Jammu & Kashmir High Court - Srinagar Bench

Reyaz Ahmad Khan vs Director on 16 February, 2021

                                                                                       Serial No. 115
                                                                                    Supplementary-1 List

                                 HIGH COURT OF JAMMU AND KASHMIR
                                           AT SRINAGAR


                                                                 Dated: 16th of February, 2021.

                                                                          CRM(M) No. 39/2021
                                                                            CrlM No. 147/2021

           Reyaz Ahmad Khan
                                                                                ..... Petitioner(s)
                                                  Through: -
                                   Mr Syed Faisal Qadri, Senior Advocate with
                                          Mr Salih Pirzada, Advocate.

                                                        V/s

           Director, Anti-Corruption Bureau & Ors.
                                                                              ..... Respondent(s)

Through: -

Mr B. A. Dar, Sr. AAG.

CORAM:

Hon'ble Mr Justice Ali Mohammad Magrey, Judge.

(JUDGMENT)

01. By medium of this petition, filed under Section 482 of the Code

of Criminal Procedure (Cr. P.C.), the petitioner is seeking quashing of FIR

No.01/2021, registered by Police Station, Anti-Corruption Bureau, Srinagar,

for the commission of offences punishable under Section 5(1)(d) read with

Section 5(2) of the J&K Prevention of Corruption Act, Samvat, 2006 and

Section 120-B of the Ranbir Penal Code (RPC).

02. The brief facts leading to the filing of the instant petition, as

stated by the petitioner in his petition, are that in pursuance of a written

complaint filed by one Jaswant Singh relating to the allotment of evacuee

property, a preliminary enquiry was conducted, which enquiry, after due

consideration, is claimed to have been closed with the observation that no TAHIR MANZOOR BHAT 2021.02.17 11:22 I attest to the accuracy and integrity of this document

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favour was extended by the Custodian Department. It is contended by the

petitioner that despite the closure of the enquiry, the respondents have

proceeded to register the impugned FIR on the same facts which excludes the

culpability of the public servants or the petitioner in the matter of allotment

of shops.

03. Mr Syed Faisal Qadri, the learned Senior counsel, representing

the petitioner, has invited the attention of the Court to the contents of the

impugned FIR to state that the same do not disclose the offences commission

of which has been attributed to the petitioner under Section 5(1)(d) read with

Section 5(2) of the J&K Prevention of Corruption Act, Samvat, 2006. It is

pleaded that the contents of the FIR do not make out a case against the

petitioner, who is a beneficiary of a legal transaction purely of civil nature.

The learned Senior Counsel contends that a preliminary enquiry stands

already conducted in the matter by the respondents which was, subsequently,

closed on the ground that nothing adverse was found against the petitioner,

therefore, the respondents cannot, now, turn around and register another FIR

on the same set of facts. It is also submitted by the learned Senior counsel that

the Senior Superintendent of Police, while registering the impugned FIR

against the petitioner, has assigned the investigation of the case to Inspector,

Shakeel Ahmad, No.4459/NGO, who is not a designated investigating

authority for the offences in question.

04. Mr B. A. Dar, the learned Senior Additional Advocate General,

available in the Court, while appearing on behalf of the respondents, has

vehemently resisted the claim of the petitioner for quashing the FIR by stating TAHIR MANZOOR BHAT 2021.02.17 11:22 I attest to the accuracy and integrity of this document

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that the matter is at the very infancy stage and, thus, does not warrant any

interference from this Court at this stage.

05. I have heard the learned counsel for the parties, perused the

pleadings on record and considered the matter.

06. The moot question that arises for consideration of the Court, in

the instant petition, is whether an FIR can be quashed in proceedings filed

under Section 482 of the Code of Criminal Procedure (Cr. P.C.) by this Court.

The answer has to be in the negative, for, the remedy under Section 482 Cr.

P. C can be invoked/pressed into service only in the following circumstances:

i. to pass orders in order to give effect to an order passed under Cr. P.C;

                  ii.     to prevent abuse of process of Court;
                 iii.     to secure the ends of justice; and
                 iv.      to prevent mis-carriage of justice.

The case of the petitioner does not fall in any of the aforesaid

circumstances as would warrant interference from this Court while exercising

power under Section 482 of the Code of Criminal Procedure (Cr. P. C.). The

FIR in question has been lodged against the petitioner on some complaint

relating to illegal allotment of evacuee property and in case the petitioner is

satisfied that he is not involved in any offence, commission of which has been

attributed to him, there shall be no difficulty for him to cooperate with the

investigating authorities so that truth prevails. The investigation of the FIR

aforesaid is in its infancy stage and all the material facts may not have come

forth as yet so as to come to a definite conclusion in the matter.

07. The Apex Court of the country, while dealing with the scope of TAHIR MANZOOR BHAT Section 482 of the Code of Criminal Procedure (Cr. P.C.), has repeatedly held 2021.02.17 11:22 I attest to the accuracy and integrity of this document

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that the power under this Section is to be exercised cautiously, carefully and

sparingly and that Court concerned has not to function as a Court of appeal or

revision. In this behalf, it has laid down certain parameters and guidelines in

cases titled as "K.L.E Society & Ors. v. Siddalingesh (2008 AIR SCW 1993);

A.P Vs Bojjoori Kanthaiah (2008 AIR SCW 7860) and Reshma Bano V.

State of Uttar Pradesh (2008 AIR SCW 1998)".

08. In case titled "Som Mittal V. Govt. of Karnataka (2008 AIR

SCW 1003)", Hon'ble the Supreme Court, at Paragraph Nos. 10, 13, 14, 15,

17 & 19, has observed as under:

"10. In a catena of decisions this Court has deprecated the interference by the High Court in exercise of its inherent powers under Section 482 of the Code in a routine manner. It has been consistently held that the power under Section 482 must be exercised sparingly with circumspection and in rarest of rare cases. Exercise of inherent power under section 482 of the Code of Criminal Procedure is not the rule but it is an exception. The exception is applied only when it is brought to the notice of the Court that grave miscarriage of justice would be committed if the trial is allowed to proceed where the accused would be harassed unnecessarily if the trial is allowed to linger when prima facie it appears to Court that the trial would likely to be ended in acquittal. In other words, the inherent power of the Court under section 482 of the Code of Criminal Procedure can be invoked by the High Court either to prevent abuse of process of any Court or otherwise to secure the ends of justice.

13. In State of Bihar v. J.A.C Saldanha (1980) 1 SCC 554 this Court pointed out at SCC P. 574:

The High Court in exercise of the extraordinary jurisdiction committed a grave error by making observations on seriously disputed questions of facts taking its cue from affidavits which in such a situation would hardly provide any reliable material. In our opinion the High Court was clearly in error in giving the direction virtually amounting to a mandamus to close the case before the investigation is complete. We say no more.

14. In Hazari Lal Gupta v Rameshwar Prasad (1972) 1 SCC 452 this Court at SCC P. 455 pointed out:

In exercising jurisdiction under section 482 of the Criminal Procedure Code, the High Court can quash proceedings if there is no legal evidence or if there is any impediment to the institution or continuance of proceedings but the High Court does not ordinarily inquire as to whether the evidence is reliable or not. Where again, investigation into the TAHIR MANZOOR BHAT circumstances of an alleged cognizable offence is carried on under the 2021.02.17 11:22 I attest to the accuracy and provisions of the Criminal Procedure Code, the High Court does not integrity of this document

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interfere with such investigation because it would then be the impeding investigation and jurisdiction of statutory authorities to exercise power in accordance with the provisions of the Criminal Procedure Code.

15. In Jehan Singh vs Delhi Administration (1974) 4 SCC 522 the application filed by the accused under section 561-A of the old Code for quashing the investigation was dismissed as being premature and incompetent on the finding that prima facie the allegations in the FIR if assumed to be correct, constitute a cognizable offence.

17. In State of Bihar vs Murad Ali Khan (1988) 4 SCC 655 this Court held that the jurisdiction under Section 482 of the Code has to be exercised sparingly and with circumspection and has given the working that in exercising that jurisdiction, the High Court should not embark upon an enquiry whether the allegations in the complaint are likely to be established by evidence or not.

19. We may observe here that despite this Court consistently held in catena of decisions that inherent power of the High Court should not be exercised according to whims and caprice and it has to be exercised sparingly with circumspection and in the rarest of rare cases, we often come across the High Court exercising the inherent power under Section 482 of the Code of Criminal Procedure in a routine manner at its whims and caprice setting at naught the cognizance taken and the FIR lodged at the threshold committing grave miscarriage of justice. While it is true that so long as the inherent power of Section 482 is in the Statute Book, exercise of such power is not impressible but it must be noted that such power has to be exercised sparingly with circumspection and in the rarest of rare cases, the sole aim of which is to secure the ends of justice. The power under Section 482 is not intended to scuttle justice at the threshold."

09. In the light of the above position of law, it is clear that the Court,

while dealing with a petition filed under Section 482 of the Code of Criminal

Procedure (Cr. P.C.), should refrain from making any prima facie decision at

interlocutory stage when entire facts of the case are incomplete, hazy and

more so, when material evidence is yet to be collected and issues involved

could not be seen in their true and correct perspective.

10. The judgments referred to and relied upon by the learned counsel

for the petitioner, being distinguishable and passed in cases involving

different facts and circumstances, are not applicable to the case of the

petitioner herein.

TAHIR MANZOOR BHAT 2021.02.17 11:22 I attest to the accuracy and integrity of this document

CRM(M) No.39/2021 CrlM No.147/2021