Code of Criminal Procedure, 1973 – s. 482 – An FIR was lodged u/s. 420 r/w.120B IPC and ss.13(2) and 13(1)(d) of the Prevention of Corruption Act, 1988 against the public servants occupying crucial positions in Bhubaneswar Development Authority (BDA) and in Housing and Development Department of the State, alleging that they entered into a criminal conspiracy, abusing their official position distributed prime plots among themselves and their relatives at minimal rates – Five Accused persons approached High Court u/s.482 Cr.P.C. to quash the criminal proceedings – The High Court partly allowed the applications and quashed the criminal proceedings against original accused Nos.3,4 and 5 mainly on the ground that the said accused have not dealt with the allotment file in any manner and there is no material that any of these accused had influenced any co-accused or any officer of BDA or H&UD. Deptt. for getting the plots illegally – On appeal, held: The High Court has entered into the merits of the allegations and has conducted the mini-trial by weighing the evidence in detail which, as such, as observed and held by the Supreme Court in its various decisions is wholly impermissible – Looking to the allegations in the present case against the respondents-accused and considering the fact that charge-sheet was filed by the Vigilance Cell after a thorough investigation, it cannot be said that the case falls within any of the exceptions as carved out by this Court in the case of Bhajan Lal – The allegations against the respondents-accused are very of serious nature, as there are specific allegations with respect to huge loss caused to the BDA and the public exchequer, as according to the prosecution the plots were allotted at throw away prices – All these aspects are required to be considered at the stage of trial and not while considering the application u/s.482 Cr.P.C. – Thus, the impugned judgment and order passed by the High Court quashing the criminal proceedings against the respondent-accused no.3,4 and 5 is quashed and set aside.
Code of Criminal Procedure, 1973 – s. 482 – Quashing under – Held: The power of quashing should be exercised sparingly and with circumspection and in rare cases – As per settled proposition of law while examining an FIR/complaint quashing of which is sought, the court cannot embark upon any enquiry as to the reliability or genuineness of allegations made in the FIR/complaint – Quashing of a complaint/FIR should be an exception rather than any ordinary rule – Normally, the criminal proceedings should not be quashed in exercise of powers u/s. 482 Cr.P.C. when after a thorough investigation the charge-sheet has been filed. Public Property – Allotment of plots – Held: Government and/or the public authorities like B.D.A. are the custodian of public properties – Allotment of public properties must be transparent and has to be fair and non-arbitrary – In such matters, public interest only has to be the prime guiding consideration – In order to get the best or maximum price so that it may serve the public purpose and public interest so as to avoid loss to the authority and/or the public exchequer – The allotment of plots in the discretionary quota cannot be at the whims of the persons in power and/or the public servants who are dealing with the allotment of plots in the discretionary quota. Allowing the appeals, the Court
HELD: 1. At the outset, it is required to be noted that by the impugned judgment and order the High Court in exercise of its powers under Section 482 Cr.P.C. has quashed the criminal proceedings for the offences under Section 13(2) read with Section 13(1)(d) of the Act and Section 420 read with Section 120B IPC. From the impugned judgment and order passed by the High Court, it appears that the High Court has entered into the merits of the allegations and has conducted the mini-trial by weighing the evidence in detail which, as such, as observed and held by this Court in a catena of decisions is wholly impermissible. As held by this Court in the case of State of Haryana And Ors. vs Ch. Bhajan Lal And Ors., AIR 1992 SC 604:[1990] 3 Suppl. SCR 259, the powers under Section 482 Cr.P.C. could be exercised either to prevent an abuse of process of any court and/or otherwise to secure the ends of justice. In the said decision this Court had carved out the exceptions to the general rule that normally in exercise of powers under Section 482 Cr.P.C. the criminal proceedings/FIR should not be quashed. [Para 6][343-F-H; 344-A-B]
2. Looking to the allegations in the present case against the respondents – accused and considering the fact that chargesheet has been filed by the Vigilance Cell after a thorough investigation, it cannot be said that the case falls within any of the exceptions as carved out by this Court in para 102 in the case of Bhajan Lal (supra). It cannot be said that the criminal proceedings initiated against the respondents – accused are an abuse of process of any court. On the contrary, the allegations are an instance of abuse of the powers with a mala fide intention and allotment of the plots to the family members by hatching a criminal conspiracy and to allot the plots to the family members at throw away price causing loss to the B.D.A. and the public exchequer. [Para 6.1][345-C-E]
3. It is trite that the power of quashing should be exercised sparingly and with circumspection and in rare cases. As per settled proposition of law while examining an FIR/complaint quashing of which is sought, the court cannot embark upon any enquiry as to the reliability or genuineness of allegations made in the FIR/complaint. Quashing of a complaint/FIR should be an exception rather than any ordinary rule. Normally the criminal proceedings should not be quashed in exercise of powers under Section 482 Cr.P.C. when after a thorough investigation the charge-sheet has been filed. At the stage of discharge and/or considering the application under Section 482 Cr.P.C. the courts are not required to go into the merits of the allegations and/or evidence in detail as if conducing the mini-trial. As held by this Court the powers under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the Court. [Para 6.2][345-E-H]
4. The allegations against the respondents – accused are very serious including hatching a criminal conspiracy in allotment of 10 plots in the discretionary quota arbitrarily and to their own family members/relatives. There are specific allegations with respect to huge loss caused to the B.D.A and the public exchequer, as according to the prosecution the plots were allotted at throw away prices. All these aspects are required to be considered at the stage of trial and not while considering the application under Section 482 Cr.P.C. [Para 7][346-G-H]
5. The High Court has embarked upon an enquiry as to the reliability and genuineness of the evidence collected during the investigation as if the High Court was conducting the mini-trial. Therefore, as such the impugned judgment and order passed by the High Court quashing the criminal proceedings against the respondents herein - original accused Nos. 4, 5 and 3 is unsustainable, both, in law and/or facts and the same deserves to be quashed and set aside. [Para 9][349-F-G]
6. Government and/or the public authorities like B.D.A. are the custodian of public properties. Allotment of public properties must be transparent and has to be fair and non-arbitrary. In such matters public interest only has to be the prime guiding consideration. The aforesaid principle is in order to get the best or maximum price so that it may serve the public purpose and public interest so as to avoid loss to the authority and/or the public exchequer. The allotment of plots in the discretionary quota cannot be at the whims of the persons in power and/or the public servants who are dealing with the allotment of plots in the discretionary quota. When a democratic government in exercise of its discretion selects the recipients for its largess, then discretion should be exercised objectively, rationally, intelligibly, fairly and in a non-arbitrary manner and it should not be subjective and according to the private opinion and/or the whims and fancies of the persons in power and/or the public servants. [Para 11][350-C-F]
State of Haryana And Ors. v. Ch. Bhajan Lal And Ors., AIR 1992 SC 604 : [1990] 3 Suppl. SCR 259 – relied on.
K. Raju v. Bangalore Development Authority decided by the Karnataka High Court in Writ Petition No. 11102 of 2008 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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