Sunday, July 18, 2010

SC on guidelines for FIR/COMPLAINT QUASHING u/s 482 crpc by HC

                                               REPORTABLE

                IN THE SUPREME COURT OF INDIA

            CRIMINAL APPELLATE JURISDICTION

      CRIMINAL APPEAL NO.             1252        OF 2010
        (Arising out of S.L.P. (Crl.) No. 3061 of 2008)

State of A.P.                               .... Appellant (s)

           Versus

Gourishetty Mahesh & Ors.                   .... Respondent(s)

                        JUDGMENT

P. Sathasivam, J.

1) Leave granted.

2) This appeal is preferred by the State of Andhra Pradesh

against the judgment and order dated 27.01.2006 passed

by the High Court of Judicature, Andhra Pradesh at

Hyderabad in Criminal Petition No. 4362 of 2002 whereby

the High Court allowed the petition filed u/s 482 of the

Criminal Procedure Code (hereinafter referred to as `the

Code') filed by the respondents herein and quashed the

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criminal proceedings in Crime No. 288/2002-03 of

Prohibition & Excise Station, Huzurabad, Karimnagar

initiated against them.

3) Brief facts:

a)   On 12.09.2002, at about 4 p.m., on information

about transportation of black Jaggery and Alum illegally,

SDP&E along with other officials kept a watch at

Molangur Cross Road. While conducting the route watch,

an Eicher Van bearing Regn. No. AP 15 U 3123 was

checked and the Investigating Officer found 5,040 kgs. of

black Jaggery in 106 Gunny Bags.        The Investigating

Officer seized the vehicle and the black Jaggery under the

cover of Panchnama, arrested the accused and registered

a case in Crime No. 288/2002-03 under Sections 34(e), 41

and 42 of the Andhra Pradesh Excise Act, 1968. A show

cause notice was issued to the owner of the vehicle and

the accused persons.      On 21.09.2002, the Government

chemical examiner gave his remarks stating that the

sample contains sugar and extraneous matter and it is

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Jaggery fit for fermentation producing alcohol unfit for

consumption.

b)   On 16.09.2002, the respondents/accused persons

preferred a petition before the High Court being Criminal

Petition No. 4362 of 2002 along with Crl.M.P. No. 5639 of

2002 under Section 482 of the Code to quash the

proceedings in Crime No. 288/2002-03. On 17.09.2002,

the High Court passed an order in Crl.M.P. No. 5639 of

2002 in Crl. Pet. No. 4362 of 2002 giving the interim

custody of the vehicle bearing No. AP15U-3123 to

Petitioner No.4 therein subject to certain conditions. The

Investigating Officer deposited the seized property in the

office of the Deputy Commissioner of Prohibition and

Excise, Karimnagar, along with proposals for initiating

action for confiscation of the black Jaggery. The Deputy

Commissioner, Karimnagar, issued a show cause notice to

the owner of the contraband for confiscation of the seized

property calling for objections, if any. The owner of the

vehicle submitted the explanation in response to the show

                                                        3
cause notice. The Deputy Commissioner, Karimnagar, by

order dated 24.01.2003 confiscated the contraband.

Against the order of confiscation, an appeal being Crl. A.

No.    4843/2003/CPE/D4            was     filed    before     the

Commissioner     of    Prohibition    &   Excise,    A.P.      The

Commissioner upheld the confiscation order passed by the

Deputy Commissioner, Karimnagar. Aggrieved by the said

order, the owner of the Jaggery filed W.P. No. 11647 of

2004 along with W.P.M.P. No. 14808 of 2004 before the

High Court for the release of the seized goods.              By an

interim order dated 09.07.2007 in W.P.M.P. No. 14808 of

2004, the seized black Jaggery was released on furnishing

Bank Guarantee by the petitioner therein to the value of

the   seized   goods    to   the     satisfaction   of   the   Dy.

Commissioner Prohibition & Excise, Karimnagar (second

respondent therein) but the same could not be done as the

jaggery was already disposed of. On 27.01.2006, the High

Court passed an order in Crl. Pet. No. 4362 of 2002

allowing the criminal petition quashing the proceedings

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against the respondents/accused in Crime No. 288/2002-

03.   Aggrieved by the said order, the State of Andhra

Pradesh has filed this appeal by special leave.

4)    There is no appearance on behalf of the respondents

in spite of service of notice. Heard Mrs. C.K. Sucharita,

learned counsel appearing for the State of A.P.

5)    Mrs. C.K.Sucharita, learned counsel appearing for

the State, after taking us through the complaint and other

materials, submitted that the High Court misdirected itself

in quashing the proceedings against the respondents in

the light of the seizure of 5,040 kgs of black Jaggery and

the investigating agency having ample evidence to prove

that it was transported for manufacture of illicit liquor.

6)    It is not in dispute that on 12.09.2002 at about 4

p.m. on information, the Excise officials of Prohibition and

Excise Station, Huzurabad, Karimnagar District proceeded

to Molangur cross road, stopped a van bearing No. AP-15-

U 3123 and seized 5,040 kgs of black Jaggery in 106

gunny bags from the van under the cover of panchanama.

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Among the other accused A-1 is the clerk of A-4 and A2

and A3 are driver and cleaner of the van and A-4 is doing

business in jaggery and other kirana (grocery) items. It is

the case of the prosecution that after seizure of the

vehicle, the sample of substance had been sent to the

Prohibition and Excise Laboratory for testing. The Govt.

Chemical Examiner gave the Laboratory Analysis Report

(Annexure P-12) which reads as under:-

            "PROHIBITION AND EXCISE DEPARTMENT,
                      ANDHRA PRADESH
    C.E.No.10/02  LABORATORY ANALYSIS REPORT

          The sample (s) of substance received with correct
    and intact from Proh. & Excise Inspector, Station
    Hazurabad with his letter Dis.No. /02/P&E/HZD dt.
    21.09.2002 has been tested in the Laboratory with the
    following results:

S.No.   Description   of   the Percentage   of Remarks
         sample                 proof Spirit of
                                Hydrometer
                                Strength     of
                                Alcohol
1       2                      3               4
10415   A     dark   brownish                  The    sample     is
         coloured substance in                  containing sugar
         a polythene cover kept                 and     extraneous
         in a paper cover                       matter.       It is
         weighing (200) Grams.                  Jaggery    fit   for
         Cr.No.288/2002-03 of                   fermentation
         Station Huzurabad.                     producing alcohol
         Test Conducted                         unfit            for
         Test     for   Sugars:                 consumption
         Positive

                                                                       6
      2.   The unexpended portion of the sample (s) is returned in
      securely sealed.
      3.   He is requested to depute a person with a letter of
      authority to take delivery of the enclosures from the
      Laboratory on any working day.

      Signature of Asst.                   (K. Mahender Reddy)
      Examiner                            Govt. Chemical Examiner
      Dt. 21.09.2002                      of Proh. & Excise Regl.
                                         Proh. & Excise Laboratory
      To
      The Proh. & Excise Inspector,
      Huzurabad, Karimnagar Dist.
      Copy submitted to the Proh. And Excise
      Superintendent, Dist. Hyderabad."

7)    The remarks offered in (column 4) of the said report

shows that the seized substance is Jaggery fit for

fermentation producing alcohol unfit for consumption. It

is   also   relevant   that     the   Deputy   Commissioner      of

Prohibition     and        Excise,    Karimnagar    Division,   by

proceedings dated 24.01.2003, after finding that an

offence under A.P. Excise Act, 1968 has been made out,

seized the Jaggery involved in Crime No. PR 288/2002-03

dated 12.09.2002 and confiscated to the Government of

A.P. The said order was confirmed by the Commissioner

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of Prohibition and Excise on 01.03.2004. In the light of

the factual details, learned counsel for the State submitted

that it is not a case of no material at all for taking action

under the A.P. Excise Act and the High Court was not

justified in quashing the proceedings under Section 482 of

the   Code   when    the   material   on   record   discloses

commission of offence under the A.P. Excise Act.          No

doubt, before the High Court, learned Public Prosecutor

who defended the Government has neither placed nor

highlighted the above mentioned materials.

8) In a series of decisions, this Court has explained the

power and jurisdiction of the High Court under Section

482 of the Code. Exercise of power under Section 482 of

the Code, particularly, in a case of this nature is an

exception and not the rule.      The above provision only

saves inherent power which the Court possessed before

the enactment of the Code and does not confer any new

powers on the High Court.

                                                           8
9)   In State of A.P. vs. Golconda Linga Swamy and

Another, (2004) 6 SCC 522, while considering similar

orders passed by the Andhra Pradesh High Court under

the A.P. Excise Act, this Court has held as under:

     "....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. 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
     recognises 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 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. 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 the 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 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."

                                                                              9
10) In R.P. Kapur v. State of Punjab, AIR 1960 SC 866

= 1960 Cri LJ 1239, this Court summarised 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."

11) In      State       of     Andhra         Pradesh          vs.    Bajjoori

Kanthaiah and Another, (2009) 1 SCC 114, again when

the   Andhra        Pradesh        High       Court      quashed         similar

complaint under the A.P. Excise Act and A.P. Prohibition

Act in an appeal filed by the State of Andhra Pradesh, this

Court after reiterating the principle laid down in R.P.

Kapur's case (supra) and State of Haryana vs. Bhajan

Lal, 1992 Supp (1) SCC 335 = 1992 SCC (Cri) 426 held

that the interference at the threshold is not warranted and

set aside the order of the High Court quashing the FIR

and permitted the prosecution to proceed with the trial.

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12) While exercising jurisdiction under Section 482 of the

Code, 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/Court. It is true that Court should be

circumspect and judicious in exercising discretion and

should take all relevant facts and circumstances into

consideration before issuing process, other wise, it would

be an instrument in the hands of a private complainant to

unleash vendetta to harass any person needlessly. At the

same time, Section 482 is not an instrument handed over

to an accused to short-circuit a prosecution and brings

about its closure without full-fledged enquiry.   Though

High Court may exercise its power relating to cognizable

offences to prevent abuse of process of any Court or

otherwise to secure the ends of justice, the power should

be exercised sparingly. For example, where the allegations

made in the FIR or complaint, even if they are taken at

                                                        11
their face value and accepted in their entirety do not

prima facie constitute any offence or make out a case

against the accused or allegations in the FIR do not

disclose    a   cognizable   offence   or   do   not   disclose

commission of any offence and make out a case against

the accused or where there is express legal bar provided in

any of the provisions of the Code or in any other

enactment under which a criminal proceeding is initiated

or sufficient material to show that the criminal proceeding

is maliciously instituted with an ulterior motive for

wreaking vengeance on the accused due to private and

personal grudge, the High Court may step in. Though the

powers possessed by the High Court under Section 482

are wide, however, such power requires care/caution in its

exercise.   The interference must be on sound principles

and the inherent power should not be exercised to stifle a

legitimate prosecution.      We make it clear that if the

allegations set out in the complaint do not constitute the

offence of which cognizance has been taken by the

                                                             12
Magistrate, it is open to the High Court to quash the same

in exercise of inherent powers under Section 482.

13) In the case on hand, apart from specific allegations

about the transportation of Jaggery for preparation of

illicit distilled liquor, prosecution also placed reliance on

laboratory analysis report which mentions that the

transported Jaggery is fit for fermentation, producing

alcohol unfit for consumption.      In those circumstances,

whether the raw material in existence would be sufficient

for holding the accused persons concerned guilty or not

has to be considered only at the time of trial. Further, at

the time of framing the charge, it can be decided whether

prima facie case has been made out showing the

commission of offence and involvement of the charged

persons.   It is immaterial whether the case is based on

direct or circumstantial evidence.       That being so, the

interference at the threshold quashing the FIR is to be

exceptional and not like routine as ordered by the High Court

in the present case. It is not a case where it can be said that

                                                             13
the complaint did not disclose commission of an offence. The

acceptability of the materials to fasten culpability on the

accused persons is a matter of trial.

14)   In the light of the above principles and the materials

placed by the prosecution, we are satisfied that the High Court

was not justified in quashing the FIR in Crime No. 288/2002-

03 of Excise and Prohibition Station, Hazurabad, Karimnagar

District, accordingly the impugned judgment of the High Court

is set aside. We make it clear that we have not expressed any

opinion on the merits of the case except holding that

interference by the High Court at the threshold is not

warranted.     We further make it clear that it is for the

prosecution to establish its charge beyond reasonable doubt.

With these observations, the State appeal is allowed.

                                  ..........................................J.
                                  (P. SATHASIVAM)

                                 ..........................................J.
                                  (ANIL R. DAVE)
NEW DELHI;
JULY 15, 2010.

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