R. P. KAPUR versus THE STATE OF PUNJAB

March 25.

R. P.KAPUR

THE STATE OF PUNJAB

( P .B. GAJENDRAGADKAR, K. N. WANCHOO and K. c. DAS GUPTA, JJ.)

Criminal Trial-Quashing of proceedings-Inherent power of High Court-When to be exercised-Code of Criminal Procedure, r898 (V .9f I898), s. 56I-A.

• One S lodged first information report against K. When K found that no action was taken on the report for several months he filed criminal complaint against S contending that the report lodged by S was false. At the instance of S the magistrate ordered K's complaint to stand adjourned till the police made its final report on the first information report. Thereupon K moved the High Court under s. 56r-A of the Code of Criminal Procedure for quashing the proceedings initiated by the first information report. Pending the hearing the police submitted its report under s. r73 of the Code. Subsequently the High Court dismissed the peti-tion. K obtained special leave and appealed: Held, that no case for quashing the proceedings was made out. The inherent jurisdiction of the High Court could be exercised to quash proceedings in proper case either to prevent the abuse of the process of any Court or otherwise to secure the ends of justice. The following are some categories of cases where the inherent jurisdiction could and should be exercised to quash proceedings:

(i) where there was legal bar against the institution or continuance of the proceedings;

(ii) where the allegations in the first information report or complaint did not make out the offence alleged ; and .

(iii) where either there was no legal evidence adduced in support of the charge or the evidence adduced clearly or mani-festly failed to prove the charge.

In exercising its jurisdiction under s. 56r-A of the Code the High Court cannot embark upon an enquiry as to whether the evidence in the case is reliable or not. In the present case there was no legal bar to the institution of the proceedings or to their continuance; the allegations made in the first information report did constitute the offences alleged and it C?uld not be contended that on the face of the record the charge was unsustainable.

In re: Shripad G. Chandavarkar, A.LR. r928 Born. r84, Jagat Chandra Mozu.mdar v. Queen Empress, (r899) LL.R. 26 Cal. 786, Dr. Shankar Singh v. The State of Punjab, (1954) 56 Punj. L.R. 54, Nripendra Bhusan Ray v. Govind Bhandhu Majum-dar, A.LR. r924 Cal. ro18 and Ramanathan Chettiar v. K. Sivarama Subrahmanya Ayyar, (1924) LL.R. 47 Mad. 722, referred to. S.P. faiswal v. The State, (r953) 55 Punj. L.R. 77, distin-guished.

,. . -~

3 S.C.R. SUPREME COURT REPORTS 389

CRIMINAL APPELJ,ATE JURISDICTION: Criminal Appeal No. 217of1959. R. P. Kapur Appeal by special leave from the judgment and v. order dated September 10, 1959 of the Punjab High state of Punjab -Court in Criminal Misc. No. 559 of 1959. Appellant in person.

S. M. Sikri, Advocate-General for the State of Punjab, Mohinder Singh Punnan, T. M. Sen and .. Gupta, for the respondent.

1960. March 25. The Judgment of the Court was delivered by

GAJENDRAGADKAR, J.-On December 10, 1958, Mr. Gajendragadkar ], M. L. Sethi lodged First Information Report against the appellant Mr. R. P. Kapur and alleged that he and • his mother-in-law Mrs. Kaushalya Devi had committed offences under ss. 420-109, 114 and 120B of the Indian Penal Code. When the appellant found that for several months no further action was taken on the said First Information Report which was hanging like sword over his head he filed crimihal complaint on April 11, 1959, against Mr. Sethi under ss. 204, 211 and /385 of the Indian Penal Code and thus took upon himself the onus to prove that the First Information Report lodged by Mr. Sethi was false. On the said complaint Mr. Sethi moved that the proceedings in question should be stayed as the police had not made any report on the First Information Report lodged by him and that the case started by him was still pending with the police. After hearing arguments the learned Magistrate ordered t_hat the appellant's complaint should stand adjourned.

Thereupon the appellant moved the Punjab High Court under s. 561-A of the Code of Criminal Procedure for quashing the proceedings - initiated by the First Information Report in question. Pending the hearing of the said petition. in the said High Court the police report was submitted under s. 173 of the Code on July 25, 1959. Subsequently, on September 10, 1959, Mr. Justice Capoor heard the appellant's petition and held that no case had been made out for quashing the proceedings under s. 561-A. In the result the petition was dismissed. It is against this order that the appel-Ia.nt has come to this Court by special leave.

• x96o The material facts leading to the proceedings against the appellant lie within very narrow com1mss. It, R. P. Kapur v. appears that in January 1957 the mother.in.Jaw of the State of Punjab appellant and his wife entered into an agreement with the owners of certain lands in village Mohammadpnr Gajendmgadkar ]. Munirka to purchase lands at Rs. 5 per sq. yd. Ear-nest money was accordingly paid to the vendors and it was agreed that the sale had t? be completed by April 13, 1957; by consent this period was extended to ,June 13, 1957. Meanwhile, on March 8, 1957, not i-fications were issued by the Chief Commissioner under ss. 4 and 6 of the Land Acquisition Act, 1894, for acquiring considemble area of land which included the lands belonging to the vendors; this acquisition was intended for the housing scheme of the Ministry of Vil or ks, Housing and Supply in the Government of India. The proposed acquisition was treated as one of urgency and so under s. 17 of the Acquisition Act possession of the land was taken by the Collector on June 8, 1957. Some of the persons concerned in thp, said lands filed objections against the validity of the action taken under s. 17. It was under these circum-stances that the sale deeds were executed by the vendors in favour of Mrs. Kaushalya Devi and certain other vendees on June 12, 1957. It appears that the vendees presented their claim before the Land Acquisi-tion Collector and an award has been made in Septem-ber 1958 by which Mrs. Karnihalya Devi has been allowed compensation at Rs. 3-8·0 per sq. yd. That, is how the title of the lands in question passed to Mrs. Kaushalya Devi.The First Information Report filed by Mr. Sethi alleges that he and the appellant were friends and that on January 4, 1958, the appellant dishonestly and fraudulently advised him to purchase 2,000 sq. yds. of land in Khasra Nos. 22, 23, 24 and 25 in the aforesaid village Mohammadpur Munirka on the representation that as owner of the land in the area Mr. Sethi would get plot of desired dimensions in the same area developed by the Ministry under its housing scheme. The appellant also represented to Mr. Sethi, according to t.he First Information Report, that since under the scheme no person would be allotted more than one

3 S.C.R. SUPREME COURT REPORTS

plot he would have to surrender part of his land; 1960 that is why as friend ,he was prepared to give to Mr. R. P. Kapur Sethi one plot at the price at w ich it een pur-v. chased. According to Mr. Sethi the appellant dictated State of Punjab an application which he was advised to send to the Secretary of the Ministry of Works and he accordingly Gajendragadkar J. sent it as advised. _ The First Information Report further .alleges that the appellant had assured Mr . Sethi that the land had· been purchased by his mother-in-law at Rs. 10 per sq. yd. Acting on this representa-tion Mr. Sethi paid Rs. 10,000 by cheque drawn in favour of Mrs. Kaushalya Devi on January 6, 1958. This cheque has been cashed. Subsequently draft of the sale deed was sent by.the appellant to Mr. Sethi in the beginning of March 1958 and on March 6, 1958, further sum of Rs. 10,000 was paid by cheque. The draft was duly returned to the appellant with covering letter in ~hich Mr. Sethi stated that he would have liked to add one clause to the deed to the effect that in the event of the authorities not accepting the sale for the purpose of allotment, the amount of Rs. 20,000 would be refunded to him; and he express-ed the hope that even if the said clause was not includ-ed in the document the appellant would accept it. The sale deed in favour of Mr. Sethi was registered on March 21, 1958. It is this transaction which has given rise to the First Information Report in question.

Broadly stated the First Information Report is based on four material allegations about fraudulent misrepre-sentation. It is alleged that the appellant fraudulently misrepresented to Mr. Sethi that the land had been purchased at Rs. 10 per sq. yd.; that the appellant fraudulently concealed from Mr. Sethi the pendency of the proceedings before the Land Acquisition Collector, Delhi, and of the acquisition of the said property under s. 17 of the said Act; he also made similar fraudulent misrepresentations as regards the scheme of housing to which he referred. As result of these misrepresentations Mr. Sethi entered into the transac-tion and parted with Rs. 20,000. That in brief is the nature of the complaint made by Mr. Sethi in his First Information Report. The appellant urged before the Punjab High Court that the case started a~ai.nst

i96o him by the First Information Report should be quash-R.P. J(apur ed under s. 561-A of the Code. The Punjab High v. Court has rejected the appellant's contention. The state of Punjab question which arises for our decision in the present -appeal is: Was the Punjab High Court in error in Gajmdragadka. J. refusing to exercise its inherent jurisdiction under s. 561-A of the Code in favour of the appellant?

Before dealing with the merits of the appeal it is necessary to consider the nature and scope of the in-herent power of the High Court under s. 561-A of the Code. The said section saves the inherent power of the High Court to make such orders as may be neces-sary 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. There is no doubt that this inherent power cannot be exerQised in regard to matters specifically covered by the other provisions of the Code. In the present case the magistrate before whom the police report has been filed under s. 173 of the Code has yet not applied his mind to the merits of the said report and it may be assumed in favour of the appellant that his request for the quashing of the proceedings is not at the present stage covered by any specific provision of the Code. It is well-established that the inherent jurisdiction of the High Court can be exercised to quash prnceedings in proper case either to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Ordinarily criminal· proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. It is not possible, desirable or expedient to la.y down any inflexible rule which would govern tho exercise of this inherent jurisdiction. However, we may indi-cate some _categories of cases where the inherent juris-diction 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

3 S.C.R. SUPREME COURT REPORTS

j;stice. If the criminal proceeding in question is in ;960 respect of an offence alleged to have been committed by an accused person and it manifestly appears that R. P. Kapur there is legal bar against the institution or continu-State 0/I'unjab ance of the said proceeding the High Court would be justified in quashing the proceeding on that ground. Gajendragadkar ]. Absence of the requisite sanction may, for instance, furnish cases under this category. Cases may also arise where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do nqt constitute the offence alleged ; in such cases no ques-tion of appreciating evidence arises; it is matter_~/ merely of looking at the complaint or the First Infor-(' mation Report to decide whether the offence alleged is disclosed or not. In such cases it would be legiti-mate 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. 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 allega-tions 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 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 accusa-tion in questiop. In exercising its jurisdiction under s. 561-A the High Court would nqt embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the trial magis-trate, and ordinarily it would not be open to any party to invoke the High Court's inherent jurisdiction and contend that on reasonable appreciation of the evidence the accusation made against the accused would not be sustained. Broadly stated that is the nature and scope of the inherent jurisdiction of the High Court under s. 561-A in the matter of quashing •

LlU6U J

;!94 SUPREME COUJ{'f Rl~l'ORTS

criminal proceedings, and that is the effect of the

-judicial decisions on the point (Vide: In Re: Shri-R. P.:<apur pad G. Ohandavarkar ('}, Jagat Chandra Mozumdar v. State of Punjab Queen Empress (2), Dr. Shanker Singh v. The State of ---Punjab ([3]), Nripendra Bhusan Ray v. Gobind Bandhu Gajendragadkar J. Majumdar([4]} and Ramano.than Ohettiyar v. K. Sivarama Subrahmanya Ayyar ([5]).)

Mr. Kapur, who argued his own case with ability

before us, strongly relied on the decision of the Punjab High Court in S. P. Jaiswal v. The State & Anr. (") and contended that in the interest of justice and in order to avoid unnecessary harassment to him we should ourselves examine the evidence on record and decide whether the said evidence can possibly lead to his conviction. In that case Jaiswal was charge'd with having committed offences under s. 147 ands. 452 of the Code and it does appear from the judgment of the High Court that the learned judge elaborately consi-dered all the evidence on which the prosecution relied and came to the conclusion that the proceedings taken against Jaiswal and his co.accused should be quashed. It is, however, clear from the judgment that the learn-ed judge was very much impressed by the fact that the police had reported that there was no case or at the most only technical offence against Jaiswal but the district magistrate had interfered with the statu-tory duty of the police and had directed the police officer concerned to prosecute him. On these facts the learned judge was inclined to take the view that there was violation of the fundamental right guaranteed to J aiswal under Art. 21 of the Constitution. Besides, in the opinion of the learned judge the evidence on which the prosecution relied showed that the essential in-gredients of the offence charged were missing "and the very essentials were non.existent". It is on these findings that the criminal proceedings against Jaiswal were qua§hed. It is unnecessary for us to consider whether the fundamental right guaranteed under Art. 21 had really been contravened or not. We have merely referred to the relevant findings recorded by

(1) A.LR. 1928 Born. I8j.

(2) (1899) LL.R. 26 Cal. 786.

(3) (1954) 56 Punjab L.R. 54.

(4) A.LR. 1924 Cal. 1018.

(5) (I9z4) l.L.R. 47 Mad. 7n.

(6) (19531 55 Punjab L.R. 77 •

the learned judge in order to emphasise the fact that x960 this decision cannot be read as an authority for the proposition that an accused person can approach the R. P. :~apur High Court under s. 561-A of_ the Code and ask it to State of Punjab appreciate the evidence adduced against him and quash the proceedings in case it thought that the said Gajendragadkar .J. evidence did not justify the charge. In fact, in deal-ing with the case the learned judge has himself approved of the several decisions which have constru-ed the nature and scope of the inherent jurisdiction under s. 561-A and so the decision must be confined to the basic findings recorded by the learned judge in that case.This being the true legal position the question which falls for our decision is: Does the appellant show that his case falls . under any of the three categories already mentioned by us. There is no legal bar to the institution of the present proceedings.or their continu-ance, and it is ol;ivious that the allegations made in the First Information Report do constitute offences alleged against the appellant. His argument, how-ever, is that the evidence on record clearly and un-ambiguously shows that the allegations made in the First Information Report are untrue; he also con-tends that "certain powerful influences have been operating against him with view to harm him and debar him o.:ffi.cially and otherwise and have instigated and later seized upon the false First Information Report filed by Mr. Sethi against him". In this connection he has naturally placed emphasis on the fact that the investigating agency has acted with extraordinary dilatoriness in the matter and that for several months the police did not make the report under s. 173 of the Code. ·

It is true that though the complaint against the appellant is essentially very simple in its nature the police authorities did not make their report for nearly seven months after the First Information Report was lodged. We have already indicated -how the appel-lant was driven to file complaint on his own charg-ing Mr. Sethi with having filed false First Informa-tion Report against him, and how the Report, in ques-tion was filed aJter the appellant moved the High

r960 Court by his present petition under s. 561-A. It is very much to be deplored that the police officers R. P. I<apu' concerned did not act diligenUy in this matter, and State 0;·Punjab it is not surprising that this unusual delay has given rise to the apprehension in the mind of the appellant Gajendragadk"' J. that the object of the delay was to keep the sword hanging over his head as long as possible. It is per-haps likely that the appellant being the senior-most Commissioner in the Punjab the investigating authori-ties may have been cautious and circumspect in taking further steps on the First Information Report ; but we are satisfied that this explanation cannot account for the inordinate delay made in submitting the report under s. 173. It is of utmost importance that investigation into criminal offences must always be free from any objectionable features or infirmities which may legitimately lead to the grievance of the accused that the work of investigation is carried on unfairly or with any ulterior motive. Even so it is difficult to see how this conduct on the part of the police officers can materially assist the appellant in his prayer that the proceedings which have now reached the criminal court should be quashed. ·

\Ve must, therefore, now proceed to consider the appellant's case. that the evidence on record is demonstrably against the allegation of Mr. Sethi that he was induced by the appellant to part with Rs. 20,000 as result of the several misrepresentations alleged in the First Information Report. He contends that the principal allegation against him is two-fold, that he fraudulently and dishonestly concealed from Mr. Sethi any information about the pendency of the proceedings before the Collector, and fraudulently re-presented to him that the land had been purchased at Rs. 10 per sq. yd. According to the appellant, if t.he correspondence on the record is considered, and the statements made'by Mr. Sethi and his wife and their conduct at the material time are taken into account, it would irresistibly show that the whole story about the fraudulent misrepresentations is untrue. The ap-pellant has taken us through the relevant correspond-ence and has referred us to the statements and the oeni:lnct of the parties. We are anxious not to expres~

3 S.C.R. SUPREME COURT REPORTS

any opinion on this part of the appellant's argument. i96o All we wish t,_o say is that we would inevitably have. R. P. Kapur to consider the evidence ourse ves I an to appreciate v. it before we pronounce any opinion on the validity or State of Punjab otherwise of the argument. It is not a· case where the -appellant can justly contend that on the face of the re- Gajendragadkar J. cord the charge levelled against him is unsustainable •. The appellant no doubt very strongly feels that on the relevant evidence it would not be reasonably possible to sustain the charge but that is matter on which the appellant will have to satisfy the ma.gistrate who takes cognisance of the case. We would, however, like to emphasise that in rejecting the appellant's prayer for quashing the proceedings at this stage we are expressing no opinion one way or the other on the merits of the case.

There is another consideration which has weighed in our minds in dealing with this appeal. The appel-lant has 'come to this Court under Art. 136 of the Constitution against the decision of the Pµnjab High Court; and the High Court has refused to exercise its inherent jurisdiction in favour of the appellant. Whether or not ,we would have come to the same conclusion if we were dealing _with the matter ourselves under s. 561-A is not really very material because in the present case what we have to de-cide is whether the judgment under appeal is erroneous in law so as to call for our interference under Art. 136. Under the circumstances of this ca§e we are unable to answer this question in favour of the appellant. The result is the appeal fails and is dismjssed.

Appeal dismissed.

THE STATE OF BOMBAY

v. M/S. S. S. MIRANDA LIMITED

(P. B. GAJENDRAGADKAR and K. N. WANCHOO, JJ.)

Excise Duty-Imposition at successive stages of transportation of excisable article-Validity of-Bombay Abkari Act, z878 (Bom. V of I878), SS. IO, I9 & I9A.

. The respondent held trade and import licence for foreign liquor-as well as velldor's licence under the Bombay Abkari

1960 March 25.