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CASE NO.: Appeal (crl.)  425 of 2008

PETITIONER: Reshma Bano

RESPONDENT: State of Uttar Pradesh & Ors

DATE OF JUDGMENT: 03/03/2008

BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM & AFTAB ALAM

JUDGMENT: J U D G M E N T  

CRIMINAL APPEAL NO 425 OF 2008 (Arising out of S.L.P. (Crl.) No. 7342 of 2007

Dr. ARIJIT PASAYAT, J.

        1.      Leave granted.

2.      Challenge in this appeal is to the judgment of a Division  Bench of Allahabad High Court dismissing the application filed  by the appellant for exercise of power under Section 482 of the  Code of Criminal Procedure, 1973 (in short ’the Code’) and  Article 226 of the Constitution of India, 1950 (in short the  ’Constitution’).  The prayer in the writ petition was to quash  the proceedings initiated on the basis of FIR Crime No.316 of  2007, P.S. Phoolpur, Allahabad. It was submitted before the  High Court that the FIR did not disclose any offence so far as  the appellant is concerned.  It was pointed out that the  appellant was the sister of the accused no.1 Afzal who was  alleged to have committed the offence of kidnapping etc.  The  High Court dismissed the application holding that on reading  of the FIR, cognizable offence is made out.  

3.      In support of the appeal learned counsel for the appellant  submitted that the only reference made to the appellant in the  FIR reads as follows:     

"Questioning from the sister of the boy,  Smt. Reshma Bano, might be advantageous".          4.      This does not indicate commission of any offence rather  puts the appellant in the position of a witness.  Even if it is  conceded for the sake of arguments but not admitted that  commission of any cognizable offence is made out against  others, so far as the appellant is concerned, there is not even a  scarp of material and not even allegation of overt act.    

5.      There is no appearance on behalf of the respondent in  spite of service of notice.  

6.      The parameters where exercise of inherent power under  Section 482 of the Code can be exercised either on proof of  abuse of process of any Court or otherwise to secure the ends  of justice have been highlighted in several cases. In State of

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Haryana and Ors. v. Bhajan Lal and Ors.   (1992 Supp. (1)  SCC 335), it was held that though it will not be possible to lay  down any precise, clearly defined sufficiently channelized and  inflexible guidelines or rigid formulae and to give an  exhaustive list of myriad kinds of cases wherein such power  should be exercised, certain illustrative cases were indicated.   They 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 cognizabe 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 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.                     7.      A note of caution was indicated in the following words:

"103. We also give a note of caution to the

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effect that the power of quashing a criminal  proceeding should be exercised very sparingly  and with circumspection and that too in the  rarest of rare cases; that the court will not be  justified in embarking upon an enquiry as to  the reliability or genuineness or otherwise of  the allegations made in the FIR or the  complaint and that the extraordinary or  inherent powers do not confer an arbitrary  jurisdiction on the court to act according to its  whim or caprice."   

8.      The case at hand falls within the category I of the  illustrations given in Bhajan Lal’s case (supra).  Therefore, we  quash the proceedings relatable to FIR no.316 of 2007 far as  the appellant is concerned.  In other words, on the basis of the  existing materials the appellant shall not be treated to be  accused.  It is, however, open to the Investigating Agencies to  examine her as a witness.  It is, further made clear that we  have quashed the proceedings vis-‘-vis the appellant only on  the basis of the existing material.   

9.      The appeal is allowed.