P L D 1967 Supreme Court 317 (PLP)

HAMOODUR RAHMAN, J.‑These three appeals, by special leave, arise out of the same judgment of a learned Single Judge of the High Court of West Pakistan, Lahore, whereby three petitions filed under section 561‑A of the Code of Criminal Procedure for quashing certain criminal proceedings pending against the respondents in these appeals were allowed and the proceedings were quashed, as, in the view of the High Court, they amounted to an abuse of the process of the Court. The circumstances in which the said proceedings came to be instituted were briefly as follows:-- The appellant, who is the same in all these cases, and the respondents in these appeals, had, it appears, along with some others, promoted a company, called the Mechanical Himalaya Transport Company Limited. This company had altogether 34 share‑holders, who were divided into two groups, known respectively as the Batala Group and the Jammu and Kashmir group. This company ran into debts in the year 1957 when at a general meeting it was decided by a majority to appoint the appellant herein (who belongs to the Jammu and Kashmir group) as an agent or lessee to run the business of the company for a period of five years. The custody of all the vehicles and other assets of the company was also made to him on the 14th August 1957, in pursuance of the above decision. Thereafter, disputes and differences arose between the two groups of share‑holders leading to an application under section 153 of the Companies Act for the re‑constitution of the Company which ended ultimately on the 27th September 1959, in the splitting up of the company into two separate companies. One of the new companies was registered in November 1959, under the name and style of the Mechanical Himalya Transport Company (Jammu and Kashmir) Limited, Gujranwala, and the appellant, who was a share‑holder of the old company, also became a share‑holder of the new company. In the meantime, however, the appellant relying upon the resolution of the 14th August 1957, filed a complaint with the police at Gujranwala alleging that one Afsar Khan, who was appointed as a manager by him after taking over the management of the company, had committed criminal breach of trust by selling one of the motor lorries belonging to the company along with some spare parts for a sum of Rs. 20,000 to a resident of Sialkot. Then again in the year 1960, the appellant initiated proceedings under section 145 of the Code of Criminal Procedure against the Company. The latter proceedings were, however, ultimately quashed by the High Court on the 9th June 1960, in exercise of its revisional powers under section 439 of the Code of Criminal Procedure. After this the appellant also filed a civil suit in a Court at Sialkot for enforcing his rights under the resolution of the 14th August 1957. The complaint against Afsar Khan was in the meantime under investigation by the police and during the course of the investigation the police discovered a large number of other instances of criminal breach of trust by employees and other office‑bearers of the company to cover which they had also committed forgeries for the purposes of cheating the company and/or the appellant and/or the Income‑tax Authorities. The police, therefore, submitted three separate challans in respect of offences under sections 408, 468, 408/109 and 468/109, P. P. C. The first was against respondents Muhammad Hafiz, Afsar Khan and Muzammal Khan in respect of a sum of Rs. 1,100 said to have been drawn on the 16th of September 1958, as salary for one of the share‑holders, called Nur Muhammad, for the months of June and July. On the receipt for this alleged payment the signature of Nur Muhammad was said to have been forged. The second challan was against respondents Afsar Khan, Lal Din, Muhammad Hafiz and Muzammal Khan for further breaches of trust in respect of a total sum of Rs. 2,200 between 2‑4‑53 and 16‑5‑58 by preparing false workshop records for cheating the appellant and the Income‑tax Authorities. The third challan was against the respondents Afsar Khan, Muzammal Khan, Muhammad Ashraf Khan, Fazal Hussain and Lai Din and two other persons, namely, Abdul Karim and Abdul Ghani, who have since been discharged. This related to criminal breaches of trust in respect of a total sum of Rs. 8,555 between 5‑5‑58 and I8‑9‑58 by falsification of workshop accounts on the basis of forged receipts and forged entries to cheat the Income‑tax Authorities. No challan was, however, submitted by the police in respect of the offence alleged in the First Information Report nor was any final report filed in respect thereof. The cases were taken up for trial by the Additional District Magistrate. No objection as to the validity of the proceedings or as to the legality of the action of the police was taken before him. After recording the oral evidence of a large number of witnesses and examining various account books and other documents, which were alleged to have been forged, the Magistrate ultimately framed three separate charges on the 25th of October 1960, one against respondents Muzammal Khan. Afsar Khan and Muhammad Hafeez under section 468, P. P. C. another against Afsar Khan, Muzammal Khan and Lai Din under section 468 and Hafeez under section 463/10) and the third against five persons, namely, Afsar Khan, Muzammal Khan, Fazal Hussain, Lai Din and Muhammad Ashraf under section 468 of the Penal Code. Against these orders three separate petitions under section 561‑A of the Code of Criminal Procedure were moved in the High Court by the accused in these three cases. The High Court heard them together and as already stated, quashed all those proceedings on the following grounds:‑ (1) that it was not the business of the police to submit any challan for the commission of offences not disclosed in the First Information Report; (2) that the police had given a twist to the case and instead of reporting that the allegations made by the appellant were not true came to the conclusion that the accused had committed other offences; (3) if the conclusions arrived at by the police were correct then it could only mean that the allegations made by the appellant were untrue; (4) whether the police acted rightly or not it was the duty of the Court to scrutinise the cases carefully before framing charges in view of the fact that the conclusions arrived at by the police ran counter to the allegations contained in the report and this the Court framing the charges had not done; (5) that the dispute between the appellant and the company was essentially of a civil nature and as such, the accused should not have been sent up for trial on the alleged criminal charges and (6) that in the circumstances the prosecutions started by the police were "nothing but an abuse of the process of the Court." Against this order the appellant filed three petitions for special leave to appeal in this Court which were heard together and leave was granted on the 4th of May 1961, to consider as to whether the High Court was right in holding that an abuse of the process of the Court had taken place and that the police were not competent to file challans in respect of offences not alleged in and F. I. R. During the pendency of the appeals in this Court an application as put in on the 7th October 1963, to withdraw the appeals but on the 13th November 1963, when the matter came up before the Court the learned counsel for the appellant pointed out that an offence under section 468, though non cognizable, was a non‑compoundable offence and therefore, there could be no question of any compromise and the appeals should proceed. Ultimately on the 20th December 1963, this Court ordered that the amount of Rs. 2,000 alleged to have been paid by the respondents in these appeals to the appellant towards his costs should be refunded to them, the appellant should be allowed to withdraw his application for the withdrawal of the appeals and the same should proceed. We have now heard learned counsel appearing for the parties and examined the records of the case. The first point urged by the learned counsel for the appellant is that the inherent jurisdiction under section 561‑A, Cr. P. C. could not have been invoked by the High Court where other remedies within the framework of the Criminal Procedure Code itself were available. Our attention in this connection is drawn to sections 435, 438 and 439 of the Code of Criminal Procedure which, it is urged, give to the Courts exercising revisional powers abundant power to correct almost every kind of injustice. It is next contended that, in any event, the reasons given by the High Court for interfering in the matter were not legally sound. In a case where a Court is properly seized of a criminal proceeding and has after examining the evidence taken the view that there is a prima facie case to be tried and framed charges the High Court is not competent to quash the proceedings unless it is satisfied that even if the evidence adduced is left unrebutted no charge can at all be framed. Then and only then can the proceedings be quashed. Here the evidence is, by no means, of that nature and it cannot be said that if it is left unrebutted no case has at all been made out against the respondents. In support of this contention reliance is also placed upon a decision of this Court in the case of M. S. Khawaja v. The State (P L D 1965 S C 287), wherein it has been observed:‑ "Every prosecution for a criminal offence is to be deemed to have been commenced and continued in the public interest, as a duty of the State. It can only be in a very rare case that a superior Court acting under its inherent power `to prevent abuse of the process of any Court or otherwise to secure the ends of justice would deem it appropriate to act so as to place an alleged offence outside the operation of the criminal law, on incidental grounds, such as that of delay, or for any reasons other than reasons going to the question whether the allegation is sufficient to constitute an accusation of an offence in law . . . . . To quash a judicial proceeding in order to `secure the ends of justice' would involve a finding that if permitted to continue, that proceeding would defeat the ends of justice, or in other words, would either operate or perpetuate an injustice. To find an `abuse' it would be necessary to see in the proceeding, a perversion of the purpose of the law such as to cause harassment to an innocent party, to bring about delay, or where the machinery of justice is engaged in an operation from which no result in furtherance of justice can accrue and similar perverse results." In this case the High Court has not only acted in disregard of these principles but has, indeed, by interfering at this intermediate stage with the usual course of the administration of criminal justice in the manner provided by the Criminal Procedure Code interrupted that course of justice and set up a wrong precedent by which the cause of justice instead of being advanced has really been stifled. The argument advanced on behalf of the respondents that the inherent jurisdiction under section 561‑A of the Code of Criminal Procedure is not necessarily excluded, because, a revision is also possible, cannot be accepted as a general principle, for, one of the reasons for invoking the inherent jurisdiction of the Court is that no other remedy is available for obtaining justice in the cause. It is, therefore, generally accepted that the inherent jurisdiction should not normally be invoked where another remedy is available. Inherent powers are preserved to meet a lacuna in the Criminal Procedure Code in extraordinary cases and are not intended for vesting the High C Courts with powers to make any order which they are pleased to consider to be in the interests of justice. These powers are as much controlled by principles and precedents as are its express statutory powers. The decision of the West Pakistan High Court in the case of R. C. P. Guignard v. The State and another ( P L D 1963 Kar. 868), relied upon by the respondents, does not lay down any contrary principle, for, it clearly recognizes that the High Court will interfere in the exercise of its inherent jurisdiction if it is satisfied that the resort to criminal proceedings "is doing something which is not warranted by law." If, however, the decision cited intended to lay down any wider principle ‑ then it cannot be approved. The respondents next urge that the High Court's order being based upon reasons which are not altogether irrelevant should not be interfered with by this Court, since the proceedings having started in 1958, nine years have now elapsed. We are not impressed by this argument. The reasons given by the High Court were, by no means, cogent. If, in fact, an offence had been committed justice required that it should be enquired into and tried. If the respondents are not guilty they have a right to be declared as honourably acquitted by a competent Court. On the other hand, if the evidence against the respondents discloses a prima facie case then justice clearly requires that the trial should proceed according to law. The mere fact that a long period has expired since the initiation of proceedings is no ground for quashing the criminal proceeding as was pointed out in the case of M. S. Khawaja v. The State. The inherent jurisdiction given by section 561‑A is not an alternative jurisdiction or an additional jurisdiction but it is a jurisdiction preserved in the interest of justice to redress grievances for which no other procedure is available or has been provided by the Code itself. The power given by this section can certainly not be so utilised as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute. The High Court, as has repeatedly been pointed out in a number of decisions, should be extremely reluctant to interfere in a case where a competent Court has, after examining the evidence adduced before it, come to the view that a prima facie case is disclosed and has framed charges or summoned the accused to appear, unless it can be said that the charge on its face or the evidence, even if believed, does not disclose any offence. This the High Court has not found in the present case but has merely proceeded on an erroneous conception that in a case where a complaint has been filed the police has no jurisdiction to investigate into any other offence which comes to its notice in the course of the investigation of the complaint, particularly, if the offence disclosed is of a non recognisable nature. The High Court itself has referred to a Full Bench authority of the Madras High Court where a contrary view was taken but has not quoted any other authority in support of its own view. We are in agreement with the views expressed by the Madras High Court for, we can see no legal bar to the police submitting a challan in respect of offences other than those mentioned in the First Information Report, if the same should come to its notice during the course of the investigation on the basis of the complaint except in the cases mentioned in sections 196 to 199, Cr. P. C. Section 190(1)(6) of the Code of Criminal Procedure clearly gives jurisdiction to the Magistrate mentioned therein to take cognizance of an offence on the basis of a police report whether the offence be cognizable or non‑cognizable. In the present case, the Magistrate was an Additional District Magistrate and one of the offences in respect of which the challan was submitted was under section 408, P. P. C., which was cognizable. Thus even the obstacle posed by section 155(2), Cr. P. C., did not stand in the way. The challan submitted by the police was, therefore, lawfully) submitted and legally enquired into. If the respondents were aggrieved by the charge they could well have invoked the revisional jurisdiction of the High Court, as if indeed they did after they failed in a similar application for the quashing of the proceedings under section 145, Cr. P. C., in one of the litigation s started by the appellant herein against them. It is worth noting that in that case the petition under section 561‑A was first rejected by the same High Court, because, a more specific remedy by way of a revision petition was available against the impugned order. This remedy was subsequently invoked under section 439 and relief was granted on the 9th of May 1960, by the High Court, For these reasons we are of the view that these appeals must succeed and the order of the High Court quashing these proceedings .must be set aside. These appeals are, accordingly, allowed and the order of the High Court set aside. The records` G should now be sent down immediately so that the criminal cases can proceed and be disposed of as expeditiously as possible. A. H. Appeals allowed.