 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.\024   

    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

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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.