power u/s 482 of Cr.P.C.- allegations contained in the FIR do not constitute any cognizable offence
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
WEDNESDAY, THE 15TH DAY OF MARCH 2023 / 24TH PHALGUNA, 1944
CRL.MC NO. 8766 OF 2022
(AGAINST FIR NO.VC.06/2022/TSR OF VIGILANCE &
ANTI-CORRUPTION BUREAU, THRISSUR)
10. The scope and ambit of the power by the High Court under
Section 482 Cr.P.C. and/or under Article 226 of the Constitution of
India to quash the FIR/investigation has been expounded by the Apex
Court in a catena of decisions. In Kurukshetra University v.
State of Haryana (1977 KHC 711), the Apex Court observed and
held that inherent powers under Section 482 Cr.P.C. do not confer an
arbitrary jurisdiction on the High Court to act according to whim or
caprice; that statutory power has to be exercised sparingly, with
circumspection and in the rarest of rare cases. In State of
Karnataka v. L. Muniswamy and Others [(1977) 2 SCC 699],
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considering the scope of the inherent power of quashing under S.482,
the Apex Court held that in the exercise of this wholesome power, the
High Court is entitled to quash proceedings if it comes to the
conclusion that ends of justice so require. It was observed that in a
criminal case, the veiled object behind a lame prosecution, the very
nature of the material on which the structure of the prosecution rests
and the like would justify the High Court in quashing the proceeding
in the interest of justice and that the ends of justice are higher than
the ends of mere law though justice has got to be administered
according to laws made by the legislature. In State of West Bengal
& Others v. Swapan Kumar Guha & Others (AIR 1982 SC
949), the three Bench 0f the Apex Court laid down the following
principle:
" 21….the condition precedent to the commencement of
investigation under S.157 of the Code is that the F.I.R. must
disclose, prima facie, that a cognizable offence has been
committed. It is wrong to suppose that the police have an
unfettered discretion to commence investigation under S.157 of
the Code. Their right of inquiry is conditioned by the existence
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of reason to suspect the commission of a cognizable offence and
they cannot, reasonably, have reason so to suspect unless the
F.I.R., prima facie, discloses the commission of such offence. If
that condition is satisfied, the investigation must go on… The
Court has then no power to stop the investigation, for to do so
would be to trench upon the lawful power of the police to
investigate into cognizable offences."
In Madhavrao Jiwajirao Scindia and Others v.
Sambhajirao Chandrojirao Angre and Others [(1988) 1 SCC
692], it was held that while exercising inherent power of quashing
under S.482, it is for the High 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 a prosecution to
continue. Where in the opinion of the Court, chances of an ultimate
conviction are bleak and, therefore, no useful purpose is likely to be
served by allowing a criminal prosecution to continue, the Court may,
while taking into consideration the special facts of a case, also quash
the proceedings. In the celebrated decision State of Haryana v.
Bhajan Lal (1992 KHC 600), the Apex Court considered in detail
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the scope of the High Court’s powers under Section 482 Cr.P.C.
and/or Article 226 of the Constitution of India to quash the FIR and
referred to several judicial precedents and held that the High Court
should not embark upon an inquiry into the merits and demerits of
the allegations and quash the proceedings without allowing the
investigating agency to complete its task. At the same time, the Court
identified the following cases in which FIR/complaint can be
quashed:
“(1) Where the allegations made in the first information
report or the complaint, even if they are taken at their
face value and accepted in their entirety, do not prima
facie constitute any offence or make out a case against the
accused.
(2) Where the allegations in the first information report
and other materials, if any, accompanying the FIR do not
disclose a cognizable offence, justifying an investigation
by police officers under Section 156(1) of the Code except
under an order of a Magistrate within the purview of
Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the
FIR or complaint and the evidence collected in support of
the same do not disclose the commission of any offence
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and make out a case against the accused.
(4) Where the allegations in the FIR do not constitute a
cognizable offence but constitute only a non-cognizable
offence, no investigation is permitted by a police officer
without an order of a Magistrate as contemplated under
Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint
are so absurd and inherently improbable on the basis of
which no prudent person can ever reach a just conclusion
that there is sufficient ground for proceeding against the
accused.
(6) Where there is an express legal bar engrafted in any of
the provisions of the Code or the Act concerned (under
which a criminal proceeding is instituted) to the
institution and continuance of the proceedings and/or
where there is a specific provision in the Code or the Act
concerned, providing efficacious redress for the grievance
of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended
with mala fide and/or where the proceeding is maliciously
instituted with an ulterior motive for wreaking vengeance
on the accused and with a view to spite him due to private
and personal grudge.”
In State of A.P v. Golconda Linga Swamy (2004 KHC 1342),
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after considering the decision in Bhajan Lal (supra) and other
decisions on the exercise of inherent powers by the High Court under
Section 482 Cr.P.C., it was held that exercise of power under Section
482 of the Code is the exception and not the rule. In Ajay Mitra v.
State of Madhya Pradesh & Others [(2003) 3 SCC 11], the Apex
Court held that where the complaint or FIR does not disclose the
commission of any cognizable offence against the accused, the same
would be liable to be quashed. In Rukmini Narvekar v. Vijaya
Satardekar and Others (2009 KHC 240), it was observed that the
width of the powers of the High Court under S.482 of the Cr.P.C and
under Art.226 of the Constitution of India, was unlimited and that the
High Court could make such orders as may be necessary to prevent
abuse of the process of any Court, or otherwise to secure the ends of
justice. It was further observed, that under S.482 of the Cr.P.C, the
High Court was free to consider even material, that may be produced
on behalf of the accused, to arrive at a decision. In M/s.Neeharika
Infrastucture Pvt. Ltd v. State of Maharashtra & Others
(AIR 2021 SC 1918), it was held that when a prayer for quashing the
FIR is made by the alleged accused, the court when it exercises the
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power under Section 482 Cr.P.C., only has to consider whether the
allegations in the FIR disclose the commission of a cognizable offence
or not. It was further observed that the court is not required to
consider on merits whether or not the merits of the allegations make
out a cognizable offence and the court has to permit the investigating
agency/police to investigate the allegations in the FIR.
11. A careful reading of the above-noted judgments makes it
clear that the High Court should be extremely cautious and slow to
interfere with the investigation and/or trial of criminal cases and
should not stall the investigation and/or prosecution. However, when
it is convinced beyond any manner of doubt that FIR does not
disclose the commission of any offence or that the allegations
contained in the FIR do not constitute any cognizable offence or that
the prosecution is barred by law or where a criminal proceeding is
manifestly attended with malafides or where the proceeding is
maliciously instituted with an ulterior motive for wreaking vengeance
or that it is necessary to interfere to prevent abuse of the process of
the Court, the High Court is entitled to quash the FIR/investigation
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under the exercise of its wholesome power u/s 482 of Cr.P.C.