S.397 of the Code of Criminal Procedure, 1973 : Supreme Court Explains the Scope
An important Judgment was passed by Hon'ble Supreme Court on 13 September 2012 which dealt with S.397 of Code of Criminal Procedure, 1973.
In Amit Kapoor v Ramesh Chander [2012] GCtR 2351 (SC) it was commented thus : -
"Some of
the principles to be considered for proper exercise of
jurisdiction, particularly, with regard to quashing of
charge either in exercise of jurisdiction under Section
397 or Section 482 of the Code or together, as the case
may be :
1) Though there are no limits of the powers of the Court
under Section 482 of the Code but the more the power,
the more due care and caution is to be exercised in
invoking these powers. The power of quashing criminal
proceedings, particularly, the charge framed in terms
of Section 228 of the Code should be exercised very
sparingly and with circumspection and that too in the
rarest of rare cases.
2) The Court should apply the test as to whether the
uncontroverted allegations as made from the record of the
case and the documents submitted therewith prima facie
establish the offence or not. If the allegations are so
patently absurd and inherently improbable that no prudent
person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied
then the Court may interfere.
3) The High Court should not unduly interfere. No
meticulous examination of the evidence is needed for
considering whether the case would end in conviction or
not at the stage of framing of charge or quashing of
charge.
4) Where the exercise of such power is absolutely
essential to prevent patent miscarriage of justice and for
correcting some grave error that might be committed by
the subordinate courts even in such cases, the High Court
should be loathe to interfere, at the threshold, to throttle
the prosecution in exercise of its inherent powers.
5) Where there is an express legal bar enacted in any of
the provisions of the Code or any specific law in force to
the very initiation or institution and continuance of such
criminal proceedings, such a bar is intended to provide
specific protection to an accused.
6) The Court has a duty to balance the freedom of a
person and the right of the complainant or prosecution to
investigate and prosecute the offender.
7) The process of the Court cannot be permitted to be
used for an oblique or ultimate/ulterior purpose.
8) Where the allegations made and as they appeared from
the record and documents annexed therewith to
predominantly give rise and constitute a ‘civil wrong’
with no ‘element of criminality’ and does not satisfy the
basic ingredients of a criminal offence, the Court may be
justified in quashing the charge. Even in such cases, the Court would not embark upon the critical analysis of the
evidence.
9) Another very significant caution that the courts have to
observe is that it cannot examine the facts, evidence and
materials on record to determine whether there is
sufficient material on the basis of which the case would
end in a conviction, the Court is concerned primarily with
the allegations taken as a whole whether they will
constitute an offence and, if so, is it an abuse of the
process of court leading to injustice.
10) It is neither necessary nor is the court called upon to
hold a full-fledged enquiry or to appreciate evidence
collected by the investigating agencies to find out whether
it is a case of acquittal or conviction.
11) Where allegations give rise to a civil claim and also
amount to an offence, merely because a civil claim is
maintainable, does not mean that a criminal complaint
cannot be maintained.
12) In exercise of its jurisdiction under Section 228 and/or
under Section 482, the Court cannot take into
consideration external materials given by an accused for
reaching the conclusion that no offence was disclosed or
that there was possibility of his acquittal. The Court has to
consider the record and documents annexed with by the
prosecution.
13) Quashing of a charge is an exception to the rule of
continuous prosecution. Where the offence is even
broadly satisfied, the Court should be more inclined to
permit continuation of prosecution rather than its
quashing at that initial stage. The Court is not expected to
marshal the records with a view to decide admissibility and reliability of the documents or records but is an
opinion formed prima facie.
14) Where the charge-sheet, report under Section
173(2) of the Code, suffers from fundamental legal
defects, the Court may be well within its jurisdiction to
frame a charge.
15) Coupled with any or all of the above, where the Court
finds that it would amount to abuse of process of the
Code or that interest of justice favours, otherwise it may
quash the charge. The power is to be exercised ex debito
justitiae, i.e. to do real and substantial justice for
administration of which alone, the courts exist."
Kindly note that full text Judgments of Hon'ble Supreme Court can be downloaded absolutely free of cost (without any charges except internet data) from the official website at the link
https://main.sci.gov.in/judgments
Then entering the date of Judgment, for example, as 13 September 2012.
Written by
Vishal
Delhi
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