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Crl. M.C. No. 947/2012 Page 1 HIGH COURT OF DELHI
CRL.M.C. 947/2012
ABBAS ALI ..... Petitioner
Through: Mr. B.S. Chaudhary, Advocate
CRL.M.C. 947/2012
ABBAS ALI ..... Petitioner
Through: Mr. B.S. Chaudhary, Advocate
VERSUS
STATE & ANR. ..... Respondents
Through: Mr. Vinod Diwakar, Additional Public Prosecutor for State with SI
Deepak Mr. Pankaj Vivek, Advocate for respondent No.2
Through: Mr. Vinod Diwakar, Additional Public Prosecutor for State with SI
Deepak Mr. Pankaj Vivek, Advocate for respondent No.2
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR O R D E R 28.11.2013
Quashing of FIR No.216/1991, under Sections 420/468/447/34 of the IPC, registered at police station Narela, Delhi is sought in this petition on merits.
At the hearing, learned counsel for petitioner had submitted that petitioner was infact a witness in the charge-sheet filed and upon further investigation, he has been made an accused without there-being any material on record. It was pointed out that even the supplementary charge-sheet under Section 173(8) of the Cr.P.C. does not implicate petitioner, who was member of the Committee of Delhi Waqf Board. To seeking quashing of the proceedings arising out of the FIR in question, learned counsel for petitioner relies upon Apex Court’s decisions in
2013:DHC:6164 Crl. M.C. No. 947/2012 Page 2 Sushil Suri Vs. CBI (2011) 5 SCC 708 and Harshendra Kumar D. Vs.
Rebatilata Koley & ors. (2011) 3 SCC 351.
The opposition to this petition from the respondents is on the ground that in the face of copy of the supplementary charge-sheet, it cannot be said that no case is made out against petitioner. Attention of this Court is drawn to the following passage of the copy of the supplementary charge-sheet placed on record:-
“During the investigation, it has come to the knowledge that
Mr. Abbas Ali, son of Md. Ishaq R/o H.No. 27, Vill. Kureni
Narela Delhi too was the member of this Committee, who had sold-out the plot of kabristan and receipt the amount from those people. SI had made enquiry from said Abbas Ali, who accepted that he was secretary of the committee. And he had also sold the plot and received the amount, which was invested in the construction of mosque (Masjid). On being sold the authority of transferring the said land Mr. Abbas Ali accepted the guilty and made accused as number 153 without arresting.”
Upon hearing and on perusal of the charge-sheet/supplementary charge-sheet of this case and the decisions cited, I find that the inherent jurisdiction of this Court under Section 482 is to be sparingly and cautiously exercised. It has been so said by the Apex Court in Sushil Suri
(supra) in these words”-
“Section 482 CrPC itself envisages three circumstances under which the inherent jurisdiction may be exercised by the
Crl. M.C. No. 947/2012 Page 3 High Court, namely, (i) to give effect to an order under CrPC;
(ii) to prevent an abuse of the process of court; and (iii) to otherwise secure the ends of justice. It is trite that although the power possessed by the High Court under the said provision is very wide but it is not unbridled. It has to be exercised sparingly, carefully and cautiously, ex debito justitiae to do real and substantial justice for which alone the Court exists.
Nevertheless, it is neither feasible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction of the Court. Yet, in numerous cases, this Court has laid down certain broad principles which may be borne in mind while exercising jurisdiction under Section 482 CrPC.
Though it is emphasised that exercise of inherent powers would depend on the facts and circumstances of each case, but the common thread which runs through all the decisions on the subject is that the Court would be justified in invoking its inherent jurisdiction where the allegations made in the complaint or charge-sheet, as the case may be, taken at their face value and accepted in their entirety do not constitute the offence alleged. ”
When an alternate and efficacious remedy is available then jurisdiction under Section 482 of the Cr.P.C. is not be exercised. It is being so said in view of dictum of Apex Court in Padal Venkata Rama
Reddy Alias Ramu v. Kovvuri Satyanarayana Reddy & Ors. (2011) 12
SCC 437, which is as under: - Crl. M.C. No. 947/2012 Page 4
"It is well settled that the inherent powers under
Section 482 can be exercised only when no other remedy is available to the litigant and not in a situation where a specific remedy is provided by the statute. It cannot be used if it is inconsistent with specific provisions provided under the Code (vide Kavita v. State and B.S.Joshi v. State of
Haryana). If an effective alternative remedy is available, the
High Court will not exercise its powers under this section, specifically when the applicant may not have availed of that remedy."
Applying the dictum of the Apex Court in Sushil Suri & Padal
Venkata Rama Reddy (supra) as referred to hereinabove, this petition and the application are disposed of with liberty to petitioner to urge the pleas taken herein before trial court at the stage of hearing on the point of charge, as during the course of hearing it was brought to the notice of this
Court that this matter is now coming up before trial court on 6th December, 2013 for hearing on the point of charge. Trial court shall deal with the pleas raised on behalf of petitioner by passing a speaking and reasoned order. Till the hearing on point of framing of charge is concluded, personal appearance of petitioner be not insisted upon by trial court, provided petitioner is duly represented through counsel, who does not seek adjournment. If trial court finds that no case is made out against petitioner, then this order will not stand in the way of trial court to discharge petitioner and if trial court chooses to proceed against petitioner, then trial court shall obtain the presence of petitioner. Needless
Crl. M.C. No. 947/2012 Page 5 to say, petitioner shall be at liberty to raise the pleas taken herein at the appropriate stage at trial, if charges are already framed against petitioner.
This petition and the application are accordingly disposed of while refraining to comment upon merits, lest it may prejudice petitioner before the trial court.
(SUNIL GAUR)
Judge NOVEMBER 28, 2013 r
Quashing of FIR No.216/1991, under Sections 420/468/447/34 of the IPC, registered at police station Narela, Delhi is sought in this petition on merits.
At the hearing, learned counsel for petitioner had submitted that petitioner was infact a witness in the charge-sheet filed and upon further investigation, he has been made an accused without there-being any material on record. It was pointed out that even the supplementary charge-sheet under Section 173(8) of the Cr.P.C. does not implicate petitioner, who was member of the Committee of Delhi Waqf Board. To seeking quashing of the proceedings arising out of the FIR in question, learned counsel for petitioner relies upon Apex Court’s decisions in
2013:DHC:6164 Crl. M.C. No. 947/2012 Page 2 Sushil Suri Vs. CBI (2011) 5 SCC 708 and Harshendra Kumar D. Vs.
Rebatilata Koley & ors. (2011) 3 SCC 351.
The opposition to this petition from the respondents is on the ground that in the face of copy of the supplementary charge-sheet, it cannot be said that no case is made out against petitioner. Attention of this Court is drawn to the following passage of the copy of the supplementary charge-sheet placed on record:-
“During the investigation, it has come to the knowledge that
Mr. Abbas Ali, son of Md. Ishaq R/o H.No. 27, Vill. Kureni
Narela Delhi too was the member of this Committee, who had sold-out the plot of kabristan and receipt the amount from those people. SI had made enquiry from said Abbas Ali, who accepted that he was secretary of the committee. And he had also sold the plot and received the amount, which was invested in the construction of mosque (Masjid). On being sold the authority of transferring the said land Mr. Abbas Ali accepted the guilty and made accused as number 153 without arresting.”
Upon hearing and on perusal of the charge-sheet/supplementary charge-sheet of this case and the decisions cited, I find that the inherent jurisdiction of this Court under Section 482 is to be sparingly and cautiously exercised. It has been so said by the Apex Court in Sushil Suri
(supra) in these words”-
“Section 482 CrPC itself envisages three circumstances under which the inherent jurisdiction may be exercised by the
Crl. M.C. No. 947/2012 Page 3 High Court, namely, (i) to give effect to an order under CrPC;
(ii) to prevent an abuse of the process of court; and (iii) to otherwise secure the ends of justice. It is trite that although the power possessed by the High Court under the said provision is very wide but it is not unbridled. It has to be exercised sparingly, carefully and cautiously, ex debito justitiae to do real and substantial justice for which alone the Court exists.
Nevertheless, it is neither feasible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction of the Court. Yet, in numerous cases, this Court has laid down certain broad principles which may be borne in mind while exercising jurisdiction under Section 482 CrPC.
Though it is emphasised that exercise of inherent powers would depend on the facts and circumstances of each case, but the common thread which runs through all the decisions on the subject is that the Court would be justified in invoking its inherent jurisdiction where the allegations made in the complaint or charge-sheet, as the case may be, taken at their face value and accepted in their entirety do not constitute the offence alleged. ”
When an alternate and efficacious remedy is available then jurisdiction under Section 482 of the Cr.P.C. is not be exercised. It is being so said in view of dictum of Apex Court in Padal Venkata Rama
Reddy Alias Ramu v. Kovvuri Satyanarayana Reddy & Ors. (2011) 12
SCC 437, which is as under: - Crl. M.C. No. 947/2012 Page 4
"It is well settled that the inherent powers under
Section 482 can be exercised only when no other remedy is available to the litigant and not in a situation where a specific remedy is provided by the statute. It cannot be used if it is inconsistent with specific provisions provided under the Code (vide Kavita v. State and B.S.Joshi v. State of
Haryana). If an effective alternative remedy is available, the
High Court will not exercise its powers under this section, specifically when the applicant may not have availed of that remedy."
Applying the dictum of the Apex Court in Sushil Suri & Padal
Venkata Rama Reddy (supra) as referred to hereinabove, this petition and the application are disposed of with liberty to petitioner to urge the pleas taken herein before trial court at the stage of hearing on the point of charge, as during the course of hearing it was brought to the notice of this
Court that this matter is now coming up before trial court on 6th December, 2013 for hearing on the point of charge. Trial court shall deal with the pleas raised on behalf of petitioner by passing a speaking and reasoned order. Till the hearing on point of framing of charge is concluded, personal appearance of petitioner be not insisted upon by trial court, provided petitioner is duly represented through counsel, who does not seek adjournment. If trial court finds that no case is made out against petitioner, then this order will not stand in the way of trial court to discharge petitioner and if trial court chooses to proceed against petitioner, then trial court shall obtain the presence of petitioner. Needless
Crl. M.C. No. 947/2012 Page 5 to say, petitioner shall be at liberty to raise the pleas taken herein at the appropriate stage at trial, if charges are already framed against petitioner.
This petition and the application are accordingly disposed of while refraining to comment upon merits, lest it may prejudice petitioner before the trial court.
(SUNIL GAUR)
Judge NOVEMBER 28, 2013 r
JUDGMENT