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Judgment
T.R. Sharma, J.—The Petitioner has filed this petition u/s 482 of the Code of Criminal Procedure, 1973 (in short ''the Code'') for quashment of the order dated 28.9.2002 passed by the Additional Sessions Judge, Link Court, Ramanujganj, in Sessions Trial No. 253/2002 whereby Additional Sessions Judge has framed the charge for the offence punishable u/s 201 of the Indian Penal Code against the Petitioner who was investigating officer of the case.
The quashment is prayed for on the ground that without there being any prima facie material, learned Additional Sessions Judge has taken cognizance of an offence punishable u/s 201 of the Indian Penal Code and framed the charge of Section 201 of the Indian Penal Code and thereby committed illegality and continuance of such proceeding would be abuse of process of the Court.
Brief facts leading to filing of this petition is that the present Petitioner was posted as Sub Inspector at Police Station Balarampur, District Surguja. On the basis of the F.I.R. relating to intercourse and abatement of commission of suicide, the present Petitioner has investigated the offence and submitted charge sheet before the Judicial Magistrate First Class, Ramanujganj in Crime No. 5/2002 for the offence punishable under Sections 376B and 306 of the Indian Penal Code. Charge sheet reveals that the deceased aged about 16 years was student and accused/Respondent No 2 was teacher. Respondent No. 2 has called the deceased for valuation of the papers in the school where he has committed sexual intercourse with her and as a result of such rape, she committed suicide. Charge sheet for the offence punishable under Sections 376B and 306 of the Indian Penal Code has been filed by the present Petitioner. Vide order dated 28.9.2002, learned Additional Sessions Judge has taken cognizance against the Petitioner on the ground that with a view to save the accused from the offence punishable u/s 376 of the Indian Penal Code, the present Petitioner has intentionally investigated the offence and filed charge sheet u/s 376B of the Indian Penal Code for lesser offence and thereby he has committed an offence of Section 201 of the Indian Penal Code.
Learned Additional Sessions Judge after affording an opportunity of hearing to the parties has framed the charge for the offence punishable u/s 201 of the Indian Penal Code against the Petitioner.
I have heard learned Counsel for the parties and perused the order impugned, order framing charge and record of the Court below.
Learned Counsel for the Petitioner argues that the present Petitioner has investigated the offence against Respondent No. 2 and has filed charge sheet for the offence punishable under Sections 376B and 306 of the Indian Penal Code. He has not screen or concealed the evidence of criminal case. The present Petitioner has collected the material against Respondent No. 2 for the commission of the aforesaid offences. According to the opinion of the Petitioner, Respondent No. 2 has committed offence punishable u/s 376B of the Indian Penal Code because he has committed sexual intercourse as a public servant with woman who is in his custody. Learned Counsel further argues that the Court is required to take cognizance of the offence on the basis of material collected by the prosecution. The Court is not under obligation to take cognizance only on the basis of sections written by the prosecution or investigating officer. Learned Counsel also argues that if charge sheet discloses the commission of the offence of Section 376 of the Indian Penal Code, then the Court is empowered to take cognizance and tried the case punishable u/s 376 of the Indian Penal Code against the accused, but only coating wrong section does not constitute the offence punishable under as a result of Section 201 of the Indian Penal Code. It is evident from the order impugned mat on the basis of charge sheet and investigation made by the Petitioner, learned Additional Sessions Judge found prima facie offence punishable u/s 376 of the Indian Penal Code against Respondent No. 2 which shows that the present Petitioner has collected sufficient material against Respondent No. 2 for commission of the aforesaid offences.
On the other hand, order impugned is supported on behalf of the Respondent No. 1/State.
In the present case, the Court has taken cognizance on the basis of documents of investigation collected by the Petitioner. The Court has arrived at a finding that with a view to screen offender from punishment of offence punishable u/s 376 of the Indian Penal Code, the present Petitioner has caused disappearance of evidence or gave false information to screen offender. Section 201 of the Indian Penal Code reads as under:
Causing disappearance of evidence of offence, or giving false information to screen offender.--whoever, knowing or haying reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false;
if a capital offence.--shall, if the offence which he knows or believes to have been committed is punishable with death, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine;
if punishable with imprisonment for life.--and if the offence is punishable with [imprisonment for life], or with imprisonment which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine;
if punishable with less than ten years'' imprisonment.--and if the offence is punishable with imprisonment for any term not extending to ten years, shall be punished with imprisonment of the description provided for the offence, for a term which may extend to one-fourth part of the longest term of the imprisonment provided for the offence, or with fine, or with both.
Section 201 of the Indian Penal Code provides punishment for causing disappearance of evidence of the offence or giving false information to screen offender.
In the present case, the present Petitioner has not caused disappearance of any evidence, but has filed charge sheet for the offence punishable under Sections 376B and 306 of the Indian Penal Code. Section 376B of the Indian Penal Code reads as under:
376B. Intercourse by public servant with woman in his custody.-- Whoever, being a public servant, takes advantage of his official position and induces or seduces, any woman, who is in his custody as such public servant or in the custody of a public servant subordinate to him, to have sexual intercourse with him, such sexual intercourse rot amounting to the offence of rape, shall be punished with imprisonment of either description for a term which may extend to five years and shall also be liable to fine.
Section 376B of the Indian Penal Code provides; punishment for commission of intercourse by a public servant with woman who is in his custody.
From perusal of the charge sheet, it reveals that woman was in custody of Respondent No. 2 and has committed intercourse with her, but charge sheet also reveals that present Respondent No. 2 has committed intercourse with the deceased woman without her will and consent which falls under the category of rape punishable u/s 376 of the Indian Penal Code.
While dealing with exercise of power u/s 482 of the Code the Apex Court in the matter of State of A.P. v. Golconda Linga Swamy and another has held that exercise of power u/s 482 of the Code in a case of this nature is the exception and not the rule. The section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. Para 5 and 6 of the said judgment reads as under:
Exercise of power u/s 482 of the Code in a case of this nature is the exception and not the rule. The Section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of Court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle quando lex aliquid alique concedit, conceditur et id sine quo res ipsa esse non potest (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the Court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent such abuse. 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 exercises of the powers court would be justified to quash any proceeding if it finds that initiation or 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.
In R.P. Kapur v. State of Punjab this Court summarized some categories of cases where inherent power can and should be exercised to quash the proceedings.
(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.
In the present case, the alleged act of the Petitioner of coating or miscoating of wrong section has been considered as offence punishable u/s 201 of the Indian Penal Code. The present Petitioner has not concealed any evidence of the offence. Coating or miscoating of the provisions of section itself is not an offence. The Court is required to take cognizance on the basis of charge sheet or material collected on behalf of the prosecution and not on the basis of some coating or miscoating of some provisions or sections. The act of Respondent No. 2 of Section 376B of the Indian Penal Code. This is not a case in which the present Petitioner has concealed the material or evidence with intent to screen offender from punishment of intercourse punishable u/s 376 of the Indian Penal Code and deliberately or intentionally collected evidence to show that his act solely falls u/s 376B of the Indian Penal Code. If, it is presumed that the present Petitioner has intentionally or deliberately mentioned Section 376B of the Indian Penal Code, then same is not prima facie sufficient to presume that the present Petitioner has committed any offence punishable u/s 201 of the Indian Penal Code.
In the present case, the entire allegation made in the charge sheet is admitted in its face value, then even conviction of the Petitioner would not be legally possible.
Consequently, the petition is allowed. Order taking cognizance and order framing charge in Sessions Trial No. 253/2002 against the present Petitioner is hereby quashed.