Ravi Bhakhri vs State Of J&K And Anr
2022 Latest Caselaw 265 j&K

        HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                        AT JAMMU

                                             Reserved on:-17.02.2022
                                             Date of Pronouncement:- 24.02.2022


                                             CRMC No. 52/2018

Ravi Bhakhri                                         ..... Petitioner/Appellant(s)


                        Through: Mr. S.K. Anand, Advocate.
                 Vs

State of J&K and Anr.                                        ..... Respondent(s)

                        Through: Mr. Amit Gupta, AAG for R-1.
                                 Mr. Rajesh Bhushan, Advocate for R-2.

Coram: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE


                                 JUDGMENT

1. The petitioner has challenged chare-sheet for offences under Sections

427, 448, 504 and 506 RPC filed by the Police Station, Gandhi Nagar, Jammu

against him, which is stated to be pending before the Court of learned Judicial

Magistrate Ist Class (3rd Additional Munsiff) Jammu. The charge-sheet has

emanated from FIR No. 03/2017 of Police Station, Gandhi Nagar, Jammu.

2. Before coming to the contentions raised in the petition, it would be

apt to narrate the facts, leading to filing of the impugned charge-sheet. On

15.12.2016, respondent No. 2/complainant presented an application under

Section 156(3) before the Chief Judicial Magistrate, Jammu, alleging therein

that he is a tenant of the property situated at 145 A/D, Green Belt Park, Gandhi

Nagar, Jammu belonging to the petitioner. It was averred in the application that

respondent No. 2 was running a restaurant in the demised premises under the

name and style of CHANAKAYA"S" ETHNIC VEGETARIAN FOOD

restaurant, but the petitioner and his son started abusing and threatening to

forcibly evict him from the demised premises. It was also averred that in the

morning of 14.12.2016, when respondent No. 2/complainant went to his

aforesaid rented property, he found that the lock of the rear door, which opens

towards the residence of the petitioner in a broken condition and he also found

certain utensils lying over there in a broken condition, whereas some other items

were found to be missing. The application goes on to mention that about a

month back, similar occurrence had taken place and at that time, glass door of

the demised premises was also broken. It was further averred that during the

intervening night of 14th and 15th December, 2016, the petitioner had broken

open one of the locks, leading to the kitchen of the aforesaid restaurant and

taken away certain items and utensils and in its place, put his own lock. The

applicant went on to allege that despite repeated requests to the SHO Police

Station, Gandhi Nagar, Jammu to take action in the matter, no action was taken.

3. The aforesaid application of the respondent No. 2 was endorsed by the

Chief Judicial Magistrate, Jammu to the SHO, Police Station, Gandhi Nagar,

Jammu for taking necessary action under law and as a consequence thereof, FIR

No. 03/2017 for offences under Sections 380, 454, 427, 504 and 506 RPC was

registered by the police and investigation of the case was set into motion. After

investigation of the case, the police found that the offences under Sections 448,

427, 506 and 34 RPC are established against the petitioner and his son, namely,

Arjun Bhakri.The charge-sheet was, accordingly, laid before the learned trial

Magistrate.

4. The petitioner has challenged the impugned charge-sheet on the

ground that the story projected by the complainant/respondent No. 2 in his

application made to the Chief Judicial Magistrate, Doda is

inherentlyimprobable, inasmuch as, as per the applicant's own case, the

occurrence has taken place during the intervening night of 14th and 15th

December, 2016, but according to the contents of the application, the

complainant had approached the police on 13.12.2016 itself. It is also

contended that it was impossible for the complainant/respondent No. 2 to

approach the police authorities, i.e., SHO, Police Station, Gandhi Nagar, Jammu

and the SSP concerned on the same day and thereafter, make a complaint before

the Chief Judicial Magistrate on that very day. It is further contended that the

allegations made in the charge-sheet are absolutely false and frivolous and it is

just a device to harass the petitioner. According to the petitioner, there is no

legal evidence to support the charges laid against the petitioner and that the

charge-sheet deserves to be quashed because the same is actuated with

malafides, with an intention to victimize an old and infirm person.

5. I have heard learned counsel for the parties and perused the record

including the record of the trial Court.

6. Before dealing with the contentions raised in the petition, it would

be apt to understand the scope of power of the High Court under Section 482 of

the Cr. P.C. The same has been discussed by the Supreme Court in "State of

Andhra Pradesh vs. GolcondsLinga Swamy, 2004 (6) SCC 522". In paras 5, 7

and 8 it has been observed as under:-

5. Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The Section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the Section which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle quandolexaliquidaliqueconcedit, conceditur et id sine quo res ipsaesse non potest (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the Section, the Court does not function as a court of appeal or revision. Inherent jurisdiction under the Section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the Section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt

is made to abuse that authority so as to produce injustice, the court has power to prevent such abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercises of the powers court would be justified to quash any proceeding if it finds that initiation or continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.

7. In dealing with the last category, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process no doubt should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the Section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its

sudden death. The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal (1992 Supp (1) SCC

335) A note of caution was, however, added that the power should be exercised sparingly and that too in rarest of rare cases. The illustrative categories indicated by this Court are as follows:

"(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the F.I.R. or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a Police Officer without an order of a Magistrate as contemplated under S. 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no

prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

8. As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. High Court being the highest Court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. (See : The Janata Dal etc. v. H.S. Chowdhary and others, etc. (AIR 1993 SC 892), Dr. Raghubir Saran v. State of Bihar and another (AIR 1964 SC 1)). It would

not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises, arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint/F.I.R. has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant or disclosed in the F.I.R. that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint/F.I.R. is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in Court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by itself be the basis for quashing the proceeding.

7. Recently the Supreme Court in the case of "M/s Neeharika

Infrastructure Pvt. Ltd. vs. State of Maharastra and others (Criminal Appeal

No. 330 of 2021 decided on 13.04.2021", has laid down the following

principles:-

i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence;

ii) Courts would not thwart any investigation into the cognizable offences;

iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on;

iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the „rarest of rare cases (not to be confused with the formation in the context of death penalty).

v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to there liability or genuineness or otherwise of the allegations made in the FIR/complaint;

vi) Criminal proceedings ought not to be scuttled at the initial stage;

vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule;

viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere;

ix) The functions of the judiciary and the police are complementary, not over lapping;

x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;

xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;

xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;

xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court;

xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint;

xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section482 Cr.P.C., only has to consider whether the

allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR;

xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or "no coercive steps to be adopted" and the accused should be relegated to apply for anticipatory bail under Section 438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or "no coercive steps" either during the investigation or till the investigation is completed and/or till the final report/ chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of the quashing petition under Section 482Cr.P.C. and/or under Article 226 of the Constitution of India.

xvii)Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under Section

482 Cr.P.C. and/or under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted and/or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can consider what was weighed with the High Court while passing such an interim order.

xviii) Whenever an interim order is passed by the High Court of "no coercive steps to be adopted" within the aforesaid parameters, the High Court must clarify what does it mean by "no coercive steps to be adopted" as the term "no coercive steps to be adopted" can be said to be too vague and/or broad which can be misunderstood and/or misapplied.

8. From the foregoing enunciation of the law on the subject, it is clear

that the power under Section 482 of the Cr. P.C. to quash criminal proceedings

has to be exercised sparingly only in deserving cases in the circumstances

illustrated in the aforesaid judgments. Even allegation of malafides against the

complainant by itself is not a ground for quashing the criminal proceedings.

9. In light of the aforesaid legal position on the subject, let us now

proceed to analyze the material on record and test the merits of the contentions

raised by the petitioner. The first and foremost contention that has been raised

by the petitioner is that the fact that the complainant has mentioned that he

approached the police even before the alleged occurrence clearly goes on to

show that the contents of the complaint are absolutely false. It is correct that in

para-5 of the complaint made by the respondent No. 2 before the Chief Judicial

Magistrate, Jammu, it is mentioned that he had approached the SHO, Police

Station, Gandhi Nagar, Jammu on 13.12.2016, but the same bears reference to

one month old incident when the petitioner had allegedly broken the glass door

of the premises rented out by the petitioner to the complainant. The incident of

intervening night of 14th and 15th December, 2016 finds mention in para-6 of the

application and in subsequent para, it has been mentioned by the complainant

that regarding this incident he approached the police authorities, but without any

success. The contention of the learned counsel for the petitioner that there are

inherent contradictions in the complaint filed by the respondent No. 2 is,

therefore, without any merit.

10. So far as the contention of the petitioner that it was not possible for

the respondent No. 2/complainant to approach the police authorities and the

learned Chief Judicial Magistrate, Jammu on the same day is concerned, the

same is also without any merit. Though the complaint has been drafted on

14.12.2016, yet the endorsement thereon has been made by the learned Chief

Judicial Magistrate, Jammu on 15.12.2016, the day on which, it was presented

before the said Court. This means that the complaint has not been presented

before the learned Chief Judicial Magistrate, Jammu on the same day, on which

the petitioner had approached the police, but it was presented before the Court

on the subsequent day. .

11. That takes us to the question as to whether or not the contents of the

challan supported with the statements of the witnesses and other material

collected during investigation of the case make out any offence against the

petitioner. From the statements of the witnesses recorded during investigation of

the case, it comes to the fore that the premises in question was leased out by the

petitioner to the respondent No. 2 for running a restaurant. As per the material

on record, the restaurant was closed down in the year 2016, but the possession of

the premises remained with respondent No. 2. There is material on record to

show that on the day of the incident, the lock of one of the doors of the

restaurant was found broken and the said door opened towards the house of the

petitioner. Some utensils and other items were also found to be in a broken

condition. There is also material on record to show that the petitioner and his

son have extended threats to the respondent to take over the possession of the

property in a forcible manner. Thus, it cannot be stated that the contents of the

charge-sheet are not supported with any material on record. The argument of

learned counsel for the petitioner in this regard is without any basis.

12. Next it has been contended by learned counsel for the petitioner that

the respondent No. 2 has occupied the demised premises without paying any

rent to the petitioner and in order to avoid payment of rent and to hand over the

possession of the premises to the petitioner, the respondent No. 2 has filed the

complaint from which the impugned challan has emanated. He has contended

that allowing the criminal proceedings against the petitioner to proceed would,

therefore, amount to an abuse of process of law. In support of his contention, the

learned counsel has relied upon the judgments of the Supreme Court rendered in

cases titled, "Krishna Lal Chawla and ors. Vs. State of U.P. and Anr., passed

in Criminal Appeal No. 283/2021, decided on 08.03.2021 and "Anand Kumar

Mohatta and Anr. State (Govt. of NCT of Delhi) Department of Home and

Anr., reported in AIR 2019 SC 210".

13. There can be no doubt about the fact that the root cause of the

impugned prosecution is the dispute about the premises, which the petitioner has

let out to respondent No. 2. The petitioner claims that the respondent No. 2 is

neither vacating the premises nor is he paying the rent, whereas respondent No.

2 claims that the petitioner is trying to forcibly evict him. Thus, the defence of

the petitioner is that the respondent No. 2 is trying to retain the possession of the

demised premises without paying rent to him and this is the sole reason behind

filing of the complaint, from which the impugned challan has arisen. In these

proceedings, when after the investigation of the case, it has been found that the

petitioner and his son, in order to forcibly evict respondent No. 2 from the

demised premises, have taken law into their hands by breaking open the locks of

the demised premises and caused damage to certain items lying over there, the

veracity of the defence to the challan put forward by the petitioner cannot be

gone into by this Court in exercise of its powers under Section 482 of Cr. P.C.

These are disputed questions of fact, which cannot be gone into in these

proceedings. Even otherwise the allegations of malafides cannot be the sole

ground for quashing a challan that has been laid after full fledged investigation.

14. So far as the judgments relied upon by the learned counsel for the

petitioner to support his contention are concerned, the same are not applicable to

the facts of the instant case. In Krishna Lal Chawla's case (supra), the

application was made before the learned Chief Judicial Magistrate after five

years of the alleged incident and when the charge-sheet was still pending before

the Magistrate, another private complaint on very same incident came to be filed

with addition of certain other allegations. It is, in those circumstances, that the

Supreme Court found that it was a case, where the proceedings were instituted

with an oblique motive after great delay, with vengeful and malafide motives.

Similarly, in Anand Kumar Mohattta's case (supra), the FIR was lodged on

20.08.2014 in respect of the disputes arising out of an agreement dated

03.06.1993 and the Court found that the allegations made in the FIR do not

constitute any offence. Thus, the ratio laid down by the Supreme Court in the

aforesaid two cases is not applicable to the facts of the instant case.

15. In view of what has been discussed hereinbefore, it is clear that the

complaint filed by the respondent No. 2 after having been investigated by the

police, has been found to be genuine and the allegation made in the FIR stand

established against the petitioner and his son, which are supported by the

material collected by the investigating agency during investigation of the case.

Quashing the criminal proceedings merely on the ground that the dispute

between the parties is relating to tenancy of premises, would amount of stifling a

genuine prosecution, which is impermissible in law. The petition, therefore, does

not bear any merit and the same deserves to be dismissed.

16. Accordingly, the petition is dismissed.

(Sanjay Dhar) Judge Jammu 24.02.2022 Ram Krishan

Whether the order is speaking? Yes/No Whether the order is reportable? Yes/No