Delhi High Court

Jagdish Kumar Dhingra vs Central Bureau Of Investigation on 16 August, 2010

Author: Ajit Bharihoke

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                 Judgment reserved on: August 10, 2010.
                                 Judgment delivered on: August 16, 2010

+      CRL. M.C.NO. 2008/2009 & Crl. M.A.No. 7452/2009

       JAGDISH KUMAR DHINGRA                     ....PETITIONER
                Through: Mr. Dinesh Mathur, Sr. Advocate with Dr.
                         A.K.Gautam, Advocate.

                        Versus

       CENTRAL BUREAU OF INVESTIGATION (CBI)...RESPONDENT
               Through: Mr. Harish Gulati, Advocate with Mr.
                        Anindya Malhotra, Advocate.


        CORAM:
        HON'BLE MR. JUSTICE AJIT BHARIHOKE

1.     Whether Reporters of local papers
       may be allowed to see the judgment?

2.     To be referred to the Reporter or not ?
3.     Whether the judgment should be
       reported in Digest ?

AJIT BHARIHOKE, J.

1. Jagdish Kumar Dhingra, the petitioner herein vide this petition

under Section 482, Code of Criminal Procedure (for short „the Code‟) is

seeking quashing of charge sheet No. 03 dated 23.12.2008 as regards

him in C.C.No. 115/2008 under Sections 120-B IPC read with Section 7,

8, 9, 10, 11, 12 & 13(2) read with Section 13(1)(d), P.C.Act, 1988 filed

in the court of Special Judge, CBI (P.C.Act), Patiala House Courts, New

Delhi titled as CBI Vs. Yoginder Kumar & Ors. as also the cognizance

order dated 29th January, 2009 passed by the Special Judge, CBI, on the

ground that there is no material in the charge sheet which could prima

facie justify the involvement of the petitioner in the commission of the

either of the aforesaid offences.

2. Learned Sh. Dinesh Mathur, Sr. Advocate appearing for the

petitioner submitted that the petitioner has been arrayed as an

accused in the charge sheet filed under Sections 120-B IPC read with

Section 7, 8, 9, 10, 11, 12 & 13(2) read with Section 13(1)(d) P.C.Act,

1988. It is submitted that admittedly, the petitioner is not a public

servant, as such Section 7, 11 and 13(2) read with Section 13(1)(d)

P.C.Act are not applicable to the petitioner as those provisions are

specific to the corrupt acts committed by a public servant and there is

no material on record to prima facie show that the petitioner either

abetted the commission of any of aforesaid offences or he entered into

a criminal conspiracy to commit these offences with his co-accused

persons, including the public servant Yoginder Kumar, Inspector, CBI

and despite of that, the learned Special Judge, without due application

of mind, has routinely taken cognizance of the offences mentioned in

the charge sheet. Learned counsel submitted, since there is no prima

facie evidence against the petitioner to show his involvement in either

of the offences mentioned in the charge sheet, he is entitled to

quashing of charge sheet as well as of the order taking cognizance

against him.

3. Learned Shri Harish Gulati, Advocate appearing for the

respondent CBI has, at the outset, raised a preliminary objection that

the present petition under Section 482 of the Code is misconceived for

the reason that the charge sheet against the petitioner has already

been filed in the court where the matter is listed for arguments on

charge. Learned counsel submitted that as per Section 239 of the

Code, the petitioner has a legal right to make his submissions before

the court concerned against the framing of charge and if the court, on

consideration of the material on record and his submissions, considers

the charge against the petitioner to be groundless, he would be

discharged. Thus, it is argued that the present petition is an

endeavour on the part of the petitioner to short circuit the procedure

for prosecution in a warrant trial as provided in the Code. Learned

counsel contended, since an equally efficacious remedy is available to

the petitioner to press for his discharge in the trial court, there is no

justification for exercising the inherent powers under Section 482 of

the Code. In support of this contention, he has relied upon the

judgment of Supreme Court in the matter of State of A. P. Vs.

Gaurishetty Mahesh & Ors in Criminal Appeal No.1252 of 2010

arising out of an S.L.P. (Crl.) No.3061 of 2008.

4. Learned Sh. Dinesh Mathur, Sr. Advocate appearing for the

petitioner submitted that the above argument of learned counsel for

the respondent is misconceived. He contended that Section 482 of the

Code provides that nothing in this Code shall be deemed to limit or

affect the inherent powers of the High Court to make such orders as

may be necessary to give effect to any order under the Code, or to

prevent abuse of the process of any court or otherwise to secure the

ends of justice. He submitted that in exercise of its inherent powers,

the High Court is competent to quash the proceedings in a trial if it is of

the view that allowing such proceedings to continue would be an abuse

of process of the court or that the ends of justice require such

proceedings to be quashed. Learned counsel has placed reliance upon

the judgments of the Supreme Court in the matters of State of

Karnataka Vs. L. Muniswamy & Ors., 1977 SCC (Cri) 404, Pepsi

Foods Ltd. & Anr. Vs. Special Judicial Magistrate and Ors.,

(1998) 5 SCC 749, G.Sagar Suri & Anr. Vs. State of U.P & Ors.,

2000 SCC (Cri) 513, Adalat Prasad Vs. Rooplal Jindal & Ors.,

(2004) 7 SCC 338, Subramanium Sethuraman Vs. State of

Maharashtra & Anr., 2005 SCC (Cri) 242, Suresh Kumar Tekriwal

Vs. State of Jharkhand & Anr., (2006) 1 SCC (Cri) 553, N.K.Sharma

Vs. Abhimanyu, (2006) 2 SCC (Cri) 135, Bholu Ram Vs. State of

Punjab & Anr., (2008) 3 SCC (Cri) 710, Keki Hormusji Gharda &

Ors. Vs. Mehervan Rustom Irani & Anr., (2009) 2 SCC (Cri) 1113,

V.Y.Jose & Anr. Vs. State of Gujarat & Anr., (2009) 3 SCC 78,

Devendra & Ors. Vs. State of Uttar Pradesh & Anr., (2009) 7 SCC

495 & M.N.Ojha & Ors. Vs. Alok Kumar Srivastava & Anr.,

2009(11) SCALE 573.

5. I have carefully considered the rival contentions and perused the

judgments relied upon by the respective parties. There can be no

dispute with the proposition of law enunciated in above judgments that

the inherent powers conferred upon the High Court under Section 482

of the Code are wide enough to encompass almost all situations in

order to prevent the abuse of process of any court or to otherwise

secure the ends of justice.

6. The question, however, is when and under what situation, the

High Court should step in and pass appropriate orders in exercise of its

jurisdiction under Section 482 of the Code in a criminal trial. The

Supreme Court, in the matter of State of A.P. Vs. Gaurishetty

Mahesh & Ors. (supra), has analysed the scope of exercise of

jurisdiction by the High Court under Section 482 of the Code. In the

aforesaid judgment, Supreme Court has, inter alia, observed thus:

"12. While exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge/Court. It is true that Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, otherwise, it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time, Section 482 is not an instrument handed over to an accused to short-circuit a prosecution and brings about its closure without full-fledged enquiry. Though High Court may

exercise its power relating to cognizable offences to prevent abuse of process of any Court or otherwise to secure the ends of justice, the power should be exercised sparingly. For example, where the allegations made in the FIR or 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 or allegations in the FIR do not disclose a cognizable offence or do not disclose commission of any offence and make out a case against the accused or where there is express legal bar provided in any of the provisions of the Code or in any other enactment under which a criminal proceeding is initiated or sufficient material to show that the criminal proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused due to private and personal grudge, the High Court may step in. Though the powers possessed by the High Court under Section 482 are wide, however, such power requires care/caution in its exercise. The interference must be on sound principles and the inherent power should not be exercised to stifle a legitimate prosecution. We make it clear that if the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of inherent powers under Section 482."

On reading of the above referred judgments relied upon by the rival

parties, it is clear that the law relating to Section 482 of the Code, as

enunciated in the aforesaid judgments is that the High Court, in

exercise of its powers under Section 482 of the Code is competent

enough to quash the criminal proceedings pending against the accused

in a court in order to prevent the abuse of process of court or to secure

the ends of justice. However, said powers should be exercised

sparingly and Section 482 of the Code should not be allowed to be

used an instrument handed over to the accused to short-circuit the

prosecution and bring about its closure without due enquiry. If the

procedural law provides for an equally efficacious remedy to the party

concerned, then naturally High Courts would be reluctant to invoke

powers under Section 482 Cr.P.C.

7. It is not disputed that the petitioner, along with others, has been

challaned in a warrant trial case under Sections 120-B IPC read with

Section 7, 8, 9, 10, 11, 12 & 13(2) read with Section 13(1)(d) P.C.Act,

1988. Chapter XIX of the Code deals with the procedure to be followed

in a trial of a warrant case by the Magistrate. Part-A of this Chapter

deals with the procedure to be followed in a warrant trial case

instituted on a police report. Section 238 of the Code provides that in

any warrant case instituted on police report, when the accused puts in

appearance or is brought before the Magistrate at the commencement

of the Trial, the Magistrate shall ensure the compliance of provisions of

Section 207 of the Code i.e., he shall satisfy himself that the accused

has been supplied with the complete set of charge sheet filed against

him. Sections 239 and 240 deal with the next step i.e. framing of

charge against the accused or his discharge, which provisions read

thus:

"239. When accused shall be discharged.-If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an

opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing.

240. Framing of charge.-(1) If, upon such consideration examination, if any, and hearing, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in opinion could be adequately punished by him, he shall frame in writing a charge against the accused.

(2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty of the offence charged or claims to be tried."

8. A conjoint reading of the above provisions of the Code makes it

clear that at the stage of framing of charge, the Magistrate/court

concerned is under obligation to hear the parties on the point of charge

and on consideration of the submission made in light of the material

placed on record, to form an opinion whether there is a sound basis for

framing of charge and if he finds no sufficient ground to substantiate

the charge, he can always discharge the accused under Section 239 of

the Code. Thus, an equally efficacious remedy is available to the

petitioner under Section 239 Cr.P.C. to make his submissions against

framing of charge before the Trial Court where entire record of

investigation is available. By moving the instant petition under Section

482 of the Code seeking quashing of the charge sheet, the petitioner is

obviously trying to short-circuit the procedure for trial provided in the

Code, which in my considered view cannot be permitted unless very

strong reasons are pointed out to show that the charge sheet filed by

the respondent is an abuse of process of court motivated by mala fide

considerations, which is not the case.

9. Learned counsel for the petitioner also contended that there is no

provision in the Code to confer the power of review of order or inherent

powers upon the subordinate criminal courts. Therefore, once the Trial

Court has taken cognizance of the offence and issued process for

appearance to the petitioner-accused, in absence of any power to

review its own order or inherent powers, the court cannot review the

order of cognizance and issuance of process and as such, Court has no

option but to frame charge against the petitioner and proceed with the

trial. Thus, it is contended that there is no equally efficacious remedy

available to the petitioner and only remedy available to him lies in

invoking inherent powers of High Court under Section 482 of the Code.

In support of this contention, he has relied upon the judgment of

Supreme Court in the matter of Adalat Prasad Vs. Rooplal Jindal &

Ors., (2004) 7 SCC 338.

10. I am not in agreement with the above submissions of learned

counsel for the petitioner. The facts in the case of Adalat Prasad

(supra) are quite distinct from the facts of this case. In that matter,

Rooplal Jindal had filed a complaint under various provisions of the

I.P.C. against the appellant Adalat Prasad and other respondents. The

Metropolitan Magistrate, taking cognizance of the said complaint,

summoned the appellant and the other accused by issuing process

under Section 204 of the Code for the offences confined to Section 420

read with Section 120-B IPC. Being aggrieved by the said order of

issuance of process, the appellant Adalat Prasad and some of the

accused moved the High Court for quashing of the said order. The

High Court in the said petition directed the petitioners therein to move

the Trial Court against the order of summoning. Pursuant to the said

order of the High Court, the appellant Adalat Prasad of the said case

filed an application under Section 203 of the Code in the court of

Magistrate and the learned Magistrate, after hearing the parties

recalled the summons issued by him.

11. Aforesaid order of learned Metropolitan Magistrate recalling the

summons originally issued by him was challenged before the High

Court on the ground that the Magistrate had no jurisdiction to recall the

summons issued under Section 204 of the Code. The High Court

allowed the revision petition, holding that the Trial Court was justified

in taking cognizance of the offence under Section 420 IPC read with

Section 120-B IPC but it erred in recalling the consequential summons

issued after enquiry because the subordinate court did not have

powers to review its own order. It was said order of the High Court,

which was challenged in the Supreme Court and the Supreme Court,

after analysing the relevant provisions of the Code observed thus:

"15. It is true that if a Magistrate takes cognizance of an offence, issues process without there being any allegation against the accused or any material

implicating the accused or in contravention of provision of Sections 200 & 202, the order of the Magistrate may be vitiated, but then the relief an aggrieved accused can obtain at that stage is not by invoking Section 203 of the Code because the Criminal Procedure Code does not contemplate a review of an order. Hence in the absence of any review power or inherent power with the subordinate criminal courts, the remedy lies in invoking Section 482 of Code".

12. From the aforesaid facts, it is apparent that question for

determination before the High Court in Adalat Prasad case (supra) was

whether a subordinate court can review its own order and the said

question was answered by the Supreme Court in the negative.

13. In the case in hand, the charge sheet has been filed in a warrant

trial case on the strength of the police report. The procedure for

warrant trial is provided in Chapter XIX, Part-A of the Code comprising

of Sections 238 to 243. Section 239 of the Code specifically provides

that at the stage of framing of charge, it is obligatory upon the

Magistrate to hear the prosecution as well as the accused and if, after

hearing the parties and taking into consideration the material on

record, the Magistrate finds that there is no ground for substantiating