REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.       288           OF 2009 (Arising out of S.L.P (Crl.) No. 3854 of 2007)  

State of Punjab & Ors.   .Appellants  

Versus

Inder Mohan Chopra & ors.             .Respondents

With

CRIMINAL  APPEAL NO.  289              OF 2009 (Arising out of S.L.P (Crl.) No. 4261 of 2007)  

J U D G M E N T

DR. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge  in  these  appeals  is  to  the  judgment  of  a  learned  Single

Judge of the Punjab and Haryana High Court allowing two petitions filed

under Section 482 of the Code of Criminal Procedure, 1973 (in short the

‘Cr.P.C.’).   Respondent  had  made  prayer  that  the  FIR  No.  152  dated

12.7.2002  registered  under  Section  36  of  the  Punjab  Apartment  and

Property  Regulations,  1995  (in  short  the  ‘Regulation’)  at  police  station

Sultanwind, Amritsar,should be quashed.  The complaint was filed on the

premises that  the  total  area alleged  to  have  sold  was 1861.16 Sq.  Yards

which was jointly held by four real brothers and the individual shares comes

to 465.29 Sq. Yards. It was alleged that the accused persons had sold joint

family property by conveying land into an unauthorised colony in violation

of the provisions of the Act and each one of them was therefore guilty of

offence punishable under Section 36 of the Act read with Section 120 (B) of

the Indian Penal Code, 1860 (in short the ‘IPC’).  The respondents in the

petition filed before the High Court stated that the individual shares come

below 465.29 sq. yards and, therefore, there was no violation.  The stand of

the appellant before the High Court was that by selling 1861.16 Sq. Yards in

a joint Khasra to different purchasers, the accused person had violated the

provisions of the Act and, therefore, they were rightly proceeded against.

Reference was made under Section 2(k) of the Act which shows that the

expression  ‘Person’  includes  a ‘company, firm, cooperative  society,  joint

family and ‘body of persons’ whether incorporated or not. Therefore, it was

2

pleaded that the joint holders are to be treated as one person in the eye of

law  in  such  prosecutions.   The  High  Court  accepted  the  stand  of  the

respondents  by holding that  even if the property continued to be joint,  it

cannot be said that the venders had sold anything more than their respective

shares.

3. Section 2(i) of the Act reads as follows:

“Colony – Colony means an area of land not less than 1000 sq. meters  divided  or  proposed  to  be  divided  into  plots  for residential,  commercial  or  industrial  purpose,  but  does  not include any area of abadi deh of the village falling inside its Lallakir  or phirny or any area of land divided or proposed to be divided.”

4. Learned counsel for the appellant submitted that the accused persons

have accepted that they had sold the land in the year 1996 and, therefore,

there was clear violation.  It is submitted that the High Court had not kept in

view the parameters of Section 482 Cr.P.C.

5. Learned counsel for the respondent on the other hand supported the

impugned order of the High Court.  It was also submitted that no offence

was made out.   

3

6. It appears that the High Court came to an abrupt conclusion that if the

property continues to be joint it cannot be said that the vendor sold anything

more than their respective shares.

7. 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

4

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 alique concedit,

conceditur  et  id sine quo res ipsa 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 to prevent such

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

exercises of the powers court would be justified to quash any proceeding if

it finds that initiation or 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

5

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.

8. 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.

6

9. In dealing with the last category, 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  no  doubt  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.

7

Bhajan Lal (1992 Supp  (1)  SCC 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 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 F.I.R. 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.  

8

(4)   Where  the  allegations  in  the  F.I.R.  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 S. 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.  

6Where 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

9

motive for wreaking vengeance on the accused and with a view to spite him

due to private and personal grudge.”  

10. 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. 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:  The  Janata  Dal  etc.  v.  H.S.

Chowdhary and others, etc. (AIR 1993 SC 892), Dr. Raghubir Saran v. State

of Bihar and another (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

10

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 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 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/F.I.R.  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 or disclosed in the F.I.R. that the ingredients of the offence

or  offences  are  disclosed  and  there  is  no  material  to  show  that  the

complaint/F.I.R.  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

11

decides the fate of the accused person. The allegations of mala fides against

the informant are of no consequence and cannot by itself be the basis for

quashing the proceeding. (See :  Mrs. Dhanalakshmi v.  R. Prasanna Kumar

and others (AIR 1990 SC 494), State of Bihar and another v. P. P. Sharma,

I.A.S. and another (1992 Suppl (1) SCC 222), Rupan Deol Bajaj (Mrs.) and

another v. Kanwar Pal Singh Gill and another (1995 (6) SCC 194), State of

Kerala and others v.  O.C. Kuttan and others  (1999 (2) SCC 651), State of

U.P. v. O. P. Sharma (1996 (7) SCC 705),  Rashmi Kumar (Smt.) v. Mahesh

Kumar Bhada (1997 (2) SCC 397),  Satvinder Kaur v. State (Govt. of NCT

of Delhi) and another (1999 (8) SCC 728),  Rajesh Bajaj v.  State NCT of

Delhi and  others AIR  1999  SC  1216),  State  of  Karnataka v.  M.

Devendrappa and another  (2002 (3) SCC 89) and State of Andhra Pradesh

v. Bajjoori Kanthaiah and Anr.  [2008(11)JT 574].  

11. It appears that the High Court has come to an abrupt conclusion that

the individual shares could be less than 1000 Sq.m. That is not the relevant

aspect  for  consideration  of  the  issues  raised.   Therefore,  the  impugned

orders of the High Court  are unsustainable and are quashed. We make it

clear  that  we have not  expressed  any opinion  on the  merits  of  the cases

which are to be adjudicated in trial.   

12

12. The appeals are allowed.

…………......................................J. (Dr. ARIJIT PASAYAT)              

………….……….........................J.          (Dr. MUKUNDAKAM SHARMA)

New Delhi, February 12, 2009

13