Project Of Crpc_shivansh.docx

DR. RAM MAHOHAR LOHIYA NATIONAL LAW UNIVERSITY

CODE OF CRIMINAL PROCEDURE

INHERENT POWERS OF THE HIGH COURT UNDER SECTION 482 OF CODE OF CRIMINAL PROCEDURE

Submitted to :

Submitted by:

Dr. Prem Kumar Gautam

Shivansh Yogi

Assistant Professor (Law)

Enrollment No- 160101139

Dr. RMLNLU, Lucknow

Section- ‘B’

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TABLE OF CONTENTS

I.

INTRODUCTION4

II. BACKGROUND OF SECTION 4825 III.

PURPOSE OF INCORPORATION OF SECTION 4827

IV.

CONDITIONS FOR USE OF INHERENT POWERS8

V. JUDICIAL PRECEDENTS12 VI.

CONCLUSION24

VII.

BIBLIOGRAPHY25

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ACKNOWLEDGEMENT

“I, Shivansh Yogi a Third Year Law scholar at Dr. Ram Manohar Lohiya National Law University, Lucknow, am highly grateful towards our lecturer Mr. Prem Kumar Gautam, who gave me the opportunity to study this topic and because of his help and support, this project has reached its completion.” “I would also like to thank the library staff of Dr. Ram Manohar Lohiya National Law University, Lucknow, for their patient and diligent support in the making of this project.” “I would like to thank my parents who encouraged me to work hard and motivated me to give my best. Last, I would like to acknowledge my friends who helped me in the research needed for this project.” “I have tried my best to include all the aspects discussed in the given case, yet, ignorance or any mistake is deeply apologized.” Thanking you, Yours sincerely,” Shivansh Yogi

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I. INTRODUCTION “The essential object of criminal law is to protect society against criminals and law-breakers. For this purpose, the law holds out threats of punishments to prospective lawbreakers as well as attempts to make the actual offenders suffer the prescribed the punishment for their crimes. Therefore, criminal law, in its wider sense, consists of both the substantive criminal law as well as the procedural criminal law. Substantive criminal law defines offences and prescribes punishments for the same, while the procedural law is to administer the substantive law.” “Our legal system’s law of crime is mainly contained in the Code of Criminal Procedure, 1973 which has come into force from April 1, 1974. It provides the machinery for the detection of crime, apprehension of suspected criminals, collection of evidence, determination of the guilt or innocence of the suspected person and the imposition of suitable punishment on the guilty person. In addition, this Code also deals with the prevention of offences (Sections 106- 124, 129- 132 and 144- 153), maintenance of wives, children and parents (Sections 125- 128) and public nuisances (Sections 133-143).” “The Code also controls and regulates the working of the machinery set up for the investigation and trial of offences. On the one hand it has to give adequately wide powers to make the investigation and adjudicatory processes strong, effective and efficient, and on the other hand, it has to take precautions against errors of judgement and human failures and to provide safeguards against probable abuse of powers by the police or judicial officers. This often involves a “nice balancing of conflicting considerations, a delicate weighing of opposing claims clamoring for recognition and the extremely difficult task of deciding which of them should predominate.”

“The Code has obviously tried to make exhaustive and complete in every respect; and it has generally succeeded in this attempt. However, if the Court finds that the Code has not made specific provision to meet the exigencies of any situation, the court of law has inherent power to mould the procedure to enable it to pass such orders as the ends of justice may require.” “It has however been declared by the Supreme Court that the subordinate courts do not have

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any inherent powers. The High Court has inherent powers and they have been given partial statutory recognition by enacting Section 482 of this Code.” “Sec 482 of the Code of Criminal Procedure reads as follows:” “Saving of inherent power of High Court- 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.”1 “The Section was added by the Code of Criminal Procedure (Amendment) Act of 1923 as the High Courts were unable to render complete justice even if in a given case the illegality was palpable and apparent. The Section envisages three circumstances in which the inherent jurisdiction may be exercised i.e. to give effect to an order under the Code, to prevent abuse of the process of the court and to secure the ends of justice.”

II. BACKGROUND OF SECTION 482 “The power to quash an FIR (First Information Report) is among the inherent powers of the High Courts of India. Courts possessed this power even before the Criminal Procedure Code(Cr.P.C.) was enacted. Added as Section 482 by an amendment in 1923, it is a reproduction of the Section 561(A) of the 1898 Code. Since High Courts could not render justice even in cases in which the illegal was apparent, the Section was created as a reminder to the courts that they exist to prevent injustice done by a subordinate court.” “Nothing in this Code shall be deemed to limit or effect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under the Code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice.” “It comes into operation when the court acts judicially and passes an order. If order is passed by Executive officer of State in administrative capacity, it has no application. Therefore persons aggrieved by such order cannot come to HC to exercise its inherent power under this Section. As the Inherent powers are vested in HC by “law” within meaning of Art 21 of

1

Code of Criminal Procedure 1973, Section 482.

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Constitution, therefore, any order of HC in violation of any right under Art 21 is not ultravires such as cancelling of bail bond by HC thereby depriving a person’s personal liberty.” “Though the jurisdiction exists and is wide in its scope it is a rule of practice that it will only be exercised in exceptional cases., the Section is a sort of reminder to the High Courts that they are not merely courts in law, but also courts of justice and possess inherent powers to remove injustice. The inherent power of the High Court is an inalienable attribute of the position it holds with respect to the courts subordinate to it. These powers are partly administrative and partly judicial. They are necessarily judicial when they are exercisable with respect to a judicial order and for securing the ends of justice. The jurisdiction under Section 482 is discretionary; therefore the High Court may refuse to exercise the discretion if a party has not approached it with clean hands.” “Under Cr.PC, inherent powers are vested only in the High Courts and the courts subordinate to the High Courts have no inherent powers. In Bindeshwari Prasad Singh v Kali Singh 2, the Supreme Court held that a magistrate has no inherent power to restore a complaint dismissed in default.” “In a proceeding under Section 482, the High Court will not enter into any finding of facts, particularly when the matter has been concluded by concurrent finding of facts of two courts below.” “Inherent powers u/s 482 of Cr.P.C. include powers to quash FIR, investigation or any criminal proceedings pending before the High Court or any Courts subordinate to it and are of wide magnitude and ramification. Such powers can be exercised to secure ends of justice, prevent abuse of the process of any court and to make such orders as may be necessary to give effect to any order under this Code, depending upon the facts of a given case. Court can always take note of any miscarriage of justice and prevent the same by exercising its powers u/s 482 of Cr.P.C. These powers are neither limited nor curtailed by any other provisions of the Code. However such inherent powers are to be exercised sparingly and with caution.”

2

1977 SCR (1) 125.

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“It is well settled that the inherent powers under Section 482 can be exercised only when no other remedy is available to the litigant and not where a specific remedy is provided by the statute. It cannot be used if it is inconsistent with specific provision provided under the CodeKavita v. State3 and B.S. Joshi v. State of Haryana4. If an effective alternative remedy is available, the High Court will not exercise its powers under this Section, especially when the applicant may not have availed of that remedy.”

III. PURPOSE OF INCORPORATION OF SECTION 482 “This Section makes it clear that the provisions of the Code are as intended to limit or affect the inherent powers of the High Courts. Obviously the inherent power can be exercised only for either of the three purposes specifically mentioned in the Section. This inherent power cannot naturally be invoked in respect of any matter covered by the specific provisions of the Code. It cannot also be invoked if its exercise would be inconsistent with any of the specific provisions of the Code. It is only if the matter in question is not covered by any specific provision of the Code that Section 4825 can come into operation, subject further to the requirement that the exercise of such power must serve either of the three purposes mentioned in the said Section. In prescribing rules of procedure legislature undoubtedly attempts to provide for all the cases that are likely to arise; but it is not possible that any legislative enactment dealing with the procedure, however carefully it may be drafted, would succeed in providing for all the cases that may possibly arise in the future.Lacunae are sometimes discovered in procedural law and it is for the purpose of covering such lacunae and dealing with such cases where such lacunae are discovered that procedural law invariably recognizes the existence of inherent powers in courts. Here it is extremely important to be noticed that it is only the High Court whose inherent power has been recognized by Section 482, and even in regard to the High Court’s inherent power definite statutory safeguards have been laid down as to its exercise. It is only where the High Court is satisfied either that an order passed under the Code would be rendered ineffective or that the process of any court would be abused or that the ends of justice would not be secured that the High Court can and

3

2000 Cr LJ 315.

4

AIR 2003 SC 1386.

5

Code of Criminal Procedure 1973, Section 482.

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must exercise its inherent powers under Section 482 of this Code.6It 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 which may possibly arise.7It has also been held that Section 482cannot be invoked in non- criminal proceedings such as those under the Customs Act.8”

IV. CONDITIONS FOR USE OF INHERENT POWERS ““Inherent jurisdiction”, “to prevent abuse of process”, “to secure the ends of justice” are terms incapable of definition or enumeration, and capable at the most of test, according to well established principles of criminal jurisprudence. “Process” is a general word meaning in effect anything done by the court. The framers of the Code could not have provided all the cases that should be included within the meaning of abuse of process of court. It is for the court to take decision in particular cases.9” “The inherent power contemplated by Section 482 has to be exercised Section 482 has to be exercised sparingly, carefully and with caution and only where such exercise is justified by the tests specifically laid down in this Section itself.10 The Supreme Court has reiterated the nature of this power thus:” “The power conferred on the High Court under Article 226 and 227 of the Constitution and under Section 482 of the Code have no limits but more the power more due care and caution is to be exercised while invoking these powers. When the exercise of powers could be under Article 226 or Section 482 of the Code it may not always be necessary to invoke the

6

Talab Haji Hussain v. Madhukar Pushottam Mondkar, 1958 Cri LJ 701, 703-704: AIR 1958

SC 376. 7

State of Orissa v. Saroj Kumar Sahoo, (2005) 13 SCC 540: (2006) 2 SCC (Cri) 272.

8

P.O. Thomas v. Union of India, 1990 Cri LJ 1838 (AP).

9

Edeyillon Kunhambu Nair v. State of Kerela, 1978 Cri LJ 107, 109 (Ker).

10

Talab Haji Hussain v. Madhukar Pushottam Mondkar, 1958 Cri LJ 701, 706-07: AIR 1958

SC 376.

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provisions of Article 226. Some of the decisions of this Court laying down principles for the exercise of powers by the High Court under Articles 226 and 227 may be referred to.”11 “In the landmark case State of Haryana v. Bhajan Lal 12 a two-judge bench of the Supreme Court of India considered in detail the provisions of Section 482 and the power of the High Court to quash criminal proceedings or FIR. The Supreme Court summarized the legal position by laying the following guidelines to be followed by High Courts in exercise of their inherent powers to quash a criminal complaint:” “(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 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

11

12

Pepsi Foods Ltd. v. Judicial Magistrate, (1998) 5 SCC 749, 758: 1998 SCC (Cri) 1400. 1992 Supp.(1) SCC 335.

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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.” “The SC in Madhu Limaye v. Maharashtra13 has held the following principles would govern the exercise of inherent jurisdiction of the HC:” “1. Power is not to be resorted to if there is specific provision in Code for redress of grievances of aggrieved party; 2. It should be exercised sparingly to prevent abuse of process of any Court or otherwise to secure ends of justice; 3. It should not be exercised against the express bar of the law engrafted in any other provision of the Code.” “In Indian Oil Corporation v. NEPC India Ltd. and Others14, a petition under Section 482 was filed to quash two criminal complaints. The High Court by common judgments allowed the petition and quashed the two complaints. The order was challenged in appeal to Supreme Court of India. While deciding the appeal, the Supreme Court of India laid down following principles:” “1. The High Courts should not exercise their inherent powers to repress a legitimate prosecution. The power to quash criminal complaints should be used sparingly and with abundant caution.

13

(1977) 4 SCC 551. Also in the case of Giam Singh v State of Punjab, (2010) 15 SCC 118 wherein the Supreme Court surveyed various decisions quashing proceedings involving noncompoundable offences and ruled that the High Courts could invoke S. 482 in such case to quash proceedings to avoid abuse of process of the court. 14

2006) 6 SCC 736.

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2. The criminal complaint is not required to verbatim reproduce the legal ingredients of the alleged offence. If the necessary factual foundation is laid in the criminal complaint, merely on the ground that a few ingredients have not been stated in detail, the criminal proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is bereft of even the basic facts which are absolutely necessary for making out the alleged offence. 3. It was held that a given set of facts may make out (a) purely a civil wrong, or (b) purely a criminal offence or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence.” “As the nature and scope of civil proceedings are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not.” “There are several conditions laid down by various cases that indicate the circumstances under which this inherent power may be used. The jurisdiction is completely discretionary. The High Court can refuse to use the power and the jurisdiction is not limited to cases that are pending before the High Court. It can consider any case that comes to its notice (in appeal, revision or otherwise).This power can be invoked only in an event when the aggrieved party is being unnecessarily harassed and has no other remedy open to it.The High Court, under Section 482, does not conduct a trial or appreciate evidence. The exercise of this power (although it has a wide scope) is limited to cases that compel it to intervene for preventing a palpable abuse of a legal process. The High Court has the power to provide relief to the accused even if s/he has not filed a petition under Section 482.This power cannot be exercised if the trial is pending before the apex court and it has directed the session judge to issue a non-bailable warrant for arresting the petitioners. The power under Section 482 is not intended to scuttle justice at the threshold but to secure justice. This power has to be exercised sparingly with circumspection and in the rarest of rare cases, but cannot be held that it should be exercised in the rarest of rare cases - The expression rarest of rare case may be exercised where death penalty is to be imposed under Section 302 of IPC but this expression cannot be extended to a petition under Section 482 Cr.P.C.So long as inherent Page | 11

power of Section 482 Cr.P.C. is in statute, the exercise of such power is not impermissible. In exercise 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. In proceedings instituted on complaint, exercise of inherent powers under Section 482 Cr.P.C. 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. 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. All Courts, whether civil or criminal possess, in the absence of any express provisions, 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.”

V. JUDICIAL PRECEDENTS “In R.P. Kapur v. State of Punjab15, the Supreme Court considered the circumstances in which the High Court can, by invoking its inherent powers, quash the criminal proceedings in a subordinate criminal court. The Supreme Court observed:” “It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. However, we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. There may be cases where it may be possible for the High Court to take the view that the institution or continuance of criminal proceedings against an accused person may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice. If the criminal proceeding in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding the High Court would be justified in quashing the proceeding on that ground. Absence of the requisite sanction may, for instance, furnish cases under this category. Cases may also arise where the al1egations in

15

AIR 1960 SC 866.

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the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not. In such cases it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal court to be issued against the accused person. A third category of cases in which the inherent jurisdiction of the High Court can be successfully invoked may also arise. In cases falling under this category the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases 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 manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. In exercising its jurisdiction under Section 482 of the Code the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not.” “In State of Orissa & Anr. v. Saroj Kumar Sahoo16, it has been held that probabilities of the prosecution version cannot be analysed at this stage. The relevant passage reads thus:” “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 Madhavrao Jiwaji Rao Scindia & Anr. v. Sambhajirao Chandrojirao Angre & Ors.17, the Supreme Court held as under:” “The legal position is well-settled 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

16

(2005) 13 SCC 540.

17

AIR 1988 SC 709.

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made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.” “In State of Karnataka v. L. Muniswamy & Ors.18, the Supreme Court has held as under:” “In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the State and its subjects it would be impossible to appreciate the width and contours of that salient jurisdiction.” “Though the High Court has inherent power and its scope is very wide, it is a rule of practice that it will only be exercised in exceptional cases. Section 482 is a sort of reminder to the High Courts that they are not merely courts of law, but also courts of justice and possess inherent powers to remove injustice. The inherent power of the High Court is an inalienable attribute of the position it holds with respect to the courts subordinate to it. These powers are partly administrative and partly judicial. They are necessarily judicial when they are

18

AIR 1977 SC 1489.

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exercisable with respect to a judicial order and for securing the ends of justice. The jurisdiction under Section 482 is discretionary, therefore the High Court may refuse to exercise the discretion if a party has not approached it with clean hands.” “In a proceeding under Section 482, the High Court will not enter into any finding of facts, particularly, when the matter has been concluded by concurrent finding of facts of two courts below. Inherent powers under Section 482 include powers to quash FIR, investigation or any criminal proceedings pending before the High Court or any court subordinate to it and are of wide magnitude and ramification. Such powers can be exercised to secure ends of justice, prevent abuse of the process of any court and to make such orders as may be necessary to give effect to any order under this Code, depending upon the facts of a given case. Court can always take note of any miscarriage of justice and prevent the same by exercising its powers under Section 48219 of the Code. These powers are neither limited nor curtailed by any other provisions of the Code. However such inherent powers are to be exercised sparingly, carefully and with caution.” “In Kavita v. State20and B.S. Joshi v.State of Haryana & Anr.21it has been well settled that the inherent powers under Section 482 can be exercised only when no other remedy is available to the litigant and not in a situation where a specific remedy is provided by the statute. It cannot be used if it is inconsistent with specific provisions provided under the Code.” Devendra v State of U.P 22 “In this case it was held that no hard and fast rule can be laid down. Each case has to be considered on its own merits and the Court, while exercising its inherent jurisdiction, although would not interfere with a genuine complaint but would exercise its jurisdiction in

19

Code of Criminal Procedure 1973, Section 482.

20

2000 Cr LJ 315.

21

(2003) 4 SCC 675.

22

[2009] INSC 953 (6 May 2009)

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appropriate cases. One of the paramount duties of the Superior Courts is to see that a person who is apparently innocent is not subjected to persecution and humiliation on the basis of a false and wholly untenable complaint.” “In this case it was further held that the revisional or inherent powers of quashing the proceedings at the initial stage should be exercised sparingly and only where the allegations made in the complaint or the FIR, even if taken at their face value and accepted in entirety, do not prima facie disclose the commission of an offence. Disputed and controversial facts cannot be made the basis for the exercise of the jurisdiction.” “In this case it was reiterated High Court ordinarily would exercise its jurisdiction under Section 482 of the Code of Criminal Procedure if the allegations made in the First Information Report, even if given face value and taken to be correct in their entirety, do not make out any offence. When the allegations made in the First Information Report or the evidences collected during investigation do not satisfy the ingredients of an offence, the superior courts would not encourage harassment of a person in a criminal court for nothing.” “In this case it was further held that an order taking cognizance of an offence on the basis of a chargesheet filed by the investigating officer and/ or directing issuance of summons on a complaint petition, indisputably, would attract the provisions of Section 482 of the Code of Criminal Procedure if a case has been made out for invocation thereof.” “R. Kalyani v. Janak C. Mehta23 the Supreme Court laid down the law in the following terms:” “(1) The High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a First Information Report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence.” “(2) For the said purpose, the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence.”

23

(2009) 1 SCC 516.

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“(3) Such a power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an offence, the court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus.” “(4) If the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue.” Kedar Narayan Parida & Ors vs State Of Orissa24 “In this case Supreme Court held that when any illegality and/or mala fide action on the part of the investigating authorities, either on its own or at the behest of an interested party, is brought to the notice of the High Courts, then the High Courts in exercise of their inherent and plenary powers are entitled to intervene to set right the illegality and/or mala fide action on the part of the investigating authorities.” M.N.Ojha & Ors vs Alok Kumar Srivastav25 “In this case it was held that the court in exercise of its jurisdiction under Section 482 of the CrPC, cannot go into the truth or otherwise of the allegations and appreciate the evidence if any available on record. The High Court would not intervene in the criminal proceedings at the preliminary stage/when the investigation/enquiry is pending. The High Court can exercise its jurisdiction under Section 482 of can only be where a clear case for such interference is made out. It held that frequent and uncalled interference at the preliminary stage by the High Court may result in causing obstruction in progress of the inquiry in a criminal case which may not be in the public interest. But the High Court cannot refuse to exercise its jurisdiction if the interest of justice requires that where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no fair-minded and informed observer can ever reach a just and proper conclusion as to the existence of sufficient grounds for proceeding. In such cases refusal to exercise the jurisdiction may result in injustice more particularly in cases where the complainant sets the criminal law in motion with a view to exert pressure and harass the persons arrayed as accused in the complaint. In this case court reiterated the proposition laid down in State of Karnataka Vs. L. Muniswamy26 that the

24

(2009) SCC 538.

25

(2009) 9 SCC 682.

26

(1977) 2 SCC 699.

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saving of inherent power of the High Court in criminal matters is intended to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. If such power is not conceded, it may even lead to injustice. It held that inherent powers do not confer an arbitrary jurisdiction on the High Court to "act according to whim or caprice.” “In Kurukshetra University v. State of Haryana27 it was held that the statutory power has to be exercised sparingly, with circumspection and in the rarest of rare cases.” Manakshi Bala vs Sudhir Kumar 28 “In this case it was held that once charges are framed under Section 240 CrPC the High Court in its revisional jurisdiction would not be justified in relying upon documents other than those referred to in Sections 239 and 240 CrPC nor would it be justified in invoking its inherent jurisdiction under Section 482 CrPC to quash the same except in those rare cases where forensic exigencies and formidable compulsions justify such a course. It was further held that even in such exceptional cases the High Court can look into only those documents which are unimpeachable and can be legally translated into relevant evidence.” Vakil Prasad v State of Bihar29 “In this case the apex court reiterated the settled law that the power possessed by the High Court under S.482 CrPC provision is undoubtedly very wide but it has to be exercised in appropriate cases, ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. The inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice. The said powers have to be exercised sparingly and with circumspection only where the court is convinced, on the basis of material on record, that allowing the proceedings to continue would be an abuse of the process of the court or that the ends of justice require that the proceedings ought to be quashed.” State of Punjab v Inder Mohan Chopra30

27

(1977) 4 SCC 451.

28

1994 SCC (4) 142.

29

(2009) 3 SCC 355.

30

2009 (3) SCC 497.

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“In this it was held that the exercise of power under Section 482 is the exception and not the rule. The section does not confer any new powers on the High Court but only saves the inherent power which the Court possessed before the enactment of the Code. It was held that the section 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. The Supreme Court held that it is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. It further said that no legislative enactment dealing with procedure can provide for all cases that may possibly arise and because of this Courts have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. All courts, whether civil or criminal possess, in the absence of 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 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). The Apex Court held that while exercising powers under the Section, the Court does not function as a court of appeal or revision. Inherent jurisdiction of High Court under the section 482 is wide but 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. It was held that 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. It held that 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.”

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“In this case the SC further held that the High Court while exercising its jurisdiction under Section 482 of the Code, should 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 as this is the function of the trial Judge. It held that the judicial process should not be an instrument of oppression, or, needless harassment. The High 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 also not an instrument 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 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. It held that the 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 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.” “In this case the Supreme Court held that 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 Page | 20

its exercise. The Court while exercising its power must be careful to see that its decision in exercise of this power should be based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. It further held that 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. In this case also the Supreme Court held that 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. In this case the Supreme Court reiterated the proposition laid down in The Janata Dal etc. v. H.S. Chowdhary

31

. In this case it was further that 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. 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 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. In laying down this the Supreme Court relied on the propositions laid down in Rupan Deol Bajaj v K.P.S Gill32 , State of U.P v O.P Sharma.”33

31

AIR 1993 SC 892.

32

(1995)6 SCC 154.

33

(1996 )7 SCC 705.

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Dhariwal Tobaco Products Ltd. v State Of Maharashtra 34 “In this case the Supreme Court held that only because a revision petition is maintainable, the same by itself, in our considered opinion, would not constitute a bar for entertaining an application under Section 482 of the Code.” Central Bureau of Investigation v. Ravi Shankar Srivastava35 “In this case the Supreme Court while opining that the High Court in exercise of its jurisdiction under Section 482 of the Code does not function either as a court of appeal or revision, that 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.” Union of India & Others v. B.R. Bajaj & Others36 “In this case the SC held that at the stage of FIR the court should refrain from interfering when the FIR discloses commission of a cognizable offence.” Nikhil Merchant v. Central Bureau of Investigation & Another37 “In this case the Supreme Court held that technicality should not be allowed to stand in the way of quashing of the criminal proceedings.”

34

(2009)2 SCC 370.

35

(2006)7 SCC 188.

36

(1994) 2 SCC 277.

37

(2008) 9 SCC 677.

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“In the instant case, the charge-sheet clearly reveal substantial material on record making a clear case under section 120-B read with section 420 IPC against the respondents and their connivance with the bank officials.” “The High Court quashed the proceedings under S.482 CrPC. The Supreme Court held in this case that High Court while doing this has resulted in the miscarriage of justice. The SC held that the exercise of inherent powers would entirely depend on the facts and circumstances of the each case. The object incorporating inherent powers in the Code is to prevent abuse of the process of the court or to secure ends of justice. The SC held that when the settled legal position to the facts of this case it is not possible to conclude that the complaint and chargesheet prima facie do not constitute any offence against the respondents. It is also not possible to conclude that material on record taken on face value make out no case under section 120B read with section 420 IPC against the respondents.” Pepsi Food Limited vs. Special Judicial Magistrate,38 “In this case the SC held that where the Court will exercise jurisdiction under Section 482 of the Code ,inflexible or rigid formulae to be followed by the Courts could not be laid down. Exercise of such power would depend upon the facts and circumstances of each case but with the sole object of preventing abuse of the process of any Court, or otherwise to secure the ends of justice. It was also observed that it is well settled that these powers have no bar, but the same was required to be exercised with utmost care and caution. Accordingly, the learned Judges held that the power of the High Court under Section 482 of the Code to quash Criminal proceedings or FIR or complaint were not circumscribed by Section 320 of the Code of Criminal Procedure.” Manoj Sharma v State 39 “In this case it was held that the Section 320 Cr.P.C. states clearly that which offences are compoundable and which are not and therefore not the High Court or even the Supreme Court would not ordinarily be justified in doing something indirectly which could not be done directly. Even otherwise, it ordinarily would not be a legitimate exercise of judicial power under Article 226 of the Constitution or under Section 482 Cr.P.C. to direct doing something 38

(1998) 5 SCC 749.

39

(2008) 14 SCALE 44.

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which the CrPC has expressly prohibited. Section 320(9) Cr.P.C. expressly states that no offence shall be compounded except as provided by that Section. Therefore the SC held that would ordinarily not be a legitimate exercise of judicial power to direct compounding of a non-compoundable offence. However, it further held that Section 320 Cr.P.C. cannot be read in isolation. It has to be read along with the other provisions in the Cr.PC including S.482 of CrPC. Section 482 reads as follows:” " Saving of inherent power of High Court. - 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." “The SC held that the words "Nothing in this Code" used in Section 482 is a non obstante clause, and gives it overriding effect over other provisions in the Cr.PC. The words "or otherwise to secure the ends of justice" in Section 482 implies that to secure the interest of justice sometimes (though only in very rare cases) the High Court can pass an order in violation of a provision in the Cr.PC.”

VI. CONCLUSION “Section 482 Cr.P.C. has a very wide scope and it’s really important for the courts to use it properly and wisely. Many times it has been observed that when there is an issue of money for instance any money matter then the petitioner instead of filing a civil suit files an FIR against the other person just to harass him. In such cases it becomes very important for the High Courts to quash such complaints as it leads to the abuse of the process of the lower courts. This Section would enable the courts for providing proper justice and also should be exercised to stop the public from filing fictitious complaints just to fulfill their personal grudges.” “The law in regard to exercise of the powers of this Court under Section 482 Cr.P.C. to quash criminal cases involving non-compoundable offences is well-settled. In the Supreme Court held that where the criminal cases have been registered under Sections 406 and 498A IPC as a result of matrimonial discord and there is a settlement arrived at between the parties it would be against the interests of the woman and the object for which Section 498A was

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enacted if the High Court did not, in such circumstances, quash the proceedings.” The best explanation of the view of the courts, in my opinion, has been given by Justice Dhingra.This is what he says: “While exercising powers under Section 482 of the Cr. P.C. the Court has to keep in mind that it should 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. This is a function of the Trial Court. Though the judicial process should not be an instrument of oppression or needless harassment but the Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances in consideration before issuing process under Section 482 lest the Section becomes an instrument in the hands of accused persons to claim differential treatment only because the accused persons can spend money to approach higher forums. This Section is not an instrument handed over to an accused to short circuit a prosecution and bring about its sudden death”.40 In B.S. Joshi v. State of Haryana41 the Supreme Court held that where the criminal cases have been registered under Sections 406 and 498A IPC as a result of matrimonial discord and there is a settlement arrived at between the parties it would be against the interests of the woman and the object for which Section 498A was enacted if the High Court did not, in such circumstances, quash the proceedings. The SC held that there is every likelihood that nonexercise of inherent power to quash the proceedings to meet the ends of justice would prevent women from settling earlier. In Usmanbhai Oawoodhbhai Memon & others v. State of Gujarat 42 it was held that there are certain special subject matters which are to be viewed with great seriousness. Terrorism is one such subject. In the Terrorists And Disruptive Activities (Preventions) Act, 1987, the High Court's inherent jurisdiction is totally excluded. Therefore, an application for grant of bail cannot be entertained under section 482 Cr. P.C. An action otherwise would only lead to an anomalous situation as the source of power is not the Cr.P.C

40

Gurdev Singh Kaler vs. State 2007 SCC OnLine Del 144.

41

(2003) 4 SCC 675.

42

1988 SCC (Cri) 318.

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VII.

REFERENCES

Books: 

Commentary at the Code of Criminal Procedure 1973 – 2005- Batuk Lal.



Sohoni's Code of Criminal Procedure – 2002- Gopal R.



Code of Criminal Procedure 1973 – 2005- Paranjape, N. V.



Criminal Procedure - R.V. Kelkar's.

Online References: 

www.manupatra.com



www.scconline.com



www.westlawindia.com



www.lexisnexis.com

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