Jammu & Kashmir High Court

Ghulam Mohi-Ud-Din vs State Of J&K And Others on 16 April, 2021

                                                                Sr. No.



     HIGH COURT OF JAMMU AND KASHMIR
              AT JAMMU


                                        Reserved on :- 08.04.2021
                                        Pronounced on: - 16 .04.2021


                                               CRMC No. 761/2017
                                               IA No. 01/2017

Ghulam Mohi-ud-Din

                                                       ...Petitioner(s)


                          Through:- Mr. N. D. Qazi, Advocate

           v/s

State of J&K and others
                                                     .... Respondent(s)

                        Through:- Mr. Suneel Malhotra, GA for R-1 & 2

Coram: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE


                                ORDER

1. Through the medium of the present petition, the petitioner

has challenged the FIR No. 259/2017 for offences under Sections 341.

353. 323/ 504 PRC registered with Police Station, Kishtwar.

2. It is contended in this petition that respondent No. 3 is

neighbourer of the petitioner and that there is a land dispute going on

between the petitioner and the family members of the respondent No.3,

regarding which litigation is pending before the Civil Court. It is 2 CRMC 761/2017

further averred that petitioner had filed a complaint against respondent

No. 3 before the court of learned Chief Judicial Magistrate, Kishtwar

wherein it was alleged that the said respondent is making repeated

interference in the land of the petitioner and as a counter blast to the

said complaint the respondent No. 3 has filed the impugned FIR

against the petitioner on the basis of a complaint under Section 156(3)

Cr. P. C. lodged by him before the learned Chief Judicial Magistrate,

Kishtwar.

3. The impugned FIR has been challenged by the petitioner on

the ground that the learned Magistrate while directing registration of

the FIR based on the complaint filed by respondent No. 3, has ignored

the law laid down by the Supreme Court in case titled Priyanka

Srivastava and another vs. State of U.P and others, 2015 (6) SCC

287, inasmuch as, he has not approached the police before filling the

complaint before the learned Magistrate, nor the same was supported

by an affidavit. It has been further contended that the impugned FIR

has been lodged maliciously with an ulterior motive for wreaking

vengeance upon the petitioner as there is a land dispute going on

between the parties.

4. I have heard learned counsel for the parties and perused

the record of the case.

5. As per the status report filed by the respondent-State, on

09.12.2017, an application under Section 156 (3) Cr. P. C for

registration of FIR was endorsed by learned Chief Judicial Magistrate, 3 CRMC 761/2017

Kishtwar to the police directing the police to investigate the case by

registration of the FIR. In the said application it was alleged that on

09.12.2017, while respondent No. 3 was on official duty, petitioner

wrongfully restrained the said respondent and launched an attack upon

him. It was further alleged that the petitioner hurled abuses upon the

said respondent. The status report goes on to state that after

investigation of the case and after recording the statements of

witnesses under Section 161Cr.P.C, offences under Sections

341/353/323/504 RPC stand established against the petitioner and

challan has been prepared, but in view of the interim direction dated

22.12.2017 passed by this Court, the challan could not be filed before

the Court. Copy of the charge-sheet has been placed on record.

6. As already noticed, the main contention of the petitioner

is that the learned Magistrate while directing the police to register an

FIR on the basis of the complaint filed by respondent No 3, did not

follow the dictum laid down by the Hon'ble Supreme Court in

Priyanka Srivastava's case (supra) inasmuch as, neither the complaint

of respondent No 3 was supported by an affidavit nor the said

complainant had approached the police prior to approaching the

learned Magistrate. The petitioner has not placed on record any

material to substantiate his aforesaid contentions.

7. Even if it is assumed that respondent No, 3 had neither

filed any affidavit supporting the complaint nor had he approached the

police prior to the filing of complaint before the learned Magistrate, the

question that arises for determination is whether this Court should 4 CRMC 761/2017

exercise its jurisdiction under Section 561 J&K Cr. P. C to quash the

proceedings in a case where upon investigation conducted in an FIR

registered in violation of aforesaid guidelines, it is found that

cognizable offences are made out against the accused.

8. For finding an answer to the forgoing question we have to

understand the backdrop in which the guidelines have been laid by the

Supreme Court whereby it has been made incumbent upon the

Magistrate to insist upon the applicants to support their applications

with an affidavit and to ensure that the applicants have exhausted their

remedy before the police authorities, prior to making the application

before the Magistrate. Paras 30 and 31 of the aforesaid judgment of the

Supreme Court are required to be noticed for this purpose. The same

read as under:-

30. In our considered opinion, a stage has come in this country where Section 156(3) Cr.P.C applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of said Act or under 5 CRMC 761/2017

Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores.

31. We have already indicated that there has to be prior applications under Section 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an the application under Section 156(3) be supported by an affidavit is so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR."

9. From a perusal of the afore quoted observations of the

Supreme Court, it is clear that the direction regarding filing of an

affidavit has been issued in the backdrop of the fact that a trend has set

in the country to file false and frivolous petitions under Section 156 6 CRMC 761/2017

Cr. P. C and a stage has come to make applicants of such applications

more responsible and accountable. Similarly to make sure that

applicants do not rush directly to the Magistrates without approaching

the police authorities in terms of Section 154(1) and 154(3) of Cr. P. C,

the Supreme Court has made it incumbent upon applicants to approach

the police before filing an application before the Magistrate.

10. In the instant case, the investigating agency has, after

investigating the complaint filed by respondent No. 3, found merit in

the same which in other words means that the complaint was not found

to be a frivolous. If the impugned FIR is quashed at this stage, merely

on the ground that learned Magistrate had not followed the ratio laid

down by the Supreme Court in the Priyanka Srivastava's case (supra)

particularly, when offences stand established against the accused, the

same may amount to shutting out a prima facie genuine complaint,

which is not the purport of the ratio laid down by the Supreme Court in

the aforesaid judgment. The inherent powers of the High Court can be

exercised only to prevent abuse of pocess of law and not to quash an

FIR, which is found to be genuine after investigation.

11. The scope of inherent power of the High Court under

Section 482 of Cr.P.C has been discussed by the Supreme Court in

State of Andhra Pradesh vs. Golconds Linga Swamy, 2004 (6) SCC

522. In paras 5, 7 and 8 it has been observed as under:-

5. Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The Section does not confer any new powers on the High Court. It only 7 CRMC 761/2017

saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the Section which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such 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 alique concedit, conceditur et id sine quo res ipsa esse non potest (when the law gives a person anything it gives him that without which it cannot exist). While exercising 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 alone courts exist. 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 such 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 8 CRMC 761/2017

exercises of the powers court would be justified to quash any proceeding if it finds that initiation or 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 alleged and whether any offence is made out even if the allegations are accepted in toto.

7. In dealing with the last category, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process no doubt 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 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 process of 9 CRMC 761/2017

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 (1992 Supp (1) SCC 335) A note of caution was, however, added that the power should be exercised sparingly and that too in rarest of rare cases. The illustrative categories indicated by this Court are as follows:

"(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the F.I.R. or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a Police Officer without an order of a Magistrate as contemplated under S. 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

10 CRMC 761/2017

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

8. As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. High Court being the highest Court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. (See : The Janata Dal etc. v. H.S. Chowdhary and others, etc. (AIR 1993 SC 892), Dr. Raghubir Saran v. State of Bihar and another (AIR 1964 SC

1)). It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be 11 CRMC 761/2017

sustainable and on such premises, arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint/F.I.R. has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant or disclosed in the F.I.R. that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint/F.I.R. is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in Court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by itself be the basis for quashing the proceeding.

12. Recently the Supreme Court in the case of M/s Neeharika

Infrastructure Pvt. Ltd. vs. State of Maharastra and others (Criminal 12 CRMC 761/2017

Appeal No. 330 of 2021 decided on 13.04.2021, has laid down the

following principles:-

i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence;

ii) Courts would not thwart any investigation into the cognizable offences;

iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on;

iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the „rarest of rare cases (not to be confused with the formation in the context of death penalty).

v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to there liability or genuineness or otherwise of the allegations made in the FIR/complaint;

vi) Criminal proceedings ought not to be scuttled at the initial stage;

vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule;

viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere;

13 CRMC 761/2017

ix) The functions of the judiciary and the police are complementary, not over lapping;

x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;

xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;

xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;

xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court;

xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint 14 CRMC 761/2017

imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint;

xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section482 Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR;

xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or "no coercive steps to be adopted" and the accused should be relegated to apply for anticipatory bail under Section 438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or "no coercive steps" either during the investigation or till the investigation is completed and/or till the final report/ chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of the quashing petition under Section 15 CRMC 761/2017

482Cr.P.C. and/or under Article 226 of the Constitution of India.

xvii)Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted and/or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can consider what was weighed with the High Court while passing such an interim order.

xviii) Whenever an interim order is passed by the High Court of "no coercive steps to be adopted" within the aforesaid parameters, the High Court must clarify what does it mean by "no coercive steps to be adopted" as the term "no coercive steps to be adopted" can be said to be too vague and/or broad which can be misunderstood and/or misapplied.

13. From the forgoing enunciation of law on the subject, it is

clear that the power under Section 482 Cr.P.C to quash criminal

proceedings has to be exercised sparingly only in deserving cases in

the circumstances illustrated in the aforesaid judgments. Even

allegations of malifides against the informant by itself is not a ground

for quashing the criminal proceedings. Thus, the contention of the

learned counsel for the petitioner that there was a dispute going on

between the petitioner and the complainant prior to lodging of the

impugned FIR and that the FIR has been directed to be registered in

ignorance of the guidelines of the Supreme Court, is of no 16 CRMC 761/2017

consequence, particularly, when the investigating agency has, after

embarking upon the investigation of the impugned FIR, found