Reserved On: 05.08.202 vs State
2021 Latest Caselaw 966 j&K/2

        HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                        AT SRINAGAR
                              ...
                      CRMC no.467/2018
                         IA no.01/2018
                                                      Reserved on: 05.08.2021
                                                   Pronounced on: 25.08.2021
Nazir Ahmad Peer
                                                             .......Petitioner(s)
                                  Through: Mr Rizwan-un Zaman, Advocate
                                    Versus
State
                                                            ......Respondent(s)
                                  Through: Mr Sajad Ashraf, GA

CORAM:
             HON'BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE

                               JUDGEMENT

1. Exercise of powers under and in terms of provisions of Section 561-A of the Code of Criminal Procedure is sought for by petitioner in petition on hand, so as to set-aside and quash Order dated 8th August 2018, passed by Judicial Magistrate 1st Class (Additional Mobile Magistrate) Kralpora (for brevity "Trial Court").

2. Heard and considered.

3. Amongst others, grounds of challenge in petition on hand are: that impugned order against petitioner is bad as no FSL report is on file nor has been obtained from expert authority before filing of charge sheet against petitioner; that impugned order is bad as no sanction has been obtained from competent authority before filing of charge sheet against petitioner; that petitioner can be deemed to be a public servant as he is employee of J&K Bank Limited inasmuch as functions of petitioner as Manager Advance was to recover the loans and not to open accounts as alleged in the charge sheet and, therefore, no charge can be framed against him; that Trial Court has, in a mechanical manner and without appreciating the evidence on record and without having FSL expert opinion, passed impugned order inasmuch as there is only mere suspicion regarding involvement of petitioner in the case; that there is only mere suspicion regarding involvement of petitioner in the

CRMC no.467/2018

case; that statement of prosecution witness recorded under Sections 161 and 164 Cr.P.C. nowhere suggests involvement of petitioner in commission of offences as alleged by police in the charge sheet and, therefore, the Trial Court has fallen in error while passing impugned order; that Trial Court, while passing impugned order, has not appreciated that none of prosecution witnesses have deposed that petitioner has not opened bank accounts as alleged by prosecution nor he has made sanction of loans as alleged by prosecution, and that other persons posted in the bank have neither been shown as prosecution witnesses nor they have been examined by investigating agency; that He asserts that

4. Counsel for petitioner has stated that framing of charge, though interlocutory order, can be challenged by invoking revisional jurisdiction as well as inherent jurisdiction of the High Court when acceptance of plea raised by petitioner would result in his discharge. Counsel for petitioner has placed reliance on Dilawar Balu Kurane v. State of Maharashtra AIR 1979 SC 366; S. Surjeet Singh v. State of J&K, SLJ(I) 2009 Page 257 . His next assertion is that framing of charge is not a civil exercise of visualizing whether there is a prima facie case made out against accused or not and this is an important principle of law that at the time of framing of charge, the Trial Court has not to sift and waive the evidence but has to appreciate whether there is a strong suspicion against accused. He contends that that there is no iota of mere suspicion muchless grave suspicion which renders impugned order to be quashed and that there is no sufficient ground for proceeding against petitioner.

5. Status report, as directed by this Court, has been filed by respondent. It is reported by them that on 3rd January 2013, Manager, J&K Bank Branch Kralpora, namely, Javeed Ahamd Masoodi, lodged a written complaint in police station Kralpora, stating therein that it has come to notice of the Bank that a number of consumption loans have been raised in the names of different persons by resorting to fraudulent means by various persons including present petitioner. It has also been reported that pay certificate and photographs were manipulated and fabricated to open loan accounts and saving bank accounts with an intent to cause or knowing that it was likely

CRMC no.467/2018

to cause wrongful loss and damage to the bank. Upon receipt of said complaint, case FIR no.01/2013 under Section 409, 420, 468, 471, was registered in police station Kralpora and investigation taken up. During the course of investigation, the I.O. visited the spot, prepared site plan and seized various documents managed by accused persons for opening accounts/ sanctioning loans. It is also stated that during course of investigation, it was found alleged accused persons managed fake documents, fake certificates and sanctioned huge amount of loan in fraudulent manner in fake accounts created by them, and that the fake documents, withdrawal forms were also seized in the case. The handwriting of alleged bank employees is said to have been collected in front of Executive Magistrate, Kralpora, and sent to FSL Srinagar. Statements of various witnesses recorded and FSL report, it is next contended, make out a prima facie case under Sections 409, 420, 468, 471, 201 RPC, and investigation of the case was concluded and charge sheet was produced before the court.

6. Section 561-A of the State Code of Criminal Procedure, which is pari materia to Section 482 Central Code of Criminal Procedures, provides that nothing in the Code shall be deemed to limit or affect the inherent powers of the High Court to make such order as may be necessary to give effect to any orders under the Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. While exercising powers under Section 561-A Cr. P.C., the Court, however, has to keep in mind that it should not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it, the accusation would not be sustained. This is the function of the Trial Court. Though the judicial process should not be an instrument of oppression or needless harassment but the Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances in consideration before issuing process under Section 561- A, lest the Section becomes an instrument in the hands of accused persons to claim the differential treatment only because the accused persons can spend money to

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approach higher forums. This Section is not an instrument handed over to an accused to short circuit a prosecution and bring about its sudden death.

7. It is pertinent to mention here that it has been emphasized times without number through authoritative judicial pronouncements that inherent powers under Section 561-A Cr.P.C. are to be exercised rarely, sparingly and with due circumspection. The power cannot be used to stifle investigation or even prosecution as the law is to be allowed to have its own course and the investigation or prosecution to be taken to its logical end. A very limited scope is available to find out as to whether the case falls within broader parameters as provided and envisaged under Section 561-A Cr. P.C.

8. When Sections 227 and 228 of the Code of Criminal Procedure read together in juxtaposition, as they have got to be, it would be clear that at the initial stage of the trial, the truth, veracity and effect of evidence that prosecutor proposes to adduce are not to be meticulously judged. Any weight is also not to be attached to the probable defence of accused. It is not obligatory for the court at that stage of the trial to consider in any detail and weigh in a sensitive balance whether facts, if proved, would be incompatible with innocence of accused or not. The standard of test and judgment that is to be finally applied before recording a finding qua guilt or otherwise of accused is not exactly to be applied at the stage of deciding the matter under Section 227 or 228 of the Code. The court, at that stage, is not to see whether there is sufficient ground for conviction of accused or whether the trial is sure to end his conviction.

9. It is settled position of law that at the stage of framing of charge, probative value of the statement cannot be gone into, which would come to be decided at the closure of the trial inasmuch as at the stage of framing of charge, the court has to consider the material with a view to find out if there is ground for presuming that accused has committed offence or that there is no sufficient ground for proceeding against him and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction. When the case in hand is looked into the context of above well settled law, it flattens in all fours on the touchstone of law laid down by the Supreme Court and various High Courts. Remedy under Section 482 Cr. P.C. and inherent

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power should not be exercised by the Courts in a routine manner, rather should be exercised sparingly, carefully with caution ad in the rarest of the rare cases. The Court has not to function as a court of appeal or revision. [Vide: Som Mittal v. Govt. of Karnataka, 2008 SCW 1003 and M.N.Ojha v. Alok Kumar Srivastav, AIR 2010 SC 201] .

10.A Bench of this Court in Mian Abdul Qayoom v. State and others, 2011 (I) JKJ 470 (HC), has held that the Court should refrain from making prima facie decision at the infancy stage or in a case where all the facts are incomplete and hazy.

11.It may not be out of place to mention here that inherent power cannot be naturally invoked in respect of any matter covered by a specific provision of the Code. It is only after the High Court is satisfied that either an order passed under the Code would be rendered ineffective or that the process of any court would be abused or that ends of justice would not be secured, then the High Court must exercise its inherent powers under Section 561-A/482 Cr. P.C. This power can be invoked only when an aggrieved party is unnecessarily harassed and has no other remedy open to it. The power under Section 482 Cr. P.C. is not intended to scuttle justice but to secure justice. In the present case, the matter pending trial before the Trial Court has crossed the stage of framing of charge and, therefore, need not be interfered with. Judgements relied upon by counsel for petitioner do not render any support to the case set up by petitioner.

12.Applying aforesaid test, the instant petition is bereft of merit as petitioner fails to make out a case for exercise of inherent powers under Section 561- A Cr.P.C. to quash impugned order. Having said so, petition on hand is dismissed with connected CM(s). Interim direction, if any, shall stand vacated.

13.Copy be sent down.

(Vinod Chatterji Koul) Judge Srinagar 25.08.2021 Ajaz Ahmad, PS Whether the order is reportable: Yes/No.