SUPREME COURT OF INDIA
State of Orissa
Vs
Saroj Kumar Sahoo
Criminal Appeal No. 920 of 2003 (With Crl. A. Nos. 1639 and 1640 of 2005)
(Arijit Pasayat and Tarun Chatterjee)
07/12/2005
ARIJIT PASAYAT, J.
1. Leave granted in SLP (Crl.) Nos.3190 of 2004 and 3199 of 2004.
2. As the appeals have some common features and links, the appeals are disposed
of by the common judgment. In these appeals challenge is to the legality of
orders passed by learned Single Judges of the Orissa High Court quashing the
proceedings initiated against respondents on the basis of first information
reports lodged by the functionaries of the State of Orissa. Criminal Appeal
No.920 of 2003, and the appeal relatable to SLP (Crl.) No.3199 of 2004 relates
to FIR No.61 dated 30.12.2000 where investigation was in progress and appeal
relatable to SLP (Crl.) No.3190 of 2004 relates to FIR No.43 dated 16.9.2000
where charge sheet had already been filed. The High Court in each case
exercised power under Section 482 of the Code of Criminal
Procedure, 1973 (in short the 'Cr.P.C.'). In the FIR No.43 of 2000
accusations were against respondents Saroj Kumar Sahoo and Nalinikanta Muduli.
3. Background facts giving rise to the three appeals in a nutshell are as
follows:
On 8.1.1997 a trust named Nabaprabhat Trust was registered in which respondent
Saroj Kumar Sahoo was the Chairman cum Managing Trustee. It appears that a
registered sale deed No.386 dated 4.3.1997 was registered before Sub Registrar,
Pipli in respect of about 10 acres of land. According to the prosecution on
14.1.1997 the respondent Saroj Kumar Sahoo in the capacity of Chairman cum
Managing Trustee of Nabaprabhat Trust applied for establishment of a new
polytechnic with approval of All India Council for Technical Education (in
short 'AICTE'), though the trust was not having the requisite land of 20 acres
and funds to the tune of Rs.25 lakhs as the trust was registered with a corpus
of a paltry sum i.e. Rs.10,000/-. Zerox copy of the sale deed according to the
prosecution was submitted to the Director, Technical Education and Training,
Orissa for establishment of technical education institution. The respondent got
land and shed on the pretext of using the lands and sheds for bona fide industrial
use in the Mancheswar Industrial Estate.
4. On 25.6.1997 approval for running the technical education institutions was
accorded. On 26.7.1997 the respondent Saroj Kumar Sahoo along with Smt. Sukanti
Muduli, (mother of Sh.Nalinikanta Muduli), registered gift deed in respect of
10 acres of land and projected to AICTE as if it had got 20 acres of land. The
approval was given on 8.8.1997. On 19.11.1998 both respondents Saroj Kumar
Sahoo and Nalinikanta Muduli got District Industries Centre Registration for
setting up fabrication unit in the same industrial shed and land though
technical institutions namely Nillachal Polytechnic and Nilachal Institute of
Computer Science were shown to be running in the same industrial land and shed.
On 30.12.2000 the investigating agency while investigating cases registered at
the Bhubneshwar Vigilance Division police Station Case no.25/2000 and 43/2000
against Nalinikanta Muduli and his father Sh.Bichitranand Muduli seized some
incriminating documents and therefore, FIR was registered. Though orders were
passed by the High Court for appearance before concerned Court while rejecting
the application for bail under Section 438 Cr.P.C., the respondents never
appeared before the concerned Court and on the contrary on 19.4.2001 respondent
Saroj Kumar Sahoo filed an application under Section 482 of Cr.P.C. before the
High Court for quashing FIR and connected proceedings in Bhubneshwar Vigilance
Police Station Case No.61 of 2000 registered for alleged commission of offences
under Sections 120(B), 420, 468 and 471 of Indian Penal Code, 1872 (in short
the 'IPC') read with Section 13(2) and 13(1)(a) of the Prevention
of Corruption Act, 1988 (in short the 'Act'). During investigation, the
Tehsildar, Pipli reported to the investigating agency that the land mentioned
in the gift deed was non-existent. By order dated 1.7.2002 a learned Single
Judge of the High Court quashed the First Information Report in the concerned
case and subsequent proceedings during investigation, so far as Saroj Kumar
Sahoo is concerned. The learned Single Judge held that on perusal of the
statements recorded during investigation it was clear that the ingredients of
the offences alleged were not in existence, and it would be an abuse of the
process of Court and may lead to gross miscarriage of justice if the
proceedings are continued. Therefore, so far as the respondent Saroj Kumar
Sahoo is concerned the proceedings were quashed.
5. In the appeal relatable to SLP(Crl.) No.3190 of 2004, before the High Court,
respondent NaliniKanta Muduli had questioned legality of the proceedings
relating to Bhubneshwar Vigilance Police Station Case No.43 of 2000. In the
said allegations which were against respondent Nalinikanata and his father
Muduli (in short 'Bichitrananda') Bhubneshwar Vigilance PS case no.25 of 2000
was registered against Bichitrananda on the allegation that he had acquired
assets disproportionate to his known sources of income. During investigation
business premises of Nalinikanta were searched and incriminating
materials/documents were seized for which FIR no.43 of 2000 was lodged against
Nalinikanta and Bichitrananda. In the appeal relatable to SLP (Crl.) 3199 of
2004, the challenge before the High Court was to the FIR 61 of 2000. In these
cases, learned Single Judge exercised power under Section 482 and gave certain
directions which shall be dealt with infra.
6. Learned counsel for the appellant-State submitted that the scope and ambit
of Section 482 Cr.P.C. has been analysed in various cases. The power is to be
exercised sparingly and not in the manner done in the present cases. In
Criminal Appeal No.920 of 2003 the High Court interfered at a stage when
investigation was not even over. Similar is the appeal relating to SLP (Crl.)
No.3199 of 2004. The illegality and vulnerability are so manifest that a bare
reading of the impugned orders would show that the learned Single Judges have
not kept in view the parameters of Section 482 Cr.P.C. in view. Though,
Bichitrananda was not a party in any of the petitions before the High Court, in
the Criminal Appeal relating to SLP (Crl.) No.3190 of 2004, learned Single
Judge even quashed the proceedings against him. Interestingly, he even referred
to submissions purportedly made on behalf of him in the impugned order though he
was not a party and there was no question of any submission being made by
learned counsel on his behalf. The illegality does not end there. Learned
Single Judge has even directed renewal of the contractor's licence issued to
Zerina Marines Pvt. Ltd. where Nalinikanta is a Director. The allegations are
of very serious nature. The investigating agency had collected documentary and
oral evidence to substantiate the allegations and the investigation was in
progress. At that stage the interference made by the High Court is clearly
uncalled for. The allegations were, inter alia, that Nalinikanta gave false
information about his educational qualifications and working experience to
fraudulently obtain Super Class and Special Class contractor's licenses. He
claimed to be Engineering Degree holder whereas in reality he was not so.
Similarly, he had submitted false and forged experience certificate to get the
contractor's licenses. Bichitrananda was a member of the Committee of Chief
Engineers which granted renewal of license which was submitted after due date.
Subsequently license grating authority cancelled Super Class contractor's
license.
7. In response, learned counsel
for the respondents Saroj Kumar Sahoo and Nalinikanta Muduli submitted that the
prosecution agency in acting with mala fide intents in order to harass
Bichitranand and with a view to unleash political vendetta the respondents and
Bichitrananda are being victimized. Continuance of proceedings against them
would be sheer abuse of the procees of court. The High Court has analysed the
factual position keeping in view the principles relating to exercise of power
under Section 482 Cr.P.C. and, therefore, no interference is called for. It is
pointed out that though Bichitrananda Muduli was not a party, the High Court on
going through the entire records came to hold that an innocent person like
Bichitrananda should not be penalized and, therefore, quashed the proceedings
so far as he is concerned. Without making him a party in these proceedings the
appellants cannot take away the relief granted to him by learned Single Judge.
8. Exercise of power under Section 482 of the Cr.P.C. 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 Cr.P.C. It envisages three circumstances under
which the inherent jurisdiction may be exercised, namely, (i) to give effect to
an order under the Cr.P.C. (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 recongnizes and preserves inherent
powers of the High Courts. All courts, whether civil or criminal possess, 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 alicui
concedit, concedere videtur et id sine quo res ipsae 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 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 exercise
of the powers court would be justified to quash any proceeding if it finds that
initiation/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 report, the court may examine the question of
fact. When a report is sought to be quashed, it is permissible to look into the
materials to assess what the report has alleged and whether any offence is made
out even if the allegations are accepted in toto.
9. In R.P. Kapur vs. State of Punjab 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.
10. 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 accu2sations. When exercising jurisdiction under Section 482 of the
Cr.P.C., 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 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 Cr.P.C. 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
vs. Bhajan Lal (1992 Supp (1) 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 Cr.P.C. except
under an order of a Magistrate within the purview of Section 155(2) of the
Cr.P.C..
(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 Cr.P.C.
(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 Cr.P.C. or the Act concerned (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 Cr.P.C. or Act concerned, 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." *
11. As noted above, the powers possessed by the High Court under Section 482 of
the Cr.P.C. are very wide and the very plentitude 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. 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. 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 : Janata Dal vs. H.S. Chowdhary 7,
and Raghubir Saran (Dr.) vs. State of Bihar . 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. 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 themselves be the basis for quashing the proceedings.
(See: Dhanalakshmi vs. R. Prasanna Kumar , State of Bihar vs. P.P. Sharma
6, Rupan Deol Bajaj vs. Kanwar Pal Singh Gill
6, State of Kerala vs. O.C. Kuttan ,
State of U.P. vs. O.P. Sharma 4, Rashmi Kumar
vs. Mahesh Kumar Bhada 8, Satvinder Kaur vs.
State (Govt. of NCT of Delhi) 4 and Rajesh
Bajaj vs. State NCT of Delhi .
12. The above position was again re-iterated in State of Karnataka vs. M.
Devendrappa and another 2002 (3) SCC 89 and State of M.P. vs. Awadh Kishore
Gupta and others 8.
13. In Jehan Singh vs. Delhi Administration 1974 AIR(SC) 1140 while
considering a case under Section 561-A of the Code of Criminal Procedure, 1898
(in short the 'Old Code') corresponding to Section 482 of the Cr.P.C. it was
observed as follows:
"Where at the date of filing the petition under Section 561-A, no
charge sheet or a complaint has been laid down in Court and the matter is only
at the stage of investigation by Police, the Court cannot, in exercise of its
inherent jurisdiction under Section 561-A, interfere with the statutory powers
of the Police to investigate into the alleged offence and quash the
proceedings. Even assuming that the allegations in the FIR are correct and
constitute an offence so as to remove the legal bar to institute proceedings in
Court, the Court cannot at that stage appraise the evidence collected by the
Police in their investigation. Any petition under Section 561-A at such a stage
is, therefore, premature and incompetent." *
14. It is to be noted that the investigation was not complete and at that
stage it was impermissible for the High Court to look into materials, the
acceptability of which is essentially a matter for trial. While exercising
jurisdiction under Section 482 of the Cr.P.C., it is not permissible for the
Court to act as if it was a trial Court. Even when charge is framed at that
stage, the Court has to only prima facie be satisfied about existence of
sufficient ground for proceeding against the accused. For that limited purpose,
the Court can evaluate material and documents on records but it cannot
appreciate evidence. The Court is not required to appreciate evidence to
conclude whether the materials produced are sufficient or not for convicting
the accused. # In Chand Dhawan (Smt.) vs. Jawahar Lal and others , it
was observed that when the materials relied upon by a party are required to be
proved, no inference can be drawn on the basis of those materials to conclude
the complaint to be unacceptable. The Court should not act on annexures to the
petitions under Section 482 of the Cr.P.C., which cannot be termed as evidence
without being tested and proved.
15. Learned Single Judges did not keep in view the correct position in law
while allowing the petitions filed by the respondents. It baffles us as to how
a learned Single Judge while exercising powers under Section 482 Cr.P.C. could
even directed grant of renewal of licence. It is somewhat akin to a learned
Single Judge of another High Court directing creation of criminal courts to
deal with cases under a particular statute. It is baffling how learned Single
Judge referred to submissions purportedly made by learned counsel for
Bichitrananda who was not even a party. It is not clear how such submissions if
any could be made. The conclusions are based on surmises and conjectures
without any material to support them. Learned Single Judge arrived at certain
conclusions which are utterly fallacious. It is not clear as to on what basis
such conclusions were arrived at. Some of the conclusions, by way of
illustration are given below:
(a) No work experience certificate is taken as criteria for issue of fresh
license.
(b) Renewal of license after three years is an automatic process.
(c) Educational qualification of Managing Director is not a criteria for
issuance of Special Class Contractor, when the allegation was of filing
false/forged educational qualification certificate.
(d) Bichitrananda did not influence any member of the Committee of Chief
Engineers though he was a member (This conclusion was arrived at purportedly on
the basis of Bichitrananda's submission, though he was not a party).
The grant of relief to Bichitranand when he was not a party is equally
indefensible. Therefore, we find no reason to accept the plea of learned
counsel for the respondents that he should be heard in these proceedings.
16. When the factual position of the case at hand is considered in the light
of principles of law highlighted, the inevitable conclusion is that the High
Court was not justified in quashing the investigation and proceedings in the
connected case and the charge sheet filed.
17. In the background of the legal principles set out above the High Court's
impugned orders are indefensible and are accordingly quashed. #
18. So far as Criminal Appeal No. 920 of 2003 and the Appeal relating to SLP
(Crl.) No. 3199 of 2004 are concerned, since the investigation is not complete,
we direct that the investigation be completed within a period of six months
from today. The respondents are directed to cooperate in the completion of the
investigation and shall appear before the investigating officer, as and when
required, without fail.
19. It is submitted by learned counsel for the respondents that interim
protections were given by the High Court as regards the respondents being on
bail. That protection shall continue, but in case the respondents fail to
cooperate in the investigation and do not appear before the investigating
officer for the purpose of investigation as and when required, the interim
protection shall cease to be operative and is shall be open to the
investigating agency to move the concerned court for cancellation of the
protection which was granted. It is submitted by learned counsel for the
respondents that in case charge sheet is filed and in the case where charge
sheet is already filed, respondents shall seek discharge. If any such motion is
made the concerned Court shall deal with the same in accordance with law. We do
not express any opinion about the acceptability or otherwise of such motion, if
made.
20. The appeals are allowed to the aforesaid extent.