[SUPREME COURT OF INDIA]
Som Mittal
v
Government of Karnataka
K. G. Balakrishnan (CJI)
21 Feb 2008
BENCH
K. G. Balakrishnan (CJI), R.V. Raveendran & J. M. PANCHAL
COMPARATIVE CITATIONS
2008 AllMR(Cr) 1151, 2008 INDLAW SC 216
CASES REFERRED TO
Indian Oil Corporation v Nepc India Limited and Others 2006 Indlaw SC 430
Messrs Zandu Pharmaceutical Works Limited and Others v Md Sharaful Haque and Another 2004 Indlaw SC 899
Pepsi Foods Limited and Another v Special Judicial Magistrate and Others 1997 Indlaw SC 290
Mrs. Rupan Deol Bajaj and Another v Kanwar Pal Singh Gill and Another 1995 Indlaw SC 1896
Joginder Kumar v State of Uttar Pradesh and Others 1994 Indlaw SC 1505
State of Haryana and Others v Ch. Bhajan Lal and Others 1990 Indlaw SC 91
State Bank of U. P. Through Cbi Spev. R. K. Srivatava and Another,. (Criminal Appeal Nos. 380 of 1989) With State Bank of India v R. K. Srivastava and Others(Criminal Appeal Nos. 323 of 1988) 1989 Indlaw SC 299
Bachan Singhv. State of Punjab,. Mal Singhv. Union of India and Others,. Sunil Batra,v. Union of India and Others,. Nathu Singh and Others,v. Union of India and Anothers,. Kartar Singh and Another,v. Delhi Administration,. Sher Singh and Another,v. State of Punjab and Another,. Sunil Batra,v. Delhi Administration,. Mal Singh,v. State of Haryana,. Nirpal Singh,v. State of Haryana,. Jagmohan Singh,v. State of Haryana,. Ujagar Singh v State of Punjab and Others 1980 Indlaw SC 586
Kurukshetra University and Another v State of Haryana and Another 1977 Indlaw SC 337
R. P. Kapur v State of Punjab 1960 Indlaw SC 471
Sonapareddy Maheedhar v. State of Andhra Pradesh [2007 (14) Scale 321]
ACTS REFERRED
Code of Criminal Procedure, 1973 (as amended by Act No. 25 of 2005 & Act No. 2 of 2006.)[s. 200, s. 438, s. 482]
Karnataka Shops And Commercial Establishments Act, 1961[s. 25, s. 30(3), s. 30(1)]
Indian Penal Code, 1860[s. 302]
CASE NO
Criminal Appeal No.206/2008
EDITOR'S NOTE
Karnataka Shops & Commercial Establishments Act, 1961 - Complaint for taking cognizance of an offence punishable under s. 30(3) - High Court rejected prayer for quashing the complaint but altered the offence in respect of which cognizance was taken as one under s. 30(1) r/w s. 25 - Appeal against - Whether the power under section 482 Cr.P.C. should be exercised 'sparingly' or 'sparingly with circumspection and in the rarest of rare cases'?; Whether the recommendations and directions relating to anticipatory bail and enforcement of the directions relating to arrest laid down in Joginder Kumar were warranted in this case? - Held, power under s. 482 to quash proceedings should not be used mechanically or routinely, but with care and caution, only when a clear case for quashing is made out and failure to interfere would lead to a miscarriage of justice - Ratio decidendi of a judgment is not to be discerned from a stray word or phrase read in isolation - A court may express its views on a particular issue in appropriate cases only where it is relevant to the subject matter of the case - Directions in paras 17 to 39 of the concurring judgment, suffice it to say that they do not relate to the subject matter of the criminal appeal and being the expression of an expectation or hope by only one of the learned Judges constituting the Bench and not agreed to by the other, is not a decision, order or direction of the Court - Order accordingly.
KEYWORDS
Labour & Industrial Law, Commission Of An Offence, Anticipatory Bail, FIR, First Information Report, Order Accordingly, PRACTICE & PROCEDURE, CRIMINAL, Code of Criminal Procedure, 1973, Indian Penal Code, 1860, Managing Director, Sufficient Ground, Inherent Power, Criminal Proceedings, Secretary, Death Sentence, Rarest Of Rare, In The Course Of, Cognizance, Legislative Policy, Non-Cognizable, Existing Law, Karnataka Shops And Commercial Establishments Act, 1961
.JUDGMENT TEXT
The Judgment was delivered by : HON'BLE JUSTICE K. G. BALAKRISHNAN (CJI)
1. Government of Karnataka represented by Senior Labour Inspector, 8th Circle, Bangalore, lodged a complaint under section 200 of the Code Of Criminal Procedure, 1973 against the appellant, who was the Managing Director of M/s. Hewlett Packard Global Soft Ltd., in the court of the Metropolitan Magistrate (TC-3), Bangalore, for taking cognizance of an offence punishable under section 30(3) of the Karnataka Shops And Commercial Establishments Act, 1961 ('Act' for short) for violation of section 25 of the said Act. Learned Magistrate took cognizance by order dated 30.12.2005 and directed issue of notice to the appellant. The appellant filed a petition under section 482 of Code Of Criminal Procedure, 1973 for setting aside the said order dated 30.12.2005 and for quashing the complaint. The High Court, by order dated 28.3.2006, rejected the prayer for quashing the complaint, but altered the offence in respect of which cognizance was taken as one under section 30(1) read with section 25 of the said Act. The said order of the High Court was challenged by the appellant in this appeal.
2. The appeal was heard by a Bench consisting of H.K.Sema and Markandey Katju, JJ. By the main judgment dated 29.1.2008 Sema, J. dismissed the appeal, making it clear that the court was not expressing any opinion on the merits of the case and the learned Magistrate shall decide the maintainability of the complaint at the time of framing of the charge uninfluenced by any observations made by this Court or the High Court. In the course of his judgment, Sema, J. observed :
3. In his concurring judgment, Katju, J. agreed that the appeal should be dismissed without expressing any opinion on merits. He stated that he was rendering a separate opinion as he was not in agreement with the view expressed by Sema, J. that the power under section 482 of Code Of Criminal Procedure, 1973 should be used only in the "rarest of rare cases", though he agreed with the observation that the said power should be used sparingly. He was of the view that the words 'rarest of rare cases' are used only with reference to the death penalty for an offence under section 302 Indian Penal Code, 1860 (See Bachan Singh v. State of Punjab - - 1980 Indlaw SC 586 and the use of the said words was inappropriate while referring to the scope of exercise of power under section 482. Paras 1 to 16 of his judgment related to the criminal appeal. However in paras 17 to 39 of his judgment, the learned Judge expressed concern over the situation prevailing in Uttar Pradesh on account of omission of section 438 Code Of Criminal Procedure, 1973 relating to anticipatory bail by an amendment to the Code by section 9 of U.P.Act 16 of 1976 and the consequential hardship created for the public and difficulties caused to the Allahabad High Court. He made a recommendation to the U.P.Government to immediately issue an ordinance repealing section 9 of U.P.Act 16 of 1976 so as to restore section 438 Code Of Criminal Procedure, 1973 in Uttar Pradesh empowering the High Court and Sessions Courts to grant anticipatory bail. He directed the Registry of this Court to send a copy of his judgment to the Chief Secretary, Home Secretary and Law Secretary of State of U.P. and also to the Registrar General of the Allahabad High Court and the President/Secretary of Allahabad Bar Association, Allahabad High Court Advocates' Association and Oudh Bar Association forthwith. He also referred to the prevailing practice of police arresting those suspected of involvement in a crime and the directions issued by this Court in Joginder Kumar v. State of U.P. -- 1994 Indlaw SC 1505 in regard to the procedure to be followed when arresting a person, and directed that copies of his judgment be sent to the Chief Secretaries, Home Secretaries and Law Secretaries of all State Governments and Union Territories with a direction to ensure strict compliance with said decision.
4. In view of the difference of opinion on legal issues, the appeal was directed to be placed before the Chief Justice of India for appropriate orders, though both learned Judges concurred that the appeal should be dismissed. The matter is accordingly placed before the bench of three Judges.
5. When the matter came up, Mr. K.K.Venugopal, learned senior counsel for the appellant submitted that having regard to the exemption under section 3(h) of the Act in respect of persons in management of an establishment, the Act in entirety was inapplicable to the appellant who was the Managing Director of the establishment. He also submitted that the question of violation of section 25 of the Act did not arise as Appellant's establishment was exempted from the provisions of section 25 of Act by Government Order dated 9.2.2005 and therefore there was no question of violation of section 25 or commission of an offence punishable under section 31(1) of the Act by his establishment. He therefore submitted that the complaint ought to have been quashed when its establishment invoked the High Court to exercise its power under section 482 Code Of Criminal Procedure, 1973 On the other hand the learned counsel for the respondent State submitted that the object of section 3(h) of the Act was to exclude persons in management from being considered as employees entitled to seek benefits and reliefs under the Act. He submitted that the intention of section 3(h) was not to exempt 'persons in management' from incurring liability under the Act. He also submitted that the complaint disclosed violation of the provisions of the proviso to section 25 of the Act and therefore the learned Magistrate rightly took cognizance. It is unnecessary to examine these contentions urged by the parties, on merits. As already noticed, both the learned Judges have concurred and dismissed the appeal. What is referred is only the legal issues which did not affect the final decision of the learned Judges that the appeal should be dismissed.
6. Though the learned Judges did not set down the legal issues, we discern the following two issues from their opinions :
(i) Whether the power under section 482 Code Of Criminal Procedure, 1973 should be exercised 'sparingly' or 'sparingly with circumspection and in the rarest of rare cases'?
(ii) Whether the recommendations and directions relating to anticipatory bail and enforcement of the directions relating to arrest laid down in Joginder Kumar were warranted in this case?
7. When Sema, J. observed that the power under section 482 Code Of Criminal Procedure, 1973 was to be used 'sparingly, with circumspection and in rarest of rare cases', he did not lay down any new proposition of law, but was merely reiterating what was stated by this Court in several cases, including Kurukshetra University v. State of Haryana 1977 Indlaw SC 337 and State of Haryana v. Bhajan Lal 1990 Indlaw SC 91. In Kurukshetra University (supra), this Court observed "that the statutory power under section 482 has to be exercised sparingly with circumspection and "in rarest of rare cases". In Bhajan Lal, this Court reiterated the word of caution that the power of quashing a criminal proceeding should be exercised "very sparingly and with circumspection and that too in the rarest of rare cases". It may not therefore be correct to say that the words 'rarest of rare cases' are appropriate only when considering death sentence for an offence under section 302 Indian Penal Code, 1860 or that those words are inappropriate when referring to the ambit of the power to be exercised under section 482 Code Of Criminal Procedure, 1973
8. Quashing of a complaint or criminal proceedings under section 482 Code Of Criminal Procedure, 1973 depends on the facts and circumstances of each case. The scope and ambit of the power under section 482 has been explained by this Court in a series of decisions -- R.P.Kapur v. State of Punjab, 1960 Indlaw SC 471, State of Uttar Pradesh v. R.K.Srivastava, 1989 Indlaw SC 299; State of Haryana v. Bhajan Lal 1990 Indlaw SC 91, Mrs. Rupan Deol Bajaj v. Kanwar Pal Singh Gill, 1995 Indlaw SC 1896; Pepsi Foods Ltd. V. Special Judicial Magistrate, 1997 Indlaw SC 290; Zandu Pharmaceutical Works v. Mohd. Sharaful Haque 2004 Indlaw SC 899; Indian Oil Corporation v. NEPC India Ltd. 2006 Indlaw SC 430, and Sonapareddy Maheedhar v. State of Andhra Pradesh, 2007 (14) Scale 321. This Court in Bhajan Lal (supra) listed the following categories of cases where power under section 482 could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice :
(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 or 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 non-cognizable 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 was also made clear that it was not possible to lay down precise and inflexible guidelines or any rigid formula or to give an exhaustive list of the circumstances in which such power could be exercised.
9. When the words 'rarest of rare cases' are used after the words 'sparingly and with circumspection' while describing the scope of section 482, those words merely emphasize and reiterate what is intended to be conveyed by the words 'sparingly and with circumspection'. They mean that the power under section 482 to quash proceedings should not be used mechanically or routinely, but with care and caution, only when a clear case for quashing is made out and failure to interfere would lead to a miscarriage of justice. # The expression "rarest of rare cases" is not used in the sense in which it is used with reference to punishment for offences under section 302 Indian Penal Code, 1860, but to emphasize that the power under section 482 Code Of Criminal Procedure, 1973 to quash the FIR or criminal proceedings should be used sparingly and with circumspection. Judgments are not to be construed as statutes. Nor words or phrases in judgments to be interpreted like provisions of a statute. Some words used in a judgment should be read and understood contextually and are not intended to be taken literally. Many a time a Judge uses a phrase or expression with the intention of emphasizing a point or accentuating a principle or even by way of a flourish of writing style. Ratio decidendi of a judgment is not to be discerned from a stray word or phrase read in isolation.
10. The second issue involves the recommendations made to the Government of U.P. and directions issued to all States and Union Territories in paras 17 to 39 of the concurring judgment. The appeal related to the question whether the complaint against the appellant disclosed the ingredients of an offence under section 25 of the Karnataka Shops And Commercial Establishments Act, 1961. The appeal did not relate to grant of anticipatory bail nor did it relate to rights of arrested persons. This Court has repeatedly cautioned that while rendering judgments, courts should only deal with the subject matter of the case and issues involved therein. Courts should desist from issuing directions affecting executive or legislative policy, or general directions unconnected with the subject matter of the case. A court may express its views on a particular issue in appropriate cases only where it is relevant to the subject matter of the case. #
11. The subject matter of an appeal, whether civil or criminal, is the correctness of the decision of the court below. There is no question of appellate court travelling beyond and making observations alien to the case. Any opinion, observation, comment or recommendation de hors the subject of the appeal, may lead to confusion in the minds of litigants, members of public and authorities as they will not know how to regulate their affairs, or whether to act upon it. Another aspect that requires to be kept in view is the fact that even when it becomes necessary for a court for whatsoever reason, to decide or comment upon an issue not raised by the parties, it may do so only after notifying the parties concerned so that they can put forth their views on such issue.
12. When this Court renders judgments, it does so with great care and responsibility. The law declared by this Court is binding on all courts. All authorities in the territory of India are required to act in aid of it. Any interpretation of a law or a judgment, by this Court, is a law declared by this Court. The wider the power, more onerous is the responsibility to ensure that nothing is stated or directed in excess of what is required or relevant for the case, and to ensure that the Court's orders and decisions do not create any doubt or confusion in regard to a legal position in the minds of any authority or citizen, and also to ensure that they do not conflict with any other decision or existing law. Be that as it may.
13. In so far as the observations, recommendations, and directions in paras 17 to 39 of the concurring judgment, suffice it to say that they do not relate to the subject matter of the criminal appeal and being the expression of an expectation or hope by only one of the learned Judges constituting the Bench and not agreed to by the other, is not a decision, order or direction of the Court. # That being so, the directions issued to the Secretary General of the Supreme Court, State Governments and Union Territories, and recommendations to the Government of U.P. in the "aside" contained in Paras 17 to 39 of the concurring judgment are not directions to be complied with.
14. The two questions are answered accordingly.
2008 INDLAW SC 122
[SUPREME COURT OF INDIA]
Som Mittal
v
Government of Karnataka
H. K. Sema & Markandeya Katju
29 Jan 2008
BENCH
H. K. Sema & Markandeya Katju
CASES REFERRED TO
S.M.S. Pharmaceuticals Limited v Neeta Bhalla and Another 2005 Indlaw SC 560
Joginder Kumar v State of Uttar Pradesh and Others 1994 Indlaw SC 1505
State of Haryana and Others v Ch. Bhajan Lal and Others 1990 Indlaw SC 91
State of Bihar v Murad Ali Khan and Others 1988 Indlaw SC 33
Bachan Singhv. State of Punjab,. Mal Singhv. Union of India and Others,. Sunil Batra,v. Union of India and Others,. Nathu Singh and Others,v. Union of India and Anothers,. Kartar Singh and Another,v. Delhi Administration,. Sher Singh and Another,v. State of Punjab and Another,. Sunil Batra,v. Delhi Administration,. Mal Singh,v. State of Haryana,. Nirpal Singh,v. State of Haryana,. Jagmohan Singh,v. State of Haryana,. Ujagar Singh v State of Punjab and Others 1980 Indlaw SC 586
Gurbaksh Singh Sibbia Etc v State of Punjab 1980 Indlaw SC 316
State of Bihar and Anotherv. J. A. C. Saldanha and Others,. (Criminal Appeal No. 301 of 1979) and R. P. Singh v J. A. C. Saldanha and Others(Criminal Appeal No. 300 of 1979) 1979 Indlaw SC 344
Mrs. Menaka Gandhi v Union of Indian and Another 1978 Indlaw SC 212
Kurukshetra University and Another v State of Haryana and Another 1977 Indlaw SC 337
Balchand Jain v State of Madhya Pradesh 1976 Indlaw SC 351
Jehan Singh v Delhi Administration 1974 Indlaw SC 403
Hazari Lal Gupta v Rameshwar Prashad and Another 1971 Indlaw SC 274
Boothalinga Agencies v V. T. C. Poriaswami Nadar 1968 Indlaw SC 126
T. Prem Sagar v Standard Vacuum Oil Companymadras and Others 1963 Indlaw SC 225
East India Commerclal Company, Limited Calcutta and Another v Collector of Customs, Calcutta 1962 Indlaw SC 165
Smt. Amarawati and another vs. State of U.P. [2005 CRLJ 755]
Vijay Kumar Verma vs. State of U.P [2002 CRLJ 4561]
Ghani vs. Jones [1970 (1) QB 693]
ACTS REFERRED
Code of Criminal Procedure, 1973 (as amended by Act No. 25 of 2005 & Act No. 2 of 2006.)[s. 2(c), s. 41, s. 157(1), s. 438, s. 439, s. 482]
Karnataka Shops And Commercial Establishments Act, 1961[s. 25, s. 30(3)]
Constitution Of India, 1950[art. 136, art. 21]
Indian Penal Code, 1860[s. 498A, s. 302]
Dowry Prohibition Act, 1961[s. 3, s. 4]
RULES REFERRED
Karnataka Shops And Commercial Establishments Rules, 1963 [r. 24(b)]
CASE NO
Appeal (Crl.) 206 of 2008 (Arising Out of Special Leave Petition (Crl.) No. 1719 of 2006)
EDITOR'S NOTE
Karnataka Shops and Commercial Establishments Act, 1961; criminal Procedure Code - Alleged violation of ss. 25 and 30(3) - Petition to quash the complaint and cognizance was dismissed - Appeal against - Held, inherent power of the High Court should not be exercised according to whims and caprice and it has to be exercised sparingly, with circumspection and in the rarest of rare cases - Power under s. 482 is not intended to scuttle justice at the threshold - Concurring Judgment making strong recommendation to the U.P. Government to immediately issue an Ordinance to restore the provision for anticipatory bail by repealing Section 9 of U.P. Act No. 16 of 1976, and empowering the Allahabad High Court as well as the Sessions Courts in U.P. to grant anticipatory bail - Appeal dismissed.
KEYWORDS
Labour & Industrial Law, Fundamental Right, Commission Of An Offence, Anticipatory Bail, FIR, First Information Report, Appeal dismissed, Jurisdiction, Reputation, PRACTICE & PROCEDURE, Establishment, Accused Person, Constitution Of India, 1950, Karnataka, Interest Of Justice, CRIMINAL, Code of Criminal Procedure, 1973, Legal Evidence, Indian Penal Code, 1860, Managing Director, Reasonable Belief, Penal Provision, Sufficient Ground, Inherent Power, CONSTITUTION, State Legislature, Old Code, Secretary, Rarest Of Rare, Quash, Power Of The Court, Personal Liberty, False Case, Jail, Cognizance, Recommendation, Cognizable, Justification, Non-Cognizable, Labour, Re Arrest, Power Of The High Court, Dowry Prohibition Act, 1961, Woman, Young Person, Karnataka Shops And Commercial Establishments Act, 1961, Karnataka Shops And Commercial Establishments Rules, 1963
.JUDGMENT TEXT
The Judgment was delivered by : HON'BLE JUSTICE H. K. SEMA
1. Leave granted.
2. Heard learned counsel for the parties.
3. This appeal is directed against the judgment and order dated 28th March, 2006 passed by the High Court of Karnataka at Bangalore in Criminal Petition No. 1535 of 2006 filed under Section 482 of the Code Of Criminal Procedure, 1973 with a prayer to quash cognizance of offence under Sections 25 and 30(3) of the Karnataka Shops and Commercial Establishments Act, 1961 (in short 'the Act') by Metropolitan Magistrate Traffic Court III.
4. In view of the order that we propose to pass, it may not be necessary to recite the entire facts leading to the filing of the present appeal. Suffice it to say that an unfortunate incident had occurred on 13th December, 2005 in which late Smt. Pratibha Srikant Murthy was stated to have been murdered on her way to work from her residence. Pursuant to the aforesaid incident a complaint was filed on 27th December, 2005 against the appellant alleging violation of Sections 25 and 30(3) of the Act before the Metropolitan Magistrate. On 30th December, 2005, the Metropolitan Magistrate took cognizance of the offences under aforesaid sections of the Act. On 23rd March, 2006, a petition under Section 482 of the Code Of Criminal Procedure, 1973 for quashing of the complaint and cognizance was filed before the High Court. The High Court, by its impugned order dated 28th March, 2006, dismissed the petition. Hence, the present appeal by special leave.
5. The High Court, by its impugned order, has altered the cognizance taken by the Magistrate under Section 25 read with Section 30(3) to that one under Section 25 read with Section 30(1) of the Act. The High Court was of the view that taking cognizance against the appellant cannot be found fault with and dismissed the petition.
6. It is noticed, therefore, that petition under Section 482 was filed at the threshold for quashing of the cognizance taken by the Magistrate.
7. Mr. K. K. Venugopal, learned Senior counsel for the appellant has addressed us on merits of the case. He would contend that the appellant is a Managing Director and occupying the position of management and, therefore, he would be entitled for exemption under Section 3(h) of the Act. He would further contend that the appellant, being Managing Director of the company, would not be liable for prosecution under Section 25 read with Section 30(1) of the Act.
8. Per contra, Ms Anitha Shenoy, learned counsel appearing on behalf of the respondent, contended that Chapter VIII of the Act deals with a penal provision. She would contend that the language, 'Whoever contravenes' employed in Section 30 of the Act would include the Managing Director.
9. At this stage we are not prepared to enter into the merits of the case on the basis of contentions urged by the respective counsel. Here are our reasons:
10. In a catena of decisions this Court has deprecated the interference by the High Court in exercise of its inherent powers under Section 482 of the Code in a routine manner. It has been consistently held that the power under Section 482 must be exercised sparingly, with circumspection and in rarest of rare cases. Exercise of inherent power under Section 482 of the Code Of Criminal Procedure, 1973 is not the rule but it is an exception. The exception is applied only when it is brought to the notice of the Court that grave miscarriage of justice would be committed if the trial is allowed to proceed where the accused would be harassed unnecessarily if the trial is allowed to linger when prima facie it appears to Court that the trial would likely to be ended in acquittal. In other words, the inherent power of the Court under Section 482 of the Code Of Criminal Procedure, 1973 can be invoked by the High Court either to prevent abuse of process of any Court or otherwise to secure the ends of justice.
11. This Court, in a catena of decisions, consistently gave a note of caution that inherent power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. This Court also held that the High Court will not be justified in embarking upon an inquiry as to the reliability or genuineness or otherwise of the allegations made in the F.I.R. or the complaint and that the extra-ordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whims and caprice.
12. We now refer to a few decisions of this Court deprecating the exercise of extra ordinary or inherent powers by the High Court according to its whims and caprice.
13. In State of Bihar v. J.A.C. Saldanha 1979 Indlaw SC 344 this Court pointed out at SCC p. 574:
14. In Hazari Lal Gupta v. Rameshwar Prasad 1971 Indlaw SC 274 this Court at SCC p. 455 pointed out:
15. In Jehan Singh v. Delhi Administration 1974 Indlaw SC 403 the application filed by the accused under Section 561-A of the old Code for quashing the investigation was dismissed as being premature and incompetent on the finding that prima facie, the allegations in the FIR, if assumed to be correct, constitute a cognizable offence.
16. In Kurukshetra University v. State of Haryana 1977 Indlaw SC 337, this Court pointed out:
(emphasis supplied)
17. In State of Bihar v. Murad Ali Khan 1988 Indlaw SC 33 this Court held that the jurisdiction under Section 482 of the Code has to be exercised sparingly and with circumspection and has given the working that in exercising that jurisdiction, the High Court should not embark upon an enquiry whether the allegations in the complaint are likely to be established by evidence or not.
18. In State of Haryana & ors (appellant) v. Bhajan Lal & ors. (respondents) 1990 Indlaw SC 91, this Court after referring to various decisions of this Court, enumerated various categories of cases by way of illustration wherein the inherent power under Section 482 of the Code should be exercised by the High Court. They are:
(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 non-cognizable 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." *
19. We may observe here that despite this Court's consistently held in catena of decisions that inherent power of the High Court should not be exercised according to whims and caprice and it has to be exercised sparingly, with circumspection and in the rarest of rare cases, we often come across the High Court exercising the inherent power under Section 482 of the Code Of Criminal Procedure, 1973 in a routine manner at its whims and caprice setting at naught the cognizance taken and the FIR lodged at the threshold committing grave miscarriage of justice. While it is true that so long as the inherent power of Section 482 is in the Statute Book, exercise of such power is not impermissible but it must be noted that such power has to be exercised sparingly with circumspection and in the rarest of rare cases, the sole aim of which is to secure the ends of justice. The power under Section 482 is not intended to scuttle justice at the threshold. #
20. The rulings cited by Mr. K.K. Venugopal ' East India Commercial Co. Ltd., Calcutta & Anr. V. The Collector of Customs, Calcutta 1962 Indlaw SC 165; T. Prem Sagar v. The Standard Vacuum Oil Company Madras & Ors. 1963 Indlaw SC 225; Boothalinga Agencies v. V.T.C. Poriaswami Nadar 1968 Indlaw SC 126; and S.M.S. Pharmaceuticals Ltd. V. Neeta Bhalla & Anr. 2005 Indlaw SC 560 are not applicable in the facts of this case at this stage in view of our view above.
21. In the result, there is no infirmity in the order passed by the High Court warranting our interference in exercise of our power under Article 136 of the Constitution Of India, 1950. This appeal is, accordingly, dismissed.
22. We clarify that we do not express any opinion on the merits of the case. The trial court shall decide the matter expeditiously uninfluenced by any observations made by this Court or the High Court. The trial court shall decide the maintainability of the complaint at the time of consideration of the charge. We further make it clear that it is open to the parties to urge all the contentions as available under the law, including the maintainability of the complaint before the trial judge at the time of consideration of this charge.
23. With these observations and directions, the appeal is dismissed.
The Judgment was delivered by : Hon'ble Justice Markandey Katju
1. I have perused the judgment of my learned brother Hon'ble H.K. Sema, J. in this appeal.
2. I respectfully agree with his conclusion that the appeal be dismissed but only because of the observations in his judgment that we are not expressing any opinion on the merits of the case. However, I think it is necessary to give my separate concurrent judgment in this case.
3. The appellant before us, Mr. Som Mittal, is the Managing Director of Hewlett Packard Global Soft Ltd. He filed a petition under Section 482, Cr.P.C. before the Karnataka High Court challenging the order dated 30.12.2003 passed by the Metropolitan Magistrate Traffic Court III, Bangalore, taking cognizance of an offence under Section 25 of the Karnataka Shops and Commercial Establishments Act, 1961 (in short 'the Act') read with Section 30(3) of the same and also the conditions imposed by the Karnataka Government in its order dated 9.2.2005. It may be mentioned that cognizance was taken on a complaint filed by the respondent through its Senior Labour Inspector, 18th Circle, Bangalore.
4. Section 25 as amended by Act No.14 of 2002 reads as follows :
Provided that the State Government may, by notification exempt any establishment of Information Technology or Information Technology enabled service from the provisions of this section relating to, employment of women during night subject to the condition that the establishment provides facilities of transportation and security to such women employees and subject to any other condition as may be specified in the notification." *
5. It may be noted from the above provision that while the main part of Section 25 is prohibition of employment of women and young persons in a shop or commercial establishment during night, the proviso enables the State Government to exempt any establishment of Information Technology from the provisions of the section subject to the condition that the establishment provides facility for transportation and security to the woman employees.
6. The Deputy Labour Commissioner, Region 2, Bangalore, in exercise of the power under the proviso to Section 25 issued an office order in terms of Section 25 read with Rule 24(b) of the Karnataka Shops and Commercial Establishments Rules 1963 granting exemption. Condition No.2 of the said Order stated :
7. It appears that on 13.12.2005 at about 2 a.m. a woman employee of the Company of which the appellant was Managing Director was traveling from her house to the workplace situated in Electronic City, Bangalore. While on the way the vehicle driver took the vehicle to a secluded place and raped and killed the said woman employee. This fact finds reference in the letter of the Bangalore City Police Commissioner dated 26.12.2005 addressed to the Labour Commissioner, and in the said letter it is stated that adequate security had not been provided to the said woman employee during her travel from her home to the workplace. It is on the basis of this letter that the complaint was filed on the basis of which cognizance was taken by the learned Magistrate.
8. Shri K.K. Venugopal, learned counsel for the appellant, has invited our attention to Section 3(1)(h) of the Act which states :
(h) person occupying positions of management in any establishment." *
9. We agree with Shri Venugopal that the Managing Director is surely a person occupying a position of management in the establishment and hence Section 3(1)(h) is clearly attracted to the facts of this case.
10. However, learned counsel for the State Government has relied on Section 2(h) of the Act which states :
11. Learned counsel for the respondent submitted that Section 30(1) of the Act states that 'Whoever contravenes any of the provisions of Sections 4, 5 - -----, 25 and 39, shall, on conviction, be punished with fine'. She submitted that the word 'whoever' in section 30 is broad enough to include the Managing Director also.
12. To my mind, there seems to be some apparent conflict between section 30 and section 3(1)(h) of the Act since while the latter provision states that a person in a position of management is outside the purview of the Act, it is contended by counsel for the respondent that the former provision includes a person in management also since the word 'whoever' is very wide.
13. Since section 30 is also part of the Act, hence prima facie it seems that a Managing Director does not come within the purview of the Act in view of section 3(1)(h). It prima facie seems that only persons not in a position of management will come within the purview of the Act, and hence they alone can be penalized under Section 30. If persons in a position of management are also intended to be penalized then that will require an amendment to the Act, in particular Section 3(1)(h) thereof. The Court cannot amend an Act of the legislature, and cannot fill up a casus omissus.
14. However, I am not expressing any final opinion on the merits of the matter, and it is left open for the court concerned to interpret the various provisions of the Act.
15. While I agree with my learned brother, Hon'ble Sema J. that the power under section 482 Cr.P.C. is to be exercised sparingly, I cannot agree with my learned brother that it should be exercised in the 'rarest of the rare cases".
16. The expression 'rarest of the rare cases' was used in connection with Section 302 Indian Penal Code, 1860 to hold that death penalty should only be imposed in rarest of rare cases vide Constitution Bench decision of this Court in Bachan Singh vs. State of Punjab (vide para 207) 1980 Indlaw SC 586. In my opinion, this expression cannot be extended to a petition under Section 482 Cr.P.C.. Though I agree with my learned brother Hon'ble Sema J. that the power under Section 482 Cr.P.C. should be used sparingly, yet there may be occasions where in the interest of justice the power should be exercised.
17. In this connection, I would also like to refer to the situation prevailing in the State of Uttar Pradesh where due to deletion of the provision for anticipatory bail under Section 438 Cr.P.C. by Section 9 of the U.P. Act 16 of 1976, huge difficulties have been created both for the public as well as for the Allahabad High Court.
18. It may be noted that in U.P. such provision for anticipatory bail has been deleted while it continues to exist in all other States in India, even in terrorist affected States. The result is that thousands of petitions under Section 482 are filed every year in Allahabad High Court praying for stay of arrest or for quashing the FIR, because in the absence of the provision of anticipatory bail many persons who are innocent cannot get anticipatory bail even though the FIR filed against them may be frivolous and/or false. Even if such persons get regular bail under Section 439, before that they will have to go to jail, and thus their reputation in society may be irreparably tarnished.
19. It has been held by this Court in Joginder Kumar vs. State of U.P. and others 1994 Indlaw SC 1505 (vide para 24) that 'No arrest can be made because it is lawful for the Police Officer to do so. The existence of the power to arrest is one thing and the justification for the exercise of it is quite another. The Police Officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock up of a person can cause incalculable harm to the reputation and self esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a Police Officer in the interest of protection of the constitutional right of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. The recommendation of the Police Commissioner merely reflects the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be a reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to a person to attend the Station House and not to leave Station without permission would do."
20. In para 13 of the same judgment this Court has also referred to the Third Report of the National Police Commission which stated that by and large nearly 60% of the arrests in the country were unnecessary or unjustified. Also, 43.2 % of the expenditure in jails was over such prisoners only who need not have been arrested at all.
21. Despite this categorical judgment of the Supreme Court it appears that the police is not at all implementing it. What invariably happens is that whenever an FIR of a cognizable offence is lodged the police immediately goes to arrest the accused person. This is clear violation of the aforesaid judgment of the Supreme Court.
22. It may be noted that Section 2(c) Cr.P.C. defines a cognizable offence as an offence in which a police officer may arrest without warrant. Similarly Section 41 Cr.P.C. states a police officer may arrest a person involved in a cognizable offence. The use of the word 'may' shows that a police officer is not bound to arrest even in a case of a cognizable offence. When he should arrest and when not is clarified in Joginder Kumar's case (supra).
23. Again in Section 157(1) Cr.P.C. it is mentioned that a police officer shall investigate a case relating to a cognizable offence, and if necessary take measures for the arrest of the offender. This again makes it clear that arrest is not a must in every case of a cognizable offence.
24. Because of absence of the provision for anticipatory bail in U.P. thousands of writ petitions and Section 482 Cr.P.C. applications are being filed in the Allahabad High Court praying for stay of the petitioner's arrest and/or quashing the FIR. This is unnecessarily increasing the work load of the High Court and adding to the arrears, apart from the hardship to the public, and overcrowding in jails.
25. The right to liberty under Article 21 of the Constitution Of India, 1950 is a valuable right, and hence should not be lightly interfered with. It was won by the people of Europe and America after tremendous historical struggles and sacrifices. One is reminded of Charles Dicken's novel 'A Tale of Two Cities' in which Dr. Manette was incarcerated in the Bastille for 18 years on a mere lettre de cachet of a French aristocrat, although he was innocent.
26. In Ghani vs. Jones 1970 (1) QB 693 (709) Lord Denning observed :
The above observation has been quoted with approval by a Constitution Bench decision of this Court in Maneka Gandhi vs. Union of India 1978 Indlaw SC 212 (vide para 99).
27. Despite this clear enunciation of the law many people are arrested and sent to the jail on the basis of false and/or frivolous FIRs.
28. In my opinion the problem will be obviated by restoring the provision for anticipatory bail which was contained in Section 438 Cr.P.C. but was deleted in U.P. by Section 9 of U.P. Act 16 of 1976.
29. It is surprising that the provision for anticipatory bail has been deleted in U.P although it exists in all other States in India, even in terrorist affected States. I do not understand why this provision should not exist in U.P. also.
30. As pointed out in Balchand Jain vs. State of Madhya Pradesh 1976 Indlaw SC 351, the provision for anticipatory bail was included in the Cr.P.C. of 1973 in pursuance of the Forty First Report of the Law Commission which observed:-
31. Thus the provision for anticipatory bail was introduced in the Cr.P.C. because it was realized by Parliament in its wisdom that false and frivolous cases are often filed against some persons and such persons have to go to jail because even if the First Information Report is false and frivolous a person has to obtain bail, and for that he has to first surrender before the learned Magistrate, and his bail application is heard only after several days (usually a week or two) after giving notice to the State. During this period the applicant has to go to jail. Hence even if such person subsequently obtains bail his reputation may be irreparably tarnished, as held by the Supreme Court in Joginder Kumar's case (supra). The reputation of a person is a valuable asset for him just as in law the good will of a firm is an intangible asset. In Gita Lord Krishna said to Arjun:
[VERNACULAR PORTION DELETED]
(Gita Chapter 2, Shloka 34)
32. No doubt anticipatory bail is not to be granted as a matter of course by the Court but only in accordance with the principles laid down by the Supreme Court in Gurbaksh Singh vs. State of Punjab 1980 Indlaw SC 316. However, we are of the view that there must be a provision for anticipatory bail in U.P. for the reason already mentioned above.
33. Experience has shown that the absence of the provision for anticipatory bail has been causing great injustice and hardship to the citizens of U.P. For instance, often false FIRs are filed e.g. under Section 498A Indian Penal Code, 1860, Section 3/4 Dowry Prohibition Act, 1961 etc. Often aged grandmothers, uncles, aunts, unmarried sisters etc. are implicated in such cases, even though they may have nothing to do with the offence. Sometimes unmarried girls have to go to jail, and this may affect their chances of marriage. As already observed by me above, this is in violation of the decision of this Court in Joginder Kumar's case (supra), and the difficulty can be overcome by restoring the provision for anticipatory bail.
34. Moreover, the Allahabad High Court is already over-burdened with heavy arrears and overloaded with work. This load is increasing daily due to the absence of the provision for anticipatory bail. In the absence of such provision whenever an FIR is filed the accused person files a writ petition or application under Section 482 Cr.P.C. and this has resulted in an unmanageable burden on this Court. Also jails in U.P. are overcrowded.
35. The Allahabad High Court had on several occasions requested the State Government to issue an Ordinance immediately to restore the provision for anticipatory bail, (e.g. in Vijay Kumar Verma vs. State of U.P., 2002 CrLJ 4561 but all its requests seem to have fallen on deaf ears. It seems that there is an impression in some quarters that if the provision for anticipatory bail is restored crimes will increase. In my opinion this is a specious argument, since it has not made much difference to the crime position in the States where the provision for anticipatory bail exists, even in terrorist affected States. No doubt the recommendation of a Court is not binding on the State Government/State Legislature but still it should be seriously considered, and not simply ignored. The Court usually makes a recommendation when it feels that the public is facing some hardship. Such recommendation should, therefore, be given respect and serious consideration.
36. I, therefore, make a strong recommendation to the U.P. Government to immediately issue an Ordinance to restore the provision for anticipatory bail by repealing Section 9 of U.P. Act No. 16 of 1976, and empowering the Allahabad High Court as well as the Sessions Courts in U.P. to grant anticipatory bail. #
37. In this connection I may also refer to the decision of the Seven Judge Full Bench of Allahabad High Court in Smt. Amarawati and another vs. State of U.P. 2005 CrLJ 755 in which the Full Bench has mentioned that the Sessions Judge while considering a bail application under Section 439 Cr.P.C. can grant interim bail till the final disposal of the bail application subsequently. This will enable innocent persons to avoid going to jail pending consideration of their bail application.
38. I am informed that despite this Seven Judge Full Bench judgment which has clearly mentioned that a Sessions Judge can grant interim bail, the Session Courts in U.P. are ignoring the said judgment and are not granting interim bail pending disposal of the final bail application even in appropriate cases. This is wholly improper. Decisions of this Court and of the High Court must be respected and carried out by the sub-ordinate courts punctually and faithfully. It is, therefore, directed that Amarawati's case (supra) must be implemented in letter and spirit by the Sessions Courts in U.P. and in this connection the Registrar General of Allahabad High Court will circulate letters to all the District Judges in U.P. along with a copy of this judgment to ensure faithful compliance of the decision of the Full Bench decision of the High Court in Amarawati's case (supra).
39. The Secretary General of this Court shall send a copy of my judgment to the Chief Secretary, Home Secretary and Law Secretary of U.P. as well as to the Registrar General of Allahabad High Court and also to the President/Secretary of Allahabad Bar Association and the Allahabad High Court Advocates' Association as well as Oudh Bar Association, Lucknow forthwith. A copy shall also be sent to the Chief Secretary, Home Secretary and Law Secretary of all State Governments/Union Territories in India who shall direct all officials to strictly comply with the judgment of this Court in Joginder Kumar's case (supra).
