Section 528 of the Bhartiya Nagarik Suraksha Sanhita 2023 provides that the Allahabad High Court has the inherent power so as to order to prevent the abuse of process of court or otherwise to secure the ends of justice. Section 482 of the Criminal Procedure Code 1973 provided for identical provision. In 2023, the Criminal Procedure Code 1973 stood repealed by virtue of Bhartiya Nagarik Suraksha Sanhita 2023, however, the interpretation of Section 482 of the Criminal Procedure Code 1973 is also applicable to Section 528 of the Bhartiya Nagarik Suraksha Sanhita 2023.
In the case of State of Haryana vs. Bhajan Lal, the Hon’ble Apex Court provided a non-exhaustive list for exercise of power under Section 482 of Criminal Procedure Code. The relevant portion is as follows:
- (a) 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;
- (b) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R.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;
- (c) 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;
- (d) 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;
- (e) 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;
- (f) 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;
- (g) 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.
In the case of Parbatbhai Aahir alias ParbatbhaiBhimsinhbhaiKurmur and others vs. State of Gujarat and others, a full bench of the Hon’ble Apex Court further evolved the principles behind exercise of power under Section 482 of Criminal Procedure Code, and the same is as follows:
- “16. The broad principles which emerge from the precedents on the subject, may be summarised in the following propositions:
- 16.1. Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inhere in the High Court.
- 16.2. The invocation of the jurisdiction of the High Court to quash a first information report or a criminal proceeding on the ground that a settlement has been arrived at between theoffender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973. The power to quash under Section 482 is attracted even if the offence is non-compoundable.
- 16.3. In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power.
- 16.4. While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised to secure the ends of justice, or to prevent an abuse of the process of any court.
- 16.5. The decision as to whether a complaint or first information report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated.
- 16.6. In the exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences.
- 16.7. distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing insofar as the exercise of the inherent power to quash is concerned.
- 16.8. Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similartransactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute.
- 16.9. In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice; and
- 16.10. There is yet an exception to the principle set out in propositions 16.8, and 16.9. above. Economic offences involving the financial and economic well-being of the State have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance.”
From the aforesaid settled position of law, it can be culled out that criminal cases having overwhelmingly and predominantly civil flavour stand on a different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature.
Despite crystal clear judgments by the Hon’ble Apex Court, chargesheets were being filed in cases wherein the wrong was completely civil in nature. The Hon’ble Apex Court took cognizance of this trend in the case of RikhabBirani and another vs. State of Uttar Pradesh and another, and imposed costs on the State of Uttar Pradesh. The relevant portion is as follows:
“We are also constrained to impose costs of ₹50,000/- (Rupees fifty thousand only) on the State of Uttar Pradesh as, in spite of repeated judgments/orders of this Court, we are being flooded with cases of civil wrongs being made the subject matter of criminal proceedings by filing chargesheets, etc. These costs will be paid by the State of Uttar Pradesh within a period of six weeks from the date of receipt of a copy of this order. It will be open to the State of Uttar Pradesh to conduct internal enquiries and collect this amount from the delinquent and responsible officers.”
Breach of Contract – when cheating
It has been an observable trend, especially in the state of Uttar Pradesh, that in every case of breach of contract, criminal proceeding is instituted to deter the other party, and mount pressure upon him.
The Hon’ble Allahabad High Court, in the case of Vesa Holdings (P) Ltd.vs.State of Kerala, the Hon’ble Court observed:
“12. The settled proposition of law is that every breach of contract would not give rise to an offence of cheating and only in those cases breach of contract would amount to cheating where there was any deception played at the very inception.”
In the case of Rikhab Birani (supra), the Hon’ble Apex Court observed as follows:
“During the last couple of months, a number of judgments/orders have been pronounced by this Court, especially in cases arising from the State of Uttar Pradesh, deprecating the stance of the police as well as the courts in failing to distinguish between a civil wrong in the form of a breach of contract, non-payment of money or disregard to and violation of contractual terms; and a criminal offence under Sections 420 and 406 of the IPC, the ingredients of which are quite different and requires mens rea at the time when the contract is entered into itself to not abide by the terms thereof.”
Hence, if a First Information Report is registered against you alleging criminal offences, albeit the dispute is predominantly of a civil character, and prima facie the offence alleged is not made out, then a case for quashing can be made out.
In this case, a Criminal Misc. Writ Petition may be preferred before the Hon’ble Allahabad High Court for quashing the First Information Report.
If the chargesheet is submitted and cognizance is taken by the Magistrate, and the accused persons are summoned, then, in such a case, an application under Section 528 of the Bhartiya Nagarik Suraksha Sanhita 2023 may be filed before the Allahabad High Court for quashing the entire criminal proceeding including the chargesheet and the summoning order.