Vikas Sharma vs State And Ors
2021 Latest Caselaw 562 j&K/2

Sr. no. 331

IN THE HIGH COURT OF JAMMU AND KASHMIRAT SRINAGAR
                                            ...

(Through V.M) CRM C 326/2018

Vikas Sharma .......Petitioner Through: Mr. Mir Manzoor, adv.

                                             (Through Virtual Mode)

                                            V/s
State and ors
                                                                  ......Respondent(s)
                                 Through:    Mr. B.A Dar, Sr. AAG
                                             Mr. Shah Ashiq, adv
                                             alongwith respondent no.3 namely
                                             Rekha Wangnoo.
                                             (Through Virtual Mode)



CORAM:

        HON'BLE MR JUSTICE ALI MOHAMMAD MAGREY, JUDGE

1. This petition under Section 561-A Cr. P. C, has been filed by the petitioner seeking quashment of FIR No. 46/2012 pending before in Women Police Station Rambagh.

2. Briefly stated the case of the petitioner is that -the SSP Jammu received a complaint from one lady namely Preeti Sharma who had married with some Rajesh Qazi in the year 2005 under Hindu Religion. It is submitted that the complainant Preeti Sharma further stated that her son namely Anugrah aged one year and two months has been taken forcibly by husband and sister in law namely Rekha Wangnoo. It is submitted that on the instructions of SSP Jammu, the petitioner called the husband of the complainant Rajesh Qazi but his cell phone was switched off and the petitioner called sister in law of the complainant namely Rekha Wangnoo. It is submitted by the petitioner that he talked to sister in-law of the complainant in presence of SSP jammu and she also replied every query. It is submitted that after some time, the petitioner came to know that sister in law of complainant namely Rekha Wangnoo had lodged an FIR 46/2012

1|Page under section 419, 506 and 509 RPC of which the petitioner is aggrieved and challenges the same on the grounds detailed out in the petition.

3. Learned counsel for the respondents submitted the objections wherein it is stated that the investigation is underway, therefore, seeks dismissal of the petition.

4. Learned counsel for the petitioner has stoutly argued and in support of his arguments referred to and relied upon the citations ; 2008 (2) JKJ 519 (HC); 2013 (2) JKJ 188 (HC); 2021 (2) BLJ 275.

5. on the other hand learned counsel for the respondents argued in tone with the objections filed and submitted that the investigation is yet to complete, and challan is yet to be filed in the competent court of jurisdiction, therefore, seeks dismissal of the petition.

6. Since the quashment of FIR pending in the aforesaid police station is concerned, it is profitable that before going to merits of the case, the question is as to whether the FIR pending before the police concerned can be quashed in 561-A 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."

7. 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 Vs Bojjoori Kanthaiah reported as 2008 AIR SCW 7860 and Reshma Bano Vs State of Uttar Pradesh reported in 2008 AIR SCW 1998".

8. 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:

2|Page "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 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

3|Page the ends of justice. The power under Section 482 is not intended to scuttle justice at the threshold."

9. 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, shall stand dismissed alongwith all connected IAs. Interim direction shall stand vacated. Investigation Officer to proceed in the matter.

(Ali Mohammad Magrey) Judge Srinagar, 19.05.2021 Ayaz.

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