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Section 482 Quashing of F.I.R. --Summons

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Section 482 Quashing of F.I.R. --Summons

Instructions for drafting

Parties to the Application:

The original Accused would be the Applicant; and the original complainant and the concerned State would be the Respondents.

Jurisdiction of Courts:

The High Courts have exclusive jurisdiction to entertain these Applications.

1. Section 482 of CrPC, 1973, recognizes the inherent powers of the High Courts 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.

2. Some of the landmark rulings of Apex Court which illustrate the scope and powers of High Courts to grant relief under this jurisdiction.

Para 18: In State of Haryana & Ors. (appellant) v. Bhajan Lai & Ors. (respondents) [1990], 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:

(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 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."

3. In Som Mittal v. Govt. of Karnataka [2008], the Supreme Court, among other things, said, 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 u/s 482 of the Code of Criminal Procedure can be invoked by the High Court either to prevent abuse of process of any Court or otherwise to secure the ends of justice.

4. In R.P. Kapur v. State of Punjab [1960] this Court summarized some of the categories of cases where inherent power should be exercised to quash a criminal proceeding against the accused, stating:

(i) Where it manifestly appears that there is a legal bar against the institution or continuance e.g. Want of sanction;

(ii) Where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged;

(iii) Where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.

5. The inherent powers of the HC is a wide and wholesome power. If the court has to examine and determine whether the continuation of criminal proceedings would be just or would be improper, there is no reason why there should be any limitation on the powers of the court to look into all the materials available on record. There is nothing in law to place any such limitation on the powers of the HC. Surendra Kumar Yadav versus State of Bihar – [1989 Patna HC].

In the case of State of Bihar vs. Muradali Khan and others, the Apex Court held as under [1989] …..When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in court which decides the fate of the .accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceeding. [See Dhanalakshmi v. R. Prasanna Kumar, State of Bihar v. P.P. Sharma, RupanDeol Bajaj v. Kanwar Pal Singh Gill, State of Kerala v. O.C. Kuttan, State of U.P. v. O.P. Sharma, Rashmi Kumar v. Mahesh Kumar Bhada, SatvinderKaur v. State (Govt. of NCT of Delhi), Rajesh Bajaj v. State NCT of Delhi and State of Karnataka v. M. Devendrappa.]" (emphasis supplied).

Material facts to be pleaded:

In so far quashing of F.I.R is concerned –

The facts showing that

1. The allegations made in the F.I.R., 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 Applicant;

2. The allegations made in the F.I.R. 156(3) Application and other materials, accompanying the said F.I.R. do not disclose any cognizable offence, justifying an investigation by police;

3. The allegations made in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, where no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;

4. The allegations made in the F.I.R. are so vague, absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground to call for any investigation by the Police;

5. There is an express legal bar engrafted in the CrPC, 1973, or under _______ (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;

6. The criminal proceeding is manifestly attended with mala fide and/or the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite them due to private and personal grudge.

7. That the impugned Order is contrary to law and contrary to material evidences which are on record;

8. That the Courts below committed an error in appreciating the material evidences on record;

9. That the Courts below failed to appreciate the credible material evidence on record.

In so far challenge to issuance of Summons / Warrant u/s 204 of CrPC is concerned –

The facts showing that

1. The allegations made in the complaint, even, if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence;

2. The allegations made in the complaint and the evidences furnished in support of the same, do not disclose the commission of any offence by the Applicants, and do not make out any case against the Applicant;

3. That there are merely general allegations against the Applicants, without any specific attribution of incriminating acts and omissions, and the whole complaint against the present Applicants is based on speculation of facts, assumptions, imaginations and guessing;

4. That there are no evidences adduced against the Applicants, and therefore there were no sufficient grounds to proceed against the Applicants, and therefore, the essential requirement of law set out in section 204 of CrPC, 1973 is not satisfied;

5. That the evidences adduced against the Applicants are so weak and grossly inadequate to call the Applicants to face criminal prosecution;

6. That requirement of law contemplated u/s 202 of CrPC, 1973 is not complied with;

7. There is an express legal bar engrafted in the CrPC, 1973, or under _______ (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;

Limitation period to initiate Criminal Complaint u/s200:

There is no limitation period.

Court fee:

No Court fee.

Verification Clause:

1. Whereas Parties to the litigation makes series of submissions and allegations against each other, it is a basic requirement of law that Parties must specify in the Verification clause, by reference to the numbered paragraphs of their pleadings, as what facts are which are true to their own knowledge; and what facts are based on the information, belief and legal advice.

2. Further, Section 297(2) of CrPC, 1973, among other things, stipulates that whoever party is obliged to file an Affidavit in any of the proceedings before the Court, the said Party is obliged to specify in his said Affidavit, by reference to the numbered paragraphs of his affidavit, such facts as the deponent is able to prove from his own knowledge and such other facts he has reasonable ground to believe to be true; and in the latter case, the deponent is obliged to state the grounds of such belief. In the absence of such compliance, a proceedings cannot be said to be duly instituted, and is vulnerable to challenge to be dismissed. Affidavit is required to be filed in Complaints filed u/s 200 of CrPC, 1973, and in other proceedings initiated before the Magistrates Court, Sessions Court or before the High Court.

3. The person verifying his pleadings is obliged to sign. The Person verifying is also required to state the date and the place at which it was signed.

4. This requirement of law is based on the principle that whoever comes before the Court, must come with the clean hands and also must come with certain facts and his case should not be based on general, vague or speculative facts.

5. Therefore, the law requires that whatever is stated by the Party in his proceedings, he must clarify that which statement is made from his own knowledge and which statement is made, based on other information, or based on legal advice.

6. This is significant from another perspective, where in cases, if the submissions made by the Party were turned out to be false, then, the said Party may be held guilty of perjury / contempt of the Court for knowingly making false statement and misleading the Court, in cases, where he had verified the concerned false Paras emanating from his own knowledge.

7. The profound object of this verification clause therefore is to prevent or cease frivolous submissions / Applications.

8. The consequences of not verifying correctly may entail penal consequences. The Apex Court, comprising three Judges Bench, in the case of S.R. Ramaraj Versus Special Court, Bombay, 2003, have inter alia, observed that, “A person is under a legal obligation to verify the allegations of fact made in the pleadings and if he verifies falsely, he comes under the clutches of law”.

IN THE HIGH COURT OF JUDICATURE AT _______

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPLICATION NO. _________OF 20___

Application u/s 482 of CrPC, 1973

_______________ …..Applicants

(Original Accused)

Versus

(1) The State of Maharashtra

(2) ________________ ….. Respondents

(Resp No.2 being the Original Complainant)

INDEX

Sr. No.	Particulars	Exhibit	Page No.
1	Synopsis, Authorities, Points to be urged
2	Memo of Application
4		“A”
5		“B”
6		“C”
7		“D”
8		“E”
9		“F”
10	Vakalatnama

IN THE HIGH COURT OF JUDICATURE AT ________

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPLICATION NO. _________OF 20___

Application u/s 482 of CrPC, 1973

_______________ …..Applicants

(Original Accused)

Versus

(1) The State of Maharashtra

(2) ________________ ….. Respondents

(Resp No.2 being the Original Complainant)

SYNOPSIS

Sr.No.	Date	Particulars	Exhibit
1
2
3
4
5
6

THE ACTS TO BE RELIED UPON

The Criminal Procedure Code, 1973

The IPC / Negotiable Instruments Act, 1881

Any other as may be applicable.

THE AUTHORITIES TO BE CITED

Judgment at the time of hearing.

THE POINTS TO BE URGED

(a) “acts” and “omission” attributed towards the accused person in the FIR / Complaint does not constitute any offence; or

(b) No incidence of offence as alleged in the FIR / Complaint has happened; or

(c) the FIR / Complaint contains “bare allegation” without attributing “acts or omission” on the part of the accused person, towards the commission of the offences, that is to say, there is not an iota of any incriminating material against the accused so as to warrant the issuance of summons ;

(d) There are unimpeachable evidence to show that the offence could not have been committed by the accused person as alleged, and otherwise, the accused would be needlessly harassed of the inevitable agony of criminal trials.

(e) That Article 21 of the Constitution of India commands that “No person shall be deprived of his life and liberty” except according to the procedure established by law. In Criminal jurisprudence, the only safeguard available to an innocent person is the “scrupulous and strict adherence” to the procedure prescribed in concluding the “guilt of the accused person”. Thus, whenever, any of the “prescribed procedure” is not “duly followed and complied with”, and where such non compliance, expressly or by necessary implication, frustrate the personal liberty of the accused person, the violence to fundamental right of the accused enshrined under Article 21 of the Constitution is imminent. And therefore the impugned Order of the Ld. Magistrate is in breach of fundamental right of the Applicant, enshrined under Article 21 of the Constitution of India.

(f) That it is elementary principle of criminal jurisprudence that criminal liability arises on account of conduct, act or omission on the part of a person and not merely on account of holding an office or position in a Company.

(g) That institution of any judicial proceedings against a person carries an implicit degree of coercion and no judicial proceedings should be triggered at the whims and fancies of the litigants, which otherwise amounts to sheer harassment, embarrassment, and substantial expenses to the person saddled with unwarranted litigation and most importantly, causes the waste of the precious time of the court in hearing the frivolous and meritless litigations.

IN THE HIGH COURT OF JUDICATURE AT _________

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPLICATION NO. _________OF 20__

Application u/s 482 of CrPC, 1973

IN THE MATTER OF

Sections 482 and ____ of Criminal Procedure Code, 1973;

AND

Sections ____ of the IPC / Negotiable Instruments Act, 1881;

AND

FIR registered / Impugned Order passed by Ld. Magistrate in Criminal Complaint

(Full title)

_______________ …..Applicants

(Original Accused)

Versus

(1) The State of Maharashtra

(2) ________________ ….. Respondents

(Resp No.2 being the Original Complainant)

THE HONOURABLE CHIEF JUSTICE

AND OTHER PUISNE JUDGES OF

THE HONOURABLE HIGH COURT

OF JUDICATURE AT _________

THE HUMBLE APPLICATION OF THE APPLICANTS ABOVENAMED

MOST RESPECTFULLY SHEWETH.

1. A very brief introduction of the parties to the case.

2. The brief facts of the case which are germane to the present controversy, are –

(a) The Applicants state that pursuant to FIR / Complaint No._____ dated ________ filed by the Respondent No.2 hereinabove, the concerned SHO of the said Police station registered an FIR / Ld. Magistrate passed an Order dated ____, inter alia, for the issuance of Process against the Applicants, returnable on _______. Hereto annexed and marked as Exhibit “B” the copy of impugned Order dated _____ and Exhibit “C” the copy of FIR / Complaint filed by Respondent No.2 dated _____

(b)

(c)

(d) Being aggrieved by the aforesaid impugned Order dated ______ Applicant invokes the inherent jurisdiction of this Hon’ble Court recognized u/s 482of CrPC, 1973, on the grounds set out hereinafter.

3. Infirmities in the impugned Order: (The Applicant needs to deal with the observations made in the impugned order, and the findings recorded in pursuant thereto, and assailing those observations and findings, either on facts or on law or on both. Please refer (Link of Illegal / perverse orders of the Court, grievance LG 19).

Where in case it is argued that the allegations made in the F.I.R. / Application 156(3) / Complaint do not constitute any offence, then, with the aid of table of offence stated hereinafter, it may be demonstrated that the acts and omissions attributed towards the present Applicants do not constitute any offence.

4. The Applicant says that the table hereinbelow, in the first column lay down certain ingredients of the applicable offence / facts to be proved, and, then in the next column, spells out the facts alleged against the Applicant, clearly indicating that no offence can said to be committed by the present Applicants. (Therefore, the Applicant has to set out in the table, against each of the ingredient, the relevant portion of his Application / pleading, which would demonstrate that the requirement of respective ingredient of the offence is not met, or in the alternative, the Applicant may mention the Para number of his Application which sets out the factual aspect of the present case indicating the non-existence of the particular respective ingredient of the offence.)

5. Other submissions, if any.

6. The Applicants state that after careful reading of FIR / Complaint as a whole, it can safely be argued that (as may be applicable to the facts of the case) –

In so far quashing of F.I.R is concerned –

a) The allegations made in the F.I.R., 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 Applicant;

b) The allegations made in the F.I.R. 156(3) Application and other materials, accompanying the said F.I.R. do not disclose a cognizable offence, justifying an investigation by police;

c) The allegations made in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, where no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;

d) the FIR / Complaint contains “bare allegation” without attributing “acts or omission” on the part of the accused person, towards the commission of the offences, that is to say, there is not an iota of any incriminating material against the accused so as to warrant the issuance of summons;

e) The allegations made in the F.I.R. are so vague, absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground to call for any investigation by the Police;

f) There is an express legal bar engrafted in the CrPC, 1973, or under _______ (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;

g) The criminal proceeding is manifestly attended with mala fide and/or the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite them due to private and personal grudge.

h) That the impugned Order is contrary to law and contrary to material evidences which are on record;

i) That the Courts below committed an error in appreciating the material evidences on record;

j) That the Courts below failed to appreciate the credible material evidence on record.

In so far challenge to issuance of Summons / Warrant u/s 204 of CrPC is concerned –

a) The allegations made in the complaint, even, if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence;

b) The allegations made in the complaint and the evidences furnished in support of the same, do not disclose the commission of any offence by the Applicants, and do not make out any case against the Applicant;

c) That there are merely general allegations against the Applicants, without any specific attribution of incriminating acts and omissions, and the whole complaint against the present Applicants is based on speculation of facts, assumptions, imaginations and guessing;

d) That there are no evidences adduced against the Applicants, and therefore there were no sufficient grounds to proceed against the Applicants, and therefore, the essential requirement of law set out in section 204 of CrPC, 1973 is not satisfied;

e) That the evidences adduced against the Applicants are so weak and grossly inadequate to call the Applicants to face criminal prosecution;

f) That requirement of law contemplated u/s 202 of CrPC, 1973 is not complied with;

g) There is an express legal bar engrafted in the CrPC, 1973, or under _______ (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;

h) There are unimpeachable evidence to show that the offence could not have been committed by the accused person as alleged, and otherwise, the accused would be needlessly harassed of the inevitable agony of criminal trials.

7. The Applicants submit that Article 21 of the Constitution of India commands that “No person shall be deprived of his life and liberty” except according to the procedure established by law. In Criminal jurisprudence, the only safeguard available to an innocent person is the “scrupulous and strict adherence” to the procedure prescribed in concluding the “guilt of the accused person”. Thus, whenever, any of the “prescribed procedure” is not “duly followed and complied with”, and where such non compliance, expressly or by necessary implication, frustrate the personal liberty of the accused person, the violence to fundamental right of the accused enshrined under Article 21 of the Constitution is imminent. And therefore the impugned Order of the Ld. Magistrate is in breach of fundamental right of the Applicant Nos.3, 5 and 6, enshrined under Article 21 of the Constitution of India.

8. The Applicants submit that institution of any judicial proceedings against a person carries an implicit degree of coercion and no judicial proceedings should be triggered at the whims and fancies of the litigants, which otherwise amounts to sheer harassment, embarrassment, and substantial expenses to the person saddled with unwarranted litigation and most importantly, causes the waste of the precious time of the court in hearing the frivolous and meritless litigations.

9. Grounds for Relief: (as may be applicable to the facts of the case) –