Javeed Ahmad Molvi And Ors vs Union Territory Of J&K And Anr
2021 Latest Caselaw 62 j&K

                                                                     Serial No.103

                                                                      Admission List



          HIGH COURT OF JAMMU AND JAMMU AND KASHMIR
                           AT JAMMU
                                    (Through Virtual Mode)

                                                          CRM(M) No. 159/2020
                                                       CrlM Nos. 469,470 & 471/2020



Javeed Ahmad Molvi and Ors.
                                                                               ..... Petitioner(s)
                                       Through: -
                              Mr. Vishal Sharma, Advocate

                                              V/s

Union Territory of J&K and Anr.
                                                                            ..... Respondent(s)

Through: -

Mr. F. A. Natnoo, AAG CORAM:

Hon'ble Mr Justice Ali Mohammad Magrey, Judge.

(ORDER) 04.02.2021

01. This petition under Section 482 Cr.P.C, has been filed by the petitioners seeking

quashment of FIR No. 07/2020 dated 9th of May, 2020, registered with Women Police

Station Doda, for offences under section 323 and 498-A of the Indian Penal Code.

02. Briefly stated the case of the petitioners is that the Respondent No. 2 has lodged a

false and frivolous FIR against the petitioners. It is stated that the petitioner No. 1 is the

husband, petitioner No. 2 and 3 are mother-in-law and father in law of respondent No. 4

and petitioner No. 4 is the first wife of the petitioner No. 1. It is stated that the petitioner

No. 1 is teacher by profession and has good status in the society. Petitioners 2 and 3 are

old ailing citizens, who cannot even walk of their own and are bed ridden at their last

phase of life. The respondent No. 2 is second wife of petitioner No. 1, their marriage was

solemnized in the year 2015 according with Muslim rituals, but it is relevant to mention

here that soon after the marriage between petitioner No. 1 and respondent No. 2, things

getting stated strange and behavior of respondent No. 2 changed as respondent No. 2 started taking fights with petitioner No. 4 first wife of the petitioner No. 1. It is stated that

petitioner No. 1 is took the note of strange and unacceptable behavior of respondent No.

2, then only petitioner No. 1 get to known about the real reason behind it. It is stated that

the intention of respondent No. 2 was to separate the petitioner No. 1 from rest of the

petitioners, respondent No. 2 wanted petitioner No. 1 to divorce his first wife, viz

petitioner No. 4 and live separately with respondent No. 2. It is stated that respondent No.

2 was not doing any household work and always making issues out of nothing, it is the

respondent No. 2 who with her behavior has ceased the happiness of the whole family

and blackmail and harassed petitioner No. 1, that if petitioner No. 1 will not leave

petitioner No. 4 and divorce her, respondent No. 2 will make their life hell and lodge

false complaint against petitioner No. 1 and other family members. On this, the impugned

FIR has been registered against the petitioners. The petitioners are aggrieved of the

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

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

case, is nothing but an abuse of 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 petitioners. 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.

04. 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."

05. 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".

06. 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 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."

07. 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.

08. 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 February 4th , 2021 "Mohammad Yasin Dar"

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

                          ii.   Whether the order is reportable?            Yes/No.




MOHAMMAD YASIN DAR
2021.02.04 15:28
I attest to the accuracy and
integrity of this document