Jharkhand High Court

Santosh Pal vs The State Of Jharkhand on 13 December, 2021

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      IN THE HIGH COURT OF JHARKHAND, RANCHI
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Cr.M.P.No.1893 of 2020

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1.Santosh Pal, aged about 41 years, son of Bihari Pal, resident of Village- Tukbera, PO-Knada, P.S.-Bishrampur, District-Palamau

2.Nandlal Thakur, aged about 47 years, son of Banarashi Thakur, resident of Village-Takhankallan, PO-Bandhandih, PS Hariharganj, District Palamau

3.Prem Prakash, aged about 30 years, son of Murari Mahto, resident of village Nuadih, PO Dhangaon, PS Lesliganj, District Palamau

4.Mandeep Kumar, aged about 37 years, son of Karmdeo Mahto, resident of village Pokhraha Khurd, PO Rajwadih, PS Daltonganj Sadar, District Palamau

5.Sanjeet Kumar Yadav @ Sujeet Kumar Yadav, aged about 30 years, son of Rambriksh Yadav, resident of village Daldaliya, PO and PS Manatu, District Palamau

6.Sujeet Kumar, aged about 34 years, son of Nandu Sao, resident of village Chiyanki, PO Chiyanki, PS Daltonganj Sadar, District Palamau

7.Birendra Ram, aged about 37 years, son of Chandrika Ram, resident of village Bhadgaon, PO and PS Chainpur, District Palamau

8.Rajendra Yadav, aged about 30 years, son of Ramchandra Yadav, resident of village Arjundih, PO Kowal, PS Chatarpur, District Palamau ..... Petitioners

-- Versus --

The State of Jharkhand ..... Opposite Party With

Cr.M.P. No. 1079 of 2018

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1.Jwala Prasad, aged about 30 years, s/o late Parasnath Singh, r/o Siram, PO Loharsi, PS Pipratand, District Palamau

2.Rupesh Kumar Singh, aged about 27 years, s/o Ashok Singh, r/o Kataiya, PO Kataiya, PS Hariharganj, District Palamau

3.Jitendra Kumar Singh, aged about 34 years, s/o Laldev Singh, r/o Mamrakha, PO Kataiya, PS Hariharganj, District Palamau

4.Bikash Kumar @ Vikash Kumar, aged about 25 years, s/o Lav Kumar Tiwary, r/o Jamundih, PO Fulang, PS Lesliganj, District Palamau

5.Santosh Kumar Singh @ Santosh Kumar, aged about 38 years, s/o late Badri Prasad Singh, r/o Dhakcha, PO Pachmo, PS Hariharganj, District Palamau

6.Salamat Ansari, aged about 29 years, s/o Md. Mobin Ansari, r/o Chirupatkhahi, PO Munketi, PS Chhatarpur, District Palamau

7.Surendra Singh, aged about 38 years, s/o Satyanarayan Singh, r/o Bardiha, PO Darua, PS Husainabad, District Palamau

8.Dhananjay Ram, aged about 30 years, s/o Sukhdeo Ram, r/o Devgan, PO Chaparwar, PS Chhatarpur, District Palamau

9.Mritunjay Kumar Singh @ Mrityunjay Kumar Singh, aged about 31 years, s/o Manoj Kumar Singh, s/o Babhandi, ,PO Babhandi, PS Pipra, District Palamau

10.Sujeet Kumar @ Sujeet Kumar, aged about 28 years, s/o Shivnarayan Ram, r/o Charomayapur, PO Mayapur, PS Ramgarh, District Palamau

11.Mukesh Prasad, aged about 29 years, s/o Virendra Prasad Gupta, r/o Khatin, PO Khatinb, PS Chhatarpur, District Palamau

12.Shashikant Kushwaha, aged about 30 years, s/o Yugal Kishor Mehta, r/o Panjri Kala, PO Lalgarh, PS Vishrampur, District Palamau

13.Ramakant Singh, aged about 26 years, s/o Mosafir Singh, r/o Tandwa, PO Baliari, PS Tarhasi, District Palamau

14.Kundan Kumar Singh, aged about 27 years, s/o Manoj Kumar Singh, r/o Babhandi, PO Babhandi, PS Pipra, District Palamau

15.Satyendra Kumar, aged about 28 years, s/o Mundrika Ram, r/o Sakarkoni, PO Harigawan, PS Majhiaon, District Garhwa.

16.Ramashankar Pandey, aged about 30 years, s/o late Madheshwar Pandey, r/o Thakurai Didri, PO and PS Lesliganj, District Palamau

17.Rakesh Kumar, aged about 28 years, s/o Shanta Saw, r/o Chianki, PO Chianki, PS Medininagar, District Palamau

18.Ibrar Hassan @ Ibrar Hasan, aged about 31 years, s/o Ainul Haq, r/o Bansdih, PO Mahugawan, PS Chainpur, District Palamau

19.Umesh Yadav, aged about 36 years, s/o Ramkesh Yadav, R/o Dumri, PO and PS Chainpur,District Palamau

20.Vijay Kumar Paswan, aged about 33 years, s/o Lalji Ram, r/o Pipra, PO Pipra, PS Pipra, District Palamau

21.Rakesh Kumar Thakur, aged about 32 years, s/o Jamuna Thakur, r/o Dhokra, PO Chando, PS Chainpur, District Palamau

22.Ashok Kumar Yadav @ Ashok Kr. Yadav, aged about 30 years, s/o Dipchani Yadav, r/o Arjundih, PO Kauwal, PS Chhatarpur, District Palamau

23.Dharmend Kr. Singh @ Dharmendra Kumar Singh, aged about 38 years, s/o Damodar Singh, r/o Singrakala, PO Singrakala, PS Medininagar, District Palamau

24.Kamlesh Yadav, aged about 25 years, s/o Ramdas Yadav, r/o Dhakcha, PO Pachmo, PS Hariharganj, District Palamau

25.Ranjit Ranjan, aged about 42 years, s/o Munu Ram, r/o Mali Mohalla, PO and PS Daltonganj, District Palamau

26.Prakash Kumar Singh, aged about 29 years, s/o Vishundev Singh, r/o Sadhpur, PO Palhekala,PS Patan, District Palamau

27.Rajesh Paswan, aged about 34 years, s/o Subedar Paswan, r/o Bhang, PO Sagalim, PS Panki, District Palamau

28.Rakesh Kumar Singh, aged about 31 years, s/o Rajkumar Singh, r/o Imli, PO Kishunpur, PS Patan, District Palamau

29.Prem Kumar, aged about 29 years, s/o Bachan Ram, r/o Khardiha, PO and PS Haidarnagar, District Palamau

30.Yadunandan Ram @ Raghunandan Ram, aged about 31 years, s/o Sudeshwar Ram, r/o Utaki, PO Vaidakala, PS Patan, District Palamau

31.Ajay Kumar Singh, aged about 40 years, s/o late Badri Prasad Singh, r/o Dhakcha, PO Pachmo, PS Hariharganj, District Palamau

32.Niranjan Ram, aged about 46 years, s/o Ramji Ram, r/o Sonvarsha, PO and PS Mohammadganj, District Palamau

33.Arun Kumar Singh, aged about 42 years, s/o Tula Singh, r/o Manjhauwali, PO and PS Patan, District Palamau

34.Sanjeev Kumar Pandey @ Sanjiv Kumar Pandey, aged about 31 years, s/o Shaligram Pandey, r/o Baralota, PO-Dalonganj, PS Town, District Palamau

35.Ajindra Singh, aged about 32 years, s/o Ramdhyan Singh, r/o Palhekala, PO Palhekala, PS Patan, District Palamau

36.Raviranjan Choudhary, aged about 33 years, s/o Shiv Kumar Choudhary, r/o Kishanpur, PO Kishanpur, PS Patan, District Palamau

37.Sandip Kumar @ Sandeep Kumar, aged about 28 years, s/o Chhedi Saw, r/o Kurain Patra, PO and PS Lesliganj, District Palamau

38.Sunil Prasad, aged about 30 years, s/o Mukhlal Mahto, r/o Purna Majhiganwan, PO Katual, PS Chainpur, District Palamau

39.Pramod Prasad, aged about 37 years, s/o Phaneshwar Prasad, r/o Katual Khurd, PO Katual Kala, PS Chainpur, District Palamau

40.Umesh Kumar Paswan, aged about 31 years, s/o Chandrika Paswan, R/o Nawa Khas, PO Nawa Jaypur, PS Patan, District Palamau

41.Lalan Kumar, aged about 32 years, s/o Bholanath Manjhi, r/o Sarjamatu, PO Ambabar, PS Pipratand, District Palamau

42.Ashok Yadav, aged about 26 years, s/o Nandlal Yadav, r/o Patariya, PO and PS Nawabazar, District Palamau

43.Sudip Singh @ Sudeep Singh, aged about 26 years, s/o Vishwanath Singh, r/o Vishwanath Singh, r/o Manjhauwali, PO and PS Patan, District Palamau

44.Kishor Kumar Shukla, aged about 27 years, s/o Surendra Shukla, r/o Hamidganj, PO and PS Daltonganj, District Palamau

45.Shravan Kumar Singh, aged about 28 years, s/o Vinay Kumar Singh, r/o Vijra, PO Naudiha, PS Patan, District Palamau

46.Satyendra Thakur, aged about 28 years, s/o Ramsewak Thakur, r/o Mali, PO and PS Mohammadganj, District Palamau ..... Petitioners

-- Versus --

The State of Jharkhand ...... Opposite Party

With

Cr.M.P. No. 1086 of 2018

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1.Manoj Kumar, aged about 35 years, s/o Ramdeni Paswan, r/o Village- Bara, PO and PS Chhattarpur, District Palamau, Jharkhand

2.Santosh Kumar Thakur, aged about 41 years, s/o Ramnandan Thakur, r/o Village Chokada, PO and PS Hussainabad, District Palamau, Jharkhand

3.Janeshwar Ram, aged about 44 years, s/o late Sahag Ram, s/o Village Timarbag, PO and PS Hariharganj, District Palamau, Jharkhand ..... Petitioners

-- Versus --

The State of Jharkhand ...... Opposite Party

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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioners :- Mr. Jitendra S. Singh, Advocate Mr. Randhir Kumar, Advocate Ms. Pinki Kumari, Advocate [in Cr.MP 1893/20 and Cr.MP 1079/18] Mr. Manoj Kumar, Advocate Mr. Arvind Prajapati, Advocate [in Cr.MP No.1086/18] For the State :- Mr. Rajesh Kumar, APP Mr. V.S. Sahay, APP [in Cr.MP 1893/20 and Cr.MP 1079/18] Mrs. Priya Shrestha, Spl.P.P.

[Cr.MP 1086/18]

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14/13.12.2021 In these three Cr.M.Ps, common F.I.R and cognizance order

are under challenge and that is why all these petitions are being heard

and disposed of together.

2. Heard Mr. Jitendra S. Singh, the learned counsel [in Cr.MP

1893/20 and Cr.MP 1079/18], Mr. Manoj Kumar and Mr. Arvind Prajapati,

the learned counsels [in Cr.MP No.1086/18] appearing on behalf of the

petitioners, Mrs. Priya Shrestha [in Cr.MP 1086/18], Mr. Rajesh Kumar

and Mr. V.S. Sahay, [in Cr.MP 1893/20 and Cr.MP 1079/18] the learned

counsels appearing on behalf of the respondent State.

3. The petitioners have prayed for quashing the entire criminal

proceeding arising out of Daltonganj Town P.S.Case No.382 of 2017,

corresponding to G.R.Case No.2536 of 2017 including the order taking

cognizance dated 15.01.2018, pending in the court of Chief Judicial

Magistrate, Palamau at Daltonganj.

4. The F.I.R was instituted alleging therein that:

The Deputy Collector (Establishment) has lodged the First Information Report alleging therein that on 05.11.2017 an examination for appointment of 4th grade was conducted at 26 different centres and thereafter a committee consisting four members was made for counselling. It has been further alleged that on 12.11.2017, 31 candidates out of 34 selected candidates appeared before the committee for their counselling. It is further alleged that the informant received information regarding irregularities in said examination from different areas. It has further been alleged that on the day of counselling after verification of certificates a written test was conducted in such test 50 question was asked in which 16 questions were same as was asked on 05.11.2017 and rest 34 questions were similar. Thereafter all answer sheets were examined by the committees in which it was noticed that 30 candidates out of 31 candidates obtained very low marks than the marks obtained in the examination held on 05.11.2017. It is further alleged that the candidates could not give answer to the question asked by the counselling team and further it has been alleged that the candidates who have been selected have obtained more marks in the examination held on 05.11.2017 by committing mischief.

5. Mr. Jitendra S. Singh, the learned counsel appearing on

behalf of the petitioners submits that the petitioners appeared in the

examination for appointment on the post of Class-IV grade employee in

the Establishment of Deputy Commissioner, Palamau. He submits that the

petitioners' examination was held on 05.11.2017 in which the petitioners

have been declared successful. Pursuant thereto, merit list was prepared

on 18.01.2020. The petitioners were called for counselling on 12.11.2017

and on that day again the petitioners were asked to appear in the

re-examination. The re-examination was challenged before this Court in

W.P.(S) No.6709/2017 and analogous cases which was disposed of by

this Court wherein it has been held that appointment has to be carried

out in accordance with the advertisement notice. It was further held that

once they have come out appointment notice in the mid-way rule of the

game cannot be allowed to be changed. On this observation, the writ

petition was allowed and the respondents were directed to prepare merit

list as per the marks obtained in the written exam conducted on

05.11.2017. Pursuant thereto, the merit list prepared in which the name

of the petitioners were also figured. He further submits that only on the

ground of available lesser mark in the re-examination conducted on

12.11.2017 the F.I.R. was lodged on 13.11.2017. He further submits that

none of the petitioners caught red-handed while writing examination. He

further elaborately his argument and submitted that the cognizance has

been taken under the penal provisions wherein the case is arising out of

an examination and penalty is prescribed under the Bihar Conduct of

Examination Act, 1981 and this Act has been adopted by the State of

Jharkhand. He submits that cognizance taken under section 3 and 4 of

this Act which is special Act whereas section 10 prescribes for the penalty

and under section 10 of the said Act, the cognizance has not been taken.

He further submits that when special Act is there, the Penal Code will not

apply. To buttress his this argument, he relied in the case of "Sharat Babu

Digumarti v. Government (NCT of Delhi)", (2017) 2 SCC 18. Paragraph

nos.32 and 37 of the said judgment are quoted hereinbelow:

"32. Section 81 of the IT Act also specifically provides that the provisions of the Act shall have effect

notwithstanding anything inconsistent therewith contained in any other law for the time being in force. All provisions will have their play and significance, if the alleged offence pertains to offence of electronic record. It has to be borne in mind that IT Act is a special enactment. It has special provisions. Section 292 IPC makes offence sale of obscene books, etc. but once the offence has a nexus or connection with the electronic record the protection and effect of Section 79 cannot be ignored and negated. We are inclined to think so as it is a special provision for a specific purpose and the Act has to be given effect to so as to make the protection effective and true to the legislative intent. This is the mandate behind Section 81 of the IT Act. The additional protection granted by the IT Act would apply.

37. The aforesaid passage clearly shows that if legislative intendment is discernible that a latter enactment shall prevail, the same is to be interpreted in accord with the said intention. We have already referred to the scheme of the IT Act and how obscenity pertaining to electronic record falls under the scheme of the Act. We have also referred to Sections 79 and 81 of the IT Act. Once the special provisions having the overriding effect do cover a criminal act and the offender, he gets out of the net of IPC and in this case, Section 292. It is apt to note here that electronic forms of transmission are covered by the IT Act, which is a special law. It is settled position in law that a special law shall prevail over the general and prior laws. When the Act in various provisions deals with obscenity in electronic form, it covers the offence under Section 292 IPC."

6. On these grounds, he submits that the entire case is abuse

of process of law. He further submits that original examination has not

been cancelled and on the basis of re-examination the petitioners were

unnecessarily made accused.

7. Per contra, Mr. Rajesh Kumar, the learned counsel appearing

on behalf of the respondent State submits that there is no illegality in the

cognizance order and in the facts and circumstances the F.I.R has been

lodged. He submits that this Court sitting under section 482 Cr.PC may

not interfere at this stage and the entire facts are subject matter of trial.

He submits that he relied in the case of "Neeharika Infrastructure Pvt.

Ltd. v. State of Maharashtra and Others", 2021 SCC Online SC 315 and

referred to paragraph nos.10 and 23 of the said judgment and thereafter

he referred to paragraph no.80 at conclusion at paragraph 80(xvi), which

is quoted hereunder:

"80...(xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or "no coercive steps to be adopted" and the accused should be relegated to apply for anticipatory bail under Section 438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or "no coercive steps" either during the investigation or till the investigation is completed and/or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of the quashing petition under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India."

8. In light of the above facts and submission of the learned

counsels appearing on behalf of the parties, the Court has gone through

the materials on record including the F.I.R as well as the cognizance

order dated 15.01.2018. It is an admitted fact that these petitioners have

appeared in the examination on 05.11.2017 wherein they have got marks

which has been disclosed in the F.I.R, the petitioners have been called for

counselling 12.11.2017 and on that day without any earlier information

they have been asked to sit in re-examination and in the re-examination

they have secured certain less marks in comparison to the examination

dated 05.11.2017. On the basis of this, the F.I.R has been lodged. The

petitioners have not been caught red-handed while they were writing

their examination. This Court under Article 226 in W.P.(S) No.6709/2017

and analogous cases has directed the respondents to prepare the merit

list in terms of the earlier examination dated 05.11.2017. Pursuant

thereto, the merit list has been prepared and the petitioners' name also

got figured in that merit list. In a meeting of District Establishment

Committee it was decided that the case of these petitioners shall be

guided by the result of the criminal case pending against them. For such

allegation against which the petitioners have been charge sheeted special

Act is there which is Bihar Conduct of Examination Act,1981. Section 3 of

the said Act stipulates that Prohibition as to the using of unfair means or

cheating in examinations and Section 4 speaks of helping in use of unfair

means or abetting or conspiring. These are the definition sections under

the special Act. The penalty has been prescribed under section 10 of the

said Act. The concerned Court has not taken cognizance under section 10

of the special Act. It is well settled that when special Act is there, the

sections of IPC are not attracted as held by the Hon'ble Supreme Court in

the case of "Sharat Babu Digumarti v. Government (NCT of Delhi)"

(supra). So far the contention of the learned counsel for the respondent

State is concerned, it is well settled that the Court sitting under section

482 Cr.PC may restrain itself in passing the orders when the facts are

hazy before the Court. It is also well settled that in the interest of justice

where the abuse of the process of law is demonstrated before the Court

and the Court once come to the conclusion that there is abuse of process

of law, the Court is well within its jurisdiction to pass appropriate order

under section 482 Cr.P.C. Section 482 Cr.PC is about the purpose and the

object of advancement of justice. A reference may be made to the case

of "Vineet Kumar & Others v. State of Uttar Pradesh and Another", (2017)

13 SCC 369. Paragraph nos.22, 23, 24, 26, 27, 28, 29, 30 and 41 of the

said judgment are quoted herein below:

22. Before we enter into the facts of the present case it is necessary to consider the ambit and scope of

jurisdiction under Section 482 CrPC vested in the High Court. Section 482 CrPC saves the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice.

23. This Court time and again has examined the scope of jurisdiction of the High Court under Section 482 CrPC and laid down several principles which govern the exercise of jurisdiction of the High Court under Section 482 CrPC. A three-Judge Bench of this Court in State of Karnataka v. L. Muniswamy [State of Karnataka v. L. Muniswamy, (1977) 2 SCC 699 : 1977 SCC (Cri) 404] held that the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the court or that the ends of justice require that the proceeding ought to be quashed. In para 7 of the judgment, the following has been stated : (SCC p. 703) "7. ... In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice, between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction."

24. The judgment of this Court in State of Haryana v. Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] has elaborately considered the scope and ambit of Section 482 CrPC. Although in the above case this Court was considering the power of the High Court to quash the entire criminal proceeding including the FIR, the case arose out of an FIR registered under Sections 161, 165

IPC and Section 5(2) of the Prevention of Corruption Act, 1947. This Court elaborately considered the scope of Section 482 CrPC/Article 226 of the Constitution in the context of quashing the proceedings in criminal investigation. After noticing various earlier pronouncements of this Court, this Court enumerated certain categories of cases by way of illustration where power under Section 482 CrPC can be exercised to prevent abuse of the process of the Court or secure the ends of justice.

26. A three-Judge Bench in State of Karnataka v. M. Devendrappa [State of Karnataka v. M. Devendrappa, (2002) 3 SCC 89 : 2002 SCC (Cri) 539] had the occasion to consider the ambit of Section 482 CrPC. By analysing the scope of Section 482 CrPC, this Court laid down that authority of the Court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice the Court has power to prevent abuse. It further held that Court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. The following was laid down in para 6 : (SCC p. 94) "6. ... All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the

complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto."

27. Further in para 8 the following was stated : (Devendrappa case [State of Karnataka v. M. Devendrappa, (2002) 3 SCC 89 : 2002 SCC (Cri) 539] , SCC p. 95) "8. ... Judicial process should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death. The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335:1992 SCC (Cri) 426] ."

28. In Sunder Babu v. State of T.N. [Sunder Babu v. State of T.N., (2009) 14 SCC 244 : (2010) 1 SCC (Cri) 1349] , this Court was considering the challenge to the order of the Madras High Court where application was under Section 482 CrPC to quash criminal proceedings under Section 498-A IPC and Section 4 of the Dowry Prohibition Act, 1961. It was contended before this Court that the complaint filed was nothing but an abuse of the process of law and allegations were unfounded. The prosecuting agency contested the petition filed under Section 482 CrPC taking the stand that a bare perusal of the complaint discloses commission of alleged offences and, therefore, it is not a case which needed to be allowed. The High Court accepted the case of the prosecution and dismissed the application. This Court referred to the judgment in Bhajan Lal case [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] and held that the case fell within Category 7. The Apex Court relying on Category 7 has held that the application under Section 482 deserved to be allowed and it quashed the proceedings.

29. In another case in Priya Vrat Singh v. Shyam Ji Sahai [Priya Vrat Singh v. Shyam Ji Sahai, (2008) 8 SCC 232 : (2008) 3 SCC (Cri) 463] , this Court relied on

Category 7 as laid down in State of Haryana v. Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] . In the above case the Allahabad High Court had dismissed an application filed under Section 482 CrPC to quash the proceedings under Sections 494, 120-B and 109 IPC and Sections 3 and 4 of the Dowry Prohibition Act. After noticing the background facts and parameters for exercise of power under Section 482 CrPC the following was stated in paras 8 to 12 : (Priya Vrat case [Priya Vrat Singh v. Shyam Ji Sahai, (2008) 8 SCC 232 : (2008) 3 SCC (Cri) 463] , SCC pp. 235-36) "8. Further, it is pointed out that the allegation of alleged demand for dowry was made for the first time in December 1994. In the complaint filed, the allegation is that the dowry torture was made sometime in 1992. It has not been explained as to why for more than two years no action was taken.

9. Further, it appears that in the complaint petition apart from the husband, the mother of the husband, the subsequently married wife, husband's mother's sister, husband's brother-in-law and Sunita's father were impleaded as party. No role has been specifically ascribed to anybody except the husband and that too of a dowry demand in February 1993 when the complaint was filed on 6- 12-1994 i.e. nearly after 22 months. It is to be noted that in spite of service of notice, none has appeared on behalf of Respondent 1.

10. The parameters for exercise of power under Section 482 CrPC have been laid down by this Court in several cases [Ed. : The reference seems inter alia to be to Sunder Babu v. State of T.N., (2009) 14 SCC 244 : (2010) 1 SCC (Cri) 1349 and Engg. Export Promotion Council v. Usha Anand, (2013) 12 SCC 620 : (2014) 4 SCC (Cri) 441] .

11. '19. The section does not confer any new power on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That

is the doctrine which finds expression in the section which merely recognises and preserves inherent powers of the High Courts. All courts, whether civil or criminal, possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle quando lex aliquid alicui concedit, concedere videtur id sine quo res ipsa esse non potest (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the Court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice.

20. As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage.'

41. Inherent power given to the High Court under Section 482 CrPC is with the purpose and object of advancement of justice. In case solemn process of Court is

sought to be abused by a person with some oblique motive, the Court has to thwart the attempt at the very threshold. The Court cannot permit a prosecution to go on if the case falls in one of the categories as illustratively enumerated by this Court in State of Haryana v. Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] . Judicial process is a solemn proceeding which cannot be allowed to be converted into an instrument of operation or harassment. When there are materials to indicate that a criminal proceeding is manifestly attended with mala fide and proceeding is maliciously instituted with an ulterior motive, the High Court will not hesitate in exercise of its jurisdiction under Section 482 CrPC to quash the proceeding under Category 7 as enumerated in State of Haryana v. Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] , which is to the following effect : (SCC p. 379, para 102) "102. (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."

Above Category 7 is clearly attracted in the facts of the present case. Although, the High Court has noted the judgment of State of Haryana v. Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] , but did not advert to the relevant facts of the present case, materials on which final report was submitted by the IO. We, thus, are fully satisfied that the present is a fit case where the High Court ought to have exercised its jurisdiction under Section 482 CrPC and quashed the criminal proceedings".

9. The judgment relied by the learned counsel for the

respondent State wherein guideline has been issued by the Hon'ble

Supreme Court wherein also the Hon'ble Supreme Court has observed

that the interim order of stay of investigation during the pendency of

quashing petition can be passed in circumspection. It is well settled that

when the investigation is going on, by the blanket order, the

investigations are not required to be stayed by the Court. In the case in

hand, the charge sheet has already been submitted and pursuant thereto

the cognizance has been taken, the judgment relied by the learned

counsel for the petitioners in the facts and circumstances of the present

case, is not helping the State. The Court has also perused the impugned

cognizance order. In the cognizance order also there is no satisfaction of

the concerned court as to how these petitioners are involved in the

allegation as alleged in the F.I.R. In the cognizance order, the name of

the petitioners have been disclosed and the Court finds that the word

'cognizance' in the said order has been put into a place which has been

kept blank later on. It is well settled that summoning a person in a

criminal case is a serious matter. A reference may be made to the case of

"Pepsi Food Limited v. Special Judicial Magistrate", (1998) 5 SCC 749.

Paragraph no.28 of the said judgment is quoted hereinbelow:

"28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence, both oral and documentary, in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."

10. The order taking cognizance under section 190 Cr.P.C and

order issuing process under section 204 Cr.P.C, can very well a composite

order but as observed in several cases, the application of mind would be

different in both cases. The application of mind must be reflected in the

order itself. The order should not be mechanical. The Magistrate has to

mention at least that there are sufficient materials to proceed against the

persons and what are the prima-facie materials to proceed against them.

He need not pass a detailed judgment evaluating the materials which are

before him. The detail reasons as to why he is taking cognizance or

issuing process are not to be mentioned but at least what are the bare

minimum prima-face materials against the accused should be mentioned

in the order issuing summons and prima-facie what offence is alleged in