Shankar Dass And Others vs State Of J&K And Another
2023 Latest Caselaw 347 j&K

     HIGH COURT OF JAMMU AND KASHMIR AND LADAKH
                      ATJAMMU

                                                  Reserved on   13.02.2023
                                                  Pronounced on 23.02.2023

                                                  CRMC No. 663/2017
                                                  IA No. 01/2017


Shankar Dass and others
                                                         .....Appellant/Petitioner(s)

                                 Through :- Mr. G. S. Thakur, Advocate

                           v/s
State of J&K and another                                           .....Respondent(s)


                                 Through :- Mr. Suraj Singh, GA.

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

                                 JUDGMENT

1) Through the instant petition, the petitioners have challenged FIR No.

189/2017 for offences under Sections 341, 323, 382 and 506 RPC, registered

with Police Station, Reasi.

2) It appears that respondent No. 2, complainant approached the Court of

Chief Judicial Magistrate, Reasi by filing a complaint against the petitioners.

The said complaint was endorsed by the learned Chief Judicial Magistrate to

the SHO, Police Station, Reasi with a direction to investigate the matter in

terms of Section 156(3) Cr. P.C.

3) As per the allegations made in the complaint, on 25.08.2017, at about

10.30 AM, when the complainant alongwith her husband, Sham Lal had

gone to the dispensary at Karua, on reaching near the dispensary, the

petitioners without any instigation from the complainant or her husband,

caught hold of the husband of complainant and gave a beating to him. It is

averred in the complaint that the complainant tried to rescue her husband but

she was also beaten up by the petitioners. It is further alleged that when the

complainant tried to escape from the spot, she was wrongly restrained by the

petitioners and she was again beaten up. The complainant goes on to allege

that in the process, the petitioners snatched away her mobile phone, one

wrist watch and cash in the amount of Rs. 1470/- It is also alleged that the

complainant thereafter fled away from the spot but her husband was

ruthlessly beaten up by the petitioners.

4) On the basis of the aforesaid complaint, the impugned FIR came to be

registered against the petitioners and investigation was set into motion.

5) The petitioners have challenged the impugned FIR on the grounds that

the husband of complainant is the encroacher of shamlat

Deh land falling under Khasra No. 1 min measuring 180 kanals, situated at

village Karua, Tehsil and District, Reasi. It is averred that the petitioners and

other villagers filed a complaint against the husband of respondent No. 2 for

removal of the encroachment from the land and thereafter, the Additional

Deputy Commissioner, Reasi asked the husband of respondent No. 2 to

remove the encroachment against which he filed a writ petition before this

Court.

6) It has been submitted that on 25.08.2017, at about 10.30 AM, the

husband of respondent No. 2 trespassed into the house of petitioner No. 3,

when his wife was all alone in the house. It has been submitted that the

husband of respondent No. 2 outraged the modesty of wife of petitioner No.

3. At the time of this occurrence, the grandmother of petitioner No. 3 is also

stated to have suffered fracture. Accordingly, FIR No. 174/2017 for offence

under Sections 452, 354, 323 RPC was registered against the husband of

respondent No. 2.

7) It has been contended that the impugned FIR has been lodged by

respondent No. 2 to wreck vengeance upon the petitioners and also as a

counterblast to FIR No. 174/2017. It has been submitted that there is a delay

of almost 20 days in filing the complaint against the petitioners, which has

remained unexplained. It has been further contended that both the incidents

i.e. the incident, which is subject matter of the impugned FIR and the

incident, which is subject matter of FIR No. 174/2017 are alleged to have

taken place at the same time i.e. at 10.30 A.M. on 25.08.2017, which

according to the petitioners, is improbable because the husband of

respondent No. 2 could not have been present at two different places at the

same time.

8) The status reports relating to both the FIRs i.e. FIR No. 174/2017 and

FIR No. 189/2017 have been filed by the official respondents. In their status

reports, the official respondents have reiterated the contents of both the

FIRs. According to the official respondents, the incident, which is subject

matter of FIR No. 174/2017, has taken place on 25.08.2017 at about 10.00

A.M, whereas the incident, which is subject matter of FIR No. 189/2017, has

taken place at 10.30 A.M. It is averred that during the investigation, the

statements of witnesses under Section 161 Cr.P.C. were recorded in both the

cases and in FIR No. 174/2017, offences under Sections 452, 354 RPC stand

established against Sham Lal, husband of respondent No. 2, whereas in FIR

No. 189/2017, offences under Sections 341, 323, 505 and 34 RPC stand

established against the petitioners.

9) I have heard learned counsel for the parties and perused the case

diaries of both the FIRs i.e. FIR No. 174/2017 and FIR No. 189/2017.

10) Before considering the rival contentions of the parties, it would be apt

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

Cr.P.C. The scope of inherent power of the High Court under Section 482 of

Cr.P.C has been discussed by the Supreme Court in State of Andhra

Pradesh vs. Golconds Linga Swamy 1 . 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 quando lex aliquid alique concedit, conceditur et id sine quo res ipsa esse 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

2004 (6) SCC 522

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."

11) Recently, the Supreme Court in the case of M/s Neeharika

Infrastructure Pvt. Ltd. vs. State of Maharastra and others,2 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;

2021 SCC Online SC 315

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."

12) From the foregoing enunciation of law on the subject, it is clear that

the power under Section 482 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 allegations of mala fides against the

informant by itself, is not a ground to quash the criminal proceedings.

13) Coming to the facts of the instant case, in the impugned FIR, it has

been clearly alleged by the complainant/respondent No. 2 that on 25.08.2017

at 10.30 AM, while she alongwith her husband had reached near dispensary

at Karua, the petitioners wrongly restrained her as well as her husband and

thereafter, gave a beating to them. It is also alleged that the petitioners

snatched some cash, wrist watch and mobile phone from the complainant.

These allegations have been investigated by the investigating agency and as

per the material collected, which is available in the case diary, the

allegations of wrongful restrain, beating, causing hurt and extending threats

have been established against the petitioners.

14) It has been contended by the learned counsel for the petitioners that it

is improbable that Sham Lal, husband of respondent No. 2 would have been

present at two different places on the same day and at the same time.

According to the learned counsel, the investigating agency after

investigating FIR No. 174/2017 has come to the conclusion that said Sham

Lal had outraged the modesty of wife of petitioner No. 3, while she was at

her home, which is at some distance from the place of alleged occurrence,

which is subject matter of impugned FIR.

15) A perusal of the case diaries reveals that both the occurrences i.e. the

occurrence, which is subject matter of FIR No. 189/2017 and the occurrence,

which is subject matter of FIR 174/2017, have taken place in the same

village i.e. village, Karua. The time lag between the two occurrences is half

an hour. So, it is not improbable for a person to be present at two different

places in the same village when the timing between the two incidents is

separated by half an hour. In any case, this is a matter of investigation and

this Court in exercise of its power under Section 482 Cr.P.C. would not hold

a mini trial to ascertain as to whether husband of respondent No. 2 was

present at two different places of occurrence on the same day within half of

hour. It is the investigating agency, which has to look into this aspect of the

matter and come to a conclusion whether this is actually possible.

16) The other ground urged by the petitioners is that there is a land dispute

going on between the parties and previously the petitioners have lodged an

FIR against the husband of respondent No. 2. Therefore, on account of mala

fide and in order to wreck vengeance upon the petitioners, the impugned FIR

has been lodged. The allegations of mala fide by the complainant against the

petitioners cannot be a ground for quashing the criminal proceedings. These

allegations can also be looked into and investigated by the investigating

agency while undertaking the investigation of the case. Merely because there

was a land dispute going on between the petitioners and husband of

respondent No. 2/complainant, is not a ground good enough to quash the

criminal proceedings. In fact, most of the crimes owe their origin to land

disputes between the parties. It cannot be stated as a matter of rule that

criminal proceedings cannot be initiated when there is civil dispute between

the parties, particularly when the acts committed by a person constitute

criminal offences.

17) When we consider the aforesaid factual background in the light of the

legal position discussed herein before, I do not find that this is a fit case

where this Court should exercise its power under Section 482 of Cr. P.C. to

quash the impugned FIR and the proceedings emanating therefrom. Thus,

there is no merit in this petition. The same is, accordingly dismissed. Interim

order, if any, shall stand vacated.

18) The case diaries be returned to the learned counsel appearing for the

official respondents.

(Sanjay Dhar) Judge JAMMU 23.02.2023 Karam Chand/Secy.

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