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Shri Harischandra Lekhraj and anr. Vs. Shri Bhalchandra Naik - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Application (Main) No. 96 of 2008
Judge
Reported in2009(111)BomLR2263
ActsProbation of Offenders Act, 1956 - Sections 3; Prevention of Corruption Act, 1947 - Sections 5(1); Prevention of Food Adulteration Act, 1954 - Sections 7 and 16; Negotiable Instruments Act - Sections 138; Indian Penal Code (IPC) - Sections 120B, 149, 193, 199, 201, 283, 379, 341, 406, 420, 431, 447, 467, 504 and 506; Code of Criminal Procedure (CrPC) , 1973 - Sections 155(2), 156(1), 195, 195(1), 245 and 482; Constitution of India - Article 227
AppellantShri Harischandra Lekhraj and anr.
RespondentShri Bhalchandra Naik
Appellant AdvocateHaresh Jagtiani, Sr. Adv. and ;Parag Rao, Adv.
Respondent AdvocateR. Satardekar, Adv.
DispositionApplication dismissed
Excerpt:
- - the petitioners as well as the respondent have mining lease/mining concession of 2 adjacent mines, common boundary of which has caused serious disputes between them with regard to access to their respective mining areas. under order dated 7.2.2002, the respondent herein came to be convicted of the offences under sections 447, 506 and 379 of the indian penal code (ipc) upon the evidence led on behalf of the prosecution upon the complaint of the petitioners relating to the acts of trespass as well as intimidation and threat being accepted by the learned magistrate and upon the fact that the respondent herein (the accused therein)did not produce any documents to prove that the area where he extracted iron ore and loaded into trucks belonged to him in any capacity showing his.....roshan dalvi, j.1. this criminal application challenges the order of the learned judicial magistrate, first class (jmfc), sattari at volpoi, issuing process against the petitioners in a complaint filed by the respondent herein in criminal case no. 20/p/2005 and the order of the ad-hoc additional sessions judge, fast track court at panaji in criminal revision application no. 89 of 2007 dated 5.3.2008.2. the parties have been involved in a series of litigation by and between them essentially of civil nature pursuant to they being neighbours in their professional work. the petitioners as well as the respondent have mining lease/mining concession of 2 adjacent mines, common boundary of which has caused serious disputes between them with regard to access to their respective mining areas.3......
Judgment:

Roshan Dalvi, J.

1. This Criminal Application challenges the order of the learned Judicial Magistrate, First Class (JMFC), Sattari at Volpoi, issuing process against the Petitioners in a complaint filed by the Respondent herein in Criminal Case No. 20/P/2005 and the order of the Ad-hoc Additional Sessions Judge, Fast Track Court at Panaji in Criminal Revision Application No. 89 of 2007 dated 5.3.2008.

2. The parties have been involved in a series of litigation by and between them essentially of civil nature pursuant to they being neighbours in their professional work. The Petitioners as well as the Respondent have mining lease/mining concession of 2 adjacent mines, common boundary of which has caused serious disputes between them with regard to access to their respective mining areas.

3. This Application is not concerned with the legal rights, if any, of either of the parties in the mining lease/mining concession claimed by them. However, it would be important to set out and understand the various actions undertaken and orders obtained by both the parties since last 2 decades in respect of the rights claimed and the disputes that emanated for both of them.

4. The earliest dispute is reflected in a private Criminal Complaint filed by the Respondent in 1989 being private Criminal Case No. 40/P/1989 in the Court of JMFC, Sattari at Bicholim, Goa. In the order dated 30.6.1989, Petitioner No. 1 herein and one Shantaram Samant were discharged from the said case upon they giving undertaking to the Court not to interfere in the mining area claimed by the respondent called 'Poriem mine'. Criminal Case No. 40/P/89 stood dismissed on 7.8.2003. The Respondent herein filed Contempt Petition No. 10 of 1999 in the said Criminal Case No. 40/P/89. The Application of the Respondent for setting aside the dismissal order was rejected on 8.11.2004.

5. The Petitioners herein lodged the Complaint against the Respondent for having trespassed into the area of their mining Lease No. 39/53 granted to M/s. H.L. Nathurmal Mines in Survey Nos. 72 to 80 of village Harvalem called 'Harvalem Mine' i.e. the mining lease claimed by the Petitioners. Upon their complaint of trespass and intimidation, Criminal Case No. 13/S/ 96/A came to be filed in the Court of the JMFC at Bicholim, Goa. Under order dated 7.2.2002, the Respondent herein came to be convicted of the offences under Sections 447, 506 and 379 of the Indian Penal Code (IPC) upon the evidence led on behalf of the prosecution upon the complaint of the Petitioners relating to the acts of trespass as well as intimidation and threat being accepted by the learned Magistrate and upon the fact that the Respondent herein (the accused therein)did not produce any documents to prove that the area where he extracted iron ore and loaded into trucks belonged to him in any capacity showing his possession or his right therein or that he was operating that mine. The Respondent, being then 70 years of age, was released under Section 3 of the Probation of Offenders Act, 1956 after due admonition on 5.3.2002.

6. The Respondent herein filed yet another private Criminal Case being Criminal Case No. 143/ P/95, inter alia, against one Atchut Usgaonkar, who was the Constituted Attorney of the Petitioners herein, inter alia, for criminal trespass and theft. The process was refused to be issued by the learned JMFC on 31.3.1998 against the said Constituted Attorney of the Petitioners for want of any prima facie case in the complaint lodged by the Respondent and upon observing that the Respondent did not show any ownership rights or possession of the Poriem Mine in which he claimed to carry on certain mining operations for extracting iron ore under a mining concession bearing Title No. 4/59 as the Chairman and Managing Director of M/s.Dahej Minerals Ltd.

7. The Petitioners filed Regular Civil Suit No. 47/95/C in the Court of the learned Civil Judge, Junior Division at Bicholim, Goa, against the Respondent restraining him from interfering in their mining operations in Survey Nos. 72 to 80 at Oilem, Harvalem. They contended that they were the concession holders of Concession No. 39/53 in an area comprising 85.85 Hectares under the aforesaid survey numbers. The Petitioners set out how the Respondent was convicted and released on probation in the complaint lodged by the Petitioners since they had absolutely no right, title and interest in the said property and were held to have trespassed therein and interfered with the mining operations of the Petitioners. The Petitioners produced their documentary evidence containing certain photographs and certain Powers of Attorney for operating the mining lease. The Application for temporary injunction was dismissed by the Civil Judge, Junior Division at Bicholim, Goa on 14.7.2005, as they failed to show threats of the Respondent to dispossess them from their mining area though it was observed that they had shown their title and possession in the mining operations claimed by them.

8. The present complaint, in which process came to be issued, was filed by the Respondent herein on 28.9.2005 for an incident stated to have taken place on 18.09.2005 soon after the said Interim Injunction Application was refused by the Civil Court. In the Criminal Complaint, the Respondent, inter alia, alleged that there was a public road to go to his mine as shown in the plan annexed to the complaint. It was further alleged that the Petitioners herein, who claimed a mine which is called 'Harvalem Mine', were creating problems and involved in criminal acts against the Complainant. The criminal acts, which were alleged, were illegally restraining the Respondent herein by blocking the public road which was the only road giving him access to his mine. How the blockage was made has been set out. The verification statement of the Respondent herein as the Complainant in Complaint No. 20/P/05 came to be recorded on 25.10.2005. Statement of two witnesses on behalf of the Respondent, as the Complainant therein, came to be recorded on 28.10.2005. The complaint remained at that until the order of issuing process was passed by the learned JMFC, Sattari on 21.9.2007 against the Petitioners herein.

9. In the meantime, the Respondent herein filed a Writ Petition in this Court being Writ Petition No. 314 of 2004 claiming certain environmental hazards essentially against the Petitioners (Respondent Nos. 6 and 7 therein) in which restraint order was refused to the Respondent herein on 17.10.2005. 10. From the order refusing to grant injunction dated 14.7.2005 of the Civil Judge, Junior Division, Bicholim, Goa, the Petitioners herein filed Miscellaneous Civil Appeal No. 81 of 2005 in the Court of the District Judge (Fast Track Court, Mapusa). The order of the JMFC was set aside, the Appeal was allowed with costs of Rs. 500/- and the Respondent herein came to be restrained from interfering with or entering into the property claimed by the Petitioners under the mining concession in Harvalem village. The order of injunction came to be passed on 21.6.2007. The learned District Judge has considered the case of the Petitioners as concession-holders in the property bearing Survey Nos. 72 to 80 at Oilem, Harvalem, Goa since 1955. The learned Judge also considered the concession of the Petitioners herein that the Respondent purported to have mining activities in village Poriem, Taluka Sattari, though they had not carried out the mining operations for last 15/20 years. The learned Judge noted the admission of the Respondent herein about renewal of the lease initially granted to the predecessor-in-title of the Petitioners, though he contended that renewal was granted by fraud. The learned Judge considered the aforesaid Writ Petition filed by the Respondent in which the lease in favour of the Petitioners was considered by this Court (in their capacity as Respondent Nos. 6 and 7 therein). The learned Judge also considered the initial conviction of the Respondent in Criminal Case No. 13/S/96/A and the case of further trespass made out by the Petitioners in the said Suit. The learned Judge, therefore, considered that the Respondent had no right of whatsoever nature in the mining concession relating to the Petitioners and accordingly, restrained him from interfering therein.

11. In the meantime, the Respondent had filed another Suit against the Petitioners herein being Special Civil Suit No. 52 of 2006 in the Court of Civil Judge, Senior Division, Bicholim, Goa, setting out his rights under mining Concession No. 4/59 in the mining at Poriem, Sattari, Goa. The Respondent alleged that there was a public access road to the said mine shown in the map attached to his Suit. It was contended that the Petitioners herein had a mining lease next to the mining concession of the Respondent being Concession No. 39/53 for the property situate in Oilem, Harvalem, Goa. It was further contended that the Respondent's mining concession and the Petitioners' mining lease were separated by the boundary line of village Poriem and village Harvalem, village Poriem being to the North of village Harvalem with only an access road to the mining concession claimed by the Respondent. It was contended that the said road was found in village Sanquelim to Honda passing along the Eastern and Southern boundary of the Petitioners' lease area. It was further contended that the said road was a katchha road having 6/8 meters. That was a public road situate about 25 meters away from the boundary of the Petitioners' lease area. It was also contended that public nature of the road was recognized and confirmed by Public Authorities and the Government. The cause of action in the Suit was the obstacles put on the said road by the Petitioners herein disturbing the Respondent's access. It was contended that the Petitioners put fencing and constructed a structure of permanent nature to keep their guards therein illegally and in violation of the conditions of lease. The nature of the blockage on the public road, which caused obstruction to the Respondent herein from having access, was set out in the Respondent's suit. The Respondent applied for a declaration that the Petitioners herein were not entitled to obstruct or object to the free use of the suit public road and injunction restraining the Petitioners herein from obstructing the Respondent's access. This Suit came to be filed on 23.11.2006 after the Respondent failed to obtain any restraint order in his Writ Petition against the Petitioners herein. On 20.6.2007, the learned Civil Judge, Senior Division at Bicholim, Goa, refused the order of temporary injunction to the Respondent and dismissed his Application. The contention that the road leading to the mining concession of the Respondent was a public road was negatived. It was observed that the road claimed by the Respondent herein belonged to the Communidade of Harvalem. A letter of the Chief Officer of Sanquelim Municipal Council, stating that they had neither constructed nor maintained the said road, came to be considered. Hence, the case of the Respondent that it was a public road was negatived. Even the fact that the Respondent herein had no work concession for the past several years and hence there was no use of the suit road to them was observed.

12. The very next day i.e. on 21.6.2007, the learned District Judge set aside the order of the learned Civil Judge, Junior Division dated 14.07.2005 and granted an injunction in favour of the Petitioners against the Respondent's interference in their mining activities.

13. There have been no Appeals filed by the Respondent herein either from order refusing injunction to the Respondent dated 20.6.2007 in his Suit being Special Civil Suit No. 52 of 2006 or from the order granting injunction by the learned District Judge on 21.6.2007 in the Suit filed by the Petitioners herein being Miscellaneous Civil Appeal No. 81/2005 in Regular Civil Suit No. 47 of 1995. The fact that the access road claimed by the Respondent was not a public road and the fact that the Petitioners had a valid lease which they operated in the mining lease claimed by them in village Harvalem, came to rest.

14. In this scenario and at this juncture, within a month of the aforesaid two orders of injunction being passed by the two competent Courts, the Respondent obtained the order of issuing process in the criminal complaint filed by him since as far back as in 2005 upon the incident alleged to be of 18.9.2005 and upon the complaint being verified by the Petitioners on 25.10.2005 and two other witnesses on 28.10.2005.

15. It is contended on behalf of the Petitioners that the process has been mechanically issued by the learned Magistrate upon mere oral statements of the Respondent corroborated by two witnesses. It may, at once, be stated that though in the normal course the statements made and verified by the Respondent herein as the Complainant therein and corroborated by his two witnesses would be sufficient to issue process, it is argued that in this case the Respondent herein got the process issued upon statements which were false to his knowledge and upon suppression of the result of various litigations between the parties with regard to the same subject matter.

16. Indeed, it is seen that there have been criminal complaints and cross complaints, civil suits and cross suits filed by both the parties. The very first Complaint No. 40/89 resulted in an undertaking, inter alia, by Petitioner No. 1 that they would not interfere in the activities of the Poriem mine claimed by the Respondent herein. Indeed, the Petitioners even now do not claim any rights in the Poriem mine. There would be little reason for the Petitioners to go to the Poriem mine. Their statement that they had no concern with the mine had been recorded in the initial order of the learned JMFC, Sattari, dated 30.6.1989 itself. It is not even alleged by the Respondent that the Petitioners claimed any interest in the said mine. Even the Contempt Petition taken out by the Respondent herein in the said Criminal Case No. 40/89 came to be dismissed and remained at that. Instead the complaint of the Petitioners herein under Criminal Case No. 13/S/96 resulted in conviction of the Respondent. Because of his age, he was merely admonished and released under Section 3 of the Probation of Offenders Act on 5.3.2002. The Respondent's Criminal Case No. 143/P/95 resulted in even process being refused to be issued against the Constituted Attorney of the Petitioners on 31.3.1998. The Respondent's Writ Petition No. 314 of 2004 resulted in refusal of any restraint order against the Petitioners herein who are Respondent Nos. 6 and 7 in that Writ Petition on 17.10.2005. The Respondent's Civil Suit No. 52 of 2006 resulted in an interim order of injunction being refused to him by the learned Civil Judge, Senior Division, Bicholim, Goa on 20.6.2007. The Petitioners' Regular Civil Suit No. 47 of 1995 resulted in an injunction order in Miscellaneous Civil Appeal No. 81 of 2005 by the learned District Judge, Fast Track Court, Mapusa on 21.6.2007. All these orders have not been challenged further. Despite these orders passed in October 2006 and June 2007, the Respondent sought to prosecute his Criminal Case No. 20/P/05 in September 2007. None but the Respondent knew the whole truth. None but the Respondent was bound by the order of injunction against him and had knowledge of the refusal of the order of injunction as well as any restraint order against him.

17. The Petitioners are rather agitated that the Respondent could take recourse to law in so abusive a manner. The Petitioners filed a Revision against the order issuing process on 10.12.2007. By the order dated 5.3.2008, the Revision came to be rejected upon it being seen that the process was issued since a cognizable offence was made out. The Petitioners have set out the above facts in an additional Affidavit filed by Petitioner No. 1 in this Application quashing the aforesaid two orders issuing process and rejecting the Revision. It is argued on behalf of the Petitioners that the inherent powers of the Court under Section 482 of the Criminal Procedure Code are required to be invoked to quash the Criminal Complaint itself.

18. The learned Magistrate has issued process upon finding sufficient grounds for proceeding with the complaint of the Respondent under Sections 341, 431, 504, 506 and 283 read with Section 149 of the Indian Penal Code.

19. The essential case of the Respondent in the criminal complaint is that he was prevented from having an access from the public road by the acts alleged by him in the complaint. It is argued on behalf of the Petitioners that the very basis of the complaint would fall upon it having been seen that the said road was not a public road at all. It is argued that the Petitioners would certainly be entitled to restrain the entry of the Respondent in their private road passing through the mining concession of the Petitioners. In the additional Affidavit of Petitioner No. 1, it is stated that there were certain letters issued by the Joint Directorate of Industries and Mines as well as other Public Authorities showing that the Respondent was not granted licence for extraction of ores in the concession claimed by the Respondent. Mr. Jagtiani also relied upon the letter issued to the Petitioners by the Sanquelim Municipal Council that the road claimed by the Petitioners was not constructed or maintained by the Council. He contended that these documents also would show total lack of any right, title and interest of the Respondent in the mining concession claimed by the Respondent as well as the fact that the access road claimed by the Respondent was not a public road and, therefore, the private road of the Petitioners within the mining concession of the Petitioners. Consequently, he argued that the process issued by the learned Magistrate upon the knowledge of these facts by the Respondent in the complaint of the Respondent required to be quashed as the very complaint smacked of abuse of legal process which was upon the statements false to the knowledge of the Respondent making them on oath.

20. The abuse in this case is alleged upon facts. The contents of the complaint, the verification statements as well as the statements of witnesses would, therefore, require to be ascertained. Criminal Case No. 20/P/05 of the Respondent shows the statement of the Respondent that he is the owner in possession of the mining concession PC No. 4/59 at Poreim village, Sattari Taluka, Goa, for 25 years which is a public road to go to the mine. The Petitioners claim a mine called 'Harvalem mine'. They are creating problems and are involved in criminal acts, though they are legally not owners or in possession of Harvalem mine. The incident of 18.9.2005, which is set out, shows that the Respondent was illegally restrained from going to the mine by blocking public the only road leading to the mine by putting iron bars across the road, dumping stones and digging trenches. Criminal intimation and threat is alleged against certain other accused at the instance of the Petitioners herein.

21. The verification statement of the Respondent herein shows the same facts stated on oath as also the fact that the road, which has been blocked, forms the boundary line of villages Poreim and Harvalem. The statement of witness No. 1 shows that on the date of the incident, he went with the Respondent and others on the said road when they were illegally restrained by the public road being blocked by iron bars put across the road and that 'the accused' (there are 6 accused in the complaint, including 2 Petitioners) came to assault to them and all the accused threatened assault. The verification statement of the second witness shows that he was the Respondent's driver and that on the date of the incident, he was proceeding in his vehicle on the public road with the Respondent and others when they were restrained by illegally putting iron bars leading to the mine to block the road. The accused also threatened assault and tried to assault them. Both the witnesses also deposed about certain prior incidents when the accused tried to assault them and damage their car. It is upon this material that the process is issued. It is upon this material that the learned Magistrate has found sufficient grounds for proceeding under the aforesaid sections. The learned Magistrate had no means of knowing whether the road on which the incident took place was a public or a private road. The learned Magistrate also had no means of knowing any prior litigations, civil or criminal between the parties and the orders passed therein.

22. Going through the aforesaid chronology, it becomes clear that the Respondent himself knew the progress of the various litigations and result, though that was not known when the complaint was filed on 28.9.2005. Since all the relevant orders have been passed in October 2006 and June 2007, it was known to the Respondent when the process was issued. It has to be considered whether in this scenario the process issued by the Magistrate upon the complaint filed and the verification statement made about 2 years before the process came to be issued can be quashed by the High Court exercising inherent powers, including the power of superintendence over the subordinate Courts to prevent abuse of legal process. It may, at once, be stated that upon reading the complaint and the verification statement as well as the statements of the two witnesses, a cognizable offence is certainly made out. This would merit process being issued in the normal course. Upon such process it is for the accused to appear before the learned Magistrate and stand the trial. Of course, it would be only upon the prosecution evidence being led that the accused would be entitled to lead his own evidence in view of the judgment of the Supreme Court in the case of State of Orissa v. Debendra Nath Padhi : AIR2005SC359 in which the judgment in the case of Satish Mehra v. Delhi Admn. : (1996)9SCC766 has been set aside and which shall be referred to presently.

23. This case is not one in which the complaint on the face of it does not exhibit the cognizable offence and hence would require an order of rejection of the process being issued by the learned Magistrate. This is the case in which, from the material relied upon by the accused more specially the orders of the District Court as well as the High Court, which have come to be final, that the case of the complainant may stand dismissed or rejected. Even the orders in civil proceedings being the order in the Writ Petition dated 17.10.2005 refusing a restraint order, for want of alleged environmental pleadings obtained, inter alia, against the Petitioners herein to work the mining lease or the orders of the Civil Courts granting and refusing injunction to the Petitioners and the Respondent herein respectively upon seeing the respective prima facie cases of the parties, are only prima facie. Though they have become final pending the respective suits as also the writ petition, there may be more material that the Court may consider whilst passing the final reliefs in each of them. Besides, the documents of which a reference is made in the further Affidavit of Petitioner No. 1 in this Application are letters or certificate of Public Authorities which would require to be proved at the stage of final hearing of the suits. It may be mentioned that neither a prima facie view of the Court nor the letters/certificate relied upon by the Petitioners constitute conclusively proved unimpeachable evidence produced by the Petitioners in their capacity as the accused in the criminal complaint. That would merit a view that the criminal complaint based upon a single incident which is alleged to have taken place on 18.9.2005 would stand disproved by either the orders passed or letters/certificate relied upon by the Petitioners. It is upon such facts that this Court has to consider the Application urged by the Petitioners to pass an order to quash a criminal proceeding exercising its inherent powers. It need hardly be stated that inherent powers must be cautiously exercised as they would put an end to the criminal machinery which has been put into motion by a citizen of this country to redress a criminal wrong done to him. Indeed, if the initiation of the criminal process itself is an abuse of the Court, the Court would have an inherent power to put an end to the abuse by quashing that process.

24. The facts of this case have shown that there is but one road which gives access to the Petitioners as also the Respondent to their respective mining concessions/mining lease. The Petitioners have nothing to do with the mine claimed by the Respondent. The Respondent cannot enter upon the mining lease area of the Petitioners. That area is contained in Survey Nos. 72 to 80 of village Harvalem, Bicholim, Goa. The documents annexed to the applications how that the Respondent's mine is to the North of the Petitioners' mine. The road runs to the South and East of the Respondent's mine. The road is a katchha road with a width of 6/8 feet and is 25 feet in length. It meets another road further up. The Petitioners contend that it is a private road. Mr. Jagtiani argued that if the Respondent seeks to enter upon that private road, the Petitioners would be entitled to prevent such entry as that would tantamount to trespass over the Petitioners' property. Whether or not the road claimed by the Petitioners to be the private road and prima facie seen to be so is within the Petitioners' mining lease area has not been distinctly shown by the Petitioners. Even in this Application, reliance is only upon the orders of injunction, both granting and refusing injunction dated 20.6.2001 and 21.6.2001 in the suits filed by the Respondent and the Petitioners, respectively. Until it is conclusively proved that the said road is within the Petitioners' mining lease area or that it is otherwise a private road owned by the Petitioners, the access claimed by the Respondent cannot be disallowed by any Court. Consequently, if the acts alleged by the Respondent in his Criminal Complaint No. 40/P/89 and the corroborative statements of his witnesses can be rejected outright only if unimpeachable evidence that the road was a private road was first shown. This is more so in view of the specific statement made in the criminal complaint as well as in the verification statement of the Respondent as also his driver that that road is a public road and is used by the public. At the time of making the statement in the criminal complaint as well as in the verification statement as also in the witnesses' statement in September/October 2005, there was no observation or order of any Court even prima facie that the said road was a public road. Merely because the process has been issued by the learned Magistrate in September 2007 in the complaint filed in September 2005 when two orders prima facie held that that was a public road, the process cannot ipso facto stand vitiated. Of course, the learned Magistrate would consider during the length of the proceedings of the criminal trial the fact about the type of road, upon which the incident allegedly took place. The Petitioners herein, as the accused in that case, would be entitled to cross-examine the Respondent and his witnesses. Mr. Jagtiani argued that the Petitioners do not want such privilege. He further argued that the plethora of material before the Court (which has been enumerated hereinabove) shows a clear case of abuse which can be halted by the Court by exercising its inherent power. It would have to be seen whether the exercise to halt a criminal process which has begun even upon being satisfied that the complainant may not have any case on merits or a chance of any victory in the proceedings would itself be so abusive as to send out a wrong signal to the accused who refused to submit to the authority of law in a proceeding, though otherwise frivolous or false but to seek, without the mandatory submission to authority of law to have the process of law itself scuttled.

25. The jurisprudence relating to the ambit of inherent powers of the Court and the scope of this exercise have been laid down since decades from the judgments brought to my notice by the learned Advocates of the parties and I will consider the same chronologically. The position that emerges in a case of this kind would have to be seen.

26. In the case of Madhukar Purshottam Mondkar and Anr. v. Talab Haji Hussain and Ors. : AIR1958Bom406 , Chief Justice Chagla (as he then was) considered the ambit of such powers thus:

It is well settled that when you have a specific provision in a law enjoining upon a Court to do something or not to do something,then the Court cannot go contrary to the mandate of the Legislature by relying upon its inherent power. But it is equally well settled that no Legislature and no law can contemplate every situation and every eventuality and the best drafted of laws might have some lacuna. It is to meet with those unforeseen cases and situations and to make good the lacuna if they exist that a Code of Criminal Procedure reserves to a Court inherent powers.

27. In the case of Chandrapal Singh and Ors. v. Maharaj Singh and Anr. : 1982CriLJ1731 , the Court considered a fit case to invoke its jurisdiction under Section 482 to quash the proceedings of the learned Judicial Magistrate, who, it was held, could not have taken cognizance of the complaint as filed which tantamounted to an abuse of law. That was a case of a complainant who had filed earlier proceedings against the accused which he had lost. The refrain of the Supreme Court in the opening paragraph, which has come to be reiterated in judgments later also, was contained in the following words:

Desai, J.- A frustrated landlord after having met his waterloo in the hierarchy of civil courts, has further enmeshed the tenant in a frivolous criminal prosecution which prima facie appears to be an abuse of the process of law. The facts when stated are so telling that the further discussion may appear to be superfluous.

In that case, a tenant vacated the premises. It was then locked. It was open for allotment to the accused. The accused was also a tenant of the same landlord. He had adjacent premises. He applied for allotment of the vacated premises. He was alloted the premises by the Rent Control Officer. The Additional District Judge confirmed the order of allotment. Some of the landlords filed a criminal complaint for offences alleged to have been committed by the tenant who was allotted the premises under Sections 193, 199 and 201 of the IPC. It was contended that the Chief Judicial Magistrate could not take cognizance of the offences under the provisions contained in Section 195(1)(b)(i) of the Criminal Procedure Code, 1973, since no complaint by the Court before which the offences were stated to have been committed under Section 199 was made. The High Court was moved to invoke its inherent powers under Section 482 since the process which was issued without following the provisions of Section 195 of the Criminal Procedure Code for offence, interalia, under Section 199 of the IPC, was stated to be an abuse. The false evidence stated to have been given by the tenant in the judicial proceedings before the Rent Controller was not shown as per Section 193 of the IPC. The false statement made under Section 199 was also not shown. The disappearance of evidence could also not be deciphered from the complaint. For taking cognizance of the false statement made in any document receivable in evidence or in any oral evidence the procedure contemplated in the complaint to be filed by the Judicial Officer before whom such false statement was made was not followed. The Supreme Court went through the facts of the case before the Rent Control Officer as well as the Additional District Judge and the contention of the parties thereto. The Supreme Court did not find any false statement made on oath except that a particular statement of the tenant was not accepted as credible evidence in the proceedings. The Supreme Court observed that no single averment in the Affidavit of the tenant is shown to be false. The Supreme Court held that in a case where prosecution has to proceed for an offence committed under Section 199, the complaint must specify whatever was the statement which was false as stated by a witness or found in some document showing that the two situations cannot co-exist before such a statement can be attributed to any person as being false to his knowledge. If an evidence merely does not inspire confidence looking to the other relevant evidence in the case, it would not be a sufficient yardstick to dub it as false. All false statements must stand out glaringly to the knowledge of the person making it. Hence, the Supreme Court held that no case was shown in the complaint for proceeding under Section 193 or 199. The Supreme Court further observed that it had gone through the entire complaint and did not find a single word as to what evidence was destroyed by the tenant for meriting a process for a complaint under Section 201 of the IPC 'In the whole complaint, there is not a slightest whisper as to what evidence was available which the appellants destroyed.' Hence upon seeing that the entire complaint read as a whole did not show the commission of the offences alleged to have been committed, the Supreme Court observed that chagrined and frustrated litigants should not be permitted to give vent to their frustration by cheaply invoking jurisdiction of the criminal court. The complainant, who was an Advocate and lost in two Courts below, rushed to the Criminal Court when the suit between the parties was pending. The Supreme Court concluded that that was an abuse of the process of law and quashed the complaint.

Upon reading the complaint of the Respondent in the present case together with his verification statement on oath and the statement of the two witnesses examined by him an incident which transpired on a given day at a given place involving, inter alia, the Petitioners herein came to be made out. For that particular incident, there is nothing shown which would conclusively prove that the incident never took place. The learned Magistrate, in this case, issued process based upon that solitary incident. The criminal trial would proceed upon proof of the facts stated to Court on oath with regard to that incident. The witnesses would be crossexamined on behalf of the Petitioners herein on that incident. Whether or not the road on which the incident took place was a public or a private road may be elucidated in the evidence. It would matter little whether or not the Petitioners or the Respondent had legal right, title and interest to the property claimed by them. What would be material in the criminal trial would not be either the legality of their mining lease or mining concession but only the incident that took place for the charge to be brought home. Upon reading the complaint, therefore, unlike in Chandrapal Singh's case (supra), it cannot be said that the mere issue of process is an abuse of legal process, the ultimate fate of the complaint notwithstanding.

28. In the case of State of Haryana and Ors. v. Bhajanlal and Ors. : 1992CriLJ527 , the parameters of the exercise of inherent powers of the High Court were laid down by setting out 7 specific rules. That was the case registered under Section 5(1)(e)of the Prevention of Corruption Act, 1947, upon the charge of the Chief Minister having disproportionate assets which came to be registered and sought to be investigated post haste. Upon the Petition filed by the Chief Minister for quashing the complaint against him on ground of malafides, it was held that it was not liable to be questioned on an unsubstantiated plea of malafide. After considering a number of judgments, the 7 rules to guide the High Court in myriad such cases were laid down thus:

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 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 noncognizable 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 concerned Act (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 concerned Act, 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.

It need hardly be mentioned that the first 6 points would not be applicable to this case. It has been held in the said judgment that only alleging malafides against the accused is not enough. If the proceeding is shown to be maliciously instituted with an ulterior motive to wreak vengeance and to spite the accused, the High Court may intervene. This proceeding was initiated in 2005. The parties were already litigating. However, the litigation essentially contained in the earliest criminal complaint of the Respondent in which the Petitioners had given undertaking not to interfere. A Civil Suit being Regular Civil Suit No. 47 of 1995 was filed by the Petitioners. The Interim Application was dismissed on 14.7.2005, though the Petitioners' legal right was shown but the threats by the Respondent were not prima face shown. Soon thereafter this complaint came to be filed. Mere filing of this complaint cannot be stated to be with an ulterior motive to wreak vengeance because until then all that the Petitioners had done was to give undertaking in the Respondent's complaint and to fail to obtain an interim order in their own suit. Besides, this complaint related to a separate distinct incident. Both the parties were using the same access road as shall be presently seen. Both of them claimed rights thereon. Both disputed the rights of the other. The criminal complaint was filed upon what the complainant believed to be true. Even if it may turn out to be untrue, it cannot by itself, be taken to be maliciously instituted with an ulterior motive to wreak vengeance or spite the Petitioners. It would take its own course upon the evidence to be led which the complainant and his witnesses have exposed themselves to and which would result in their cross-examination which they would be compelled to face.

29. In the case of Pepsi Foods Ltd. and Anr. v. Special Judicial Magistrate and Ors. : 1998CriLJ1 , the Supreme Court quashed the complaint against some of the accused. The complaint was filed under Section 7 read with Section 16 of the Prevention of Food Adulteration Act, 1954. There were as many as 12 accused. The complainant ordered a bottle of a soft drink. The complainant felt nauseated. He thereafter fell ill. He found some white particles in the drink. The complaint was filed, inter alia, against the supplier the distributor of the drink, the manufacturer of the bottle, the marketeer of the product, bottler of the beverage, etc. The manufacturer of the bottle, who had nothing to do with the product that the bottle contained, sought to have the process quashed. The complaint as well as the evidence showed adulteration of the product alone. The test for quashing the process, which was applied, was that when the allegations made in the FIR or the complaint, even if taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out the case against the accused, the complaint must be quashed as such a complaint would tantamount to an abuse of process of law by inferior Courts and the High Court by way of its power of superintendence under Article 227, which is of both administrative and judicial nature, must see that stream of administration of justice remains clean and pure. However, the High Court must exercise its jurisdiction sparingly with care and caution to invoke its power only in appropriate cases and to keep the subordinate Courts within the bounds of their authority. It must not tantamount to an appeal in disguise or result in rehearing of the issues raised in the proceedings. It must only see that the tribunals function within the limits of their authority. It must be resorted to only for correcting some grave errors. It has been observed by the Supreme Court in that case that summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. The mere fact that the complainant and the two witnesses have made statement is not enough. The Magistrate has to apply his mind to the facts of the case and the law applicable. He has to examine the nature of the allegations made in the complaint and the oral and documentary evidence in support thereof. He has to consider whether that evidence is sufficient for the complainant to succeed in bringing the charge home to the accused. He must scrutinise the evidence, put questions to the complaint, elicit answers and examine whether an offence has been committed at all. If the complainant does not make out any case against the accused, the accused cannot be made to undergo the agony of the criminal trial. The record must show that such a case is made out. The complaint must not be so absurd or inherently improbable, on the basis of which no prudent man can ever reach a just conclusion that there could be any sufficient ground for proceeding against the accused. The Supreme Court held that there was absolutely no case made out which would justify such a conclusion of having any sufficient ground for proceeding against the accused who was the manufacturer of the bottle and not the drink which was adulterated. The Supreme Court further observed that on a discharge application or an application for recall of the process under Section 245 of the Criminal Procedure Code, the Magistrate would not come to any different conclusion and would find the charge to be groundless since no case is made out against the accused, who was the manufacturer of the bottle under Section 7 of the Prevention of Food Adulteration Act, 1954. The Supreme Court considered that the complaint merely showed that that accused had only given their brand name for bottling the beverage. The complaint did not show the role of that accused in the manufacture of the beverage which was adulterated. Hence only because the accused was a manufacturer of the bottle, no case of adulteration could be made out against such accused. Hence it was held that issue of process was an abuse of the legal process against such accused. The complaint came to be quashed not against all the accused but only against the manufacturer of the bottle.

A reading of the complaint in this case itself cannot drive any Magistrate to conclude that the incident alleged could never have taken place. Besides, the Magistrate would never know whether or not the place of the offence was a public or a private access road. The Magistrate may further have to consider, which can be done only upon the trial, whether the force used for prevention of any trespass on a private road belonging to the accused was right or more than sufficient as to tantamount to a criminal offence. It is only upon the trial that the Magistrate may be able to consider the credibility or the worth of the oral evidence of the complainant as well as his witnesses to accept or reject such evidence. From a reading of the complaint itself, it appears neither absurd nor abusive of legal process. It does not show the transgression of duties of the Magistrate. It does not show perversion of the stream of justice; it does not show the Magistrate going outside the bounds of his authority. Nay, it does not even show any apparent error or even a non-application of mind. It shows some cognizable offence to have occurred which ultimately may end in nothing but that does not matter. At the stage of issue of process, only the most prima facie evidence is to be seen. No complainant can be withheld from entering a Court of law upon a prima facie offence being shown.

30. The case of G. Sagar Suri and Anr. v. State of U.P. and Ors. : 2000CriLJ824 was the one of lodging a complaint under Sections 406 and 420 of the IPC after a previous complaint under Section 138 of the Negotiable Instruments Act came to be filed and was pending upon the same transaction. The complaint showed how by misrepresentation by the accused the complainant was duped. The complainant was a financial institution. It had granted a loan to a limited Company. There were several directors of the Company. The initial complaint under Section 138 of the Negotiable Instruments Act had not implicated the accused in that case. After filing that complaint the accused came to be implicated on the ground that they were the directors in management of the Company. A 'mis-happening' was set out. The essential transaction was the dishonour of the cheque alone in both the complaints. The accused, who was the director, was stated to be directly responsible and liable for all the activities and affairs of the Company carried out in the normal course of the business in which they participated. They were stated to have full control over the day to day affairs of the Company. It was seen that charge-sheet was not filed against the other directors and that that accused in the case were not implicated earlier. Though the accused could have been discharged by the Magistrate, it was held that a criminal complaint was distinctly made to coerce the accused who were some of the directors to refund the money of the Finance Company. It was further held that a transaction of a civil nature was given the cloak of the criminal offence. It has been observed that criminal proceedings are not short-cut of the other remedies available in law. The complainant Company itself admitted that the Appellants were not the directors of the Company but only the authorised signatories. The only role attributable to them was that they represented the Company to obtain the loan but their precise role was not set out; what were their misrepresentations made was not stated; how the Finance Company was duped was not shown. The transaction was in the normal course of the business of the Finance Company to accept deposits, pay interest, give loans and earn interest. An attempt at only roping in all the members of the family was seen. The entire exercise was held to be an abuse of process.

It must be appreciated that the fact that an earlier complaint under Section 138 of the Negotiable Instruments Act was filed was an unimpeachable fact. The complainant could not have denied it. It was admitted. The second complaint for the same transaction under other, more serious offences, would, therefore, essentially not lie. In this case, the other complaints earlier made or civil suit earlier filed admitted by the Respondent herein had nothing to do with the incident of 18.09.2005. What those criminal complaints as well as civil suits would conclusively prove is not known; no trial has proceeded; no final finding is arrived at. In fact, in the first complaint of the complainant, the accused have undertaken not to interfere with the complainant in his mining work in Poriem mine. Of course, no case would be made out against the Petitioners in this criminal complaint based upon that undertaking. Mere earlier proceedings in this case would not show an abusive process in the present complaint.

31. In Criminal Revision Application No. 57 of 2006 (Shri Querobino C. Dias v. Shri Vincent Rodricks, order passed by learned Single Judge dated 1st February 2007), a complaint filed, inter alia, for the offence of conspiracy under Section 120B of the IPC came to be quashed upon the Court noticing the fact that the particulars of conspiracy and collusion, which are vital in such a complaint, were not stated in the complaint or the statement on oath made by the complainant. The specific knowledge of fact in the complaint that the accused knew about ownership of the property of his neighbour was not stated. Documents contained in Forms No. I and XIV were seen. The fact that the person had died and his death certificate was produced itself showed lack of impersonation which was alleged. Hence, fraudulent execution of the sale-deed, which was alleged, was not seen upon the facts of the case. The consequent construction licence and permission from the office of the Village Panchayat and the Town and Country Planning Department was seen to have been not fraudulently or collusively obtained with a view to cheat the complainant. It was also noted that the complainant had not produced any document to show the relationship of the person impersonating the deceased person and that there was no material to support the bald statement in the complaint about ownership of the property. Further the mere case that because the accused was the neighbour of the complainant and adjacent owner, he could be imputed the fact of ownership of the complainant's land was seen to be implausible. The statement on oath of the complainant was held not sufficient to even prima facie show the charge of conspiracy under Section 120B of the IPC since the agreement, concert or league, which was the further ingredient of the offence, was not shown. Upon considering various cases under Section 120-B of the IPC, the entire case of the complainant was held unacceptable since they were not on talking terms with the accused. It was observed that connecting links should have been shown in the statement on oath which was instead devoid of facts, from which any inference of conspiracy could be drawn. Further there was no material to support the statement of the complainant that the accused knew about purchase of the property owned by the uncle of the other accused, since deceased. Upon setting out the concept of verification of complaints, it was held that the Magistrate must ascertain whether what is pleaded in the complaint is also stated in the verification statement and would be true or not. The complainant would have to show how the offence was committed and how the accused was responsible. The Magistrate must find out what offence was made out and if it is absurd or inherently improbable, on the basis of which no prudent person could have reached such a conclusion that there were sufficient grounds for proceeding, the Magistrate must not proceed. Considering the earlier cases, including the case of Pepsi Foods Ltd. (supra) as well as the Bhajan Lal case (supra), it was held that where criminal proceeding was manifestly accentuated with malafides or was initiated maliciously with ulterior motives for wreaking vengeance on the accused to spite him due to any personal grudge, the Magistrate must not issue the process. In that case, there was nothing to connect the accused with conspiracy. Even the suspicion could not be based on material. No case of cheating was made out. Hence the process was quashed.

In this case, the basic facts constituting the offence of criminal trespass as well as intimidation are seen to be made out, however slightly, for issue of the process. In this case, the complaint and the verification statement are much the same. What has been stated in the complaint was verified on oath by the complainant before the Magistrate. The statement would show the offences at-least under the aforesaid two sections being disclosed. Can it be said that the incident was absurd or inherently improbable? The accused and the complainant are neighbours. They are business competitors. In fact, there appears to be only one access road to both the properties; the Petitioners have not shown another access road which the complainant could have used even to this Court.

32. Upon a bare reading of the complaint filed in 2005 and the statements made in 2005, and at-least without knowing of the other proceedings between the parties, the Magistrate could never have envisaged malafides or a desire to wreak vengeance or have any personal grudge. Could he then be castigated for issuing the process which the High Court can quash as having been abusively done outside the bounds of his duty and authority?

33. The case of Inder Mohan Goswami and Anr. v. State of Uttaranchal and Ors. (2007) 12 SCC 1 is the case of a property dispute in which a Power of Attorney with an agreement for sale came to be issued, which Power of Attorney later came to be revoked as the accused was trying to dispose of the property of a Trust for personal gain. A complaint filed for offences under Sections 420, 467 and 120-B of the IPC to quash the criminal complaint by the Constituted Attorney, who sought to act as the agent even after revocation of the Power of Attorney, was held devoid of the particulars required to show the offences under those sections. In that case the trustees of the Trust entered into an agreement for sale of their property to some persons in favour of whom the Power of Attorney was also executed. Those persons failed to fulfill the obligations under the contract. The trustees cancelled the Power of Attorney by a registered Cancellation Deed after informing their Constituted Attorney. It was contended by the trustees that that was to protect the interest of the Trust since the agent was acting under the Power of Attorney without paying the balance amount with a malafide intention to grab the land of the Trust. After the Power of Attorney was cancelled, the trustees sought to sell their land to another person. It was observed that the facts alleged by the parties could only be ascertained on the basis of evidence and documents by a Civil Court of competent jurisdiction. A civil suit was already instituted. The ascertainment of the legal right and the demarcation of the land was to be done. The controversy was of purely a civil nature. Initiating criminal proceedings was held to be an abuse of the process of Court. Drawing upon the dictum laid down by Lord Devlin in the case of Connelly v. DPP 1964 AC 1254 and of Lord Salmon in DPP v. Humphrys 1977 AC 1, it was held that only if the prosecution amounted to an abuse of the process was oppressive and vexatious the Court had the inherent power to intervene. The three tests laid down in the case of R.P. Kapur v. State of Punjab : 1960CriLJ1239 , which were reiterated thus:

(i) Whether there is a legal bar against the continuance of the proceeding.

(ii) Whether the allegation in the complaint taken at its face value would not constitute any offence.

(iii) Whether there is no legal evidence adduced to prove the charge.

34. Upon considering these tests, the Court laid down the ambit of the High Courts' powers - they are very wide; they require great caution in their exercise; they cannot stifle a legitimate prosecution; they can be exercised to prevent abuse; it must achieve a solitary public purpose and prevent a proceeding to degenerate into a weapon of harassment; they should be exercised in appropriate cases to do real justice; they should be exercised with deal of caution; they can be used in cases essentially of civil nature. Seven yardsticks laid down in Bhajan Lal's case (supra) were also set out. Upon seeing the facts of this case, even point No. 7 of Bhajan Lal's case (supra) cannot apply to this case.

It is argued on behalf of the Petitioners that the Respondent has sought to wreak vengeance and spite the Petitioners. Can these aspects be ascertained by the learned Magistrate from the complaint lodged? All facts taken together more specially the fact of so many litigations one after another, if brought home to the learned Magistrate, may show the tendency of the Respondent to be overlitigious. If the litigation results in complete failure, his complaint, together with the witness' statements, would be a pointer to that tendency. Consequently, how can this test be taken to be an appropriate case to strike off the very complaint to do such justice to both as would prevent abuse or harassment? Even the fact that essentially the dispute would be of a civil nature in obtaining the right of way from a particular road would not be apparent from a reading of the complaint itself. Digging trenches, putting iron bars or dumping stones on a road prima facie shown to be public cannot show the inherent civil dispute. The allegation of threat and intimidation is no part of a civil dispute. The pending proceedings are never known. Several of the proceedings were not initiated at the time of the complaint or recording of the statement. The fact of an offence being culled out from a transaction of an agreement for sale coupled with the Power of Attorney essentially shows a civil transaction; the complaint of criminal trespass would not inherently demonstrate a civil transaction. Consequently, conversion of purely civil dispute into criminal case would not be manifested in such a complaint.

35. The case of Inder Mohan(supra) considered the ingredients of the offences of cheating and fabrication of documents and criminal conspiracy. Those grave offences required several ingredients to be shown which were absent in the complaint. The ingredients of criminal trespass and intimidation can be seen contained in the complaint of the Respondent per se and subject of course to his cross-examination for their substantiation. Consequently, the ultimate order in the case of Inder Mohan(supra) would not be a good guide for the ultimate order to be passed in this Application.

36. In the case of B. Jagdish and Anr. v. State of Andhra Pradesh and Anr. : 2009CriLJ828 , the refusal to quash proceedings by the High Court was held not liable to be interfered with in a case of negligence with conflicting opinions produced by the complainant and the accused. That was the case of death of a child patient in the care of a child specialist. The child was treated for tuberculosis, but was stated to have succumbed to an advanced stage of cancer. The conflicting opinions showed absence and presence of negligence on the part of the doctor. The Bolam test was considered from the finding in the famous case of Bolam v. Friern Hospital Management Committee (1957) 2 All ER 118. It was considered that when there were differences of opinion about mode of treatment, one of the procedural modes, which was the usually preferred mode of treatment at the relevant time, if adopted could not make the doctor liable for negligence, upon use of his special skill or competence to the best of his ability even if it resulted in failure. Applying the tests laid down in the aforesaid cases, it was held that the materials brought on record by the complainant cannot be said to be such that even if taken at face value and taken to be correct in their entirety, they would not disclose an offence. In paragraph 24 of that judgment, the well settled principle of law was set out thus:.at the stage of quashing of an order taking cognizance, an accused cannot be permitted to use the material which would be available to him only as his defence. In his defence, the court would be left to consider and weigh materials brought on record by the parties for the purpose of marshaling and appreciating the evidence.

Considering the case of Debendra Nath Padhi (supra), the only exception which the Court considered that may be made for quashing a criminal complaint was if the accused showed 'unimpeachable evidence of sterling quality'.

Even if that could be taken as an exception, one must ask the question whether showing the various other litigations and the interim orders passed in those litigations without leading evidence and without producing before the Court any unimpeachable documentary evidence, the Petitioners herein can get the complaint quashed. The documents mentioned by the Petitioners in the further Affidavit of the Petitioners show only certain letters of certain public offices. The said affidavit shows that those letters are indicative of the fact that no licence was granted to the Respondent herein for the mining concession. Those letters would not be indicative of whether or not the incident took place. Even the certificate of the Municipal Council, which has been referred to in the civil proceedings to show that the Council neither constructed nor maintained the road, would have to be proved by direct oral evidence. Hence, the Petitioners cannot be taken to have produced any unimpeachable evidence of sterling quality such as would seal the fate of the criminal proceedings. Upon the fact that a Revision Application has also been filed and is rejected, it has been sought to be argued on behalf of the Petitioners that it does not matter for invoking the inherent power of the Court that the Revision Application is barred or has been filed. The Bombay High Court judgment in the case of V.K. Jain and Ors. v. Pratap v. Padode and Anr. 2005(2) Bom.C.R. 738 is shown to have been set aside as not good law in the case of Dhariwal Tobacco Products Ltd. and Ors. v. State of Maharashtra and Anr. (2009) 2 SCC 370. Mr. Jagtiani laid much stress upon the fact that in the case of Dhariwal Tobacco (supra), the inherent power of the Court can be exercised even where the Revision Application has been dismissed by the Sessions Court from the order issuing summons upon taking cognizance of the criminal complaint. Such an order is not held to be an interlocutory order. The Revision Application was, therefore, observed to be maintainable. Even then the exercise of inherent power was held not barred. That was a case of a complaint under the Prevention of Food Adulteration Act and Rules. The relevant procedure under the Rules was shown not to have been followed. Consequently, the complaint under the Act, even at face value, was held not maintainable. It is observed that valuable rights of the Appellants had been taken away by the Magistrate passing the order in a mechanical fashion without proper application of his mind. In the case of G. Sagar Suri (supra)as well as in the case of Pepsi Foods Ltd. (supra), it was held that even though the accused may be able to file a discharge Application, High Court powers can be exercised since the complaint per se was not maintainable. It was further held that if the matter was of a civil nature, giving it a cloak of criminal offence could not be permitted. Hence, only if such facts are seen, High Court could exercise its inherent power. That would be albeit with great care. Further, in that case the law enunciated in the case of CBI v. Ravi Shankar Srivastava : 2006CriLJ4050 was set out. That would show the parameters of the Court's powers thus:

Powers would be exercised in the nature of exception and not the rule: it was undesirable to lay down any inflexible rule; it would be used to prevent the abuse of the process of Court; it would be necessary to do right as to undo the wrong in the course of administration of justice; the Court would not function as a Court of appeal or revision; the power had to be exercised sparingly, carefully and with caution; it would be only for advancement of justice and should not result in injustice; it would be exercised if the continuance of proceedings tantamounted to abuse - more importantly it was observed that inherent power of the High Court was not conferred by Statute but has merely been saved thereunder.' It can be concluded that this is not a case where no offence is disclosed by the complainant. The material, which has to be looked into, is the material on record of the complaint and the accompanying verification statement and the witness statements made before the Magistrate on oath. Upon seeing what the complainant and the witnesses have stated, this is not a case where no offence is made out upon the allegations made by them therein. Hence, this is not a case for quashing the complaint. The case of Debendra Nath Padhi (supra), which is essentially a case laying down the law that the accused cannot call for or produce his own evidence at the stage of filing the charge and can only be heard upon the charge to be framed, without more, has further considered the exceptional events when a criminal complaint can itself be quashed. Setting out paragraph 7 of the judgment in the case of Minakshi Bala v. Sudhir Kamat : [1994]3SCR1008 , the Court laid down the law that unimpeachable evidence can be considered in rare and exceptional cases for quashing a criminal prosecution under Section 482 of the Criminal Procedure Code. The injunction of the Supreme Court upon the ambit of the power of the High Court under Section 482 has been set out thus:...nor would it be justified in invoking its inherent jurisdiction under Section 482 Cr.P.C. to quash the same except in those rare cases where forensic exigencies and formidable compulsions justify such a course. We hasten to add even in such exceptional cases the High Court can look into only those documents which are unimpeachable and can be legally translated into relevant evidence.

37. The Petitioners must submit to authority of law. It may be that they genuinely felt aggrieved that the Respondent on the basis of an incident, which they consider to be false, has sought to drive them to an entirely new criminal proceeding when two Civil Courts have ruled prima facie in their favour, the Writ Court has done likewise and their undertaking not to interfere in the Respondent's property has been honoured.

38. The Criminal Application must, therefore, be dismissed. However, it would be apt to mention that since there is but one road, private or public, that both the parties to this Application claim to use maintaining that they do not interfere with the rights of the other and since it appears to be an admitted position that the said only access road is between the properties claimed by the parties for their mining lease or mining concession and also forms the boundary of the two villages in which they have their respective lands, it would be fruitful for both the parties to consider the alternative mode of resolution of their disputes long since pending by the mode of mediation. by way of creating options to live and let live, to pass and let pass without interfering with or impinging upon the right of way of the other by a permanent demarcation of their boundaries in the civil litigation that is still pending, which act itself may bring to a close the criminal lis between them. Nevertheless if the parties cannot bring their disputes to a close, the criminal complaint cannot be stayed or quashed.

39. Consequently, the Criminal Application is dismissed.


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