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We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.=The facts in the case of Thermax Ltd. (supra) were quite different and there was a clear situation showing that the complainant was trying to circumvent period of limitation for moving the Civil Court, by filing a delayed criminal case. On behalf of accused persons reliance has also been placed upon judgment in the case of M.N. Ojha & Ors. v. Alok Kumar Srivastav & Anr. (2009) 9 SCC 682. In that case a complaint filed against the appellants who were bank officials was quashed because the Court found that it was a counter-blast to action taken by them in their official capacity for realizing the loan amount due from the complainant. On facts of that case, it was easy to hold that the complaint was clearly an abuse of judicial process and it was also found that averments and allegations in complaint did not disclose commission of any offence by appellants. The Magistrate had failed to apply his mind to the case of the appellants and the High Court had erred in not even adverting to the basic facts. The factual situation in the present case is quite otherwise. Reliance was also placed on behalf of respondents upon judgment in the case of State of Karnataka v. Muniswamy & Ors. (1977) 2 SCC 699. In that case, the accused persons pleaded for discharge before the Sessions Court which was not accepted but the High Court quashed the proceedings on the ground that there was no material on the record on the basis of which any tribunal could reasonably come to the conclusion that the accused were in any manner connected with the incident leading to the prosecution. This Court agreed with the views of the High Court on the basis of peculiar facts of that case showing lack of any data or material which could create a reasonable likelihood of conviction for any offence in connection with attempted murder of the complainant. That judgment also is of no help to the respondents herein in the light of allegations made in the complaint, the statement of the complainant on solemn affirmation and the CID Report of investigation on which the complainant placed reliance and which was perused by the learned Magistrate. These appeals are therefore allowed, the judgment and order under appeal passed by the High Court is set aside. We also set aside the orders passed by the learned Sessions Court dated 30.11.2011 whereby summoning order was set aside in respect of accused nos.6 to 8 and accused no.9. In other words, the order of summoning passed by learned Magistrate dated 02.05.2011 is restored.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 285-287 OF 2015
[Arising out of S.L.P.(Crl.)Nos.300-302 of 2013]

Sonu Gupta …..Appellant

Versus

Deepak Gupta & Ors. …..Respondents

J U D G M E N T
SHIVA KIRTI SINGH, J.

Leave granted.
The parties have been heard in detail and they have also filed written
submissions. Appellant is wife of respondent no.1 and is complainant in
Criminal Complaint No.1213/2011 before Court of Judicial Magistrate, First
Class, Raipur. The respondents are accused in this Complaint Case which
was filed on 07.12.2010 for alleged offences under Section 464, 468 and 471
of the Indian Penal Code (IPC).
The appellant and respondent no.1 are undergoing a protracted matrimonial
dispute. It is the case of appellant as well as respondent no.1 that they
were married in February 1997. A girl child was born to the appellant in
May 1998 and in 2001 the appellant gave informations on various dates to
several police authorities regarding alleged torture and harassment
inflicted on her by respondent nos.1 to 8 for dowry as well as for giving
birth to a girl child. It is appellant’s case that in April 2001 itself
there was pressure by the common relatives and friends leading to appellant
withdrawing her allegations against respondent no.1 who in turn withdrew
Divorce Petition No.496/2000 and the same was dismissed as withdrawn by
order of Additional District Judge, Delhi dated 30th April 2001. The
differences between the spouses got settled amicably in April-May 2001.
The appellant gave birth to another girl child in August 2002 much to the
dislike of accused persons.
The substance of the accusation in the instant complaint case is that
anticipating legal action by the appellant against renewed mental torture
and harassment by the respondent no.1 and his other relations named as
accused, as a stratagem and outcome of a conspiracy, one of her earlier
letters of complaint to some police officials which had been withdrawn by
the appellant in April-May 2001, was changed and tampered as per
convenience and a photocopy of such undated complaint making out a weak
case against the respondents which was bound to fail, was got registered at
the instance of the accused persons themselves with the help of some police
officials as Criminal Case (FIR No.73/2002) on 06.10.2002 in the Mahila
Thana, Raipur by the Town Inspector of this Thana under pressure of accused
no.9, Additional Director General of Police, PHQ, Raipur. According to the
complaint petition, the appellant informed the concerned court that the FIR
No.73/2002 was neither filed by her nor signed by her and this FIR
facilitated her husband and his relations who were accused to obtain
anticipatory bail not only in FIR No.73/2002 but also in the case genuinely
filed by the appellant against accused nos.1 to 8 under Sections 498A and
406, IPC in Women’s Cell, Kirti Nagar, Delhi registered as Complaint
No.372/2004 on 15.06.2004. The appellant was also surprised to receive in
July 2003 a notice of Divorce Petition filed by respondent no.1 in a Delhi
court on 19.5.2003. The appellant approached various authorities and tried
to get an investigation into her allegations that FIR No.73/2002 was
fraudulently registered to benefit the accused nos.1 to 8 and the appellant
had no role in registering the same. Ultimately, even after a CID
investigation in favour of appellant’s case, when no action was taken
against the culprits and no copy of the CID report was made available to
the appellant, she filed a Writ Petition No.1488/2005 before the High Court
of Chhattisgarh at Bilaspur seeking the record of investigation report of
CID and registration of a criminal case against the accused as well as
investigation by CBI. In terms of directions of the High Court issued
while disposing of the writ petition on 24.06.2010, the appellant was
provided with copy of the CID investigation report and was also permitted
to inspect the entire connected record. Thereafter appellant could find
that the Station House Officer of Mahila Thana, Raipur as well as accused
no.9, Additional Director General of Police, PHQ, Raipur also had played a
role in fraudulent registration of FIR No.73/2002 and hence she filed the
instant criminal complaint before the Court of Judicial Magistrate, First
Class, Raipur on 07.12.2010.
The learned Judicial Magistrate recorded the statement of the appellant and
also called for record of CID investigation in the matter of FIR No.73/2002
for the purpose of perusal and evaluation. On receipt of the record, the
learned Judicial Magistrate passed a speaking order on 02.05.2011 whereby
he issued summons against accused nos.1 to 9 after finding a prima facie
case on the basis of complaint petition, statement of complainant
(appellant) as well as records of CID investigation on which the
complainant had placed reliance. Accused nos.1 to 8 preferred one set of
criminal revision and accused no.9 preferred another criminal revision
before the Sessions Court at Raipur. By two separate orders passed on same
date, i.e., 30.11.2011, the Sessions Court upheld the summoning order in
respect of accused nos.1 to 5 but set it aside in respect of accused nos.6
to 8 and accused no.9. Against these two orders the appellant preferred
criminal revision petitions whereas accused nos.1 to 5 also preferred a
Criminal Miscellaneous Petition bearing No.45/2012 before the High Court.
The High Court, by common judgment and order dated 07.09.2012 which is
under appeal, dismissed both the criminal revision petitions preferred by
the appellant against grant of relief to accused nos.6 to 9 and allowed
criminal miscellaneous petition of accused nos.1 to 5 by setting aside the
summoning order of the Magistrate and directing the appellant to appear
before the Court of Judicial Magistrate for adducing further evidence, if
any, to support her allegation in the complaint petition. The High Court
thus remitted back the matter with various observations requiring the
appellant to produce alleged documents which could prove forgery and also
to send the same to expert for examination of the document and signature of
the complainant/appellant.
Considering the stage at which the criminal complaint is pending and the
nature of proposed order, this Court would not like to express any definite
opinion on the merits of the allegations made in the complaint petition or
upon the defence taken by the accused persons before the courts below or in
this Court lest it prejudices one or the other party in future.
Having considered the details of allegations made in the complaint
petition, the statement of the complainant on solemn affirmation as well as
materials on which the appellant placed reliance which were called for by
the learned Magistrate, the learned Magistrate, in our considered opinion,
committed no error in summoning the accused persons. At the stage of
cognizance and summoning the Magistrate is required to apply his judicial
mind only with a view to take cognizance of the offence, or, in other
words, to find out whether prima facie case has been made out for summoning
the accused persons. At this stage, the learned Magistrate is not required
to consider the defence version or materials or arguments nor he is
required to evaluate the merits of the materials or evidence of the
complainant, because the Magistrate must not undertake the exercise to find
out at this stage whether the materials will lead to conviction or not.
It is also well settled that cognizance is taken of the offence and not the
offender. Hence at the stage of framing of charge an individual accused
may seek discharge if he or she can show that the materials are absolutely
insufficient for framing of charge against that particular accused. But
such exercise is required only at a later stage, as indicated above and not
at the stage of taking cognizance and summoning the accused on the basis of
prima facie case. Even at the stage of framing of charge, the sufficiency
of materials for the purpose of conviction is not the requirement and a
prayer for discharge can be allowed only if the court finds that the
materials are wholly insufficient for the purpose of trial. It is also a
settled proposition of law that even when there are materials raising
strong suspicion against an accused, the court will be justified in
rejecting a prayer for discharge and in granting an opportunity to the
prosecution to bring on record the entire evidence in accordance with law
so that case of both the sides may be considered appropriately on
conclusion of trial.
Learned senior advocate for the appellant Mr. Aman Lekhi has relied upon a
catena of judgments such as :-
Bhim Lal Shah vs. Bisa Singh & Ors. [17 CWN 290];
State of Orissa & Anr. vs. Saroj Kumar Sahoo [(2005) 13 SCC 540];

Riyasat Ali vs. State of U.P. [1992 Crl.L.J. 1217];
Nupur Talwar vs. Central Bureau of Investigation & Anr. [(2012) 11 SCC
465];

Amit Kapoor vs. Ramesh Chander & Anr. [(2012) 9 SCC 460];

Asmathunnisa vs. State of Andhra Pradesh & Anr. [(2011) 11 SCC 259];

MEDCHL Chemicals & Pharma (P) Ltd. vs. Biological E. Ltd. & Ors. [(2000) 3
SCC 269];

State of Uttar Pradesh vs. Paras Nath Singh [(2009) 6 SCC 372];

B. Saha & Ors. vs. M.S. Kochar [(1979) 4 SCC 177];
Matajog Dobey vs. H.C. Bhari [AIR 1956 SC 44];
P.K. Pradhan vs. State of Sikkim [(2001) 6 SCC 704].

These need no discussion because settled propositions of law reiterated
therein have already been noticed earlier.
In the present case, on going through the order of the learned Magistrate,
we are satisfied that the same suffers from no illegality. The specific
case of the appellant that FIR was registered on an undated photocopy of a
petition attributed to the appellant but not bearing her original signature
could not have been rejected by the learned Magistrate at the present stage
especially in view of the report of investigation by the CID which was also
called for and there being no dispute that the FIR No.73/2002 was
registered only on the basis of a photocopy on which the signature is not
in original and hence in our considered view the Hon’ble High Court grossly
erred in exercise of its jurisdiction by directing the
appellant/complainant to lead further evidence and produce the original
documents to show forgery. If the FIR is admittedly on the basis of only a
photocopy of a document allegedly brought into existence by the accused
persons, the High Court erred in directing the appellant to produce the
original and get the signatures compared.
In our considered view, the High Court fell into error of evaluating the
merits of the defence case and other submissions advanced on behalf of the
accused which were not appropriate for consideration at the stage of taking
cognizance and issuing summons.
Learned advocate for the accused persons, Mr. D.N. Goburdhan has placed
reliance upon judgment in the case of Pepsi Foods Ltd. & Anr. v. Special
Judicial Magistrate & Ors. (1998) 5 SCC 749 to highlight that summoning of
an accused is a serious matter and, therefore, the order of the Magistrate
must reflect that he has applied his mind to the facts of the case and the
relevant law, as highlighted in paragraph 28 of the Report. In that case
emphasis was laid upon power available with the High Court either under
Articles 226 and 227 of the Constitution or under Section 482 of the
Cr.P.C. to quash a criminal proceeding even at initial stage to prevent the
abuse of process of law by the inferior courts. But this Court cautioned
that since the powers conferred on the High Court under aforesaid
provisions have no limits, hence more/due care and caution is required
while invoking these powers. In paragraph 29 it was emphasized that the
accused can approach the High Court “to have the proceeding quashed against
him when the complaint does not make out any case against him”. The facts
in the present case are otherwise and required the High Court to exercise
more caution in view of clear allegations in the complaint petition. The
High Court erred in evaluating the merit of evidence for interfering with a
summoning order. Learned counsel also placed reliance upon judgments in
the case of State of Haryana & Ors. v. Bhajan Lal & Ors. 1992 Supp. (1)
SCC 335 and also in the case of Thermax Ltd. & Ors. v. K.M. Johny & Ors.
(2011) 13 SCC 412 in support of the proposition that power to quash
criminal prosecution is justified where a criminal proceeding is instituted
with malafide or ulterior motives. In the case of Bhajan Lal (supra) this
Court did indicate in para 102, seven kinds of cases where court may
exercise power to quash criminal prosecution but in respect of the 7th
category relating to malafide, this Court used the expression – “manifestly
attended with malafide” and further explained in paragraphs 103 and 104
that the power of quashing should be exercised very sparingly and with
circumspection and that too in the rarest of rare cases. Paragraphs 103
and 104 are reproduced hereunder :

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

104. It may be true, as repeatedly pointed out by Mr. Parasaran, that in a
given situation, false and vexatious charges of corruption and venality may
be maliciously attributed against any person holding a high office and
enjoying a respectable status thereby sullying his character, injuring his
reputation and exposing him to social ridicule with a view to spite him on
account of some personal rancour, predilections and past prejudices of the
complainant. In such a piquant situation, the question is what would be
the remedy that would redress the grievance of the verily affected party?
The answer would be that the person who dishonestly makes such false
allegations is liable to be proceeded against under the relevant provisions
of the Indian Penal Code – namely under Section 182 or 211 or 500 besides
becoming liable to be sued for damages.”
The facts in the case of Thermax Ltd. (supra) were quite different and
there was a clear situation showing that the complainant was trying to
circumvent period of limitation for moving the Civil Court, by filing a
delayed criminal case.
On behalf of accused persons reliance has also been placed upon judgment in
the case of M.N. Ojha & Ors. v. Alok Kumar Srivastav & Anr. (2009) 9 SCC
682. In that case a complaint filed against the appellants who were bank
officials was quashed because the Court found that it was a counter-blast
to action taken by them in their official capacity for realizing the loan
amount due from the complainant. On facts of that case, it was easy to
hold that the complaint was clearly an abuse of judicial process and it was
also found that averments and allegations in complaint did not disclose
commission of any offence by appellants. The Magistrate had failed to
apply his mind to the case of the appellants and the High Court had erred
in not even adverting to the basic facts. The factual situation in the
present case is quite otherwise. Reliance was also placed on behalf of
respondents upon judgment in the case of State of Karnataka v. Muniswamy &
Ors. (1977) 2 SCC 699. In that case, the accused persons pleaded for
discharge before the Sessions Court which was not accepted but the High
Court quashed the proceedings on the ground that there was no material on
the record on the basis of which any tribunal could reasonably come to the
conclusion that the accused were in any manner connected with the incident
leading to the prosecution. This Court agreed with the views of the High
Court on the basis of peculiar facts of that case showing lack of any data
or material which could create a reasonable likelihood of conviction for
any offence in connection with attempted murder of the complainant. That
judgment also is of no help to the respondents herein in the light of
allegations made in the complaint, the statement of the complainant on
solemn affirmation and the CID Report of investigation on which the
complainant placed reliance and which was perused by the learned
Magistrate.
These appeals are therefore allowed, the judgment and order under appeal
passed by the High Court is set aside. We also set aside the orders passed
by the learned Sessions Court dated 30.11.2011 whereby summoning order was
set aside in respect of accused nos.6 to 8 and accused no.9. In other
words, the order of summoning passed by learned Magistrate dated 02.05.2011
is restored. Before parting with the order we make it clear that any
observations in this order shall not prejudice the case of either of the
parties before the court below and the criminal complaint case of the
appellant must proceed on its own merits strictly in accordance with law.
Although we have set aside the order granting relief to accused nos.6 to 9
by the Sessions Court, in the interest of justice, we direct that in the
facts of the case accused nos.6 to 9 shall be granted benefit of bail by
the learned Magistrate if they appear within 10 weeks and apply for same.
The Magistrate shall of course be at liberty to set reasonable conditions
for such grant.

…………………………….J.
[ANIL R. DAVE ]
…………………………….J.
[KURIAN JOSEPH]

…………………………….J.
[SHIVA KIRTI SINGH]
New Delhi.
February 11, 2015.
———————–
14

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