This is an application under section 561-A of the Code of Criminal Procedure praying that the proceedings against the applicant under section 420, P. P. C. Pending in the Court of Additional City Magistrate Court No. XXVII , Karachi be quashed.
2. The facts leading to this petition briefly are that on 20-1-1968, Abdul Ghani, respondent No. 1 filed a complaint in the Court of Additional City Magistrate, Court No. XX, Karachi, alleging therein that the petitioner had borrowed a sum of Rs, 1,250.00 (Rupees one thousand two hundred and fifty) from him on 7th August 1960 and had failed to pay the same; as from the very beginning his intention was not to pay the amount. The statement of the complainant under section 200, Cr. P. C.
Was recorded on 16-4-1968 and on 23-4-1968 this complaint was dismissed on the ground that the matter was entirely one of a civil nature and a civil suit filed by the complainant (respondent) had been already dismissed by the Small Causes Court, Karachi as admitted in the complaint itself.
Being dissatisfied with this order respondent No. 1 filed a revision application, which was allowed by the order dated 25-10-1968 of Mr. A. A. Dareshani, Additional Sessions Judge, Karachi on the ground that the Magistrate should have considered the evidence which was to be led by the complainant before deciding whether a prima facie case was or was not made out. On 8-7-1969 the Additional City Magistrate Court No. XXVII, Karachi who received the case recorded the statement of the complainant (respondent No. 1) wherein the latter admitted that he had filed a suit for the recovery of the same amount in the Small Causes Court, Karachi. This Suit (being Suit No. 349 of 1963) was filed .On 5-8-19x3 and dismissed on merits on 23-11-1963, after a consideration of the entire evidence led by respondent No. 1. A revision application against this decision was thereafter filed in this Court but the same was dismissed on 28-1-1964.
3. It would thus be seen from the facts as admitted by the respondent No. 1 himself that the dispute between the parties is .One relating to non-payment of a loan, alleged to have been advanced by the respondent No. 1. The latter's only anxiety was to recover this amount and he filed a suit for this purpose which was dismissed and a revision application against that order of dismissal also proved abortive. The criminal case on the same facts was filed four years thereafter, that is to say, more than 7-- years after the alleged transaction, although the respondent No. 1 had admittedly realized, within 15 days after he paid the amount, that he had been deceived.
4. That the inherent jurisdiction of this Court under -section 561-A, Cr. P. C. Can be invoked in a case like this admits of no doubt. To quote the oft repeated words of Newsam, J. In M. M. S. T.
Chidambaram Chettier v. Shanrnugham Pillai (1) ---The inherent jurisdiction of this Court to pass any orders necessary to prevent abuse of the process of any Court is not questioned and indeed has been clearly expressed in section 561-A, Criminal P. C. Since prevention is always better than cure the obligation to prevent specious and spiteful criminal prosecutions for actions which, though -strictly dishonourable, yet do not amount to crimes, is one that must never be shirked. In the world of business things are often done which are betrayals of confidence and deceptions which arouse moral indignation but are nevertheless civil wrongs which can be righted by civil Courts and are not crimes which can be punished by a criminal Court. Not every (1) AIR 1938 Mad. 129 immoral act is criminal and it is an abuse of the process of a Court to attempt to create new crimes in order to compel men to conform to a high standard of probity in business dealings or to force them to execute their promises.
5. Relying on these observations in the case of J. S. Daver v. Iqbal Qadir and another (PLD 1962 Pesh. 167) Faizullah, J. Characterized the tendency to use criminal Courts for enforcing claims of civil nature as amounting to blackmail and quashed the proceedings on the ground that the same related essentially to commercial transactions and the object of tiling a criminal case was only to enforce a civil claim by harassing and coercing the accused.
6. In Mahmood-ul-Hosan v. Imtiaz Khan and another (PLD 1963 Lah. 481) while dealing with a case similar to the one before me, Ortcheson, J. Quashed the proceedings under sections 406 and 420, P. P. C. In view of the fact that the respondent (complainant)--had admitted in his statement that he was primarily interested in the recovery of his dues and that he had had recourse to the criminal Courts only because he wanted to realize those dues. While holding that this sufficiently indicated the mala fides of the complainant his Lordship observed as follows :- ---It is well settled that an attempt to enforce civil liability, through the machinery of the criminal Courts constitutes an abuse of the process of the Court and that when a High Court has reason to believe that such a procedure has been adopted, the proceedings should be quashed. If any authority is needed on this point, reference may be made, inter alia to Ladha Shah v. Zaman A.I AIR 1925 Lah. 289 and S. C. Mitra v. Raja Kali Charan AIR 1928 Oudh 104. In the later authority it was observed that criminal proceedings in a Subordinate Court constitute process of the Court and that if the High Court comes to the conclusion that the process is being abused, section 561-A invests the Court with the jurisdiction of passing, an order to set aside those proceedings so as to prevent the abuse. Again in Miss C. Verma v. Crown PLD 1952 Bal. 42 it was observed that although the powers of the High Court under section 561-A, Cr. P. C. Will normally be sparingly used where the circumstances indicate that there is a patent case of injustice the High Court will undoubtedly interfere at any stage which the case in question has reached."
7. Similar views were also expressed by Khamisani, J. In, R. C. P. Guignard v. The State and another (PLD 1963 Kar. 868); wherein it was pointed out that the general tendency to enforce a civil liability by way of resort to a criminal prosecution "was not permissible under law". Emphasizing that it was in such cases that "High Court will always interfere" under section 561-A, Cr. P. C. His Lordship went on to explain the scope of the section in the following words :- "This section can be used by the High Court to prevent abuse of the process of any Court or otherwise to secure the ends of justice. The High Court generally does nor interfere with the case pending in the Subordinate Courts and has always desired the cases to be tried there and concluded, but if this rule were to be universally accepted lot of mischief is likely to emanate therefrom. The general tendency on the part of people here is to enforce civil liability by way or resort to a criminal prosecution which is not permissible under law. It is in these cases where the intention of the party is apparent on the face of the record that the party desires to enforce a civil liability by circumvented Criminal prosecution that the High Court will always interfere. If the High Court does not prevent such misconceived and frivolous litigation it shall be abdicating its function of giving prompt redress to the party aggrieved. The Legislature in its wisdom being conscious of situations of this type had made a provision of it in section 561-A, Cr. P. C. In my opinion, where a person is enforcing a liability which is entirely civil in nature by resorting to a criminal prosecution, he is doing something which is not warranted by law and if on his complaint any action has been taken and process has been issued it is obviously an abuse of process of Court. If authori--ties are needed for this proposition the following reported cases may be referred
(1) Raghunath Puri v. Emperor AIR 1932 Pat. 72.
(2) Heywood v. Emperor AIR 1942 Lah. 134.
(3) Zafar Niazi v. Riazuddin Y L D 1958 Lah. 738.
(4) J. S. Daver v. Iqbal Qadir PLD 1962 Pesh. 167."
8. Judged in the light of the principles discussed above, there appears to be lot of force in the contention of Mr. Khawaja Adeel Ahmaa that the proceedings against the petitioner amount to an abuse of the process of the Court. The respondent filed this case 7-- years after the alleged transaction which was entirely of a civil nature. Thereafter, he pursued his remedies in the civil Court where he led all the evidence on which he placed reliance but his suit was dismissed on merits and, thereafter a revision application against that decision filed in this Court was also unsuccessful. The respondent No.1 filed the Criminal case about four years after the civil proceedings proved abortive. As the object of respondent No. 1 was only to recover his dues, the criminal case obviously appears to have been filed to coerce the petitioner to pay the amount claimed by the respondent No.1 by dragging him to a criminal Court. The respondent No. 1 was, accordingly, doing something indirectly what he could not do directly as he had exhausted all his remedies in the civil Courts.
9. Under section 561-A, Cr. P. C. The High Court has inherent powers to interfere with the proceedings of the lower Court at any stage thereof if it finds that an abuse of the process of law is being carried on in the trial of the case, or that such an interference is necessary to secure the ends of justice. This power is no doubt to be exercised sparingly and subject to certain limitations; and ordinarily the High Court will not interfere at an interlocutory stage of a criminal proceeding in a Subordinate Court. If, however, it is satisfied, as in this case, that the proceedings are an abuse of the process of the Court. This Court shall be failing in its duty if it allows unnecessary and uncalled for harassm ent of an accused person facing such proceedings; as it is always more important that Courts should act as a shield for the innocent rather than a sword for the guilty.
10. Mr. Abdul Hafiz Memon, the learned Assistant Advocate---General appearing on behalf of the State in his case is also of the opinion that the proceedings against the petitioner amount to an abuse of the process of the Court. Agreeing with the learned Assistant Advocate-General I would, for the reasons given above, accept this petition and quash the proceedings.