Power (under Section 482 of CrPC) must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. – Supreme Court
New Delhi: The Supreme Court, responding to an appeal under Section 482 of the Code of Criminal Procedure against an order of the High Court of Chhattisgarh, passed a judgement last week quashing an FIR and criminal proceeding against Manoj Kumar Sharma, who was serving in the Indian Air Force. The FIR was registered against Sharma more than five years after his wife Nandini had committed suicide at her matrimonial home on 20 September 1999. They were married on 27 April 1999.
The information about the death of Nandini was lodged by the Security Officer of the Indian Air Force at the Mulana Police Station in Ambala district on 22 September 1999, post mortem was conducted on the body of the deceased and the body was handed over to the relatives for performing the last rites. The same day, the officer in-charge of the investigation at Mulana Police Station had submitted a report stating that there was no sign of foul play. On the basis of investigation, a Final Report was submitted before the sub-Divisional Magistrate on 24 January 2000 and it got accepted on 19 February 2000.
Simultaneously, a Court of Inquiry (CoI) was also convened to investigate into the alleged role of the appellant-accused but after completion of the Inquiry the case was finally closed on 25 July 2000.
After five years of the closing of this case, a fresh First Information Report (FIR), was registered on 29 May 2005 Shashi Bhushan Sharma – brother of the deceased against Manoj Sharma, Heera Lal Sharma, Mahaveer Prasad Sharma and Ms Hem Lata Sharma-the father, uncle and mother of the deceased’s husband at Bhillai Nagar Police Station in Durg district under Sections 304B, 498A and Section 34 of the Indian Penal Code, 1860 (IPC).
Being aggrieved by the FIR, the appellants filed a Writ Petition before the High Court at Bilaspur. The Division Bench of the High Court, issued an order on 25 July 2005, directing that investigation of the alleged offence should continue.
On 4 April 2007, the appelants took leave of the court and withdrew writ petition and filed a Criminal Miscellaneous Petition before the High Court under Section 482 of the Code of Criminal Procedure, 1973 for quashing of the FIR.
A single Judge of the High Court, on 17 October 2011, allowed the proceedings to continue with a direction to the police to hold fair and proper investigation to ensure logical conclusion without unnecessary delay.
Thereafter, an application for modification (Criminal Misc. Petition No. 732 of 2011) was filed for modification of the 17 October 2011 order in Criminal Miscellaneous Petition 612 of 2007 on the ground that during the pendency of the judgment in the matter, the charge-sheet came to be filed by the police before the court which was allowed on 17 November 2011.
The appellants also filed a Criminal Miscellaneous Petition in 2011 under Section 482 read with Section 397 of the Code of Criminal Procedure before the High Court for quashing of charge sheet and cognizance taken thereof by the Judicial Magistrate First Class, Durg on 3 September 2011 and 13 October 2011 respectively in Criminal Proceeding arising out of Crime registered at Bhilai Nagar Police Station in 2005.
The single Judge of the High Court passed an order on 27 September 2012 dismissing the petition filed by the appellants.
Aggrieved by the High Court order, the appellants went in appeal through a special leave before the Supreme Court.
A two Judge Bench of the Supreme Court comprising Justice Madan J Lokur and Justice R.K. Agrawal passed an order in this case on August 23, 2016.
The Supreme Court order says:
“We are of the considered opinion that the allegations made in the FIR are inherently improbable and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the appellants herein.
Further, to invoke inherent jurisdiction under Section 482 of the Code, the High Court must be fully satisfied that the material produced on record is based on sound, justifiable and reasonable facts. In the case on hand, malicious prosecution was instituted by the brother of the deceased after a period of five years that too on the basis of anonymous letters. There was no accusation against the appellants before filing of the FIR.
The allegations are vague and do not warrant continuation of criminal proceedings against the appellants. Also, the court at Durg has no territorial jurisdiction because cause of action, if any, has arisen in Ambala. The criminal proceeding is grossly delayed and a result of belated afterthought.
The High Court failed to apply the test whether the uncontroverted allegations as 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 the prosecution to continue.
The High Court did not apply its mind judiciously and on an incorrect appreciation of record, ordered for continuance of the investigation on a petition under Section 482 of the Code. This power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results.”
Section 482 CrPC 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.”