Jammu & Kashmir High Court

Fehmida Kouser vs Union Territory Of Jammu And on 7 March, 2024

Author: Sanjay Dhar

Bench: Sanjay Dhar

      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                      AT JAMMU
                                                   Reserved on 22.02.2024 &
                                                               01.03.2024
                                                Pronounced on 07.03.2024

CRM(M) No. 855/2023
CrlM Nos. 167/2024, 1662/2023

1.   Fehmida Kouser, Age 38 years              .....Appellant(s)/Petitioner(s)
     W/o Mohd Afzal Beigh
2.   Mohd. Afzal Beigh, Age 42
     years S/o Abdul Rashid Beigh
     R/o Dharam, Tehsil Gool
     District Ramban A/p Poonch
     Colony, Bahu Fort, Jammu
                      Through: Mr. Gagan Basotra, Sr. Advocate with
Q
                               Mr. M. Nadeem Bhat, Advocate
                 vs
1.   Union Territory of Jammu and                        ..... Respondent(s)
     Kashmir, Through Police Station
     Crime Branch Jammu
2.   Gul-E Surkhab
     W/o Khalid Mehmood
     R/o H.No. 112, Gujjar Nagar, Jammu
     A/p Sidhra, Jammu
                      Through: Ms. Monika Kohli, Sr. AAG
                               Mr. Sumir Pandita, Advocate
                               Investigating Officer-Bhagwan Dass Dandia,
                               Dy. SP, Crime Branch, Jammu present in
                               person.



CRM(M) No. 120/2024
CrlM Nos. 277/2024

Abdul Rashid Beigh, Age 67 years               .....Appellant(s)/Petitioner(s)
S/o. Ghulam Rashool Beigh, R/o.
Salbla Dharam, Tehsil Gool, District
Ramban

Q
                      Through: Mr. Bodh Raj Sharma, Advocate
                 vs
1.   Union Territory of Jammu and                        ..... Respondent(s)
     Kashmir, Through Police Station
                                          2

                                                      CRM(M) Nos. 855/2023 & 120/2024


     Crime Branch Jammu
2.   Gul-E Surkhab
     W/o Khalid Mehmood
     R/o H. No. 112, Gujjar Nagar, Jammu
     A/p Sidhra, Jammu
                     Through: Ms. Monika Kohli, Sr. AAG
                              Mr. Sumir Pandita, Advocate


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

                               JUDGMENT

1. By this common judgment two petitions, one filed by the petitioners

Fahmida Kouser and Mohd. Afzal Beigh (CRM(M) No. 855/2023) and the

other filed by petitioner-Ab Rashid Beigh (CRM(M) No. 120/2024) are

proposed to be disposed of.

2. All the three petitioners have challenged FIR No. 72/2023 for offences

under Sections 420, 467, 468, 471 and 120-B IPC registered with Police

Station, Crime Branch, Jammu. As per the impugned FIR, a complaint was

lodged by the complainant/respondent No. 2 with Crime Branch Jammu

alleging therein that her husband had purchased a plot of land measuring 01

kanal in khasra No. 70 min from its owner through petitioner-Mohd. Afzal

Beigh and constructed a house upon it. It is alleged in the impugned FIR

that petitioner-Mohd Afzal Beigh represented to the complainant that he

owns two more kanals of land adjacent to the aforesaid house of the

complainant‟s husband being its sole owner and that he is ready to sell it.

Believing upon the representation of petitioner-Mohd Afzal Beigh, the

complainant expressed her willingness to purchase said two kanals of land.

Accordingly, the deal was settled between them for an amount of Rs. 2.25

crores and an agreement to sell dated 09.12.2020 was executed by the

CRM(M) Nos. 855/2023 & 120/2024

parties. It is alleged in the impugned FIR that an amount of Rs. 1.80 crores

was paid by the complainant to petitioner-Mohd Afzal Beigh through

various bank transactions/cash but he failed to hand over possession of the

land to the complainant or to execute the sale deed in respect thereof. When

the petitioner-Mohd Afzal Beigh avoided to hand over the possession of the

land and to execute the sale deed, complainant/respondent No. 2 asked for

her money and petitioner-Mohd Afzal Beigh issued five undated cheques

amounting to Rs. 1.80 crores as guarantee. Petitioner-Mohd Afzal Beigh

also executed an affidavit dated 28.09.2022 wherein he admitted having

received an amount of Rs. 1.80 crores as part sale consideration.

3. In the FIR, it is further alleged that later on the complainant came to know

that petitioner-Mohd Afzal Beigh is not the actual owner of the land in

question and that agreement to sell dated 09.12.2020 is a fake document as

the same has been executed by above-named petitioner with a view to

defraud her. This was brought to the notice of petitioner-Mohd Afzal Beigh

who, thereafter, provided a copy of the revenue extract which he had

managed to get from the Revenue Department and it was clear that he was

not the actual owner of the land in question. An affidavit was executed by

petitioner-Mohd Afzal Beigh wherein he admitted having received an

amount of Rs. 1.80 crores as also issuance of five cheques for an amount of

Rs. 1.80 crores. He also agreed to refund the amount along with the penalty.

4. According to the complainant, the petitioner-Mohd Afzal Beigh had

fraudulent intention from the very inception as he represented himself to be

owner of the land in question though he was not. It is also alleged in the

CRM(M) Nos. 855/2023 & 120/2024

impugned FIR that an affidavit dated 27.03.2023 was forged by the above-

named petitioner to show that the complainant had received back the whole

amount though she had not received any amount. Thus, according to the

complainant, the petitioners have defrauded her thereby causing wrongful

loss to her and wrongful gain to themselves.

5. On the basis of the aforesaid complaint, the impugned FIR came to be

registered and the investigation of the case was set into motion. During

investigation of the case, it appears from the perusal of the Case Diary, the

Investigating Agency has recorded the statements of witnesses acquainted

with the facts of the case, the affidavits and the agreement to sell, reference

whereof is made in the impugned FIR, have also been seized. The

investigation is still in progress.

6. The petitioners have challenged the impugned FIR primarily on the ground

that the transaction between them and respondent No. 2 was purely of a

civil nature and merely because the petitioners failed to get the sale deed

executed in favour of respondent No. 2 does not give her a cause to lodge

an FIR and give it a criminal colour. It has been submitted that petitioner-

Mohd Afzal Beigh has returned approximately an amount of Rs. 40 lacs to

respondent No. 2 and that he had only taken an amount of Rs. 60 lacs from

the said respondent. It has been further submitted that role of petitioner-

Fehmida Kouser is only to the extent of issuing cheques in the amount of

Rs. 1.80 crores and this was done by her in order to save her husband-

petitioner Mohd Afzal Beigh against the harassment meted out to him by

respondent No. 2 and her husband. It has been further contended that

CRM(M) Nos. 855/2023 & 120/2024

respondent No. 2 has already filed a complaint under Section 138 of the

Negotiable Instruments Act before the court of learned Electricity

Magistrate, Jammu and now the present FIR cannot proceed against the

petitioner-Fehmida Kouser in connection with the same transaction.

7. Petitioner-Abdul Rashid Beigh, who happens to be the father of petitioner-

Mohd Afzal Beigh, has contended that he has no concern with the

transaction which is subject matter of the impugned FIR and that he has

constructed structure in his village out of his own funds but he has been

unnecessarily roped in by respondent No. 2.

8. During the course of the arguments, learned Counsel appearing for the

petitioners have contended that the respondent-Crime Branch did not have

jurisdiction to investigate the impugned FIR because it cannot investigate

the offences in respect of the matters that are not covered under SRO-202

dated 03.06.1999 and SO 232 dated 09.05.2022. It has also been contended

by the learned Counsel that after filing of the impugned FIR, respondent

No. 2 has purchased the same very property from its original owner through

petitioner-Mohd Afzal Beigh and as such, it cannot be stated that the

petitioners have defrauded the complainant and her husband.

9. I have heard learned counsel for the parties and perused the impugned FIR,

the grounds of challenge and the Case Diary produced by the official

respondent.

10. Before coming to the merits of the case, it would be apt to deal with the

preliminary objection raised by the learned Counsels appearing for the

petitioners about the jurisdiction of the respondent-Crime Branch to

CRM(M) Nos. 855/2023 & 120/2024

investigate the impugned FIR. In this regard, learned Counsels appearing

for the petitioners have submitted that if at all the contents of the impugned

FIR are taken to be true, it would be a case of cheating simplicitor having

no inter-district ramifications therefore, respondent-Crime Branch did not

have jurisdiction to investigate the said FIR. In this regard, the learned

Counsels have placed reliance upon the ratio laid down by this Court in the

case of Kamlesh Devi and others vs State of J&K and others CRMC

No. 144/2013, decided on 29.11.2022.

11. In the aforesaid case, a coordinate Bench of this Court has, after relying

upon the judgment of the Division Bench passed in State vs Muneer

Ahmed and others, Cr. Rev. No. 78/1998, decided on 28.08.2002, held

that the Crime Branch was competent to register and investigate the cases

specified in notification SRO 202 dated 03.06.1999 only. As per the said

SRO, cases of fraud, theft or cheating of a peculiar nature which affect

more than one district can be investigated by the Crime Branch which has

been declared as a Police Station in terms of SRO 133 dated 02.04.1991.

12. It is correct that the instant case does not have inter district ramifications

and perhaps for this reason the Crime Branch could not have investigated

the present case as it did not possess jurisdiction in terms of SRO 202 dated

03.06.1999, but then the impugned FIR has been registered in the year,

2023, therefore, the case would be governed by notification SO 232 dated

09.05.2022. As per this notification, the Police Station Economic Offences

Wing(EOW), Jammu is vested with the jurisdiction to register and

investigate cases inter alia relating to land grabbing/real estate frauds. In

CRM(M) Nos. 855/2023 & 120/2024

the instant case, the subject matter of the impugned FIR pertains to real

estate fraud. Therefore, the same can very well be registered and

investigated by the respondent-Crime Branch. There is no legal impediment

in registration of the impugned FIR and its investigation by the respondent-

Crime Branch. The contention of the learned Counsels appearing for the

petitioners is therefore, without any merit.

13. That takes us to the merits of the case. The main contention of the

petitioners is that the transaction between them and respondent No. 2 was

purely of civil nature as such, the respondents could not have given a

criminal colour to it by registering the impugned FIR.

14. As it is clear from the allegations made in the impugned FIR, petitioner-

Mohd Afzal Beigh represented himself to be the owner of the land in

question, whereafter, he entered into an agreement to sell with respondent

No. 2. Pursuant to the aforesaid agreement to sell, respondent No. 2 is

alleged to have paid an amount of Rs. 1.80 crores to petitioner-Mohd Afzal

Beigh. As per the impugned FIR, the land belongs to a third person and

petitioner-Mohd Afzal Beigh failed to either give possession of the land to

the complainant or to execute the sale deed. He did not even return the

amount of Rs. 1.80 crores to respondent No. 2. It is the case of the

complainant/respondent No. 2 that by doing so, the petitioners have

committed offences of cheating and forgery.

15. The question that falls for determination is whether in the face of aforesaid

nature of dispute between the parties, it would be open to set the criminal

proceedings into motion at the instance of one party to the dispute against

CRM(M) Nos. 855/2023 & 120/2024

the other and whether this Court in exercise of its jurisdiction under Section

482 Cr.P.C. can quash impugned proceedings. This issue has been

discussed and deliberated upon by the Supreme Court in the case of M/s

Indian Oil Corporation v. M/s NEPC India Limited and others, (2006)

6 SCC 736. The Court after noticing its earlier judgments on the issue went

on to observe as under:

"12. The principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by this Court in several decisions. To mention a few - Madhavrao Jiwaji Rao Scindia v. Sambhajirao Chandrojirao Angre [1988 (1) SCC 692], State of Haryana vs. Bhajanlal [1992 Supp (1) SCC 335], Rupan Deol Bajaj vs. Kanwar Pal Singh Gill [1995 (6) SCC 194], Central Bureau of Investigation v. Duncans Agro Industries Ltd., [1996 (5) SCC 591], State of Bihar vs. Rajendra Agrawalla [1996 (8) SCC 164], Rajesh Bajaj v. State NCT of Delhi, [1999 (3) SCC 259], Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. [2000 (3) SCC 269], Hridaya Ranjan Prasad Verma v. State of Bihar [2000 (4) SCC 168], M. Krishnan vs Vijay Kumar [2001 (8) SCC 645], and Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque [2005 (1) SCC 122]. The principles, relevant to our purpose are:

(i) A complaint can be quashed where the allegations made in 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 the case alleged against the accused.

For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint.

(ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with malafides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable.

CRM(M) Nos. 855/2023 & 120/2024

(iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution.

(iv)The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence.

(v) A given set of facts may make out: (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceedings are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not.

14.While no one with a legitimate cause or grievance should be prevented from seeking remedies available in criminal law, a complainant who initiates or persists with a prosecution, being fully aware that the criminal proceedings are unwarranted and his remedy lies only in civil law, should himself be made accountable, at the end of such misconceived criminal proceedings, in accordance with law. One positive step that can be taken by the courts, to curb unnecessary prosecutions and harassment of innocent parties, is to exercise their power under section 250 Cr.P.C., more frequently, where they discern malice or frivolousness or ulterior motives on the part of the complainant. Be that as it may."

16. From the foregoing enunciation of the law on the subject, it is clear that a

commercial transaction or a contractual dispute apart from furnishing a

cause of action for seeking remedy in civil law, may also involve a criminal

offence. It is also clear that the scope of a civil proceeding is different from

a criminal proceeding and the mere fact that the allegations relate to a

CRM(M) Nos. 855/2023 & 120/2024

commercial transaction or breach of contract for which a civil remedy is

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

17. Adverting to the facts of the instant case, it is alleged that petitioner-Mohd

Afzal Beigh has executed agreement to sell dated 09.12.2020 in respect of

the land measuring 2 kanals in khasra No. 70, Ward No. 71 Sidhra, Tehsil

and District Jammu in favour of respondent No. 2. A perusal of the

covenants of the said agreement to sell reveals that petitioner-Mohd Afzal

Beigh represented himself to be owner in possession of the aforesaid land.

He has also undertaken to execute the sale deed in respect of the aforesaid

land in favour of respondent No. 2 as soon as he gets full and final payment

and mutation of inheritance is attested in his favour. The covenants of the

agreement to sell leave no manner of doubt in holding that petitioner-Mohd

Afzal Beigh had represented himself to be the owner of the property in

question. It is not in dispute that the property in question never belonged to

petitioner-Mohd Afzal Beigh and it belonged to a third person, who

according to the parties, has now executed a separate sale deed in favour of

respondent No. 2 after receiving the sale consideration directly from the

purchaser. Therefore, petitioner-Mohd Afzal Beigh despite having the

knowledge that he was not the owner of the property in question,

represented to respondent No. 2 that he is owner of the property in question.

18. In the face of aforesaid facts the question arises as whether the action of

petitioner-Mohd. Afzal Beigh amounts to the offence of cheating. In order

to attract the ingredients of Section 415 IPC, which defines the offence of

cheating, there has to be an element of fraudulent or dishonest inducement

CRM(M) Nos. 855/2023 & 120/2024

on the part of a person and thereby the other party must have parted with

his property. To establish an offence under Section 420 IPC, it must be

shown that there was a fraudulent and dishonest intention at the time of the

offence and that the person practising deceit had obtained the property by

fraudulent inducement and wilful representation. Mere breach of contract

cannot give rise to criminal prosecution for cheating unless fraudulent and

dishonest intention is shown at the beginning of the transaction i.e, at the

time when the offence is alleged to have been committed.

19. "Dishonestly" has been defined in Section 24 of the IPC to mean deliberate

intention to cause wrongful gain or wrongful loss and when with such

intention deception is practised and delivery of property is induced, then the

offence under Section 420 IPC can be said to have been committed.

20. In the instant case, as already stated, petitioner-Mohd Afzal Beigh

knowing/fully well that he was not owner of the property in question,

represented to respondent No. 2 that he is the owner of the property and

agreed to sell the property in question to her for a sale consideration of Rs.

2.25 crores. This false representation induced respondent No. 2 to pay an

amount of Rs. 1.80 crores as is being alleged in the impugned FIR. Thus,

the fraudulent intention on the part of petitioner Mohd Afzal Beigh was

existing there from the very inception of the transaction between the

parties. It is not a case where petitioner-Mohd Afzal Beigh was owner of

the property and he had agreed to sell the said property to respondent No. 2

and for any reason, he could not execute the sale deed, but it is a case,

where he falsely represented to respondent No. 2 that he is owner of the

CRM(M) Nos. 855/2023 & 120/2024

property in question, which he was not. So from the very beginning, he was

knowing that it was not within his power and competence to execute the

sale deed in respect of the land in question in favour of respondent No. 2,

but despite this, he entered into agreement to sell with respondent No. 2 and

made her to part with partial amount of sale consideration. Thus, offence

under Section 420 IPC, which is a cognizable offence, is made out from the

allegations made in the complaint and the material available on record.

21. Apart from the above, petitioner-Mohd Afzal Beigh has executed a number

of affidavits declaring therein that he has received an amount of Rs. 1.80

crores from respondent No. 2, which he has been unable to repay to her.

Subsequently cheques have also been issued by his wife petitioner-

Fehmida Kouser in connection with repayment of the aforesaid amount but

the cheques have been dishonoured, in respect of which separate

proceedings are stated to be pending. There are allegations against the

petitioners that after receiving the amount from respondent No. 2 they have

diverted the funds and out of the said funds, petitioner-Abdul Rashid Beigh

has constructed a building in his village. This prima facie goes on to show

that the petitioners were having fraudulent intention while entering into

transaction with respondent No. 2 and all the petitioners appear to be

having a role in it. The mere fact that the original owner of the land in

question has executed a sale deed in respect of land in question in favour of

respondent No. 2 does not absolve the petitioners from their criminal

liability, when admittedly they have not refunded the whole amount to the

CRM(M) Nos. 855/2023 & 120/2024

complainant party, who has been made to pay additional amount of money

as sale consideration to the original owner.

22. Learned Counsels appearing for the petitioners have laid much emphasis on

the limited role of petitioners-Fehmida Kouser and Abdul Rashid Beigh, the

wife and father of petitioner-Mohd. Afzal Beigh. According to them, these

petitioners cannot be roped into conspiracy just because the wife has issued

the cheques and the father has raised construction of building in his village.

It has been contended that the petitioner-Fehmida Kouser has already been

prosecuted by way of separate proceedings in terms of Section 138 of the

Negotiable Instruments Act.

23. So far as offence under Section 138 of Negotiable Instruments Act and

under Section 420 IPC are concerned, the same are distinct from each other.

Offence under Section 138 Negotiable Instruments Act can be stated to

have been committed once an accused fails to liquidate the cheque amount

within the stipulated time of receipt of demand notice, whereas an offence

under Section 420 IPC is constituted, the moment the transaction is entered

into by the accused with the complainant with a fraudulent intention. So the

gist of offence under Section 420 IPC is the fraudulent intention at the

inception of the transaction, whereas the gist of offence under Section 138

of Negotiable Instruments Act is failure to pay the cheque amount within

15 days of the receipt of the demand notice. These are entirely two different

offences and as such, it cannot be stated that just because petitioner-

Fehmida Kouser has been prosecuted by complainant party for offence

CRM(M) Nos. 855/2023 & 120/2024

under Section 138 of Negotiable Instruments Act, she cannot be

investigated for offence under Section 420 IPC.

24. Even otherwise the question whether the petitioner-Fehmid Kouser and

Abdul Rashid Beigh are involved in the conspiracy, is a matter of

investigation and at this stage, when the investigation is still in progress, it

would not be open to this Court to render any opinion about the role of the

above-named petitioners. However, one thing is clear from the analysis of

the statement on record that the allegations made in the impugned FIR and

the material collected by the Investigating Agency disclose commission of

cognizable offences. Therefore, this Court cannot prevent the Investigating

Agency from discharging its statutory duty of investigating the impugned

FIR.

25. It is a settled law that scope of power under Section 482 Cr.P.C. is very

limited as it has to be exercised in exceptional cases with great

circumscription. The Supreme Court in the case of M/s Neharika

Infrastructure Pvt. Ltd. vs State of Maharashtra and others, 2021 SCC

online SC 315, while discussing the scope of power under Section 482

Cr.P.C, 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).

CRM(M) Nos. 855/2023 & 120/2024

v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability 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 overlapping;

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 Section 482 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

CRM(M) Nos. 855/2023 & 120/2024

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 482 Cr.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."

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

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

be exercised sparingly only in deserving cases in the circumstances

illustrated in the aforesaid judgment. Even allegations of mala fides against

the informant by itself is not a ground for quashing the criminal

proceedings. The defence set up by the petitioners particularly the

petitioners-Abdul Rashid and Fehmida Kouser can be looked into by the

CRM(M) Nos. 855/2023 & 120/2024

Investigating Agency during the investigation of the case and not by this

Court in their proceedings by holding a mini trial. Having regard to the fact

that allegations made in the impugned FIR disclose commission of

cognizable offences, therefore, exercise of jurisdiction under Section 482