SUPREME COURT OF INDIA

Before:- G.B. Patnaik and Y.K. Sabharwal, JJ.

S.L.P. (Crl.) No. 4022 of 1999. D/d. 6.3.2000.

Shiva Kant Dwivedi - Petitioner

Versus

State of Bihar and others - Respondents

For the Petitioner :- Pankaj Kalra, Vijay Kumar, B.K. Sharma and J.M. Khanna, Advocates.

For the Respondents :- P.S. Mishra, S. Chandrashekhar, Upendra Mishra, Himanshu Shekhar and B.B. Singh, Advocates.

Criminal Procedure Code, 1973 Section 482 Inherent powers - Order of cognizance quashed in exercise of powers under Section 482 - Inherent powers to be exercised sparingly - Order taking cognizance can be quashed when no prima facie offence in question is made out - Order of quashing to be considered by High Court.

[Para 2]

ORDER

Informant is the Petitioner against an order of the learned Single Judge of the Patna High Court quashing an order of cognizance in exercise of powers under section 482 Code of Criminal Procedure, 1973.

2. We need not express our opinion on merits of the matter in view of the order we are proposing to pass in this case. Suffice it to say that the learned Judge has not borne in mind several decisions of this Court indicating the parameters for exercising the powers under section 482 Code of Criminal Procedure, 1973 which has to be exercised sparingly and only when the Court comes to the conclusion that otherwise it would be gross miscarriage of justice to allow the proceedings. At this stage, the Court is required to examine the materials on record and come to the conclusion whether prima facie the offence in question has been made out or not. The impugned judgment, on the face of it, appears to be erroneous. Mr. Mishra, learned senior counsel appearing for the accused-Respondents submitted that though he may not be able to sustain the impugned order, but there are ample materials which would be sufficient to hold that a prima facie case has not been made out.

3. In view of the above, we set aside the impugned order of the High Court and direct that the application for quashing may be reconsidered by the High Court itself. The learned Chief Justice is requested to place the matter before a Judge other than the Judge who has passed the impugned order. The S.L.P. stands disposed of accordingly.

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