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2010 DIGILAW 110 (JK)

Feroz Hassan Khan v. Ather Shaheen

2010-03-04

GH.HASNAIN MASSODI

body2010
1. The petitioners, seek to invoke inherent powers of this court under section 561-A Cr. P.C for quashment of order dated 10.8.2009 whereby learned Ist. Addl. Munsiff, (JMIC) Srinagar, has taken cognizance of offences punishable under section 420, 406 RPC, on a complaint filed by the respondent, and issued process against the petitioners. The petition has been filed against the following backdrop: 2. The petitioner No.1 and the respondent entered into wedlock on 8th of October 2003 and were blessed with a son in the year 2004. The marriage appears to have run into rough whether soon after birth of Zaidan Feroz, now aged five years. If the petitioner No.1 is to be believed, the respondent has been divorced by the petitioner No.1 vide divorce deed dated 15.7.2009. The respondent on 31.07.2009 filed a criminal complaint in the court of Chief Judicial Magistrate Srinagar against her husband and parents-in-law- the petitioners herein, alleging commission of offence punishable under section 420, 406 and 379 RPC. The complainant after giving details of the maltreatment, meted out to her, at her in-laws house, voiced her grievance against the conduct and behaviour of the petitioner No.1 and alleged that the petitioners had misappropriated the gifts received by the respondent at the time of her marriage and taken by her to her marital house. It was alleged that the respondent some time before filing of the complaint on going to petitioners house found her jewelry and other gift items to have been either stolen by the petitioners or sold without her consent. The petitioner No.1 was also alleged to have pocketed an amount of Rs.45000, given to him by the respondent. 3. The complaint was transferred to Ist. Addl. Munsiff (JMIC) Srinagar for its disposal under law. Learned Magistrate, after going through the complaint and statement of the respondent and her brother Shri Javed Ahmad Reshi, recorded in support of the complaint, decided to postpone issuance of process and first get the complaint inquired into / investigated by Station House Officer of the concerned Police Station. The complaint was accordingly in terms of section 202 Cr. P.C forwarded to SHO Police Station Rajbagh for inquiry/ investigation. The complaint was accordingly in terms of section 202 Cr. P.C forwarded to SHO Police Station Rajbagh for inquiry/ investigation. It appears that SHO Police Station Rajbagh instead of himself inquiring into the complaint, entrusted the inquiry to Shri Abdul Aziz, Sub Inspector, who after recording statements of complainant and a few witnesses, submitted his report to Learned Magistrate on 8th August 2009. Learned Magistrate on going through the report received from Sub Inspector Abdul Aziz, took cognizance of offence punishable under section 420, 406 RPC and issued process against the petitioners. 4. The order dated 10.08.2009 taking cognizance is assailed on the grounds that the marriage between the parties stands dissolved after the attempts of elders to help the parties to live together, failed and it was realized by the parties that because of incompatibility the marital relationship could not survive. The petitioners disputing the averments and allegations set out in the complaint, insist that after divorce the respondent has taken whatever was due to her and in case any thing remains unpaid/undelivered the dispute can be resolved amicably being one of pure civil nature. The complaint according to the petitioner is nothing but an attempt to harass and intimidate the petitioners and thus the order taking cognizance of the offence and issuing process against the petitioners is an abuse of process of court. The trial Magistrate is said to have acted in hot haste and taken cognizance of the offences when the dispute between the parties was of civil nature. 5. Heard. It is urged by learned counsel for the respondent that the inherent jurisdiction cannot be exercised to scuttle or stifle a legitimate prosecution and that the court while exercising inherent powers is not to assume role of the trial court and sift and evaluate evidence. Such an exercise, it is insisted, is to be left for the trial in the case. It is argued by the counsel for the respondent that no ground is made out in the petition to quash the proceedings and the averments made in the petition having regard to their content are to be dealt with by the trial court. The complaint, it is argued, cannot be thrown out at the threshold stage without affording the respondent an adequate opportunity to prove the allegations detailed in the complaint. Exercise of inherent jurisdiction u/s 561-A Cr. The complaint, it is argued, cannot be thrown out at the threshold stage without affording the respondent an adequate opportunity to prove the allegations detailed in the complaint. Exercise of inherent jurisdiction u/s 561-A Cr. P.C in the facts and circumstances of the case, according to counsel for the respondent, is uncalled and un-warranted. Counsel for the petitioners to buttress his argument, places reliance on law laid down in 2008 Cr. Law Journal 2805, 2008 Cr. Law Journal 724, 2006 Cr. Law Journal 4050, AIR 2009 S.C 2195. 6. Counsel for the petitioners on the other hand submits that having regard to the facts discernible from the complaint as also the report of the Inquiry Officer, the complaint is nothing but an attempt to harass and humiliate the petitioner, for the events alleged to have taken place few years back. It is insisted that the complaint is to be seen in the context of surrounding circumstances and the court can ill afford to be unmindful of the strained relations between the parties stretching over a period of over five years and an attempt to give colour of crime to disagreements or differences of pure civil nature. It is argued that the facts emerging from the inquiry conducted at the instance of Learned Magistrate indicate that the complaint and the proceedings emanating there from, are intended to be used as a tool to settle scores with the petitioners. The case in hand, according to counsel for the petitioners reveals nothing but abuse of process of law and the proceedings, if allowed to continue, shall do injustice to the petitioners. Counsel for the petitioners seeks to draw support from law laid down in (2008) 8 SCC 232. 7. Section 561-A Cr. P.C envisages three circumstances under which inherent jurisdiction may be exercised. The court is to exercise inherent powers (1) to give effect to an order under code. (2) to prevent abuse of the process of court and (3) to otherwise secure ends of justice. Inherent jurisdiction under section 561-A vested in the court is wide and because of its plenitude it is to be exercised sparingly, carefully and with caution. It has been held that the authority of the court exists in advancement of justice and if any order / proceedings are bound to abuse the authority so as to produce injustice, the court has power to prevent abuse. It has been held that the authority of the court exists in advancement of justice and if any order / proceedings are bound to abuse the authority so as to produce injustice, the court has power to prevent abuse. The court is to exercise inherent powers where initiation or continuance of any proceedings results in injustice and the quashing of the proceedings would serve the ends of justice. The scope of inherent powers was dealt with, and the cases, where High Court may exercise its inherent powers relating to cognizable offences to prevent abuse of process of court and otherwise secure the ends of justice, were categorized in State of Haryana v. Bajan Lal AIR 1992 as under: "102 (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 S. 156(1) of the Code except under an order of a Magistrate within the purview of S. 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 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 Act concerned (under which a criminal proceedings is instituted) to the institution and continuance of the proceedings and / or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fides 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. Having said so, let us shift focus to the complaint and the inquiry report that prompted Ld. Magistrate to take cognizance in the matter. 9. The allegations set out in complaint are nothing but a spillover of marital discord between the parties. The court when called up to prevent abuse of process of court has to be alive to the background in which the complaint has been lodged, as a good understanding of the surrounding circumstances is bound to help the court to opine whether the order taking cognizance of the offence(s) and continuation of criminal proceedings amount to abuse of process of Court. In the present case the complaint and material available on the file reveals that the relations between the parties are strained for last five years. The complainant has been living separately at her parental house since 2004. The relations between the parties have gone from bad to worse and ended in divorce, as claimed by the petitioners. The jewelry and other domestic items alleged to have been sold and misappropriated by the petitioners without approval and consent of the respondent are reported by the Inquiry Officer to have been sold some time before or in the year 2004. The respondent admittedly has not made any complaint alleging misappropriation of jewelry and other items for five long years. The complainant has not, similarly made any complaint, with reasonable dispatch, alleging that the petitioner No.1 though at the time of marriage, claimed to be a doctor could not after marriage justify his claim or that the petitioners after the marriage made a demand for dowry or harassed and humiliated the respondent. The Inquiry Officer has made an explicit report that the material collected during the inquiry revealed that the property mentioned in the complaint had been sold by the petitioners 1 and 2 and the respondent had a dispute with petitioner No.1 over the property so disposed of, since 2004. 10. The Inquiry Officer has made an explicit report that the material collected during the inquiry revealed that the property mentioned in the complaint had been sold by the petitioners 1 and 2 and the respondent had a dispute with petitioner No.1 over the property so disposed of, since 2004. 10. It is pertinent to point out that no role has been attributed to the petitioner No.3 mother of the petitioner No.1 included in the array of accused, by the respondent in her statement before the Inquiry Officer nor a reference to her is made in the inquiry report and learned trial Magistrate has still taken cognizance against the petitioner No.3 and issued process against her. 11. The facts emerging from the complaint and the inquiry report on which learned trial Judge has placed reliance at the time of taking cognizance in the matter, make it abundantly clear that the events that allegedly took place about five years back are agitated only to mount pressure on the petitioners and coerce them to settle the dispute otherwise of pure civil nature. It is to seemingly achieve said object that petitioner No.3 the mother of petitioner No.1 finds place in the array of accused, though no role is ascribed to her in commission of alleged offences. In 2008 (8) SCC 232 on which reliance is placed by counsel for the petitioners, in almost similar circumstances the proceedings were held to amount to abuse of process of the court. In the aforementioned case a complaint alleging demand for dowry was made two years after the demand was said to have been made. Furthermore the complaint in addition to the husband of the complainant was lodged against other relations of the accused though no role was specifically ascribed to anybody except the husband of the complainant. The Supreme Court quashing the proceedings commented on parameters for exercise of inherent powers, by quoting from 2006 (4) SCC 359 as under: "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 section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. 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 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 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 exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. 12. The case law relied upon by the learned counsel for the respondent reiterates the broad principles that are to guide the court while exercising inherent powers and has been laid down in markedly different and distinguishable factual matrix and is thus of no help to the respondent. 13. From the above discussion it emerges that the impugned order and the proceedings emanating therefrom, fall within category (7) identified in State of Haryana v. Bajan Lal (supra). 14. For the reasons discussed above, the petition is allowed and the order of learned JMIC, Ist. Addl. Munsiff Srinagar dated 10.08.2009, taking cognizance of the offences punishable under section 420, 406, quashed. The copy of the order be transmitted alongwith record to the court below.