Mushtaq Ahmad And Anr vs Union Territory Of J&K And Ors
2021 Latest Caselaw 63 j&K

                                                                   Serial No.106

                                                                    Admission List



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

                                                           WP(C) No. 04/2021
                                                           CM No. 30/2021



Mushtaq Ahmad and Anr.
                                                                             ..... Petitioner(s)
                                     Through: -
                           Mr. K. Nirmal Kotwal, Advocate

                                           V/s

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

Through: -

None CORAM:

Hon'ble Mr Justice Ali Mohammad Magrey, Judge.

(ORDER) 04.02.2021

01. This instant petition has been filed by the petitioners seeking quashment of FIR

No. 194/2019 dated 8th of November, 2019, registered with Police Station Reasi, for

offences under section 341/323 of the Indian Penal Code.

02. Briefly stated the case of the petitioners is that the Respondent No. 9, one of the

sons of Bhadur Ali who is under the employment of police department as Constable,

ofently used to tease and harass the family of petitioners. It is stated that the family of

petitioners has reached at the verge of leaving the town because of the harassment and

torture by the family of policeman respondent No. 9. It is further stated that the

respondent No. 9, through respondent No. 4, in order to teach a lesson and to take

advantage in the complaints pressuring the petitioners entered into a conspiracy with

respondent No. 3 and managed to register a false and frivolous FIR No. 194/2019 under

Section 341/323 IPC. The respondent No. 3 within no time and without holding any inquiry as contemplative under law produced the challan in FIR No. 194/2019 before the

Court of learned Chief Judicial Magistrate, Reasi.

03. The petitioner No. 2 through RTI application dated 03.10.2017, addressed to

Public Information Officer, Dy. Superintendent of Police Reasi (HQ) requested for

certified copy of the qualification certificate viz Middle Pass and date of birth of

constable Mohammad Farooq Belt No. 902/RSI S/o Bhadur Ali R/o Ward No. 5 Reasi

Tehsil and District Reasi. It is stated that the petitioner No. 2 received reply of RTI

application vide communication dated 21.10.2017 from Dy. SP Hqrs Reasi with the

observations that qualification certificate and date of birth is a personal document, as

such, cannot be provided. The reply of PO was totally contradictory to the provisions of

Right to Information Act. It is stated that the petitioners engaged a lawyer and through

him filed RTI application. The Public Information Officer, Dy. Superintendent of Police,

Hqrs, Udhampur confirmed the date of birth of respondent No. 9 as 23.01.1975, in

service records, which is contrary to the record of school from where the same has been

issued vide serial no. 140 on 31.03.1989. It is stated that the petitioner No. 2 made a

complaint to respondent No. 3 on 24.10.2019, for registration of FIR against respondent

No. 4 and his family members It is stated that the independent witnesses in the challan

were manipulated by respondents just to involve the petitioners in a false and frivolous

case contrary to the facts actually happened on spot have sworn affidavits duly attested

before Notary declaring that in fact the complainant and his family members were at fault

there was no fault on the part of the petitioners herein. 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. Apex Court in 2018 4 Law Herald (SC) 3123, has laid down that filing of

charge sheet is no impediment in quashing an FIR. The High Court can exercise

jurisdiction under Section 482 of Cr. PC even when the discharge application is

pending with the trial Court. Indeed, it would be a travesty to hold that proceedings

initiated against a person can be interfered with at the stage of FIR but not if it has

advanced, and the allegations have materialized into a charge sheet. On the

contrary it could be said that the abuse of process caused by FIR stands aggravated if the FIR has taken the form of a charge sheet after investigation. The power is

undoubtedly conferred to prevent abuse of process of power of any Court.

08. 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.

09. 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

CM(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