Abasaheb Yadav Honmane vs The State of Maharashtra & Ashwini Abasaheb Honmane

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2008 Supreme(Bom) 383

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
CRIMINAL APPELLATE JURISDICTION
SWATANTER KUMAR, C.J., DR. D.Y. CHANDRACHUD, &
J.P. DEVADHAR. JJ.
Abasaheb Yadav Honmane - Appellant
vs.
The State of Maharashtra - Respondent
And
Ashwini Abasaheb Honmane - Complainant
CRIMINAL APPLICATION NO. 766 OF 2007
Decided on: March 12, 2008

Advocates appeared:
Mr. Rajiv Patil, instructed by Mr. Dushyant Purekar, for the applicant
Mr. S.R. Borulkar, Public Prosecutor, with Ms. Rajashree Gadhvi,
Additional Public Prosecutor, for the State.
Mr. S.P. Kadam for the applicant in Criminal Application No. 3567 of 2007.
Mr. S.B. Deshpande for the petitioner in Writ Petition No. 493 of 2007.
Ms. Mallika Ingale with Ms. Gouri Manoharan for the applicant in
Criminal Application No. 2870 of 2007.
Mr. R..V. Vasekar for respondent No.2 in Revision Application No. 235 of 2004.
Mr. J. P. Shah, instructed by M/s. J.P.S. Legal, for the applicant in
Application No. 4596 of 2006.

Headnote:Criminal Procedure Code, 1973 - Sections 320 and 482-Power of compounding and power of quashing proceedings.-The power of compounding on one hand and quashings of criminal proceedings in exercise of inherent power on the other, are incapable of being treated as synonymous or even inter-changeable in law. The conditions precedent and satisfaction of criteria in each of these cases are distinct and different. May be, the only aspect where they have any commonality is the result of exercise of such power in favour of the accused, as acquittal is the end result in both these cases. Both these powers are to be exercised for valid grounds and with some element of objectivity. Particularly, the power of quashing the FIR or criminal proceeding by the Court by taking recourse to inherent powers is expected to be used sparingly and that too without losing sight of impact of such order on the criminal justice delivery system. It may be obligatory upon the Court to strike a balance between the nature of the offence and the need to pass an order in exercise of inherent powers, as the object of criminal law is protection of public by maintenance of law and order.
       Criminal Procedure Code, 1973 - Section 482-FIR or criminal proceedings-Quashing of.-While passing an order quashing FIR or criminal proceeding, as the case may be, it may be appropriate for the Court to examine the impact of such an order upon the system of administration of criminal justice and the social fabric. This of course, is not a determinative factor but only a relevant consideration.
       Criminal Procedure Code, 1973 - Section 482-Inherent jurisdiction under-Exercise of.-The exercise of inherent jurisdiction under Section 482 of the Code should not be such as to harm legitimate expectation of the people and the society, that the persons committing offence are expeditiously brought to trial and if found guilty are adequately punished.
       Criminal Procedure Code, 1973 - Section 482-Inherent power-Exercise of.-Inherent power should be exercised to do the right and undo a wrong.
       Criminal Procedure Code, 1973 - Section 482-Inherent power-Exercise of.-Inherent power under Section 482 of the Criminal Procedure Code should not be exercised to stifle a legitimate prosecution.
       Criminal Procedure Code, 1973 - Section 482-Inherent power- Exercise of.-The exercise of inherent power would be necessary whenever it is just or equitable and it should be to ensure observance of the due process of law, to prevent improper vexation or oppression and to do justice between the parties and to secure a fair trial.
       Criminal Procedure Code, 1973 - Section 482-Inherent power- Exercise of.-The High Court, in exercising of its inherent powers under Section 482 of the Code, may interfere in proceedings relating to cognizable offences to prevent abuse of the process of any Court or otherwise to secure the ends of justice very sparingly and with circumspection.
       Criminal Procedure Code, 1973 - Section 482-Inherent power-Exercise of.-While exercising inherent power under Section 482 of the Code, the High Court must all the while be conscious of the fact that its exercise of such power will not result in miscarriage of justice and will not encourage those accused to repeat the crimes.
       Criminal Procedure Code, 1973 - Section 482-Inherent power of High Court-Invoking of.-The inherent power of the High Court can be invoked in respect of matters covered by the provisions of the Code unless there is specific provision to redress the grievance of the aggrieved party.
       Criminal Procedure Code, 1973 - Section 482-Inherent power of High Court under-Exercise of.-The inherent powers of High Court under Section 482 of the Code, cannot be exercised in regard to matters specifically covered by the other provisions of the Criminal Procedure Code.
       Criminal Procedure Code, 1973 - Section 482-Inherent power under-Exercise of.-Inherent jurisdiction under Section 482, CrPC may be exercised in following three circumstances :
       (i) to give effect to an order under the Cr PC;
       (ii) to prevent abuse of the process of Court; and
       (iii) to otherwise secure the ends of justice.
       Criminal Procedure Code, 1973 - Section 482-Inherent power under-Exercise of.-Inherent power under Section 482 of the Code overrides provisions of the Code but evidently cannot be exercised in violation/contravention of a statutory provision or power created under any other enactment.
       Criminal Procedure Code, 1973 - Section 482-Inherent power under-Exercise of.-While exercising inherent power under Section 482 of the Code, High Court must refrain from making imaginary journey in the realm of possible harassment which may be caused to concerned petitioner or account of investigation of FIR or complaint.
       Criminal Procedure Code, 1973 - Section 482-Inherent powers-When can be used.-Inherent powers may be used only when reasonably necessary for the Court to be able to function and Courts may not exercise inherent power merely because their use would be convenient or desirable.
       Criminal Procedure Code, 1973 - Section 482-Power under- Exercise of.-Power under Section 482 of the Criminal Procedure Code is not unlimited. It can inter alia be exercised where the Code is silent, where the power of the Court is not treated as exhaustive, or there is a specific provision in the Code; or the statute does not fall within the purview of the Code because it involves application of a special law.
       Criminal Procedure Code, 1973 - Section 482-Quashing of complaint-Prayer for.-For the purpose of quashing, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint.
       Criminal Procedure Code, 1973 - Section 482-Quashing of proceeding-Exercise of inherent power under.-In exercise of inherent power under Section 482 of the Code, Court would be justified to quash any proceeding if the initiation/continuation of such proceeding amounts to ’abuse of the process’ of Court or quashing of the proceeding would otherwise serve the ends of justice.
       Criminal Procedure Code, 1973 - Section 482-Quashing of proceeding-Power under.-Power under Section 482 to quash proceeding should not be used mechanically or routinely, but with care and caution.
       Such power should be used only when a clear case for quashing is made out and failure to interfere would lead to a miscarriage of justice.

JUDGMENT :

Swatanter Kumar, C.J.

1. Introduction and L egislative History

1.1 Legislative amendments and judicial pronouncements over a period of time have effectively expanded the scope of the canons of criminal jurisprudence in our criminal justice delivery system. Article 21 of the Constitution has been interpreted to provide the right to every person including an under-trial to live with dignity. No person could be deprived of his life or personal liberty except according to the procedure established by law and also in consonance with Article 21 of the Constitution of India. No person who is arrested shall be detained in custody without informing the person the grounds of his arrest or detention. Such person would be provided a due right to defend himself by a legal practitioner of his choice. In addition to this, various safeguards are provided for the exercise of power by prosecuting agencies and conduct of trials by Courts. The radical change in judicial approach relating to criminal trial, protection of witnesses and the obligation of the Presiding Judge to play an effective role in the evidence collecting process and to elicit all relevant material necessary for reaching the correct conclusion to find out the truth and do justice have given rise to various seminal principles which would flow from the judgment of the Supreme Court in Zahira Habibulla H.Shaikh and another vs. State of Gujarat, 2004 Cr.L.J. 2050 (SC). Essentially due process contemplated under Article 21 must be a fair and acceptable procedure in accordance with the rule of law. Article 21 which was given a strict textual meaning in A.K. Gopalan's case (AIR 1950 SC 27) received an enlarged interpretation in Maneka Gandhi vs. Union of India [ (1978) 1 SCC 248] in which it was held that procedure established by law in Article 21 has to be reasonable and not violative of Article 14 and that the concept of the right to life and personal liberty includes "right to live with dignity" being a basic human right.

1.2 Public opinion is a valuable support for enactment of law and for its enforcement as well. Without institutionalised law, enforcement would be difficult and so also redressal of wrongs. The State should, therefore, ensure a clear system of administration of criminal justice so as to provide solution to all such problems that may arise in the way of enforcement of law. Every crime, if proved, needs to be punished and object of punishment should be to protect society against its reoccurrence and in that sense it should even be prevented. Where punishment is disabling or preventive, its aim is to prevent the repetition of the offence by rendering the offender incapable of its commission. Thus, different punishments relating to varied offences are looked upon differently resulting into varied approaches of crime prevention. Penal law in our country is codified in Indian Penal Code being the substantive law and Code of Criminal Procedure dealing with the procedure is the procedural law. In terms of Section 4 of the Code, all offences under the Indian Penal Code shall be investigated, enquired into, tried and otherwise dealt with according to the provisions contained in the Code. In other words, the procedural scheme of the Code is to control the entire process beginning with the commission of offence till the conclusion of the judgment. Any ambiguity in the penal and procedural statute must be construed in a manner most favourable to liberty and the general rule is that penal enactments are to be construed strictly and not to extend beyond their clear meaning. Today the law is not a manifestation of the will of anyone but has to be the true and correct reflection of the codified laws in regard to the crime prevention and punishment. Law is recognised as an instrument of social engineering. A crime as defined by Halsbury's Law of England is an unlawful act or default which is an offence against the pub

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