Chandran Ratnaswami vs. K.C. Palanisamy and Others, Civil Appeal No. 4540 of 2013 [Arising
out of S.L.P.(C) No.13120 OF 2013], Decided on May 9, 2013
“The doctrine of abuse
of process of court and the remedy of refusal to allow the trial to proceed is
well-established and recognized doctrine both by the English courts and courts
in India. There are some established principles of law which bar the trial when
there appears to be abuse of process of court.” [Para 29]
In
this respect the Court noted following case laws:
Connelly
vs. Director of Public Prosecutions, (1964) 2 All ER 401 (HL) wherein Lord
Morris observed:
“There can be no doubt that a court which is endowed with a particular
jurisdiction has powers which are necessary to enable it to act effectively
within such jurisdiction. A court must enjoy such powers in order to enforce
its rule of practice and to suppress any abuse of its process and to defeat any
attempted thwarting of its process”. “The power (which is inherent in a court’s
jurisdiction) to prevent abuse of its process and to control its own procedure
must in a criminal court include a power to safeguard an accused person from
oppression or prejudice.”
In his separate pronouncement, Lord Delvin
in the same case observed that where particular criminal proceedings constitute
an abuse of process, the court is empowered to refuse to allow the indictment
to proceed to trial.
Hui
Chi-Ming vs. The Queen [(1992) 1 AC 34 (PC)], the Privy Council defined the
word “abuse of process” as something so unfair and wrong with the prosecution
that the court should not allow a prosecutor to proceed with what is, in all
other respects, a perfectly supportable case.
Bennett
vs. Horseferry Road Magistrates’ Court, (1993) 3 All ER 138, on the application
of abuse of process, the court confirmed that an abuse of process justifying
the stay of prosecution could arise in the following circumstances:
(i) where it would be impossible to give
the accused a fair trial; or
(ii) where it would amount to misuse/manipulation of process because
it offends the court’s sense of justice and propriety to be asked to try the
accused in the circumstances of the particular case.
R.
vs. Derby Crown Court ex p Brooks, (1985) 80 Cr.App.R. 164, Lord Chief Justice
Ormrod stated:
“It may be an abuse of process if either (a) the prosecution
has manipulated or misused the process of the court so as to deprive the
defendant of a protection provided by law or to take unfair advantage of a
technicality, or (b) on the balance of probability the defendant has been, or
will be, prejudiced in the preparation of conduct of his defence by delay on the
part of the prosecution which is unjustifiable.”
R.
vs. Beckford, [1996] 1 Cr.App.R. 94: [1995] R.T.R. 251 Lord Justice Neill observed
that:
“The jurisdiction to stay can be exercised in many different
circumstances. Nevertheless two main strands can be detected in the
authorities: (a) cases where the court concludes that the defendant cannot
receive a fair trial; (b) cases where the court concludes that it would be
unfair for the defendant to be tried.” What is unfair and wrong will be for the
court to determine on the individual facts of each case.
State
of Karnataka vs. L. Muniswamy and Others, (1977) 2 SCC 699, the Court observed
that the wholesome power under Section 482 Cr.P.C. entitles the High Court to
quash a proceeding when 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 High Courts have
been invested with inherent powers, both in civil and criminal matters, to
achieve a salutary public purpose. A court proceeding ought not to be permitted
to degenerate into a weapon of harassment or persecution. The Court observed in
this case that ends of justice are higher than the ends of mere law though
justice must be administered according to laws made by the legislature. It was held
in this case:
“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 nd its
subjects, it would be impossible to appreciate the width and contours of that
salient jurisdiction.”
State
of Haryana and Others vs. Bhajan Lal and Others, 1992 Supp.(1) SCC 335, the
Court in the backdrop of interpretation of various relevant provisions of
Cr.P.C. under Chapter XIV and of the principles of law enunciated by this Court
in a series of decisions relating to the exercise of the extraordinary power
under Article 226 of the Constitution of India or the inherent powers under
Section 482 Cr.P.C. gave the following categories of cases by way of
illustration wherein such power could be exercised either to prevent abuse of
the process of the court or otherwise to secure the ends of justice. Thus, this
Court made it clear that it may not be possible to lay down any precise,
clearly defined and sufficiently channelized and inflexible guidelines or rigid
formulae and to give an exhaustive list to myriad kinds of cases wherein such
power should be exercised. The Court held that 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.”
Zandu
Pharmaceutical Works Ltd. and Others vs. Mohd. Sharaful Haque and Another,
(2005) 1 SCC 122 the Court observed:
“… 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.”
Indian
Oil Corpn. v. NEPC India Ltd. and Others, (2006) 6 SCC 736 the Court again
cautioned about a growing tendency in business circles to convert purely civil
disputes into criminal cases. The Court noticed the prevalent impression that
civil law remedies are time consuming and do not adequately protect the
interests of lenders/creditors. The Court further observed that:
“… Any effort to settle civil disputes and claims, which do
not involve any criminal offence, by applying pressure through criminal
prosecution should be deprecated and discouraged.”
Inder
Mohan Goswami and Another vs. State of Uttaranchal and Others, (2007) 12 SCC 1,
the Court after considering series of decisions observed:
“46. The court must ensure that criminal
prosecution is not used as an instrument of harassment or for seeking private
vendetta or with an ulterior motive to pressurize the accused. On analysis of
the aforementioned cases, we are of the opinion that it is neither possible nor
desirable to lay down an inflexible rule that would govern the exercise of
inherent jurisdiction. Inherent jurisdiction of the High Courts under Section
482 CrPC though wide has to be exercised sparingly, carefully and with caution
and only when it is justified by the tests specifically laid down in the
statute itself and in the aforementioned cases. In view of the settled legal
position, the impugned judgment cannot be sustained.
xxx xxx xxx
50. Civilised countries have recognised
that liberty is the most precious of all the human rights. The American Declaration
of Independence, 1776, French Declaration of the Rights of Men and the Citizen,
1789, Universal Declaration of Human Rights and the International Covenant of Civil
and Political Rights, 1966 all speak with one voice— liberty is the natural and
inalienable right of every human being. Similarly, Article 21 of our
Constitution proclaims that no one shall be deprived of his liberty except in
accordance with procedure prescribed by law.
51. The issuance of non-bailable warrants
involves interference with personal liberty. Arrest and imprisonment means
deprivation of the most precious right of an individual. Therefore, the courts
have to be extremely careful before issuing non-bailable warrants.
52. Just as liberty is precious for an
individual so is the interest of the society in maintaining law and order. Both
are extremely important for the survival of a civilised society. Sometimes in
the larger interest of the public and the State it becomes absolutely
imperative to curtail freedom of an individual for a certain period, only then
the non-bailable warrants should be issued.”
G.
Sagar Suri and Another vs. State of U.P. and Others, (2000) 2 SCC 636, the
Court observed that it is the duty and obligation of the criminal court to
exercise a great deal of caution in issuing the process, particularly when
matters are essentially of civil nature.
S.N.
Sharma vs. Bipen Kumar Tiwari and Others, AIR 1970 SC 786 (at p.789), the Court
has stated:
“7.
….. It appears to us that, though the Code of Criminal Procedure gives to the
police unfettered power to investigate all cases where they suspect that a
cognizable offence has been committed, in appropriate cases an aggrieved person
can always seek a remedy by invoking the power of the High Court under Article
226 of the constitution under which, if the High Court could be convinced that
the power of investigation has been exercised by a police officer mala fide,
the High Court can always issue a writ of mandamus restraining the police officer
from misusing his legal powers. The fact that the Code does not contain any
other provision giving power to a Magistrate to stop investigation by the
police cannot be a ground for holding that such a power must be read in Section
159 of the Code.”
State
of West Bengal and Others vs. Swapan Kumar Guha and Others, AIR 1982 SC 949
while examining the power of a police officer in the field of investigation of
a cognizable offence, Chandrachud, C.J. affirmed the view expressed by Mathew,
J. and observed as follows:
“22. …. There is no such thing like
unfettered discretion in the realm of powers defined by statutes and indeed, unlimited
discretion in that sphere can become a ruthless destroyer of personal freedom.
The power to investigate into cognizable offences must, therefore, be exercised
strictly on the condition on which it is granted by the Code. ….”
Uma
Shankar Gopalika vs. State of Bihar and Another, (2005) 10 SCC 336, the Court
has held as under:
“6. Now the question to be examined by us
is as to whether on the facts disclosed in the petition of complaint any
criminal offence whatsoever is made out much less offences under Sections
420/120-B IPC. The only allegation in the complaint petition against the
accused persons is that they assured the complainant that when they receive the
insurance claim amounting to Rs 4,20,000, they would pay a sum of Rs 2,60,000
to the complainant out of that but the same has never been paid. Apart from
that there is no other allegation in the petition of complaint.
It was pointed out on behalf of the
complainant that the accused fraudulently persuaded the complainant to agree so
that the accused persons may take steps for moving the Consumer Forum in
relation to the claim of Rs 4,20,000. It is well settled that every breach of
contract would not give rise to an offence of cheating and only in those cases breach
of contract would amount to cheating where there was any deception played at
the very inception. If the intention to cheat has developed later on, the same
cannot amount to cheating. In the present case it has nowhere been stated that
at the very inception there was any intention on behalf of the accused persons
to cheat which is a condition precedent for an offence under Section 420 IPC.
7. In our view petition of complaint does
not disclose any criminal offence at all much less any offence either under Section
420 or Section 120-B IPC and the present case is a case of purely civil dispute
between the parties for which remedy lies before a civil court by filing a
properly constituted suit. In our opinion, in view of these facts allowing the
police investigation to continue would amount to an abuse of the process of
court and to prevent the same it was just and expedient for the High Court to
quash the same by exercising the powers under Section 482 CrPC which it has
erroneously refused.”
On
the facts and circumstances of this case the Court held:
“We are of the definite opinion that the
complainant has manipulated and misused the process of Court so as to deprive
the appellants from their basic right to move free anywhere inside or outside
the country. Moreover, it would be unfair if the appellants are to be tried in
such criminal proceedings arising out of alleged breach of a Joint Venture
Agreement specially when such disputes have been finally resolved by the Court
of competent jurisdiction. Hence, allowing the criminal proceedings arising out
of FIR No.7 of 2007 to continue would be an abuse of the process of the Court
and, therefore, for the ends of justice such proceedings ought to be quashed.
Since the High Court failed to look into this aspect of the matter while
passing the impugned order, in our opinion, the same could not be sustained in
law”. [Para 54]
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