High Courts cannot act as if having appellate jurisdiction and or conducting the trial when dealing with application for quashing the FIR: Supreme Court.

Feeling aggrieved  and dissatisfied , Appellant filed an appeal in the Supreme Court of India against the impugned judgment and order passed  High Court of Judicature at Allahabad quashing the entire proceedings of criminal case involving sections

147 (Punishment of rioting );

148 (Rioting armed with deadly weapon);

149 ( Common object);

406 (Punishment for criminal breach of trust);

 329 (Voluntarily causing grievous hurt to extort property); and

 386 (Extortion by putting a person in  fear of death or grievous hurt)of Indian Penal Code, 1860.

The Supreme Court of India held, the impugned judgment and order of the High Court quashing the criminal proceedings is unsustainable and accordingly deserve to be quashed and set aside and treated and confined the present appeal  to be the proceedings under Section 482, Code of Criminal Procedure, 1973 and directed that trial be conducted and proceeded further in accordance with law on its own merit on the basis of evidence.

                After scrutiny of the judgment, the Court observed that the High Court has grossly erred in quashing the criminal proceedings by entering into the merits of the allegations as if the High Court was exercising the Appellate jurisdiction and/or conducting trial. The High Court has exceeded its  jurisdiction in exercise of power under Section 482 Cr.P.C.

The Court reiterated the view held in case of  Dineshbhai Chandybhai Patel vs. State of Gujarat (2018 ) 3 SCC 104,  wherein it was held that in order to examine as to whether factual contents of FIR discloses any cognizable offence or not, the High Court cannot act like the investigating agency nor can exercise the powers like Appellate Court.

The High Court has erred in observing that original complaint has no locus simply on the premise that the complainant has not placed on record, the power of attorney along with the counter affidavit before the High Court. The Supreme Court observed that when the PoA is specifically stated in the FIR and that the PoA was executed on behalf of complainant and thereafter the investigating officer has conducted the investigation and has recorded the statement of the complainant, accused and the independent witnesses, thereafter the complainant is having the power of attorney or not is to be considered during trial.

The High Court has also failed to appreciate and consider that there are very serious triable allegations which are required to be gone into and considered at the time of trial. It also failed to notice the material collected during investigation.

                If the petition under under Section 482 Cr.P.C was at the stage of FIR in that case the allegations in the FIR/Complaint only are required to be considered and whether a cognizable offence is disclosed or not is required to be considered. However, when the statements are recorded, evidence is collected and the charge-sheet is filed after conclusion of the investigation/inquiry the matter stands on different footing and the Court is required to consider the evidence collected during the investigation. Even at this stage the High Court is not required to go into the merits of the allegations as if the court is exercising appellate jurisdiction and /or conducting trial- Supreme Court as held in a catena of judgments.

               

The High Court also recorded the findings that case for the offence under Sections 406 IPC is not made out. The Supreme Court observed that when the payment of 25 lakhs mentioned in the joint notarized affidavit is seriously disputed and even one of the cheques was dishonoured and according to the accused/respondent , property was handed over, which is disputed, it is inappropriate to opine that no case is made out under Section 406 of IPC as this should be considered during trial.

After considering the decisions of Dhruvaram Murlidhar Sonar (2019) 18 SCC 191 and State of Haryana vs. Bhajan Lal 1992 SCC 335,  the Hon’ble Supreme Court  held that exercise of powers under Section 482 Cr.P.C to quash the proceedings is an exception and not a rule.

 

                In view of the above reasons,  Justice Dr. Dhananjaya Y. Chandrachud and Justice M.R.Shah set aside the impugned judgment and order passed by the High quashing the entire criminal proceedings for being unsustainable.

 

Fact of the case

 

The appellant is a power of  attorney holder appointed by Munni Devi, the owner of a plot of land. Munni Devi wanted  to sell the said plot to one Mamta Gupta and entered into agreement to sell with buyer for a total sale consideration of Rs. 25,00,000. The buyer/respondent gave five cheques of 2 lakhs.  One of the cheques was dishonoured. Thereafter the buyer/respondent showed no interest to register the sale deed and told the appellant not to present the cheques.

When the complainant  went to the plot Respondent were present along with four other people outside  the tin shed which they had forcibly put lock on the room. When the complainant asked the respondent to open the lock, they started to abuse filthily and pushed and beaten with fist and threatened with knife to kill if he did not sign the blank paper.

The complainant filed a complaint before the Magistrate who  after perusal of the complaint observed that the police is required to investigate the same allowed the application under Section 156(3) of Cr.P.C.

 On the basis of the complaint investigation was carried out, recording of statement of the witnesses, complainant collecting the evidence and taking statement of independent was completed.

After due enquiry and having satisfaction that prima facie case is made out against accused under 147,148,149,406, 329 and 386 IPC, the IO filed chargesheet.

Case:

Kaptan Singh vs. The State of Uttar Pradesh and Others  (Criminal Appeal  787 of 2021)

Date of Judgment:  13.08.2021