Guidelines for the use of inherent power of the court under section 482 of Cr. P.C
Mahindra & Mahindra Financial ServicesLtd. and Anr. v. Rajiv Dubey, Criminal Appeal No. 1966 of 2008. Date of Judgment 4-12-08
The power under the section is designed to prevent abuse of the process of courts and also to secure the ends of justice. Though it is impossible and unadvisable to lay down comprehensive guidelines or formulae, offering illustrative contingencies would be of help. In this judgement the SC offers certain guiding principles, quoting from an earlier determined case. [State of Haryana v. Bhajan Lal (AIR 1992 SC 604)]
“(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."
Technicality and incompetents wins at the cost of environment
Gujarat Pollution Control Board v. M/s Nicosulf Industries & Export Pvt. Ltd. and Ors. Criminal Appeal No. 9 of 2002. Date of Judgment 4-12-08
An interesting case which portray the hair splitting arguments on technicality (as to who is competent to file a complaint) and the difference between the “power to sanction a complaint” and “power to authorise the complaint” under sections 49 and 11-A of the Water (Prevention and Control of Pollution) Act, 1974.
The incompetent way in which the Gujarat Pollution Control Board collected and processed the sample opened up an easy route of escape to the allegedly polluting firm.
Was thinking about the accountability of the officers of the Board, who has acted carelessly (or deliberately carelessly).
Designing a remedy
Kashiben Chhaganbhai Koli v. State of Gujarat, Criminal Appeal No. 1967 of 2008. Date of Judgment 4-12-08
The SC in this appeal found a way to design a remedy which is legally correct at the same time not oblivious of reality.
The court rejected the appeal and affirmed the conviction order of the lower court but ingeniously devised a method to show compassion towards the accused who, according to her counsel, is unable to walk due to recent paralytic attack.
Court granted the appellant three months time to surrender herself, as the counsel proposed the plan of approaching the Governor for reduction of sentence under Article 161 of the Constitution.