Supreme Court of India
HIMACHAL PRADESH CRICKET ASSOCIATION & ANR.versusSTATE OF HIMACHAL PRADESH & ORS.
- Citation
- 2018 INSC 1039
- Decided
- 2 November 2018
- Disposal
- Disposed off
- Bench
- A K SIKRI
Holding
The Supreme Court held that no criminal case was made out against the appellants; the leases were validly granted under the applicable lease rules, the conversion to a not‑for‑profit company was lawful, and the FIRs were quashed under Section 482 CrPC.
Summary
The Himachal Pradesh Cricket Association (HPCA) was granted lease of government land to build a world‑class cricket stadium, later receiving additional land for a club house and a hotel at commercial rates. Two FIRs were filed alleging illegal lease grants, cheating, criminal breach of trust and violations of the Prevention of Corruption Act, which the HPCA contended were motivated by political vendetta after a change of government. The High Court dismissed the HPCA’s petition to quash the FIRs, but the Supreme Court found that no criminal act was established, the senior officers who approved the leases were not prosecuted, and the lease terms were lawful under the Himachal Pradesh Lease Rules. The Court held that the conversion of the HPCA from a society to a not‑for‑profit company under the Companies Act was permissible and not criminal. Applying the stringent test for exercising inherent power under Section 482 of the CrPC, the Court quashed both FIRs and set aside the High Court’s order, disposing of the related writ petition. The decision emphasizes that Section 482 is an exception to be used only to prevent miscarriage of justice, not to shield politically motivated prosecutions.
Issues considered
- Whether the lease of land to the HPCA for a cricket stadium, club house and hotel was illegal or violative of the Himachal Pradesh Lease Rules.
- Whether the conversion of the HPCA from a society to a Section 25 company under the Companies Act, 1956 constitutes a criminal offence.
- Whether the FIRs filed under the IPC, PC Act and PDPP Act were mala‑fide and constitute an abuse of process warranting quash under Section 482 CrPC.
- Whether the High Court correctly exercised its inherent jurisdiction under Section 482 to refuse quashing of the FIRs.
Legislation cited
- Business Rules, Himachal Pradeshs. Schedule 20
- Code of Criminal Procedure, 1973s. 482
- Companies Act, 1956s. 25
- Himachal Pradesh Lease Rules, 1993s. Rule 4(vii), s. Rule 5, s. Rule 8
- Himachal Pradesh Lease Rules, 2011s. Rule 9
- Indian Penal Code, 1860s. 120B, s. 406, s. 420, s. 447
- Prevention of Corruption Act, 1988s. 13(2)
- Prevention of Damage to Public Property Act, 1984s. 3
Subjects
Section 482 CrPCquashing FIRlease of government landpolitical vendettaprevention of corruptionnot‑for‑profit company conversioncricket stadiummisuse of poweradministrative law
Judgment
868 [2018] REPORTS
SUPREME COURT 13 S.C.R. 868 [2018] 13 S.C.R.
A HIMACHAL PRADESH CRICKET ASSOCIATION & ANR.
v.
STATE OF HIMACHAL PRADESH & ORS.
(Criminal Appeal Nos. 1258-1259 of 2018)
B NOVEMBER 02, 2018
[A. K. SIKRI AND ASHOK BHUSHAN, JJ.]
Code of Criminal Procedure, 1973: s.482 – Quashing of FIRs
– In the instant case, lease of land was granted by the Government
to the appellant no.1 for construction of world class cricket stadium
C
– Additional land was allotted to appellant by Gram Panchayat – A
club house was constructed on the part of the infrastructure of the
allotted land – Another land was allotted for using commercially
and a hotel was constructed on it – Appellant no1 was initially
registered as a society which was later converted to a company –
D Two FIRs against appellants and some other persons alleging illegal
grant of lease of land to appellant no.1 – One under ss.406, 420,
120B IPC and s.13(2) of POC Act and another under s.447 r/w
s.120B, s.3 of PDPP Act,1984 and s.13(2) of POC Act – High Court
dismissed the petition for quashing of FIRs by brushing aside the
argument of appellants that it was a case of vengeance, political
E
vendeta and mala fide – On appeal, held: No criminal case was
made out against the appellants, particularly when all the concerned
officers, who took the decision in grant of lease of land were let off
on the ground that they had not committed any wrong – High
Government Officials who were involved in lease grant were not
F charged or proceeded for want of prosecution – Two senior officials
who took active part in decision making in lease grant were made
Principal Secretary and Advisor to CM respectively – Even as per
prosecution, there was no criminal act on part of the officers as
they had performed their appropriate administrative duties – Insofar
as conversion of Society into not for profit company under s.25 of
G
the Companies Act, 1956 was concerned, it was done as per the
mandate of BCCI – There was no element of criminality therein – In
the proceedings filed by the appellants under s.482, respondent
No.2 (CM) was impleaded, as the allegations of mala fides were
attributed to him – Since, no case of cheating/fraud or criminal
H
868
HIMACHAL PRADESH CRICKET ASSOCIATION v. STATE OF 869
HIMACHAL PRADESH
breach of trust was made out, respondent No.2 did not have much A
role to play in these proceedings – Having regard to the stand taken
by respondent No.1 not to prosecute these cases, even otherwise,
no purpose would be served in continuing with these proceedings –
FIRs accordingly quashed – Penal Code, 1860 – ss.406, 420,
120B, s.447 r/w s.120B – Prevention of Corruption Act – s.13(2) –
B
Prevention of Damage to Public Property Act,1984 – s.3 – Himachal
Pradesh Lease Rules, 1993 – r.8.
Disposing of the appeals and the writ petition, the Court
HELD: 1. Appellant No.1 was given lease of land on which
cricket stadium was constructed and thereafter lease for C
additional land meant for club house and also supplementary lease
for commercial activity i.e. the hotel. It is only in respect of the
land which is meant for cricket stadium that rental of Re.1/- per
month was agreed to be charged by invoking proviso to Rule 8 of
the H.P. Lease Rules, 1993. Thus, it was not contrary to law.
State of Himachal did not have any cricket ground, much less D
State of art cricket ground. It was, for this reason, that the land
was given on lease for the purpose of constructing the cricket
ground, which may become pride of Himachal Pradesh, at nominal
rental. Insofar as lease in respect of club house and supplementary
lease for commercial activity (i.e. hotel) was concerned, the lease E
money was fixed in accordance with Lease Rules, 2011, namely,
at commercial rates. There can hardly be any element of
criminality in these allotments inasmuch as six very senior officers
in the State Government (four of them of IAS Cadre and one
belonged to Himachal Pradesh Administrative Service) who had
examined the matter and only after their approval, the allotments F
were made. There was no culpability attributed to them, which is
a very crucial factor. [Paras 37][901-G-H; 902-A-C]
2. In the two FIRs, seven IAS Officers, one Officer
belonging to Himachal Pradesh Administrative Service and one
Executive Engineer, Dharamshala Division in Himachal Pradesh G
PWD Department played their significant role at one stage or
the other. Insofar as the Director-cum-Special Secretary, Youth
Services and Sports Department was concerned, allegation against
him was that he ignored the rules and did not mention the
provisions of Lease Rules, 1993. He was also signatory to a H
870 SUPREME COURT REPORTS [2018] 13 S.C.R.
A lease deed. Entire FIRs proceeded on the basis that appellants
conspired with these Officers, among others. The imputation
against the Director-cum-Special Secretary was that in fixing the
rent at Re.1/- per month, he not only ignored the rules and did
not even mention in his noting thereby implying that he was party
to the alleged conspiracy. Similar allegations were against other
B
eight persons as well alleging their role at different stages.
Notwithstanding the same, three Officers were not even charged
on the purported ground that there were not enough evidence
and mala fide intention. In respect of other officers, Government
had declined the sanction. In case of some officers, State
C Government had accorded the sanction for prosecution earlier
but later withdrew the same. There were two Gram Panchayat
members, who had issued no-objection for allotment of land for
club house, who were prosecuted. These three Officers were
public servants who remain as accused persons. Thus, in the
entire conspiracy story put up by the prosecution, high
D
Government officials were deliberately let off and very junior
Officers were become scapegoat in order to ensure that a case
under PC Act survives in respect of appellants as well who are
not public servants. Even otherwise, when the said eight persons
were not charged or proceeded against for want of prosecution,
E this lent support to the allegations of the appellants in imputing
motives for their prosecution. [Para 41][903-B-H; 904-A-B]
3. There was no criminal act on their part and the facts do
not disclose any offence; the officers who processed the case of
the appellants were not prosecuted; two Officers who took active
F part in the decision making were made Principal Secretary to
CM and Advisor to CM, respectively, by respondent No. 2 and
were not prosecuted; As per the prosecution, there was no
criminal act on the part of the officers and they performed their
appropriate administrative duties due to which sanction stood
declined by the Central Government and the CVC. That itself is
G sufficient to absolve others from any criminal prosecution; even
otherwise the State Government continues to remain owner of
the land which is on lease and on which the appellants have
constructed assets worth above 150 crores; these assets are for
use of the public of the State and are being used as such. Further,
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HIMACHAL PRADESH CRICKET ASSOCIATION v. STATE OF 871
HIMACHAL PRADESH
filing of chargesheet and an order taking cognizance is not a final A
judicial order. It is a preliminary process in criminal law and is
open to challenge in higher judicial fora. [Para 42][904-C-G]
4. The conversion of Society into not for profit company
under Section 25 of the Companies Act, 1956 was done as per
the mandate of BCCI. There can hardly be an element of B
criminality therein. It rather shows the intent of the State
Government which wanted to grab the control of the Cricket
Association. Such a tendency on the part of the State authorities
was condemned by a Committee headed by former Chief Justice
and also approved by this Court. If at all, this was a reflection
upon the State Government. It also lent credence to the C
submission of the appellants that when the State Government
failed to achieve the said purpose, it went after the appellants. If
at all, the subject matter was a civil dispute between the appellants
and the respondents. Ex facie, no case of cheating/fraud or
criminal breach of trust was made out. Since, these allegations D
are not made out, respondent No.2 does not have much role to
play in these proceedings. That apart, respondent No.2 has filed
counter affidavit stating that he is not a necessary party and it is
not his job to defend the prosecution. Having regard to the stand
taken by the respondent No.1 not to prosecute these cases, even
otherwise, no purpose would be served in continuing with these E
proceedings. [Paras 43, 44][904-G-H; 905-A-E]
5. The inherent jurisdiction under Section 482 Cr.P.C. is to
be exercised carefully and with caution and only when exercise
is justified by the tests specifically laid down in the Section itself.
Further, inherent power under this provision is not the rule but F
it is an exception. The exception is applied only when it is brought
to the notice of the Court that grave miscarriage of justice would
be committed if the trial is allowed to proceed where the accused
would be harassed unnecessarily. The power is to be exercised
by the High Court either to prevent abuse of process of any court G
or otherwise to secure the ends of justice. However, whenever
it is found that the case is coming within the four corners of these
parameters, the powers possessed by the High Court under this
provision are very wide. It means that the Court has to undertake
the exercise with great caution. However, the High Court is not
H
872 SUPREME COURT REPORTS [2018] 13 S.C.R.
A to be inhibited when the circumstances warrant exercise of such
a power to do substantial justice to the parties. In the instant
case, the High Court dismissed the petition with a shallow
examination of the case, thereby glossing over the material facts
and failing to examine that these pertinent aspects were sufficient
to demonstrate that no criminal case was made out, particularly
B
when all the concerned officers, who had taken the decision, were
let off on the ground that they had not committed any wrong.
[Para 46][905-G-H; 906-A-B; 907-G-H; 908-A-B]
State of Haryana & Ors. v. Bhajan Lal & Ors. (1992)
Supp. (1) SCC 335 : [1990] 3 Suppl. SCR 259; Indian
C Oil Corporation v. NEPC India Ltd. & Ors. (2006) 6
SCC 736 : [2006] 3 Suppl. SCR 704; Vineet Kumar &
Ors. v. State of Uttar Pradesh & Anr. (2017) 13 SCC
369 : [2017] 6 SCR 922 – relied on.
State of Bihar & Anr. v. P.P. Sharma & Anr. 1992 Supp
D (1) SCC 222 : [1991] 2 SCR 1; Commissioner of Income
Tax, Mumbai v. Texspin Engg. and Mfg. Works, Mumbai
(2003) 263 ITR 345; Commissioner of Income Tax
(Central), Ludhiana v. M/s. Rita Mechanical Works,
Ludhiana (2012) 344 ITR 544; Union of India & Ors.
E v. Sushil Kumar Modi & Ors. (1997) 4 SCC 770 : [1997]
1 SCR 490; Delhi Judicial Service Association, Tis
Hazari Court, Delhi v. State of Gujarat & Ors. (1991)
4 SCC 406 : [1991] 3 SCR 936; Monica Kumar & Anr.
v. State of Uttar Pradesh & Ors. (2008) 8 SCC 781 :
[2008] 9 SCR 943; C.K. Jaffer Sharief v. State (2013)
F 1 SCC 205 : [2012] 10 SCR 1079; R. Balakrishna Pillai
v. State of Kerala (2003) 9 SCC 700 : [2003] 2 SCR
436; Lalitha Kumari v. Government of Uttar Pradesh &
Ors. (2014) 2 SCC 1 : [2013] 14 SCR 713; State of
A.P. v. Golconda Linga Swamy and Anr. (2004) 6 SCC
G 522 : [2004] 3 Suppl. SCR 147; Umesh Kumar v. State
of Andhra Pradesh & Anr. (2013) 10 SCC 591 : [2013]
14 SCR 213; State of Tamil Nadu & Ors. v. K. Shyam
Sunder & Ors. (2011) 8 SCC 737 : [2011] 11 SCR 1094;
Andhra Pradesh Dairy Development Corporation
H
HIMACHAL PRADESH CRICKET ASSOCIATION v. STATE OF 873
HIMACHAL PRADESH
Fedration v. B. Narasimha Reddy & Ors. (2011) 9 SCC A
286 : [2011] 14 SCR 1; State of Himachal Pradesh v.
Nishant Sareen (2010) 14 SCC 527 : [2010] 13 SCR
1200; Ujjam Bai v. State of U.P. [1963] 1 SCR 778;
Naresh Shridhar Mirajkar & Ors. v. State of
Maharashtra & Anr. AIR 1967 SC 1 : [1966] SCR 744;
B
Northern Corporation v. Union of India & Ors. (1990)
4 SCC 239 : [1990] 3 SCR 621 – referred to.
Case Law Reference
[1991] 2 SCR 1 referred to Para 11
(2003) 263 ITR 345 referred to Para 14 C
(2012) 344 ITR 544 referred to Para 14
[1997] 1 SCR 490 referred to Para 17
[1991] 3 SCR 936 referred to Para 21
D
[2008] 9 SCR 943 referred to Para 21
[2012] 10 SCR 1079 referred to Para 22
[2003] 2 SCR 436 referred to Para 22
[1990] 3 Suppl. SCR 259 relied on Para 23
E
[2017] 6 SCR 922 relied on Para 23
[2013] 14 SCR 713 referred to Para 26
[2006] 3 Suppl. SCR 704 relied on Para 27
[2004] 3 Suppl. SCR 147 referred to Para 28
F
[2013] 14 SCR 213 referred to Para 28
[2011] 11 SCR 1094 referred to Para 28
[2011] 14 SCR 1 referred to Para 28
[2010] 13 SCR 1200 referred to Para 28 G
[1963] 1 SCR 778 referred to Para 31
[1966] SCR 744 referred to Para 31
[1990] 3 SCR 621 referred to Para 31
H
874 SUPREME COURT REPORTS [2018] 13 S.C.R.
A CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos. 1258-1259 of 2018
From the Judgment and Order dated 25.04.2014 of the High Court
of Himachal Pradesh at Shimla in Cr. MMO. No. 6 of 2014.
With
B
W.P. (Crl.) No. 135 of 2017.
Ashok Sharma, Adv. Gen., P. S. Patwalia, Anoop George
Chaudhary, Mrs. June Chaudhari, Sr. Advs., Mrs. Bihu Sharma, Ms.
Purnima Krishna, Snehasish Mukherjee, Manish Kumar, Akshay
C Amritanshu, Ajay Marwah, Parmatma Singh, D. K. Thakur, Shariq
Ahmed, Kunal Verma, Varinder Kumar Sharma, Advs. for the appearing
parties.
The Judgment of the Court was delivered by
A. K. SIKRI, J. 1. Two FIRs are the subject matter of these
D appeals. One FIR No. 12 of 2013 dated August 01, 2013 is under Sections
406, 420, 120B of the Indian Penal Code, 1860 (IPC) and Section 13(2)
of the Prevention of Corruption Act, 1988 (PC Act) has been registered
against the appellants herein as well as some other persons. Second
FIR No.14 of 2013 dated October 03, 2013 is under Section 447 read
with Section 120B of the IPC, Section 3 of Prevention of Damage to
E
Public Property Act, 1984 and Section 13(2) of the PC Act. The appellants
filed petitions under Section 482 of the Code of Criminal Procedure,
1973 (Cr.P.C.) before the High Court of Himachal Pradesh for quashing
of the said FIRs. These petitions have been dismissed by the High Court
vide common judgment dated April 25, 2014. That judgment is impugned
F in the instant appeals. When the Special Leave Petitions (out of which
these appeals arise) were filed, notice thereof was issued on January 5,
2015 and stay of further proceedings was also granted in the case arising
out of the said FIRs which are pending before the Special Judge, Kangra,
Dharamshala, Himachal Pradesh. That stay has been extended from
time to time and is, therefore, continuing.
G
2. During the pendency of these proceedings, investigation was
completed. On the day judgment was pronounced by the High Court,
the chargesheets were filed in the Court of Special Judge. After the
filing of the said chargesheets, the appellants have also filed Writ Petition
H
HIMACHAL PRADESH CRICKET ASSOCIATION v. STATE OF 875
HIMACHAL PRADESH [A. K. SIKRI, J.]
(Criminal) No. 135 of 2017 in this Court seeking quashing of these A
chargesheets. Both these proceedings were clubbed and heard together
which we propose to dispose of by this common judgment.
3. Appellant No. 1 is a Cricket Association of Himachal Pradesh
which was initially registered as a Society under the Societies Registration
Act, 1860 vide Registration Certificate dated June 08, 1990. On B
September 15, 2001, appellant No. 1 made an application for allotment
of land to develop and construct the world class cricket stadium and
consequently, the Commissioner-cum-Secretary (Education) granted
permission for transfer of land to the Himachal Pradesh Youth Services
and Sports Department with certain conditions. A lease deed dated July
29, 2002 was executed between appellant No.1 and respondent No. 1 C
through Director, Himachal Pradesh Youth Services and Sports
Department for the said land at Village Mouja and Tehsil Dharamshala,
District Kangra for construction of an international cricket stadium which
was duly constructed. On July 14, 2005, a not for profit company in the
name of Himalayan Players Cricket Association was incorporated under D
Section 25 of the Companies Act, 1956. Name of this company was
changed to Himachal Pradesh Cricket Association on August 31, 2005.
4. Purusant to a proposal to host international cricket matches at
Dharamshala, the International Cricket Council inspected the cricket
infrastructure being developed at Dharmashala by appellant No. 1 and, E
inter alia, observed that the quality of accommodation left much to be
desired. Need for some more facilities and hotel accommodation of
desired quality was specifically stressed.
5. Having regard to this report, the appellants decided to construct
a club house on the leased land. There was also a parcel of idle land in F
the middle of the land allotted for the stadium. Appellant No.1 towards
this end made a request to the Director, Youth Services and Sports for
allotment of additional land adjacent to the stadium admeasuring 720
square metres, vide its letter dated July 03, 2008. Since it was Gram
Panchayat land, consent thereof was also needed for its allotment to the
appellant No.1. Appellant No.1, thus, approached the Gram Panchayat. G
Pursuant to meetings between the office bearers of appellant No. 1 and
Gram Panchayat, members of Uparali Dhari Development Division,
Dharamshala, the said Gram Panchayat issued no objection for allotment
of the land. Proposal of appellant No. 1 for allotment of additional land
H
876 SUPREME COURT REPORTS [2018] 13 S.C.R.
A was mooted with the authorities as well. Respondent No. 1 vide letter
dated November 16, 2009 took up the matter with the ACS-cum-FC
Revenue to the Government of Himachal Pradesh for approval to lease
out government land in Mohal Kand Mauja Khanyara, Tehsil
Dharamshala, District Kangra, measuring in 3-28-06 hectare in favour
of appellant No. 1. Respondent No. 1 granted approval to lease out the
B
aforesaid land in favour of appellant No. 1 vide letter dated November
16, 2009 which was conveyed vide letter dated November 18, 2009. As
a result, lease deed was executed between appellant No. 1 and respondent
No. 1 for lease of the said land situated at Mohal Kand Mauza Khanyara,
Tehsil Dharmashala.
C 6. Club house was constructed at the stadium premises at
Dharamshala under the name and style of “Aveda HPCA Club House”.
Completion Certificate was issued on March 10, 2011 and was certified
complete in all aspects as per approved plan of the Executive Officer,
Municipal Council, Dharamshala. The Town and Country Planning
D Department, Dharamshala also issued no objection certificate dated March
15, 2011 for use of part of the infrastructure of cricket stadium as club
house for cricket activities. Respondent No. 1 also approved the tariff
for availing the accommodation facilities of the club house vide its letter
dated September 08, 2011.
E 7. The Board of Control for Cricket in India (BCCI) granted
permission to the Himachal Pradesh Cricket Association to convert itself
from a “not for profit” society to a “not for profit” company during its
annual general meeting held on September 19, 2011. A majority of cricket
associations throughout the country have been converting themselves
from a not for profit society to a not for profit company registered under
F the Companies Act, 1956 in order to ensure better and transparent
management of their affairs.
Realising that unless world class accomodation was available for
the teams playing at the stadium and the officials concerned
accompanying such teams, the venue at Dharamshala that was being
G painstakingly developed by the appellant No. 1 from its own funds would
be grossly underutilised and the State would lose out in hosting cricket
matches, appellant No. 1 and its office bearers began working out a
method to construct a world class motel for such purposes.
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HIMACHAL PRADESH CRICKET ASSOCIATION v. STATE OF 877
HIMACHAL PRADESH [A. K. SIKRI, J.]
Appellant No. 1 realized that if the use of the same was restricted A
only to usage during match days for use of teams and their officials, the
same would not be commercially viable. As the terms of the lease may
not be technically wide enough to cover this allied infrastructure being
developed for the game of cricket, vide its letter dated December 24,
2011, appellant No. 1 wrote to the respondent to request it to permit
B
commercial activity on the said land on even non match days and amend
the lease terms accordingly. The above letter was forwarded by the
District Magistrate to the Principal Secretary (Revenue), Government
of Himachal Pradesh and the Principal Secretary (Revenue), Government
of Himachal Pradesh issued no objection for execution of a supplementary
lease enabling commercial activity on the additional land at Kandi C
provided that the lease money was charged in accordance with the Lease
Rules, 2011. A supplementary lease deed was executed between the
appellant No.1 and the State of Himachal Pradesh enabling use of the
additional land commercially. Necessary permissions for development
on the said land were obtained including for commercial hotel. The
D
hotel constructed under the name and style of “The Pavilion” obtained
registration with the Tourism Department of the State and Tariffs, etc.
were also fixed by the said Department on September 26, 2012. In the
meantime, on September 22, 2012 resolution was passed by the appellant
No. 1 company to take over the assets and liabilities of the society.
Agreement dated October 01, 2012 was also executed between the E
Himachal Pradesh Cricket Association (the society) and Himachal
Pradesh Cricket Association (the Company) to enable the Society to
convert itself into a Company. Accordingly, the Society was converted
into a Company and the Himachal Pradesh Cricket Association stood
converted from a society to a not for profit company registered under
F
the Companies Act, 1956 and the Registrar of Companies was informed
of the same in due course.
8. Within a couple of months, from the aforesaid developments,
there was a change of political executive in the State of Himachal Pradesh
pursuant to the elections of legislative assembly. According to the
appellants, with the change of political power, tirade against the appellants G
started by the new Government. In fact, even during the election
campaign, the Congress (I) had published a ‘Congress Chargesheet’
wherein serious allegations were levelled against the appellants. The
appellants department sprung into action and started seeking information
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878 SUPREME COURT REPORTS [2018] 13 S.C.R.
A from the appellants on various aspects, though this information was
already available with the State Government. A formal FIR No. 12 of
2013 dated August 01, 2013 was registered which, according to the
appellants, is the result of the said ‘Congress Chargesheet’. In fact,
some time before that, a complaint under Section 156(3) Cr.P.C. was
made by one Vinay Sharma against appellant No. 1 and its office bearers
B
in which orders were passed by Special Judge, Kangra on July 02, 2013
directing the police authorities to investigate the said case and submit
the report to it. Thus, two parallel proceedings were started.
9. Further allegation of the appellants is that investigation was
personally monitored by respondent No. 2 herein who was the Chief
C Minister at that time. He had also made various public statements from
time to time that he was interested in taking over the entire function of
the Cricket Association and its assets. According to the appellants, at
the behest of respondent No. 2, even the Registrar of Societies, Himachal
Pradesh issued notice dated September 7, 2013 on the issue of formation
D of company under Section 25 of the Companies Act, 1956 and taking
over the assets of the society. Against this notice, Writ Petition No.
7593 of 2013 was filed wherein the High Court passed the orders keeping
in abeyance the allegations raised in the notice dated September 7, 2013
of the Registrar of Societies.
E 10. Another FIR No. 14 of 2013 dated October 03, 2013 came to
be registered against the appellants and others alleging commission of
offences under Section 447 read with Section 120B of the IPC, Section
3 of the Prevention of Damage to Public Property Act, 1984 and Section
13(2) of the PC Act. Many other actions were taken by the respondents,
which according to the appellants, were mala fide moves, reference
F whereto shall be made at the appropriate stage. At this juncture, the
appellants filed petition under Section 482 of Cr.P.C. on January 06,
2014 seeking quashing of FIR No. 12 of 2013 which stands dismissed
vide impugned judgment dated April 25, 2014.
11. The High Court in the impugned judgment has taken note of
G catena of judgments of this Court pertaining to powers of the High Court
within the scope of Section 482 of Cr.P.C. Thereafter, it has observed
that after lodging of the FIR, investigation has been conducted and the
material collected during investigation discloses that 18 persons made
accused in the aforesaid FIR are prima facie involved in the commission
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HIMACHAL PRADESH CRICKET ASSOCIATION v. STATE OF 879
HIMACHAL PRADESH [A. K. SIKRI, J.]
of offences. On this ground, it has brushed aside the argument of the A
appellants that it was a case of vengeance, political vendeta and mala
fide. The High Court has also observed that allegations of mala fide
based on the facts after lodging of the FIR are of no consequence and
cannot be the basis for quashing the proceedings. For this purpose, it
has referred to the judgment of this Court in State of Bihar & Anr. v.
B
P.P. Sharma & Anr.1. It has also observed that even otherwise, the file
does not disclose at this stage how it is the case of mala fide. In the
opinion of the High Court, in such circumstances, merits of the case is to
be tested during trial inasmuch as FIR and Final Report of Investigating
Agency discloses that case for trial is made out. As the power under
Section 482 Cr.P.C. is to be exercised carefully, cautiously and in rarest C
of rare cases, keeping in mind the law laid down by this Court, the High
Court refused to quash the proceedings. We may also record here that
one of the submissions of the appellants before the High Court was that
appellant No. 2 and other persons are not public servants and, therefore,
provisions of PC Act could not be invoked against them. This argument
D
has also been found to be unmerited on the ground that some of the
accused persons arrayed with the appellants are public servants and
also that allegation in the FIR is that all these accused persons has the
conspiracy and wrongful gain to themselves and wrongful loss to the
State, in the process, the officials misused their position to show favour
to other accused persons. E
12. Mr. Patwalia, learned senior counsel appearing for the
appellants, at the outset, drew the attention of this Court to the fact that
M/s. Subhash Ahluwalia, Subhash Negi, Ajay Sharma, Deepak Sanan
and T.G. Negi, who are the IAS Officers, were associated with the
grant of three leases. They were the main persons who took active part F
in deciding that the three leases should be granted to the appellants and
on that basis, final decision was taken. However, as far as these Officers
are concerned, prosecution sanction has either been denied or they have
not been prosecuted at all. Likewise, Mr. Gopal Chand, who belongs to
Himachal Pradesh Administrative Service, was arrayed as one of the
accused person, but in his case also, the sanction though given earlier G
stood withdrawn. He has even been promoted to IAS cader. Mr.
Patwalia submitted in tabular form status of Officers who have allegedly
conspired with the appellants, which is as under:
1
1992 Supp (1) SCC 222
H
880 SUPREME COURT REPORTS [2018] 13 S.C.R.
A
Sl. Name of Post at the Role as per FIR Sanction
No. Officer time of alleged
offence
B FIR No. 12 of 2013 dated 01.08.2013 under Sections
406/420/120B IPC and Section 13(2), Prevention of
Corruption Act
1 Subhash IAS, Director- Sh. Subhash Not
C Ahluwalia cum-Special Ahluwalia, at Charged
Secretary, the time of
Youth grant of lease (Not
Services and of the enough
Sports Government evidence
D Department, Land to HPCA of
Government for the malafide
of Himachal construction of intention
Pradesh. Cricket ).
Stadium had
E ignored the
rules and had
not mentioned
the provisions
of Lease Rules,
F 1993 in his
noting.
Further, Sh.
Subhash
Ahluwalia was
G a signatory to
the Lease Deed
dated
29.07.2002.
H
HIMACHAL PRADESH CRICKET ASSOCIATION v. STATE OF 881
HIMACHAL PRADESH [A. K. SIKRI, J.]
A
2 Subhash Negi IAS, Secretary, Sh. Subhash Not
Youth Services Negi, at the Charged
and Sports time of grant of
Department, lease of the (Not
Government of Government enough
B
Himachal Land to HPCA evidence of
Pradesh for the malafide
construction of intention).
Cricket
Stadium had
ignored the C
rules and had
not mentioned
the provisions
of Lease Rules
D
1993 in his
noting.
3 T.G. Negi IAS, Principal Sh. T.G. Negi Not
Secretary, made no efforts Charged
E
Youth Services to reject the
and Sports notings of (Not
Department, accused Sh. enough
Government of Ajay Sharma evidence of
Himachal and instead malafide
F
Pradesh. forwarded the intention).
same for
approval of the
Chief Minister.
G
4 Ajay Sharma IAS, Director- In 2008, then Prosecution
cum-Special Chief Minister sanction
Secretary, P.K. Dhumal declined by
Youth Services marked the Central
H
882 SUPREME COURT REPORTS [2018] 13 S.C.R.
A
and Sports application of HPCA Government
Department, for permission of on
Government construction of Club 25.08.2015.
of Himachal House and its
B Pradesh. commercial use to Prosecution
Sh. Ajay Sharma and sanction
asked him to prepare withdrawn by
the proposal for the the State
same. Sh. Ajay Government
C Sharma, by abusing on
his official position 09.04.2018.
proposed for
permission to the
HPCA with the
D
approval of the
Chief Minister. The
land was leased only
for construction of
E cricket stadium and
not club house. Sh.
Ajay Sharma, by
abusing his office in
criminal conspiracy
F with HPCA,
contrary to the terms
and conditions of the
lease deed has
provided undue
G benefit to the HPCA
and loss to the State
Government.
H
HIMACHAL PRADESH CRICKET ASSOCIATION v. STATE OF 883
HIMACHAL PRADESH [A. K. SIKRI, J.]
5 Deepak Sanan IAS, Princi pal Sh. Deepak Prosecuti on A
Secretary- Sanan issued sanction
cum-Financial NOC for the declined by
Commissioner commercial use Central
, Revenue of Government Government
Department, land which was on B
Government leased to HPCA 25.08.2015.
of Himachal for the
Pradesh. construct ion of Prosecuti on
Hotel Pavilion sanction
by reversing the withdrawn
C
earlier decision by the State
of C ouncil of Government
Minister. Sh. on
Deepak Sanan 09.04.2018.
also notified the
Lease Rules, D
2011, on the
basis of which
supplementary
lease was
executed, in E
accordance
with Rule 9.
6 Gopal Chand HP AS , Sh. Gopal Prosecuti on
Addi tional C hand had sanction F
Secretary, recommended granted on
Revenue for the 03.04.2014
Department, commercial use withdrawn
Government of land leased by the State
of Himachal to HPCA in Government
G
Pradesh Mohal Kand on
and marked the 03.08.2016.
file to Sh.
Deepak Sanan, Promoted t o
IAS.
H
884 SUPREME COURT REPORTS [2018] 13 S.C.R.
A
whereas under
Schedule 20 of
the Business
Rules, he
could have
B
recommended
the matter to
be taken to the
Cabinet.
C
FIR No. 14 of 2013 dated 03.10.2013 under Sections 447/120B
IPC, Section 3 of the Prevention of Damage to Public Property
Act, 1984 and Section 13(2) of the Prevention of Corruption Act
D 7 K.K. Pant IAS, Deputy On 14.03.2008, Prosecution
Commissioner, Sh. K.K. Pant sanction
Kangra, chaired a declined by
Himachal meeting with Central
Pradesh other accused, Government
E without on
following due 27.03.2015.
procedure and
without having
any statutory
F power for doing
so, for
reallocation of
Type IV, UGC
accommodation
G in the possession
of the Education
Department and
H
HIMACHAL PRADESH CRICKET ASSOCIATION v. STATE OF 885
HIMACHAL PRADESH [A. K. SIKRI, J.]
A
the presumptions
drawn in the
meeting were
made with the
intention to give B
undue advantage
to HPCA. Sh.
K.K. Pant
overlooked the
report regarding C
condition of
building.
8 P.C. Dhiman IAS, Principal Sh. P.C. Dhiman Prosecution
D
Secretary, issued NOC to sanction
Education the Department declined by
Department, of Youth Services Central
Government and Sports, Government
of Himachal contrary to the on
E
Pradesh recommendations 24.08.2015.
/ conditions of the
Director, Higher
Education, and
without F
mentioning the
disposal of
building in
accordance with
rules/norms and G
recovery costs
from HPCA.
H
886 SUPREME COURT REPORTS [2018] 13 S.C.R.
A
9 Devi Chand Executive Devi Chand Prosecution
Chauhan Engineer, Chauhan, while sanction
Dharamshala working as decli ned by
Division, Executive Department
HPPWD Engineer (Civil), Secretary but
B Dharamshala, recommended
HPPWD by the then
Division Chief Minister
forwarded the Sh. Virbhadra
report sent by the Singh. Hence,
C then SDO Sub- prosecution
Division No. 1, sanction
Dharamshala, granted on
regarding 23.09.2014
dilapidated and
D condition of 15.10.2014
Type IV (FIR No.
accommodations, 14/13 dated
without 03.10.2013)
following
E procedure as laid
down by the
Government of
India, Central
Public Works
F Department
Code, whihc led
two illegal
demolition of
two storied
G building (Type
IV
accommodation)
of the Education
Department
H
HIMACHAL PRADESH CRICKET ASSOCIATION v. STATE OF 887
HIMACHAL PRADESH [A. K. SIKRI, J.]
existing A
adjacent to the
present Cricket
Stadium gate,
which was an
B
eyesore to the
HPCA and
alleged to be a
security threat
to the players.
Thus, the C
motive of the
Executive
Engineer was to
intentionally
give an D
advantage to
HPCA thereby
misusing his
official
E
position.
13. Thus, the Government Officers who have granted lease are
not been prosecuted. He, thus, submitted that the main Government
functionaries were left out which shows that the Government wanted to F
protect its own Officers but, at the same time, roped in the appellants
and others because of political enmity.
14. Dilating on the aforesaid plea, namely, the entire prosecution
is due to political vendetta, without any legal basis, Mr. Patwalia submitted
that the genesis of the prosecution starts with the failed attempt by the G
then State Government to take over appellant No. 1 in the year 2005
under the provisions of the HP Sports (Registration, Recognition and
Regulation of Associations) Act, 2005 due to the interim protection
granted by the Himachal Pradesh High Court on May 18, 2005. This
H
888 SUPREME COURT REPORTS [2018] 13 S.C.R.
A Act was subsequently repealed. According to him, in view of the repeated
interference by State Governments in the internal affairs of autonomous
cricket associations, the BCCI has informally encouraged such member
associations to re-register themselves as not for profit charitable Section
25 Companies under the Companies Act, 1956, as amended, for better
legal compliances, transparency and to avoid interference in internal
B
affairs by State Governments. Accordingly, various member associations
of the BCCI have converted themselves to Section 25 not for profit
charitable companies governed by the provisions of the Companies Act,
1956. Appellant No. 1 also followed the suit as a result of aforesaid
mandate of the BCCI. Accordingly, a not for profit company in the
C name of Himalayan Players Cricket Association was incorporated under
Section 25 of the Companies Act, 1956. On August 31, 2005, the said
Company was permitted to change its name to Himachal Pradesh Cricket
Association and was issued a fresh certificate of incorporation. During
this process, the HP Sports (Registration, Recognition and Regulation of
Associations) Act, 2005 stood repealed and no further steps were taken
D
in the interregnum to convert the society to a section 25 company.
Thereafter, on September 19, 2011, the BCCI took up the pending request
of appellant No. 1 to permit it to convert itself to a Section 25 not for
profit company and granted the same. Pursuant to the permission by
the BCCI, amendments were carried out by the members at the AGM
E of the appellant No. 1 on September 22, 2012 resolving to convert the
appellant No. 1 society to a Section 25 Company. Accordingly, an
agreement was executed on October 01, 2012 converting the society to
a Section 25 Company and informing the Registrar of Companies of the
same. On October 31, 2012, appellant No. 1 now registered as a Section
25 Company under the Companies Act, 1956 informed the Registrar of
F
Societies of the State of Himachal Pradesh of the change in the
memorandum and rules of the appellants. Further, on November 02,
2012, once again the intimation regarding change in status of appellant
No. 1 from a not for profit society to a not for profit company was given
to the Registrar of Societies, State of Himachal Pradesh. Thus, from
G October 01, 2012, appellant No. 1 has been existing as a Company with
due intimation to the State of Himachal Pradesh paying its lease rent
and taxes in accordance with law. He also argued that the effect of
such statutory conversion from a firm to a company by statutory
provisions for income tax purposes has been considered by the Bombay
High Court in the case of Commissioner of Income Tax, Mumbai v.
H
HIMACHAL PRADESH CRICKET ASSOCIATION v. STATE OF 889
HIMACHAL PRADESH [A. K. SIKRI, J.]
Texspin Engg. and Mfg. Works, Mumbai2 and Punjab & Haryana A
High Court in the case of Commissioner of Income Tax (Central),
Ludhiana v. M/s. Rita Mechanical Works, Ludhiana3 wherein it has
been held as under:
“There is a difference between vesting of the property, in
this case, in the limited company and distribution of the property. B
On vesting in the limited company under Part IX of the Companies
Act, the properties vest in the company as they exist. ...
“In the present case, we are concerned with a partnership
firm being treated as a company under the statutory provisions of
Part IX of the Companies Act. In such cases, the company C
succeeds the firm. Generally, in the case of a transfer of a capital
asset, two important ingredients are: existence of a party and a
counter-party and, secondly, incoming consideration qua the
transferor. In our view, when a firm is treated as a company, the
said two conditions are not attracted. There is no conveyance of
the property executable in favour of the limited company. It is no D
doubt true that all properties of the firm vest in the limited company
on the firm being treated as a company under Part IX of the
Companies Act, but that vesting is not consequent or incidental to
a transfer. It is a statutory vesting of properties in the company as
the firm is treated as a limited company. On the vesting of all the E
properties statutorily in the company, the cloak given to the firm is
replaced by a different cloak and the same firm is now treated as
a company, after a given date. ...”
15. On the aforesaid basis, submission of Mr. Patwalia was that
conversion of a not for profit society to a not for profit charitable company F
which is expressly permitted by law cannot be construed as a crime.
The assets - in the present case leased land remain as they are. In fact,
the appellants have constructed a world class stadium and a world class
hotel on the leased premises. Importantly, the State Government continues
to remain the owner of the land and has the power under the leases to
cancel the same for violation of terms and conditions of the lease. G
16. It was highlighted by him that on the midnight of October 26,
2013, the State Government had cancelled the leases and forcibly
2
(2003) 263 ITR 345
3
(2012) 344 ITR 544
H
890 SUPREME COURT REPORTS [2018] 13 S.C.R.
A dispossessed the appellants from the leased lands. However, on
November 05, 2013, the Himachal Pradesh High Court strictured the
State Government and ordered status quo ante and handed over the
possession of the leased lands to the appellants. The State Government
thereafter accepted this order and withdrew the cancellation of lease
notices on November 19, 2013. Subsequently, another notice dated May
B
23, 2015 was issued seeking cancellation of the leases which too stands
withdrawn on August 09, 2018. At present, there are no proceedings
pending for cancellation of the leases.
17. Mr. Patwalia argued that there were specific allegations of
mala fide against respondent No. 2 from the very inception of these
C proceedings about how he first caused the FIR to be registered and
thereafter interfered in the investigations, by being head of the SIT. He
also further stated that the conduct of respondent No.2 from opposing
the present appeals after having filed a counter affidavit in the present
matter stating that he was not a necessary party and it was not his job to
D defend the prosecution, depicts mala fides on his part. This, according
to him, was sufficient to quash the FIR as investigation was tainted. In
support, he referred to the case of Union of India & Ors. v. Sushil
Kumar Modi & Ors.4 wherein this Court held as under:
“4. ...The agencies concerned must bear in mind and, if needed,
E be reminded of the caution administered by Lord Denning in this
behalf in R. v. Metropolitan Police Commr. [(1968) 1 All ER 763
: (1968) 2 WLR 893 : (1968) 2 QB 118] Indicating the duty of the
Commissioner of Police, Lord Denning stated thus: (All ER p.
769)
F “I have no hesitation, however, in holding that, like every constable
in the land, he should be, and is, independent of the executive.
He is not subject to the orders of the Secretary of State, …. I
hold it to be the duty of the Commissioner of Police, as it is of
every chief constable, to enforce the law of the land. He must
take steps so to post his men that crimes may be detected; and
G that honest citizens may go about their affairs in peace. He must
decide whether or not suspected persons are to be prosecuted;
and, if need be, bring the prosecution or see that it is brought; but
in all these things he is not the servant of anyone, save of the
4
(1997) 4 SCC 770
H
HIMACHAL PRADESH CRICKET ASSOCIATION v. STATE OF 891
HIMACHAL PRADESH [A. K. SIKRI, J.]
law itself. No Minister of the Crown can tell him that he must, A
or must not, keep observation on this place or that; or that he
must, or must not, prosecute this man or that one. Nor can
any police authority tell him so. The responsibility for law
enforcement lies on him. He is answerable to the law and to
the law alone.”
B
...There can hardly be any doubt that the obligation of the police
in our constitutional scheme is no less.”
18. Mr. Patwalia referred to various documents placed on record
and contended that they would ex facie show that administrative decisions
were taken at various levels and by variou departments by the concerned C
officers prior to sanction of leases in favour of appellant No.1. Therefore,
no wrong, much less culpable wrong, was committed by the appellants
and others. He specifically referred to the allegation that there is no
provision of grant of lease at a token rate of Re.1/- per month under the
applicable lease rules. His response was that this argument is completely D
fallacious. The leases of the appellants were granted under the H.P.
Lease Rules, 1993. The appellants wanted to set up a cricket stadium
with allied world class infrastructure to enable the ICC to grant
international games to Himachal Pradesh and, thus, were eligible for
grant of lease under Rule 4(vii) - public purpose in the interest of the
development of the State. The appellants were also eligible for grant of E
larger areas under Rule 5 in terms of the exemption provided therein. In
fact, the decision to lease the land at token rate of Re.1/- per month for
construction of cricket stadium was a well thought out administrative
decision by the State Government in the interest of the State and has
admittedly put Dharamshala on the world map. This decision was taken
F
by the State Cabinet after considering the advice and presentation from
the officers concerned. RTI documents in the possession of the appellants
record the decision of the Cabinet dated May 27, 2002 as under:
“Item No. 14
Government of Himachal Pradesh
General Administration Department G
(Confidential & Cabinet)
Subject: Leasing out of Government land for the construction of
International Cricket Stadium at Dharamshala to H.P. Cricket Association
on usual terms and conditions.
H
892 SUPREME COURT REPORTS [2018] 13 S.C.R.
A The above proposal was discussed by the Cabinet in its meeting held on
27.5.2002 and the decision arrived at thereon is reproduced below:-
“The Cabinet approved the propsoal regarding lease rates. Advantages
of the Project explained by the AD were considered and it was decided
that land be leased out at token rate of Re.1/- per month for a period of
B 99 years.”
The implementation report of the above decision may please be sent to
this Department within a fortnight from the receipt of this communication.
Sd/-
Addl. Secretary (GAD)”
C 19. Further, Rule 8 provides for lease amount to be paid. At the
time of grant of lease, the appellant being a society had to pay lease
amount under Rule 8(1)(ii) at 8% of the latest highest market value of
the land leased or double the average market value of five years whichever
is less. The proviso to Rule 8(1) empowers the State Government to
D reduce the lease amount in deserving cases and reads as under:
“8(1) Lease Amount. - (1) The lease amount (fresh or renewal
of existing lease) shall be charged from the eligible institutions
and persons per annum as under:-
......
E
Provided that the State Government may reduce the amount for
special reasons in deserving cases.”
Therefore, the State Government took a conscious decision in
exercise of its powers under the proviso to Rule 8(1) of the H.P. Lease
Rules, 1993 and granted the lease at a token rate of Re.1/- per month.
F
20. Based on the aforesaid material and circumstances highlighted
by Mr. Patwalia, his submission was that no case was made out against
the appellants and others, for prosecuting them under criminal law, much
less under the provisions of PC Act and the High Court in its impugned
judgment has totally glossed over these aspects by limiting the exercise
G to copiously quoting various judgments and on that basis, dismissing the
petitions of the appellants, without any discussion as to how principles
contained in those judgments is applicable in the instant case.
21. He also submitted that in the facts of the present case, simply
because chargesheet has been filed thereafter and the order taking
H
HIMACHAL PRADESH CRICKET ASSOCIATION v. STATE OF 893
HIMACHAL PRADESH [A. K. SIKRI, J.]
cognizance has been passed would not mean that the appellants cannot A
prosecute these cases. He submitted that even the chargesheet and
cognizance order has been challenged by filing Writ Petition (Criminal)
No. 135 of 2017 which, according to him, is maintainable having regard
to the fact that the appeals arising out of petitions under Section 482 of
Cr.P.C. are pending in this Court and those events happened during the
B
pendency of these proceedings. He referred to the the cases of Delhi
Judicial Service Association, Tis Hazari Court, Delhi v. State of
Gujarat & Ors.5 and Monica Kumar & Anr. v. State of Uttar Pradesh
& Ors.6, wherein it is held that this Court has inherent power to quash
FIR, chargesheet, charges etc. in exercise of powers under Articles 32,
136 and 142 to do complete justice in a cause or matter pending before C
it and that there is no restriction on this power of the Court. According
to him, the present is not a case where the appellants are alleging that a
judicial order is in violation of their fundamental rights. The present is a
case where the appellants have pleaded that:
(i) there is no criminal act on their part and the facts do not disclose D
any offence;
(ii) all Officers who processed the case of the appellants are not
prosecuted;
(iii) two Officers Subhash Ahluwalia and T.G. Negi who processed
the case of the appellants were made Principal Secretary to CM E
and Advisor to CM, respectively, by the respondent No. 2 and
were not prosecuted;
(iv) there is no criminal act on the part of the officers and they
performed their appropriate administrative duties due to which
sanction stands declined by the Central Government and the CVC; F
(v) leases were validly granted as per proper procedures and in
accordance with lease rules;
(vi) FIR was registered on the basis of “Congress Chargesheet”;
(vii) investigation was personally supervised by the respondent G
No. 2;
(viii) chargesheet filed is the outcome of this tainted investigation;
5
(1991) 4 SCC 406
6
(2008) 8 SCC 781
H
894 SUPREME COURT REPORTS [2018] 13 S.C.R.
A (ix) prosecution is mala fide and vexatious to settle personal
political scores;
(x) even otherwise the State Government continues to remain
owner of the land which is on lease and on which the appellants
have constructed assets worth above 150 crores;
B (xi) these assets are for use of the public of the State and are
being used as such. Further, filing of chargesheet and an order
taking cognizance is not a final judicial order. It is a preliminary
process in criminal law and is open to challenge in higher judicial
fora such as this Court.
C 22. Last submission of the learned senior counsel was that, in any
case, at best the matter could have been subject matter of a civil dispute
between the appellants and the respondents but has mala fidely been
given the cloak of a criminal proceeding to harass the appellants with a
mala fide prosecution. The salutary principle of law, viz. Actus Reus
D Non Facit Reum Nisi Mens Sit Rea has been erroneously ignored by
the High Court and he cited the case of C.K. Jaffer Sharief v. State7
and R. Balakrishna Pillai v. State of Kerala8. He also pleaded that, in
another politically motivated case by respondent No. 2, the same view
has been taken by the Himachal Pradesh High Court in the case of A.N.
Sharma v. State of H.P. (Cr. MMO No. 134/2015) against which Special
E Leave Petition filed by the State Government stands dismissed by this
Court.
23. He, thus, concluded his argument with the submission that
case was clearly covered by the judgments of this Court in State of
Haryana & Ors. v. Bhajan Lal & Ors.9 and Vineet Kumar & Ors. v.
F State of Uttar Pradesh & Anr.10
24. Insofar as respondent No. 1 i.e. State of Himachal Pradesh is
concerned, learned Advocate General submitted that State has already
taken a decision not to continue with these criminal proceedings. He, in
fact, supported the case of the appellants and submitted that State has
G no objection if these proceedings are quashed. However, there was a
7
(2013) 1 SCC 205
8
(2003) 9 SCC 700
9
(1992) Supp. (1) SCC 335
10
(2017) 13 SCC 369
H
HIMACHAL PRADESH CRICKET ASSOCIATION v. STATE OF 895
HIMACHAL PRADESH [A. K. SIKRI, J.]
strong opposition on behalf of respondent No. 2 to the relief sought by A
the appellants and refutation of the arguments advanced by the appellants.
25. Mr. Anoop George Chaudhary, learned senior counsel appearing
for the respondent No. 2, submitted that the Special Leave Petition was
infructuous ab initio inasmuch as chargesheet was filed against 18
accused persons out of whom only appellant No. 2 had sought quashing B
thereof. It was further submitted that, in any case, on the very day of
passing impugned judgment by the High Court i.e. April 25, 2014, the
Investigating Agency filed the challan under Section 173 Cr.P.C. and on
perusal thereof, the Special Court took cognizance vide order dated
September 06, 2014 and issued summons to the accused persons.
Therefore, the Special Leave Petition had, in any case, had become C
infructuous because of the aforesaid developments. He also submitted
that insofar as appellant No. 1, namely, Himachal Pradesh Cricket
Association is concerned, it was not arrayed as accused person; no
challan was filed against it and, therefore, no cognizance was also taken.
26. Rebutting the allegations of mala fide, he submitted that D
because of the irregularities committed in the allotment of land etc. by
the then Government, it was one of the issue in the Assembly Elections
in the year 2012 and the Congress had complained against the aforesaid
irregularity by stating the same with the preparation of ‘Congress
Chargesheet’. That would not mean that it was out of political vendetta. E
In fact, the misdeeds of earlier Government was exposed. In any case,
after 2012 elections, when the earlier Government did not come back to
power, inquiry was ordered to the affairs of appellant No. 1 which was
conducted by the Anti-Corruption Bureau (ACB). As a result of said
inquiry, FIR was registered which culminated in filing of the challan as
prima facie case was made out by collecting requisite material. He F
also referred to the Constitution Bench judgment in the case of Lalita
Kumari v. Government of Uttar Pradesh & Ors.11 as per which
preliminary inquiry before registering an FIR should be conducted to
ascertain whether the information received, reveals any cognizable
offence. He submitted that due procedure was followed in accordance G
with the said judgment.
27. On merits, Mr. Chaudhary submitted that on the basis of final
report and consequently the cognizance order a clear case of cheating/
11
(2014) 2 SCC 1
H
896 SUPREME COURT REPORTS [2018] 13 S.C.R.
A fraud criminal breach of trust/criminal misconduct/usurpation of public
land worth crores of rupees/loss to state exchequer is made out against
the accused persons. Hence, no cogent grounds exist for quashing of
criminal proceedings. Reliance in this regard has been placed upon a
judgment rendered by this Court in Indian Oil Corporation v. NEPC
India Ltd. & Ors.12:
B
“12. The principles relating to exercise of jurisdiction under Section
482 of the Code of Criminal Procedure to quash complaints and
criminal proceedings have been stated and reiterated by this Court
in several decisions. To mention a few—Madhavrao Jiwajirao
Scindia v. Sambhajirao Chandrojirao Angre [(1988) 1 SCC
C 692 : 1988 SCC (Cri) 234], State of Haryana v. Bhajan Lal
[1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426], Rupan Deol
Bajaj v. Kanwar Pal Singh Gill [(1995) 6 SCC 194 : 1995 SCC
(Cri) 1059], Central Bureau of Investigation v. Duncans Agro
Industries Ltd. [(1996) 5 SCC 591 : 1996 SCC (Cri) 1045], State
D of Bihar v. Rajendra Agrawalla [(1996) 8 SCC 164 : 1996 SCC
(Cri) 628], Rajesh Bajaj v. State NCT of Delhi [(1999) 3 SCC
259 : 1999 SCC (Cri) 401], Medchl Chemicals & Pharma (P)
Ltd. v. Biological E. Ltd. [(2000) 3 SCC 269 : 2000 SCC (Cri)
615], Hridaya Ranjan Prasad Verma v. State of Bihar [(2000)
4 SCC 168 : 2000 SCC (Cri) 786], M. Krishnan v. Vijay Singh
E [(2001) 8 SCC 645 : 2002 SCC (Cri) 19] and Zandu
Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque [(2005)
1 SCC 122 : 2005 SCC (Cri) 283] . The principles, relevant to our
purpose are:
(i) A complaint can be quashed where the allegations made in the
F 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 the case alleged against the accused.
For this purpose, the complaint has to be examined as a whole,
but without examining the merits of the allegations. Neither a
G detailed inquiry nor a meticulous analysis of the material nor an
assessment of the reliability or genuineness of the allegations in
the complaint, is warranted while examining prayer for quashing
of a complaint.
12
(2006) 6 SCC 736
H
HIMACHAL PRADESH CRICKET ASSOCIATION v. STATE OF 897
HIMACHAL PRADESH [A. K. SIKRI, J.]
(ii) A complaint may also be quashed where it is a clear abuse of A
the process of the court, as when the criminal proceeding is found
to have been initiated with mala fides/malice for wreaking
vengeance or to cause harm, or where the allegations are absurd
and inherently improbable.
(iii) The power to quash shall not, however, be used to stifle or B
scuttle a legitimate prosecution. The power should be used sparingly
and with abundant caution.
(iv) The complaint is not required to verbatim reproduce the legal
ingredients of the offence alleged. If the necessary factual
foundation is laid in the complaint, merely on the ground that a C
few ingredients have not been stated in detail, the proceedings
should not be quashed. Quashing of the complaint is warranted
only where the complaint is so bereft of even the basic facts
which are absolutely necessary for making out the offence.
(v) A given set of facts may make out: (a) purely a civil wrong; or D
(b) purely a criminal offence; or (c) a civil wrong as also a criminal
offence. A commercial transaction or a contractual dispute, apart
from furnishing a cause of action for seeking remedy in civil law,
may also involve a criminal offence. As the nature and scope of a
civil proceeding are different from a criminal proceeding, the mere
fact that the complaint relates to a commercial transaction or E
breach of contract, for which a civil remedy is available or has
been availed, is not by itself a ground to quash the criminal
proceedings. The test is whether the allegations in the complaint
disclose a criminal offence or not.”
28. Dubbing the allegations of mala fide against respondent No. 2 F
as frivolous, it was argued that the High Court has rightly found no merit
therein. In any case, argued the learned senior counsel, the High Court
rightly observed that once the chargesheet is filed, such a plea becomes
redundant as held in State of A.P. v. Golconda Linga Swamy and
Anr.13 and Umesh Kumar v. State of Andhra Pradesh & Anr.14. The G
learned senior counsel also questioned the move on the part of State
Government to withdraw the case in question. It was argued that no
fresh ground or subsequent aspect has emerged or come in public domain
13
(2004) 6 SCC 522
14
(2013) 10 SCC 591 H
898 SUPREME COURT REPORTS [2018] 13 S.C.R.
A for doing the same and, therefore, such course of action was not
permissible as held in State of Tamil Nadu & Ors. v. K. Shyam Sunder
& Ors. 15 , Andhra Pradesh Dairy Development Corporation
Federation v. B. Narasimha Reddy & Ors.16 and State of Himachal
Pradesh v. Nishant Sareen17. Moreover, argued the learned senior
counsel, the only procedure prescribed in law was to take the route of
B
Section 321 of Cr.P.C. which has not happened in the instant case.
29. Replying to the arguments of the appellants that it was a civil
dispute, Mr. Chaudhary argued that FIR/Final Report clearly depicts
that there is sufficient evidence of cheating, criminal breach of trust/
criminal misconduct, conspiracy and destruction of evidence against the
C accused persons, therefore, it was not merely a civil case and, thus, the
authorities have rightly registered the FIR and filed criminal proceedings.
He also argued that at the time of cognizance, there was sanction for
prosecution against all public servants (wherever applicable) and even if
sanction is subsequently withdrawn, it would not impact trial. It was
D further submitted that in the case of two remaining accused i.e. Ajay
Sharma and Deepak Sanan, challan was not presented for want of
sanction under PC Act, as the permission seeking sanction was pending
with Union Home Ministry though sanction for IPC offences was granted
by State Government. The prosecution sanction against Gopal Chand,
an HCS Officer was initially granted but later on withdrawn without
E there being any change of circumstance. The necessity of non-grant/
requirement of prosecution sanction can be decided by trial court during
the course of trial and it is not a ground for Himachal Pradesh Cricket
Association to seek quashing of entire prosecution.
30. The learned senior counsel also defended non-prosecution of
F Ajay Sharma and Deepak Sanan, two IAS Officers. He specifically
pointed out that allegations in the chargesheet against appellant No.2
which, according to him, disclosed that prima facie case was established
against him and, therefore, there was no reason to quash the chargesheet.
31. Insofar as Writ Petition (Criminal) No. 135 of 2017 is concerned,
G it was argued that such a writ petition was not maintainable under Article
32 of the Constitution, more so, when order of cognizance had not been
15
(2011) 8 SCC 737
16
(2011) 9 SCC 286
17
(2010) 14 SCC 527
H
HIMACHAL PRADESH CRICKET ASSOCIATION v. STATE OF 899
HIMACHAL PRADESH [A. K. SIKRI, J.]
challenged at all. Support from the judgments in Ujjam Bai v. State of A
U.P.18, Naresh Shridhar Mirajkar & Ors. v. State of Maharashtra
& Anr.19 and Northern Corporation v. Union of India & Ors.20 was
taken in this behalf. He reiterated that there were serious allegations
against the accused persons and, therefore, no case for quashing of the
chargesheet/challan was made out.
B
32. Before we undertake the exercise of deliberating on the
arguments of the counsel for the parties and reach our conclusions, it
would be in the fitness of things to recapitulate the events in brief with
focus on the allegations of alleged criminality which have been fastened
upon the appellants and others. Appellant No. 1 was initially registered
as a Society under the Societies Registration Act, 1860 in the year 1990. C
It is now a not for profit company incorporated under Section 25 of the
Companies Act, 1956. One of the allegations pertains to the so-called
illegalities committed in the conversion of the society into deemed
company under Section 25 of the Companies Act, 1956. Be that as it
may, the Society, after its formation, had applied for land at Village Mauja D
and Tehsil Dharamshala, District Kangra for construction of an
international cricket stadium. A proper lease was executed between
appellant No. 1 and the State of Himachal Pradesh through Director,
Himachal Pradesh Youth Services and Sports Department. It happened
more than 16 years ago. In respect of this lease, the allegation is that it
was executed at a monthly rent of Re.1/- which was allegedly done to E
favour the appellants. Admittedly, proviso to Rule 8 of the Rules
empowers the State Government to adopt such a course and decision to
this effect was taken after due deliberations at a very high level, keeping
in view the necessity of such a stadium in the State, which did not have
any cricket stadium. F
33. After the allotment of the land to appellant No. 1, it constructed
cricket stadium thereupon. Appellant was desirous of making a world-
class cricket stadium which could host international cricket matches as
well. For this purpose, it submitted proposal to the ICC. The ICC got
the stadium and playground inspected through Mr. Alan Hurst, it’s match G
referee. He inspected the stadium and submitted his report dated
September 20, 2007. The venue was not approved, at that stage, for
18
(1963) 1 SCR 778
19
AIR 1967 SC 1
20
(1990) 4 SCC 239
H
900 SUPREME COURT REPORTS [2018] 13 S.C.R.
A hosting international matches. A perusal of the report submitted by the
said referee would disclose that there were no adequate hotel facilities
in the area and, therefore, ‘tour support was lacking’. Two hotels were
shown to Mr. Hurst and it was found by him that each of them were at
substantial distance from the ground. Moreover, the facilities in the said
hotels were also not adequate. Notwithstanding the same, insofar as
B
the cricket ground is concerned, the match referee had lauded it for its
quality and settings. It can be seen from the general comments/
recommendations/conclusions in his report and the relevant portion
whereof reads as under:
“This ground has one of the best settings imaginable. The people
C involved in its development have been innovative and are
passionate and visionary. They have done a great job so far in
getting this ground to where it is and should be congratulated and
encouraged. I have no doubt that with adequate finances, in the
near future, this ground can become one of the best in the country.
D The idea of having a ‘hotel’ as an integral part of the ground with
dual use as corporate boxes during games is not new, however,
the circular restaurant planned for the top, with 360 deg views of
the Himalayas and surrounding area will make it unique.
Having said this, I believe that at this stage there is still a lot of
E work to be done that relates to its suitability for staging International
cricket. I am informed that sufficient finance has recently been
obtained to complete everything, and further work is now
underway. I have listed below the issues I still have concerns
with and things that need to be changed. If all of these things are
addressed, I would have no hesitation in recommending this ground
F as suitable as an International ODI venue. The administrators
have ensured me that all of these things will be addressed with
urgency. They are extremely keen to get into the BCCI ground
rotation system as soon as possible.”
34. It is clear from the above that Mr. Hurst was of the view that
G the cricket ground at this picturesque place with scenic beauty can be
transformed into one of the best cricket grounds in the country, which
would be suitable for international events if the deficiencies pointed out
therein are taken care of. Apart from providing other facilities to improve
the infrastructure (which could be easily taken care of), main concern
H
HIMACHAL PRADESH CRICKET ASSOCIATION v. STATE OF 901
HIMACHAL PRADESH [A. K. SIKRI, J.]
was to have a hotel as an integral part of the ground with the dual use as A
corporate boxes during the game. Because of the above, appellant No.1
felt need to construct a club house on the lease land and also seek
allotment of some other land for the purpose of construction of a hotel,
keeping in view the observations contained in the aforesaid inspection
report. Accordingly, it sent request for promotion to construct a club
B
house on the lease land which was accorded by respondent No.1 through
Directorate of Youth Services and Sports on June 23, 2008 subject to
completing all the formalities.
35. As far as construction of hotel is concerned, the case of the
appellants is that there was a parcel of idle land in the middle of the land
alloted for the stadium and for allotment of this land, request was made C
to the Director, Youth Services and Sports. This land belongs to Gram
Panchayat. Gram Panchayat issued no objection for the allotment of
land on September 14, 2009 pursuant to which respondent No.1 granted
approval to lease out this land in favour of appellant No.1 on November
16, 2009 and the lease deed was also executed on December 14, 2009. D
Thereafter, for the purpose of hotel, additional land was given.
36. Pertinently, insofar as this lease deed is concerned, since the
land was to be used for commercial purpose, namely, the club house, it
provided rental at commercial rate i.e. the market rate which the appellant
No.1 was supposed to pay. After the execution of the lease, club house E
was constructed and the Town and Country Planning Department,
Dharamshala also issued No Objection Certificate for the use of part of
infrastructure of cricket stadium as club house for cricket activities. It
is also pertinent to mention that Principal Secretary (Revenue),
Government of Himachal Pradesh issued no objection for execution of
supplementary lease enabling commercial activities on additional land F
provided that lease money was charged in accordance with the Lease
Rules, 2011. This led to execution of supplementary lease deed dated
June 23, 2012 on which commercial hotel was constructed after obtaining
requisite permissions.
37. From the aforesaid events, following aspects can be culled G
out:
Appellant No.1 has been given lease of land on which cricket
stadium was constructed and thereafter lease for additional land meant
for club house and also supplementary lease for commercial activity i.e.
H
902 SUPREME COURT REPORTS [2018] 13 S.C.R.
A the hotel. It is only in respect of the land which is meant for cricket
stadium that rental of Re.1/- per month was agreed to be charged by
invoking proviso to Rule 8. Thus, it is not contrary to law. State of
Himachal did not have any cricket ground, much less State of art cricket
ground. It is, for this reason, that the land was given on lease for the
purpose of constructing the cricket ground, which may become pride of
B
Himachal Pradesh, at nominal rental. Insofar as lease in respect of club
house and supplementary lease for commercial activity (i.e. hotel) is
concerned, the lease money has been fixed in accordance with Lease
Rules, 2011, namely, at commercial rates. There can hardly be any
element of criminality in the afofresaid allotments inasmuch as six very
C senior officers in the State Government (four of them of IAS Cadre and
one belongs to Himachal Pradesh Administrative Service) who had
examined the matter and only after their approval, the allotments were
made. There is no culpability attributed to them, which is a very crucial
factor.
D 38. What is more important is that the matter was looked into by
Director-cum-Special Secretary, Youth Services and Sports Department
as well as Secretary, Youth Services and Sports Department and it is
only after the examination of the proposal by them and their final approval,
lands in question were allotted.
E 39. The respondents have submitted status report before the High
Court, pursuant to the directions issued by it. As per the said status
report as well as the FIRs, allegations against the appellants and others
who are arrayed as accused persons are that appellant No.2 along with
other accused indulged in illegal activities. It is alleged that Shri R.S.
Gupta, the then Deputy Commissioner, had prepared report ignoring the
F report of Divisional Forest Officer who had assessed the value of trees
at Rs.50 lakhs at that time, thereby causing wrongful loss to the
Government. Further, one Shri Deepak Sanan, the then Revenue
Secretary, provided a helping hand to the accused persons for granting
permission to set up and run a commercial hotel and the matter was not
G taken to the Cabinet which was in violation of Schedule 20 of H.P. Rules
of Business. It is also alleged that Himachal Pradesh Cricket Association
Society was merged into a company just to prevent the State Government
from controlling it. These are the main allegations.
40. Insofar as other allegations are concerned, two Officers,
H namely, Shri R.S. Gupta and Shri Deepak Sanan are implicated. While
HIMACHAL PRADESH CRICKET ASSOCIATION v. STATE OF 903
HIMACHAL PRADESH [A. K. SIKRI, J.]
doing so, other senior Officers who took active part in decision making A
have not been touched.
41. In the two FIRs, seven IAS Officers, one Officer belonging to
Himachal Pradesh Administrative Service and one Executive Engineer,
Dharamshala Division in Himachal Pradesh PWD Department played
their significant role at one stage or the other. Interstingly, in the FIRs, B
these nine Officers were also implicated and specific role attributed to
them which has been already mentioned in the tabulated format while
recording the arguments of Mr. Patwalia. This would demonstrate that
insofar as Mr. Subhash Ahluwalia (IAS), Director-cum-Special
Secretary, Youth Services and Sports Department is concerned, allegation
against him was that he ignored the rules and did not mention the provisions C
of Lease Rules, 1993. He was also signatory to lease deed dated July
29, 2002. It is important to mention that entire FIRs proceed on the
basis that appellants conspired with these Officers, among others. The
imputation against Mr. Subhash Ahluwalia is that in fixing the rent at
Re.1/- per month, he not only ignored the rules and did not even mention D
in his noting thereby implying that he was party to the alleged conspiracy.
Similar allegations are against other eight persons as well alleging their
role at different stages. Notwithstanding the same, three Officers,
namely, Subhash Ahluwalia, Subhash Negi and T.G. Negi were not even
charged on the purported ground that there were not enough evidence
and mala fide intention. In respect of Mr. Ajay Sharma, Central E
Government had declined the sanction. Though, State Government had
accorded the sanction for prosecution earlier but it has also later
withdrawn. Same is the position in respect of Deepak Sanan. Mr. Gopi
Chand, who belongs to HPAS, though the prosecution sanction was
granted earlier, in his case also, not only prosecution sanction was F
withdrawn by the State Government, he has even been promoted to IAS
Cadre. In case of Mr. K.K. Pant and Mr. P.C. Dhiman, other IAS
Officers, prosecution sanction is declined. This leaves us only Mr. Devi
Chand Chauhan, Executive Engineer, Dharamshala Division in PWD,
though in his case also, prosecution sanction was earlier rejected but
subsequently granted on the recommendation of the then Chief Minister. G
There are two Gram Panchayat members, who had issued no objection
for allotment of land for club house, who have been prosecuted. These
three Officers are public servants who remain as accused persons. This
Court gets an impression that in the entire conspiracy story put up by the
H
904 SUPREME COURT REPORTS [2018] 13 S.C.R.
A prosecution, high Government officials are deliberately let off and very
junior Officers were become scapegoat in order to ensure that a case
under PC Act survives in respect of appellants as well who are not
public servants. Even otherwise, when the aforesaid eight persons are
not charged or proceeded against for want of prosecution, this lends
support to the allegations of the appellants in imputing motives for their
B
prosecution.
42. This Court, on a 360° scanning of the matter, arrives at the
conclusion that the elements of criminal intent or criminal acts are lacking.
Following factors do stand established from record:
C (i) there is no criminal act on their part and the facts do not disclose
any offence;
(ii) none of the officers who processed the case of the appellants
are not prosecuted;
(iii) two Officers Subhash Ahluwalia and T.G. Negi who took active
D part in the decision making were made Principal Secretary to CM
and Advisor to CM, respectively, by respondent No. 2 and were
not prosecuted;
(iv) As per the prosecution, there is no criminal act on the part of
the officers and they performed their appropriate administrative
E duties due to which sanction stands declined by the Central
Government and the CVC. That itself is sufficient to absolve others
from any criminal prosecution;
(x) even otherwise the State Government continues to remain
owner of the land which is on lease and on which the appellants
F have constructed assets worth above 150 crores;
(xi) these assets are for use of the public of the State and are
being used as such. Further, filing of chargesheet and an order
taking cognizance is not a final judicial order. It is a preliminary
process in criminal law and is open to challenge in higher judicial
G fora such as this Court.
43. Insofar as conversion of Society into not for profit company
under Section 25 of the Companies Act, 1956 is concerned, it was obviously
done as per the mandate of BCCI. There can hardly be an element of
criminality therein. This Court fails to understand as to how any criminal
H
HIMACHAL PRADESH CRICKET ASSOCIATION v. STATE OF 905
HIMACHAL PRADESH [A. K. SIKRI, J.]
intent can be attributed in merging the said society into a company, that A
too, to prevent the State Government from controlling it, which is the
motive attributed by the respondents themselves. It rather shows the
intent of the State Government which wanted to grab the control of the
Cricket Association. Such a tendency on the part of the State authorities
is condemned by a Committee headed by former Chief Justice R.M.
B
Lodha and approved by this Court. If at all, this is a reflection upon the
State Government. It also lends credence to the submission of the
appellants that when the State Government fail to achieve the aforesaid
purpose, it went after the appellants. If at all, the subject matter was a
civil dispute between the appellants and the respondents.
44. We may also mention that record reveals that respondent No.2 C
personally supervised the investigation. However, we are eschewing
the discussion as to whether chargesheet is result of mala fide or political
vendetta, since we feel that, ex facie, no case of cheating/fraud or
criminal breach of trust is made out. However, at the same time, it
would be necessary to point out that in the proceedings filed by the D
appellants under Section 482 Cr.P.C., respondent No.2 was impleaded
as the allegations of mala fides were attributed to him. Since, we are
not looking into these allegations, respondent No.2 does not have much
role to play in these proceedings. That apart, respondent No.2 has filed
counter affidavit stating that he is not a necessary party and it is not his
job to defend the prosecution. Having regard to the stand taken by the E
respondent No.1 not to prosecute these cases, even otherwise, no purpose
would be served in continuing with these proceedings.
45. In view of our aforesaid discussion, argument of respondent
No.2 that the appeals have become infructuous cannot be accepted.
F
46. We are conscious of the scope of powers of the High Court
under Section 482 of Cr.P.C. The inherent jurisdiction is to be exercised
carefully and with caution and only when exercise is justified by the
tests specifically laid down in the Section itself. Further, inherent power
under this provision is not the rule but it is an exception. The exception
is applied only when it is brought to the notice of the Court that grave G
miscarriage of justice would be committed if the trial is allowed to proceed
where the accused would be harassed unnecessarily. If the trial is allowed
to linger when prima facie it appears to the Court that the trial could
likely to be ended in acquittal. It is, for this reason, principle which is laid
down by catena of judgments is that the power is to be exercised by the H
906 SUPREME COURT REPORTS [2018] 13 S.C.R.
A High Court either to prevent abuse of process of any court or otherwise
to secure the ends of justice. However, whenever it is found that the
case is coming within the four corners of the aforesaid parameters, the
powers possessed by the High Court under this provision are very wide.
It means that the Court has to undertake the exercise with great caution.
However, the High Court is not to be inhibited when the circumstances
B
warrant exercise of such a power to do substantial justice to the parties.
This provision has been eloquently discussed in Bhajan Lal’s case which
has become locus classicus. Principle Nos. (i) and (ii) of Indian Oil
Corporation are, therefore, become applicable. The entire subject matter
has been revisited in a recent judgment in Vineet Kumar and some of
C the discussion therein which takes note of earlier judgments is reproduced
below:
“26. A three-Judge Bench in State of Karnataka v. M.
Devendrappa [State of Karnataka v. M. Devendrappa, (2002)
3 SCC 89 : 2002 SCC (Cri) 539] had the occasion to consider the
D ambit of Section 482 CrPC. By analysing the scope of Section
482 CrPC, this Court laid down that authority of the Court exists
for advancement of justice and if any attempt is made to abuse
that authority so as to produce injustice the Court has power to
prevent abuse. It further held that Court would be justified to
quash any proceeding if it finds that initiation/continuance of it
E amounts to abuse of the process of court or quashing of these
proceedings would otherwise serve the ends of justice. The
following was laid down in para 6: (SCC p. 94)
“6. … All courts, whether civil or criminal possess, in the absence
of any express provision, as inherent in their constitution, all such
F powers as are necessary to do the right and to undo a wrong in
course of administration of justice on the principle quando lex
aliquid alicui concedit, concedere videtur et id sine quo res
ipsae esse non potest (when the law gives a person anything it
gives him that without which it cannot exist). While exercising
G powers under the section, the court does not function as a court
of appeal or revision. Inherent jurisdiction under the section though
wide has to be exercised sparingly, carefully and with caution and
only when such exercise is justified by the tests specifically laid
down in the section itself. It is to be exercised ex debito justitiae
to do real and substantial justice for the administration of which
H
HIMACHAL PRADESH CRICKET ASSOCIATION v. STATE OF 907
HIMACHAL PRADESH [A. K. SIKRI, J.]
alone courts exist. Authority of the court exists for advancement A
of justice and if any attempt is made to abuse that authority so as
to produce injustice, the court has power to prevent abuse. It
would be an abuse of process of the court to allow any action
which would result in injustice and prevent promotion of justice.
In exercise of the powers court would be justified to quash any
B
proceeding if it finds that initiation/continuance of it amounts to
abuse of the process of court or quashing of these proceedings
would otherwise serve the ends of justice. When no offence is
disclosed by the complaint, the court may examine the question of
fact. When a complaint is sought to be quashed, it is permissible
to look into the materials to assess what the complainant has C
alleged and whether any offence is made out even if the allegations
are accepted in toto.”
27. Further in para 8 the following was stated: (Devendrappa
case [State of Karnataka v. M. Devendrappa, (2002) 3 SCC
89 : 2002 SCC (Cri) 539] , SCC p. 95) D
“8. … Judicial process should not be an instrument of oppression,
or, needless harassment. Court should be circumspect and judicious
in exercising discretion and should take all relevant facts and
circumstances into consideration before issuing process, lest it
would be an instrument in the hands of a private complainant to E
unleash vendetta to harass any person needlessly. At the same
time the section is not an instrument handed over to an accused to
short-circuit a prosecution and bring about its sudden death. The
scope of exercise of power under Section 482 of the Code and
the categories of cases where the High Court may exercise its
power under it relating to cognizable offences to prevent abuse of F
process of any court or otherwise to secure the ends of justice
were set out in some detail by this Court in State of Haryana v.
Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1)
SCC 335 : 1992 SCC (Cri) 426].”
G
In the instant case, the High Court simply noted those judgments
which put a note of caution in exercising the powers under Section 482
Cr.P.C. to quash such proceedings and dismissed the petition with a
shallow examination of the case, thereby glossing over the material facts
(which are noted hereinabove) and failing to examine that these pertinent
H
908 SUPREME COURT REPORTS [2018] 13 S.C.R.
A aspects were sufficient to demonstrate that no criminal case was made
out, particularly when all the concerned officers, who had taken the
decision, were let off on the ground that they had not committed any
wrong.
47. As far as Writ Petition (Criminal) No. 135 of 2017 is concerned,
B the appellants came to this Court challenging the order of cognizance
only because of the reason that matter was already pending as the
appellants had filed the Special Leave Petitions against the order of the
High Court rejecting their petition for quashing of the FIR/Chargesheet.
Having regard to these peculiar facts, writ petition has also been
entertained. In any case, once we hold that FIR needs to be quashed,
C order of cognizance would automatically stands vitiated.
48. As a consequence, criminal appeals are allowed thereby setting
aside the impugned judgment of the High Court, allowing the petition
filed by the appellants under Section 482 Cr.P.C. and quashing the FIR
No. 12 of 2013 dated August 01, 2013 under Sections 406, 420, 120B of
D the IPC and Section 13(2) of the PC Act and FIR No.14 of 2013 dated
October 03, 2013 under Section 447 read with Section 120B of the IPC,
Section 3 of Prevention of Damage to Public Property Act, 1984 and
Section 13(2) of the PC Act. In view thereof, writ petition also stands
disposed of accordingly.
E No order as to cost.
Devika Gujral Appeals and Writ Petition disposed of.
F
G
H
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