DEEPA Vs. S I POLICE

JUDGEMENT

(1.) Some of the petitioners are Cabaret dancers and others are managers of restaurants. Against them various cases were registered, investigated and charge-sheeted in different Courts by different investigating agencies for offences punishable under Sections 294(a) and 114 of the Indian Penal Code. The general allegation in all the cases is that inside posh hotels nude and obscene dances and other cabaret performances were conducted. All these petitions are to quash those proceedings invoking the inherent jurisdiction of this Court. I have heard counsel for petitioners and the Director of Public Prosecutions.

(2.) Courts holding inquiry or trial under the Criminal Procedure Code are invested with ample powers to dispense with the ordeal of full trial in appropriate cases. A Magistrate conducting an inquiry into a complaint under S. 202 can dismiss the complaint at the inquiry stage itself if he is of opinion that there is no sufficient ground for proceeding. The power of discharge under S. 227 and the provision for discharge under S. 245 are examples of identical instances. An investigating agency is also having the discretion to decide whether the materials collected are sufficient to place the accused for trial. Taking cognizance by Courts is also a judicial act. Refusal to take cognizance in appropriate cases, say for instance, for want of requisite sanction or non-disclosure of an offence, is within judicial discretion. Only when such authorities refuse to exercise their discretion properly or act illegally resulting in abuse of process of Court and failure of justice that this Court intervenes in the exercise of inherent power to set matters right. Taking cognizance of an offence whether on a complaint or on a police charge which does not disclose any offence at all will be an abuse of the process of Court. Charge-sheeting an accused on the basis of an investigation which did not succeed in collecting materials to place the accused for trial will also be an illegality. In these cases the general allegation is that the materials supporting the concerned charge-sheets and the allegations contained therein do not constitute the ingredients of the offence under S. 294(a) but on the other hand they disprove the ingredients. If that contention is correct these are fit cases in which this Court will be justified in interfering in exercise of its inherent powers to quash the proceedings because it will be an abuse of the process of Court to ask the accused to stand the ordeal of harassment by trial in such proceedings. It will definitely cause miscarriage of justice and prejudice, investigation is the field of the police. Taking cognizance and deciding to proceed with inquiry or trial is the province of the Courts. Normally in exercise of the inherent power this Court will be reluctant to interfere with those discretions unless and until the materials on which such discretions were exercised show that the actions are illegal and amount to abuse of process of Court resulting in prejudice or harassment. The inherent powers may not be ordinarily extended in such cases because investigating agencies are having the authority to assess the evidence and decide whether the accused are to be charge-sheeted and Courts are also having the powers to dismiss the complaint or discharge the accused even without trial in appropriate cases: Inherent powers are intended to be exercised in cases of grave and patent injustice.

(3.) Normally a charge must fail for want of mens rea but there may be offences where mens rea may not be required. But actus reus must always exist. Without it there cannot be any offence. Mens rea can exist without actus reus, but if there is no actus reus there can be no crime. Even if mens rea is there, no conviction could be had without actus reus without which there cannot be a crime. For example a man may intend to marry during the lifetime of his wife and enter into a marriage believing that he is committing the offence of bigamy. Mens rea is there. But if unknown to him his wife died before he married again, in spite of the mens rea there cannot be an offence of bigamy. Over and above the three ingredients under S. 294(a) of which I will be referring hereafter the above aspects are also factors normally to be considered in deciding whether commission of a crime is proved or the ingredients exist. But in these cases while exercising the inherent jurisdiction to quash the proceedings before trial it will be premature to consider those aspects which will have to be decided on evidence. The allegations by themselves are not capable of excluding the above ingredients even though it was argued that mens rea and actus reus cannot be read from the allegations.