Anil Gaind & Anr vs Union Territory Of Jk & Ors
2021 Latest Caselaw 31 j&K

                                                               Serial No.111
                                                         ADMISSION CAUSELIST
                                                           (Through Virtual Mode)

              HIGH COURT OF JAMMU AND KASHMIR
                         AT JAMMU
                                                          CRM (M) No. 42/2021
                                                            CrlM No. 148/2021
                                                            CrlM No. 149/2021
Anil Gaind & Anr.
                                                                .......Petitioner(s)

                           Through: Mr Rohit Kohli, Advocate.

                                       vs
Union Territory of JK & Ors.
                                                             .......Respondent(s)
                           Through:
CORAM:

             Hon'ble Mr Justice Ali Mohammad Magrey, Judge.
                                  ORDER

01.02.2021 CrlM No. 149/2021;

01. The instant application has been filed by the applicants/petitioners,

seeking extension of time to file the hardcopy of the petition alongwith duly

sworn affidavits with the main petition.

02. On the set of facts and the grounds urged, coupled with submission

made, the instant application is allowed and the applicants/petitioners are

permitted to make good the deficiency as and when the Court starts functioning

in the normal manner. CM disposed of accordingly.

CRM (M) No. 42/2021; CrlM No. 148/2021.

03. This petition under Section 482 Cr.P.C, has been filed by the

petitioners seeking quashment of FIR No. 0399/2019 dated 20th of

November, 2019, registered with Police Station Domana, Jammu for

offences under section 420, 406, 467, 468 and 471 of the Indian Penal Code.

CRM (M) No. 42/2021 CrlM No. 148/2021 CrlM No. 149/2021

04. Briefly stated the case of the petitioners, is that, the Respondent No. 3

had filed an application under section 156(3) CrPC before the Court of

learned Chief Judicial Magistrate, Jammu, which came to be transferred to

the Court of learned Sub-Registrar Jammu and the learned Sub-Registrar,

Jammu directed the Respondent No. 1 to investigate the matter and proceed

under law and in this backdrop FIR bearing No. 0399/2019 under section

420, 406, 467, 468 and 471 came to be registered. In the application filed

against the petitioners under section 156(3), it is alleged that the petitioners

have committed fraud by selling land measuring 26-kanals 18-marlas falling

under differing survey numbers as detailed out in the petition, situated at

village Dharmal, Tehsil Jammu North District Jammu to the Respondent No.

3 and one Mr Rajinder Singh Manhas. It is further stated that in addition to

the above sale of the property, the petitioners had further sold the land

measuring 3-kanals 2-marals of the property to one Ms Kusum Bhatia and

Smt Swarn Bhatia. It is further averred in the petition that the petitioners are

joint owners and in physical possession of the property detailed above but

because of their old age, it was becoming difficult for the petitioners to

manage and look after the aforesaid property and for this reason, they were

interested to dispose of the said property and after negotiation between the

petitioners and Rajinder Singh Manhas, an agreement to sell was executed

and an amount of Rs. 30,00,000/- had been stated to be paid to the

petitioners, out of which, Rs. 9,00,000/- has been paid in cash and Rs.

21,00,000/- through cheques but the cheques issued by Rajinder Singh

Manhas could not be encashed due to insufficient funds. It is further stated

in the petition that petitioners had already decided to sell the land detailed

above as such, they agreed to execute a fresh agreement to sell with the

CRM (M) No. 42/2021 CrlM No. 148/2021 CrlM No. 149/2021

Respondent No. 3 and another agreement to sell dated 21st of October, 2017

was executed between the petitioner and the Respondent No. 3and it was

agreed between the parties that the amount of Rs. 30,00,000/- paid by

Rajinder Singh Manhas would be adjusted in the payment to be made by

Respondent No. 3. It is further stated that in the Month of April, 2018, the

Respondent No. 3 introduced one Swaran Bhatai and Kusum Bhatia to the

petitioners and informed the petitioners that the said two females are

interested to purchase the part of the property in question and requested the

petitioners to execute the sale deeds in their favour. In terms of agreement

dated 21st of October, 2017, sale deeds were to be executed either in favour

of the Respondent No. 3 or in favour of the buyer brought by the Respondent

No. 3 and it was in this backdrop, the petitioners executed sale deed for land

measuring 1-kanal 10-marlas out of khasra no. 505 min and 1-kanal 12-

marlas out of khasra no. 505 min which was part and parcel of land detailed

above. It is further averred that the possession of the property detailed above

except the possession of the land sold to the persons mentioned in para (i),

always remained with the petitioners and they continued to enjoy the same.

It is also stated that on 3rd of December, 2019, the petitioner No. 1 received a

telephonic call from his labourers informing him that some miscreants have

illegally trespassed into the premises i.e. the land detailed above and

ransacked the store and office of the factory owned by the petitioners. The

petitioners, as stated, being law abiding senior citizens, approached the

police station by way of complaint dated 4th of December, 2019, regarding

the aforementioned incident and the concerned police station registered FIR

No. 0409 dated 6th of December, 2019 against the Respondent No. 3 and one

other person. The respondent No. 3 in order to harass and pressurize the

CRM (M) No. 42/2021 CrlM No. 148/2021 CrlM No. 149/2021

petitioners, had filed application under section 156 (3) CrPC by making false

and frivolous assertions and the non-applicant No. 2 has registered case

bearing FIR No. 399/2019 under section 420/406, 467/468/471 on the basis

of concocted story having no substance. The petitioners are aggrieved of the

impugned FIR and challenges the same on the grounds detailed out in the

petition.

05. Learned counsel for the petitioners submits that lodging of FIR, in the

present case, is nothing but an abuse process of law and that the FIR has

been lodged with the oblique motive. It is further submitted that the

registration of FIR is wholly unwarranted, aimed at victimizing the

petitioner. It is further pleaded that by registering the FIR in question, the

civil nature dispute between the parties has been given the shape of a

Criminal complaint, which has been depreciated by the Hon'ble Supreme

Court from time to time.

06. Since the quashment of FIR pending before the competent court is

concerned, it is profitable that before going to merits of the case, the

question is as to whether the FIR pending before the Court can be quashed in

482 Cr.P.C proceedings filed in 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."

CRM (M) No. 42/2021 CrlM No. 148/2021 CrlM No. 149/2021

07. Apex Court also held that power is to be exercised cautiously,

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

revision. It has also laid down the parameters and guidelines in cases titled

as "K.L.E Society &ors v. Siddalingesh reported in 2008 AIR SCW 1993;

A.P VsBojjoori Kanthaiah reported as 2008 AIR SCW 7860 and Reshma

BanoVs State of Uttar Pradesh reported in 2008 AIR SCW 1998".

08. Apex Court in AIR 2004 SC 3967, AIR 1972 SC 484, AIR 1974 SC

1446, AIR 1977 SC 2229, AIR 1989 SC 01, has laid down the same

principle. It is apt to reproduce para 10, 13, 14, 15, 17 & 19 out of the

judgment titled as Som Mittal Vs Govt. of Karnataka reported in 2008 AIR

SCW 1003 herein:

"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 HazariLal 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 circumstances of an alleged cognizable offence is carried on under the provisions of the Criminal Procedure Code, the High Court does not

CRM (M) No. 42/2021 CrlM No. 148/2021 CrlM No. 149/2021

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. While keeping in view the scope of section 482 Cr.PC the Court

should refrain from making 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 perspective.

10. In view of the facts and circumstances and law quoted herein above,

this petition has no merit, therefore, same shall stand dismissed alongwith all

connected CrlM(s).

(Ali Mohammad Magrey) Judge JAMMU:

01.02.2021 "Hamid"

                               i.    Whether the order is speaking?                Yes/No.

ABDUL HAMID BHAT
                               ii.   Whether the order is reportable?              Yes/No.
2021.02.01 16:22
I attest to the accuracy and
integrity of this document