Jammu & Kashmir High Court

Masooda Bibi vs State Of J&K Through Sho Police on 15 March, 2024

Author: Puneet Gupta

Bench: Puneet Gupta

                                                                       Sr. No. 1

         HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                         AT JAMMU

                                                   Pronounced on : 15.03.2024
Case No : CRMC No. 42/2016
          CrlM No. 1816/2021
          IA Nos. 1/2016 & 1/2018
  1. Masooda Bibi, W/o Lt. Sh. Noor
     Mohd. Age 55 years,
  2. Anwar Hussain S/o Lt. Sh. Noor
     Mohd.Age 30 years,
  3. Yasmeen W/o Anwar Hussain, Age
     23 years,
  4. Ashraf Hussain S/o Lt. Noor
     Mohd.Age 23 years,
  5. Nazia alias Nzao W/o Lal Hussain,
     Age 21 years
     All residents of Vilalge Chak
     Rakhwala, Tehsil Nagrota and
     District, Jammu.
  6. Sayeda alias Nikki W/o Talib
     Hussain, Age 27 years R/o Chibba,
     Tehsil Nagrota, District, Jammu.
  7. Mohd. Afzal alias Abdul S/o Nazir
     Ahmed, Age 39 years
  8. Razia, W/o Mohd. Afzal alias Abdul,
                                                                    .....Petitioner(s)..
     Age 33 years,
     Both R/o Sidhra Tehsil and District
     Jammu.
                       Through :- Mr. Koushal Parihar, Advocate.
                  Vs
  1. State of J&K through SHO Police
     Station Nagrota, Jammu.
  2. Gulzar Mohd. S/o Lt. Sh. Rahim
     Baksh, R/o Village Kamini, Nagrota,
     Jammu.                              ....Respondent(s)..
                       Through :- Mr. Pawan Dev Singh, Dy.A.G for R-1.
                                  Mr. Kishore Kumar, Advocate for R-2.
Coram:     HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE
                           JUDGMENT

15.03.2024

1. The petitioners seek quashment of FIR No. 302/2015 registered with Police Station, Nagrota, Jammu under Sections 452/382/364/34 RPC on the ground that the same is abuse of process of law. The FIR is counter to the civil suits filed by the petitioners herein against the respondent No.2, who is from the police department.

2. The petitioners claim to be in possession of land measuring 13 kanals 4 marlas falling under Kh. No. 27 situate at Village Chak Rakwalan, Nagrota. The respondent No.2 along with his real brother intended to grab the land of the petitioners which resulted into filing of two suits by the petitioners before the court of 3rd Additional Munsiff, Jammu and Munsiff, Jammu.

3. It is further pleaded that the petitioners had to take help of the trial court for implementing the orders passed by the court as the injunction order granted by the court against the respondent No.2 was being violated by him. The petitioner No.1 has filed FIR No. 303/2015 registered with Police Station, Nagrota as the respondent No.2 was alleged to have committed the offences under Sections 323/324/326 RPC etc. and 3/25 Arms Act. The occurrence of the said FIR is stated to be of 2nd December, 2015 though the FIR came to be filed on 27.12.2015 in pursuance to the complaint filed before the court of learned Forest Magistrate, Jammu. It was also stated in the FIR that though the petitioner had approached the aforesaid Police Station for lodging the report yet the same was not lodged by the police. The respondent No.2 herein has lodged FIR No. 302/2015 with Police Station, Nagrota against the petitioners herein on 27.12.2015 for offence under Sections 452/360/382/364 RPC etc. for the occurrence which allegedly took place on 13.12.2015. It is also submitted that proceedings under Sections 107/117 Cr.P.C have been initiated by the police against the parties herein before the Executive Magistrate, Jammu for the occurrence which is mentioned in FIR No. 302/2015. The two parallel proceedings could not be initiated against the petitioners is also the submission of the petitioners.

4. The respondents have appeared in the case and contested the petition.

5. Mr. Koushal Parihar, learned counsel appearing for the petitioners has argued that the FIR sought to be quashed is sheer abuse of process of law as the same is outcome of the civil litigation filed by the petitioners and wherein interim directions have been passed by the trial court and the implementation of the orders passed by the court had also been sought by the petitioners. The respondent No.2 is a police personnel

and exercising his influence with the police has, thus, managed to lodge the FIR against the petitioners.

6. Mr. Kishore Kumar, learned counsel for the respondent No.2 has submitted that the FIRs of which the mention have made in the petition are different in nature and, therefore, the petitioners cannot seek quashment of the FIR lodged by the respondent No.2. The respondent No.2 has suffered due to the unholy acts committed by the petitioners herein. The factual aspects of both the FIRs cannot be determined in the present petition.

7. It is well settled proposition of law that this Court while exercising powers under Section 561- A Cr.P.C, as it was then applicable, can quash the criminal proceedings if the court is satisfied that the same are filed with an ulterior motive and to harass the party against whom the FIR has been lodged. The FIR can be quashed even if it does not prima facie disclose any cognizable offence requiring any investigation.

8. The principles governing the applicability of Section 561-A Cr.P.C are well settled in the case of 'State of Haryana and others Vs. Bhajan Lal and others', reported in 1992 Suppl (1) SCC 335. The allegations as mentioned in the FIR do not disclose any offence or that the allegations leveled in the FIR are improbable or that the proceedings have been initiated against the petitioners only to seek personal vengeance and are malafide can also be the ground on which the FIR can be quashed.

9. The Hon'ble Apex Court in 'Ahmad Ali Quraishi and another Vs. State of Uttar Pradesh and another', reported in AIR 2020 SC 788 quashed the proceedings keeping in view the facts and circumstances of the case.

10. In the case in hand, it is evident that the parties are litigating before the civil court and during the pendency of the civil proceedings both the FIRs stand filed. Merely because the party to the litigation files a criminal complaint/FIR will not by itself mean or make the court to believe that the same is filed only for the reason that the civil proceedings are pending before the court of law. In case the court is to hold that the criminal proceedings are to be quashed because the parties are litigating before the civil court, the same can result into causing

injustice to the complainant/aggrieved who may have genuinely suffered from the hands of the accused persons as mentioned in the complaint. Of course, the court will look into the overall facts that emerge from the civil as well as the criminal proceedings in order to judge if the criminal proceedings filed by the party are just a camouflage to harass and seek vengeance upon his adversary so as to keep the other party entangled in criminal proceedings in addition to the civil proceedings that may have been filed by the other party before the court. No hard and fast rule can be applied in order to invoke the inherent powers of this Court. It is the facts and circumstances of each case that determine the outcome of petition filed under Section 561-A Cr.P.C.

11. In the case in hand, both the parties have lodged FIRs against each other. It may be mentioned herein that the date of lodging of FIR No. 302/2015 is 27.12.2015 and so is the case with FIR No. 303/2015 though the date of occurrence mentioned in both the FIRs is different. It may be difficult for the court at this stage to give its final opinion regarding the lodging of FIR by the respondent No.2 against the petitioners and say that it is sheer outcome of the civil litigation filed by the petitioners. The factual matrix of both the FIRs cannot be determined in the present petition more so keeping in view as to what has been alleged in both the FIRs. The respondent No.2 is stated to be from the police department and even if it is so that cannot be the reason to hold that FIR is abuse of process of law and place the respondent No.2 at a disadvantage on that score.

12. It is also contended by the counsel for the petitioners herein that the proceedings under Sections 107/117 Cr.P.C initiated in the matter by the police should bring the curtains down on the FIR lodged by the respondent No.2. This contention cannot be accepted. The lodging of proceedings under Sections 107/117 Cr.P.C by the Police Station, Nagrota cannot be the circumstance for quashment of FIR No. 302/2015 lodged by the respondent No.2 keeping in view the overall facts and circumstances of the matter. It cannot be said by any stretch

of imagination that the FIR impugned does not disclose any offence against the petitioners though argued by the counsel for the petitioners.

13. The Court is of the view that the prayer of the petitioners herein for quashment of FIR No. 302/2015 registered with Police Station, Nagrota, impugned in the present petition, being an abuse of process of law is without merit. The petition is, accordingly, dismissed. The court while deciding the petition has not given any opinion whatsoever regarding the veracity of the allegations leveled in the impugned FIR as well as the FIR filed by the petitioners herein against the respondent No.2.

(PUNEET GUPTA) JUDGE Jammu: