Rahul Kumar & Ors vs Ut Of J & K & Anr
2023 Latest Caselaw 171 j&K

                                                                         Sr. No.



        HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                         ATJAMMU

                                                 CRM(M) No. 501/2021
                                                 CrlM No. 1625/2021

                                                 Reserved on: 31.01.2023
                                                 Pronounced on:07.02.2023

Rahul Kumar & Ors                                                  .....Petitioner(s)

                                 Through :- Mr. Karan Sharma, Advocate


                           v/s

UT of J & K & Anr.                                               .....Respondent(s)

                                 Through :- Mr. Pawan Dev Singh Dy AG for R-1
                                            Mr. Sahil Bhardwaj, Advocate for R-2


CORAM: HON'BLE MR. JUSTICE MA.CHOWDHARY, JUDGE

                                  JUDGMENT

1. Petitioners have invoked the jurisdiction of this court under the provisions

of section 482 of the Code of Criminal Procedure for quashing the order

dated 01.04.2021 (for short 'impugned order') passed by Learned Judicial

Magistrate 1st Addl. Munsiff (Forest Magistrate), Jammu in a complaint

filed by respondent No.2 u/s 156(3) of Cr.P.C, whereby, Learned

Magistrate directed respondent No.1 (SHO Police Station Kanachak,

Jammu) to register case against the petitioners for alleged commission of

offences punishable u/ss 304-B, 498-A, 306, 147, 109, 201 & 120-B of

IPC, who registered the case vide FIR No. 0054/2021 (for short 'impugned

FIR') .

2. Petitioners/accused pleaded following facts:-

a) The petitioner No. l is the husband of deceased Renu Bala,

petitioner No.2 is the mother of petitioner no. 1 and petitioner

Nos.3 to 5 are the sisters of petitioner No.l, who are married,

have never involved themselves with the commission of any

offence as stated in impugned FIR No. 0054/2021. The deceased

namely Renu Bala died on 04-10-2020 due to electrocution

while cooking, at the time of unfortunate incident, only

petitioner no.2 was present in the house, who is 57 years old

lady, heart patient as well as bedridden, the petitioner No. l is a

government employee, serving in the Army and was on duty and

rest of the petitioners have been falsely implicated as petitioners

no. 3 to 5 are married and are at their respective in-laws houses

at the time of unfortunate incidence, immediately after the death,

inquest proceedings have been initiated which are required to be

taken to their logical conclusion.

b) That the father of the deceased moved an application to the

concerned Police Station for registration of FIR and also moved

an application before SSP Jammu on 23-03-2021, but when the

police has not taken any step on their part to lodge FIR against

the accused persons for the murder of Renu Devi, he filed an

application in the Court and the Learned Magistrate vide order

dated 01-04-2021 directed SHO P/S Kana Chak, Jammu under

section 156 (3) Cr.P.C to register the case and file the

compliance report within 10 days after the receipt of the order.

Pursuant to the directions of Learned Magistrate, FIR No. 0054

dated 18-04-2021 was registered against the petitioners.

c) That the registration of impugned FIR on the directions of

Learned Magistrate vide impugned order dated 01-04-2021

clearly amounts to subversion of process of law initiated to

ascertain true facts and circumstances leading to the death of the

deceased and also amounts to harassment to all the petitioners

who were not even present in the house at the time of incident

except petitioner no.2. The petitioner no. 1 is a government

employee. FIR was registered on an application moved by the

father of the deceased under section 156(3) Cr.P.C that too

without letting the inquest proceedings to its logical conclusion

and if FIR proceeded on then in that eventuality all the

petitioners will suffer to such an extent which cannot be

compensated later on by any means including loss of job of

petitioner no. 1.

d) That the story as reported on the basis of which the FIR got

registered is nothing but only to use law as a weapon against the

petitioners with a motive to destroy the future of an innocent

petitioners, more particularly the petitioner No.l. The petitioners

are innocent and law abiding citizen, hold good faith in the eyes

of law and are fully cooperating with the police till date.

3. Petitioners plead that the allegations made against them by the father of the

deceased are false, frivolous, bogus and vexatious and lack in the material

substance. The petitioners have nothing to do with the alleged offences, as

they always respected the deceased and also showered love towards her and

never made any dowry demand as alleged in an application under section

156(3) by the father of the deceased. The allegations leveled against the

petitioners as reported in the impugned F.l.R are baseless and cannot be

taken into consideration, till the conclusion of the inquest proceedings.

4. Respondent No.1 in his counter affidavit stated that on 04.10.2020, an

information was received at Police Station Kana Chak, Jammu that one

lady namely Renu Devi W/O Rahul Raj age 32 years R/O Simbliwala

Tehsil Bhalwal District Jammu who was shifted to SDH Akhnoor for

treatment was declared her as brought dead by doctors and her dead body

had been brought back at home by her in laws. As the death occurred in

suspicious circumstances and matter pertains to human death, cause of

death was required to be ascertained. On this information, inquest

proceedings u/s 174 Cr.P.C got initiated and the enquiry of inquest

proceedings was handed over to ASI Waris Hussain Shah. During the

course of investigation, the I.O seized the inquest proceedings file and

prepared the seizure memo, visited the spot and prepared the site plan of

the occurrence, recorded the statements of Kamal Singh S/O Mani Ram

R/O Garhi (father of the deceased Renu Bala) and Babita Rani W/O Pawan

Kumar R/O Garhi (sister-in-law of the deceased) under Section 161 Cr.P.C.

At present, the investigation of the instant case is still going on, as the facts

are yet to be ascertained and the investigating agency be given free hand to

investigate the matter.

5. Respondent No.2 in his counter affidavit has stated that all the petitioners

are involved in the commission of offences punishable under sections 304-

B, 498-A, 306, 147, 109, 201 and 120-B IPC. It is denied that the deceased

had died due to electrocution while cooking, but as a matter of fact, the

deceased had suffered from various bodily injuries which were inflicted by

all the petitioners, which can be easily seen from the photographs of the

deceased and other evidence which was collected by the I.O of the case. It

is further submitted that the deceased was always subjected to mental

torture, harassment and cruelty at the hands of the petitioners in order to

bring more dowry from her old father, however, the deceased was not able

to fulfill the illegal demands of the dowry made by the petitioners. It is

further submitted that on 2nd and 4th of October 2020, the deceased had

called her sister namely Anju of Punjab and had narrated all the incidence

of dowry demand made by the petitioners and the cruelty and harassment

being met by her at the hands of all the petitioners and she had further

narrated this to her sister, that she was being threatened by the petitioners

that in case their demands of dowry were not fulfilled, they will not let her

live happily in future and also threatened her to eliminate her. Therefore, he

has prayed for dismissal of the petition.

6. Heard learned counsel for the parties and considered the matter. I have also

perused the material available on record.

7. According to learned counsel for petitioners, allegations leveled are totally

baseless, malicious and do not disclose any offence. It is contended that

there being manifest, patent injustice apparent on the face of record of

complaint and there is non-application of mind in passing the impugned

order inasmuch as there is no evidence with regard to the allegations

against the petitioners as is disclosed in the investigation of the police. It is

averred that allegations made in the impugned FIR, even if are taken on

their face value and accepted in their entirety, do not prima facie constitute

any offence or make out a case against the petitioners and despite such

facts, petitioners are being harassed by respondents just to jeopardize the

job of petitioner No.1 and this is a beaten law of the land that where a

criminal proceeding is manifestly attended with mala fide or maliciously

instituted with an ulterior motive for wreaking vengeance on the accused,

the same is liable to be quashed.

8. Before analyzing the facts emanating from the record of the trial court, it

would be apt to notice the legal position as regards the scope of powers of

the High Court under Section 482 of the Code of 1973, to interfere with the

proceedings/complaint filed before a Magistrate.

9. The power under Section 482 of CrPC can be exercised by the High Court

to prevent the abuse of process of the Court and otherwise to secure the

ends of justice. The authority of the Court exists for advancement of justice

and if any attempt is made to abuse the said authority, the Court has the

power to prevent that abuse. These inherent powers of the High Court are

wide in their scope. Wider the power, higher the degree of responsibility

upon the authority vested with such power to exercise it with

circumspection. These powers are generally exercised to secure the ends of

justice.

10. The Supreme Court in the case of State of Haryana & Ors. vs. Ch.

Bhajan Lal & Ors reported as 1992 Suppl (1) SCC 335, has dealt with the

scope of power of High Court under Section 482 CrPC 1973 in an elaborate

manner. Paragraphs 102 and 103, which enumerates seven categories of

cases, where power can be exercised under Section 482 CrPC, are extracted

as follows:-

"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

(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 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 FIR 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 FIR 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 Section 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.

103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice."

11. In Pepsi Foods Ltd. & Anr vs. Special Judicial Magistrate & Ors

reported as (1998) 5 SCC 749, the Supreme Court relying upon the ratio

laid down by it in Bhajan Lal's case (supra), observed as under:

"22. It is settled that High Court can exercise its power of judicial review in criminal matters. In State of Haryana and others vs. Bhajan Lal and others 1992 Supp (1) SCC 335, this court examined the extraordinary power under article 226 of the Constitution and also the inherent powers under Section 482 of the Code which it said could be exercised by the High Court either to prevent abuse of the process of any court or otherwise to secure the ends of justice. While laying down certain guidelines where the court will exercise jurisdiction under these provisions, it was also stated that these guidelines could not be inflexible or laying rigid formulae to the followed by the facts and circumstances of each case but with the sole purpose to prevent abuse of the process of any court or otherwise to secure the ends of justice. One of such guidelines is 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. Under Article 227 the power of superintendence by the High Court is not only of administrative nature but is also of judicial nature. This article confers vast powers on the High Court to prevent the abuse of the process of law by the inferior courts and to see that the stream of administration of justice remains clean and pure, The power conferred on the High Court under Articles 226 and 227 of the constitution and under Section 482 of the Code have no limits but more the power more due care and caution is to be exercised invoking these powers."

12. Hon'ble Apex Court in a case titled State of Andhra Pradesh Vs.

Gourishetty Mahesh & Ors. reported as (2010) 11 SCC 226 has held that

though the powers possessed by the High Court under Section 482

CrPC are wide, however, such powers require care/caution in its exercise.

The interference must be on sound principles and the inherent power

should not be exercised to stifle a legitimate prosecution. It was clarified

that if the allegations set out in the complaint do not constitute the offence

of which cognizance has been taken by the Magistrate, it was open to the

High Court to quash the same in exercise of inherent powers under Section

482 CrPC.

13. From the foregoing survey of law on the subject, it is clear that in a case

where allegations made in the complaint and evidence collected in support

of the same do not disclose commission of any offence or make out a case

against the accused, the High Court can exercise its powers under Section

482 of CrPC to quash the proceedings against an accused. The inherent

powers cannot be, however, exercised to stifle or impinge upon the

proceedings.

14. Section 2(H) CrPC includes all the proceedings under the Code for

collection of evidence by a Public Officer or by any person other than the

Magistrate, who is authorized by the Magistrate. Section 157 CrPC

prescribes the procedure for investigation. Section 174 CrPC deals with the

inquest proceedings upon receiving information by the police that a person

has committed suicide or has been killed in an accident or has died under

circumstances raising suspicion that some other person has done some

offence. The purpose of inquest proceedings is to ascertain the apparent

cause of death. These proceedings, in the nature of enquiry are entirely

distinct from investigation under section 157 CrPC. The investigation is

done by a police officer under section 157 CrPC, which results in

submission of final police report. During inquest proceedings, if police

officer finds commission of cognizable offence, FIR can be lodged to

investigate further in terms of Section 157 CrPC.

15. The proceedings under Section 174 CrPC have a very limited scope. The

object of these proceedings is merely to ascertain whether a person has

died under suspicious circumstances or an unnatural death and if so what is

the apparent cause of death. The question regarding the details as to how

the deceased was assaulted or by whom or under what circumstances is

foreign to the ambit and scope of the proceedings under section 174 CrPC.

16. There is no dispute to the proposition of law that scope of inquest

proceedings is limited to ascertain the apparent cause of death of a person

who died under suspicious circumstances. So far as the investigation is

concerned, the same commences with the recording of an information

pertaining to commission of a cognizable offence. Any step taken by the

investigating officer pursuant to recording of such an information towards

detection of the crime would be a part of investigation under the Code of

Criminal Procedure. So these are two distinct types of proceedings. The

inquest proceedings relate to ascertainment of apparent cause of death of a

person who has died under mysterious circumstances, whereas proceedings

pertaining to investigation relate to detection of the crime and all attending

matters including the apprehension of the culprits.

17. From the aforesaid discussion of law on the subject, it is clear that merely

because the inquest proceedings were pending before the police at the time

when the impugned order was passed by the learned Magistrate would not

make the said order unsustainable in law. In fact, the learned Magistrate

while passing the impugned order has taken pains to deal with this aspect

of the matter and has come to right conclusion by holding that the

complaint filed by respondent No.2 contains clear and precise facts

disclosing the commission of cognizable offence. While doing so, the

learned Magistrate has noticed the background of matrimonial discord

between the deceased and her husband. In the backdrop of these

circumstances as also the fact that the petitioner No.2 was present on the

spot when the death of the deceased had taken place in mysterious

circumstances, there was sufficient material before the learned Magistrate

to conclude that cognizable offences had taken place which required

investigation by the police.

18. In view of aforesaid discussion, having regard to the legal position, it is

held that, even without conclusion of inquest proceedings initiated under

section 174 CrPC, case can be registered for investigation by lodging of

FIR, on receipt of information about commission of cognizable offence. In

the case on hand, the learned Magistrate had received a complaint which

disclosed the commission of cognizable offences, who directed

investigation. Therefore, there being no illegality, order impugned is

sustainable.

19. For the reasons discussed hereinabove, it cannot be construed that there

was any abuse of process by the learned Magistrate to order investigation

into the death of the married woman at her matrimonial home even during

pendency of inquest proceedings. This Court is thus not inclined to

interfere with the impugned order, accordingly, this petition, for want of

merit and substance, is dismissed along-with connected application(s).

(M A Chowdhary) Judge JAMMU 07.02.2023 Vijay

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