Judgment:
A.R. Tiwari, J.
1. By this petition, preferred under Section 482, Criminal Procedure Code, the petitioners have sought quashment of criminal proceedings initiated under the Income-tax Act and the Indian Penal Code pending in the Court of ACJM (Economic Offences), Indore and registered as Cr. Case No. 24/84.
2. The facts in brief are :
Petitioner No. 1 is a company said to be incorporated under the Companies Act, 1956. The plant at Indore has been set up by it. Petitioner No. 2 is said to be the managing director of this company at the relevant time whereas petitioner No. 3 is said to be the technical director of the company.
It is alleged that there was allegation about concealment of income. It is urged that the debility in such an accusation is demonstrated by the fact that as a result of appeals the level of such amount stood reduced to Rs. 52,88,166 from Rs. 8,67,11,471. It is argued that some infirmity was associated with the assessment orders of different years. It is submitted that the Department has unjustifiably initiated the criminal proceedings through the aforesaid complaint.
3. I have heard Shri S.N. Kohli, learned counsel for the applicants, and Shri P.K. Saxena, learned counsel for the non-applicant.
4. The aforesaid criminal case is at the stage of production of evidence before charge. The continuation of the proceedings is sought to be incinerated on grounds prodigious in number. The linchpin to the prayer is luculently embodied in para 24 of the petition. It is reproduced hereunder:
'The petitioner submits that the facts and circumstances of the case clearly show that it is not the petitioner but the Department which is the guilty party for initiating such unnecessary prosecution against respectable persons. The facts and circumstances further show that it would be extremely doubtful whether even after such a prolonged trial the case will end in conviction. Meanwhile, the petitioner would be unnecessarily put to great mental hardship.'
The challenge thus essentially centres round 'the facts and circumstances' of the case. The stage is one prior to Section 245, Criminal Procedure Code. To my mind, the petitioners can very well put their side of the case in cross-examination of the witnesses who may be examined in support of the prosecution and press the plea for discharge in terms of Section 245(1) of the Criminal Procedure Code. It is not suggested that there is any fundamental defect as such.
5. The quashment of the proceedings instituted otherwise than on police report is circumscribed by certain factors. In Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi, AIR 1976 SC 1947, it is laid down as under (headnote) :
'Thus, in the following cases an order of the Magistrate issuing process against the accused can be quashed or set aside :
(1) Where the allegations made in the complaint or the statement of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused ;
(2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;
(3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible ; and
(4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by a legally competent authority and the like.'
The object behind this is to ensure that none is lugged in to prosecution appearing to be inutile and futile and indicating the chances of conviction rather bleak. The Constitution of India has promised 'dignity' to an individual which needs to be safeguarded and law surely cannot stay petrified when infecundity stares in the face and allegations at their face value tend to cause ripples in the pool of the conscience of the court. It is precisely for this reason that the procedure envisages well-demarcated stages to voice grievances. It is pertinent to pen the periscope from the relevant provision. Section 245(1) reads as under :
'245. (i) If, upon taking all the evidence referred to in Section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him.'
It is thus undeniable that Section 245(1), Criminal Procedure Code, is a sufficient safeguard available to the persons proceeded against in a criminal court. And, even when any specific provision was unavailable, one is not left without remedy. In K.M. Mathew v. State of Kerala [1992] MPWN (I) 30 ; [1992] 1 KLT 1 (SC), it is observed that (at page 3 of [1992] 1 KLT):
'It is open to the accused to plead before the Magistrate that the process against him ought not to have been issued. The Magistrate may drop the proceedings if he is satisfied on reconsideration of the complaint that there is no offence for which the accused could be tried. It is his judicial discretion. No specific provision is required for the Magistrate to drop the proceedings or rescind the process. The order issuing process is an interim order and not a judgment. It can be varied or recalled. The fact that the process has already been issued is no bar to drop the proceedings if the complaint on the very face of it does not disclose any offence against the accused.'
The scope under Section 482, Criminal Procedure Code, is not unlimited. The powers are exercisable rather sparingly for achieving the undernoted purposes :
(1) To give effect to any order under the Code, or
(2) To prevent abuse of the process of any court or otherwise
(3) To secure the ends of justice.
Enough light is shed by Madhu Limaye v. State of Mahasahtra, AIR 1978 SC 47, as under (headnote) :
'The following principles may be stated in relation to the exercise of the inherent power of the High Court :
(1) That the power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party ;
(2) That it should be exercised very sparingly to prevent abuse of the process of any court or otherwise to secure the ends of justice ;
(3) That it should not be exercised as against the express bar of law engrafted in any other provision of the Code.'
There seems to be no apparent miscarriage of justice as the petitioners have valuable rights to impeach the evidence which may be produced in terms of Section 244, Criminal Procedure Code, and seek termination of proceedings under Section 245(1), Criminal Procedure Code. The relief, if justified on facts and in law, is demonstrably available under the specific provision. The applicants had moved an application under Section 245(2), Criminal Procedure Code, in the trial court. It is urged that this was rejected by order dated July 26, 1990, with the observation that contentions can be urged after recording of evidence before charge.
6. The remedy is thus vivid and visible if it can be shown in irrecusable manner that the prosecution was incogitant and its effect tended to be bitter and biting but if the plea depended on a probe into facts and circumstances as noted above, then it required to be raised with adequate material at an appropriate stage. At present, the petition is found to be premature.
7. In the circumstances, I decline to deal with the merits of the matter in exercise of inherent powers and decide to leave it to the trial court for vouchment and verdict at proper stage.
8. The petitioners thus shall have freedom to urge these points in thetrial court and the trial court shall then decide the same in accordancewith law. It is clarified that the order passed on the aforesaid applicationshall not come in the way and the course hereafter shall run in a fetter-free manner. Needless to say the trial court shall decide the matter haclege without feeling in any way tied down by observations made hereinfor ad hoc purpose.
9. With these observations, the petition stands finally disposed ofConsequently, the parties are directed to appear before the trial courton February 10, 1993. The case, being of 1984, is very old and, in viewof this, the trial court is ordered to expedite the trial and, if necessary,to proceed in the matter day to day. The parties are expected to co-operatein profluence of the proceedings which remained under hibernation onaccount of the order of restraint passed in this case.