CASE NO.:
Appeal (crl.) 206 of 2008
PETITIONER:
Som Mittal
RESPONDENT:
Government of Karnataka
DATE OF JUDGMENT: 21/02/2008
BENCH:
K. G. Balakrishnan & R. V. Raveendran & J. M. Panchal
JUDGMENT:
JUDGMENT
O R D E R
CRIMINAL APPEAL NO.206/2008
K.G.BALAKRISHNAN, CJI
Government of Karnataka represented by Senior Labour Inspector, 8th
Circle, Bangalore, lodged a complaint under section 200 of the Code of
Criminal Procedure 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 & 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 Cr.P.C. 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 :
"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 is not the rule but it is an exception. The
exception is applied only when it 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 #.."
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 Cr.P.C. 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 IPC (See Bachan Singh v. State of Punjab -
- AIR 1980 SC 898) 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 Cr.P.C.
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
Cr.P.C. 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 (4) SCC 260 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 Cr.P.C. 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 Cr.P.C. 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 Cr.P.C. 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 (4) SCC 451 and State of Haryana v.
Bhajan Lal [1992 Supp. (1) SCC 335]. 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 IPC or that those words are inappropriate when referring to the
ambit of the power to be exercised under section 482 Cr.P.C.
8. Quashing of a complaint or criminal proceedings under section 482
Cr.P.C. 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, AIR 1960 SC 866, State
of Uttar Pradesh v. R.K.Srivastava, 1989 (4) SCC 59; State of Haryana v.
Bhajan Lal 1992 Supp. (1) SCC 335, Mrs. Rupan Deol Bajaj v. Kanwar Pal
Singh Gill, 1995 (6) SCC 194; Pepsi Foods Ltd. V. Special Judicial
Magistrate, 1998 (5) SCC 749; Zandu Pharmaceutical Works v. Mohd.
Sharaful Haque 2005 (1) SCC 122; Indian Oil Corporation v. NEPC India
Ltd. 2006 (6) SCC 736, 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 :
"(1) Where the allegations made in the first information report or the
complaint, even if they are taken at their face value and accepted in their
entirety do not prima facie constitute any offence or make out a case
against the accused.
(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
IPC, but to emphasize that the power under section 482 Cr.P.C. 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 &
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.
