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2010 DIGILAW 267 (JK)

Nazir Ahmad Sheikh v. Reyaz Ah. Lone

2010-05-13

GH.HASNAIN MASSODI

body2010
1. The petitioners through medium of instant petition seek to invoke inherent powers of this court under section 561-A Cr. P.C to quash the order of learned Judicial Magistrate Kupwara dated 19 March 2010, whereby learned magistrate has issued a search warrant under Section 100 Cr. P.C directing the SHO concerned to search for and produce one Mst. Mehmooda sister of petitioners 1 to 4 before the Magistrate. The petition is edificed on the grounds that the respondent earlier on 21st January 2010 made a similar application before learned Chief Judicial Magistrate Handwara and got the search warrant issued in the name of SHO P/S Kralgund and thereafter on 23 January 2010 made an application for withdrawal of the application under Section 100 filed on 21st January 2010. Learned magistrate Handwara is said to have dismissed the application as withdrawn. It is averred that the respondent thereafter abducted said Mst. `Mehmooda and a case FIR 14/2010 under section 366 RPC was registered with P/S Kralgund. The petitioners pleaded that the respondent was arrested by P/S Kralgund and abducted girl was recovered and her statement under section 164-A recorded before a Magistrate. Mst. Mehmooda is said to have testified before the Magistrate that she was forcibly taken away by the respondent, confined in the house of one Riyaz Ahmad Lone resident of Ashpora Tehsil Handwara District Kupwara, and even attempted to make an indecent assault on her. Mst. Mehooda after her recovery from custody of the respondent appears to have been handed over to her family. The petitioner on March 19, 2010 approached, this time JMIC Kupwara, with an application under section 100 Cr. P.C alleging therein that Mst. Mehmooda was his legally wedded wife and had been wrongly confined by petitioners, respondents in the application. Learned JMIC Kupwara as stated at the outset, felt persuaded to exercise powers under section 100 Cr.P.C and issued a search warrant in the name of SHO P/5 Kralgund. 2. It appears that the warrant was not executed and the matter came up before the Learned Magistrate on 25.3.2010. Learned Magistrate as reflected in the interim order was duly informed that a case FIR 14/2010 under section 366 RPC was registered against the respondent/petitioner and that Mst. Mehmooda had been subjected to medical examination at district hospital Kupwara. 2. It appears that the warrant was not executed and the matter came up before the Learned Magistrate on 25.3.2010. Learned Magistrate as reflected in the interim order was duly informed that a case FIR 14/2010 under section 366 RPC was registered against the respondent/petitioner and that Mst. Mehmooda had been subjected to medical examination at district hospital Kupwara. Learned JMIC Kupwara instead of appreciating the matter in right perspective proceeded to issue fresh order to the SHO concerned for production of Mst. Mehmooda failing which appropriate orders were directed to follow. The order of JMIC Kupwara dated 19th March 2010 and the order dated 25 March 2010 subsequent thereto, is labeled as one amounting to abuse of the process of the court on the grounds that the respondent for mala fide reasons was initiating proceedings under Code of Criminal Procedure so as to coerce the petitioners and Mehmooda to surrender before his dictates and allow the respondent to succeed in his designs. It is pleaded that the respondent claims to have married Mst. Mehmooda, a claim vehemently refuted by Mehmooda in her statement under Section 164-A Cr.P.C. and the petitioner instead of initiating civil proceedings is making use of proceedings under section 100 Cr. P.C. as a tool to settle scores with the petitioners and Mst. Mehmooda. The act of the respondent, in making successive applications under section 100 Cr.P.C., it is insisted, lends support to the case set up in the petition. 3. Heard and considered. Section 561-A Cr.P.C. contemplates three circumstances under which inherent jurisdiction vested in the court 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. 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. 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 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 to prevent abuse of process of court and otherwise secure the ends of justice, were categorized in State of Haryana v. Bhajan Lal AIR 1992, S.C. 602, 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. 4. (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. 4. Having taken an overview of the law the focus needs to be shifted to the facts emerging from the record available on the file. The case set up by the respondent in successive applications under section 100 Cr.P.C. before CJM Handwara and thereafter JMIC Kupwara was primarily that Mst. Mehmooda daughter of Mohammad Sadiq resident of Harveth, Tehsil Handwara was his legally wedded wife; that their marriage had taken place on 11th May 2009 at Handwara and that the petitioners herein were preventing Mst. Mehmooda from discharging her marital obligations. The respondent with the primary object to have the company of Mst. Mehmooda on the basis of the alleged marriage resorted to invoking jurisdiction of magisterial courts at Handwara and Kupwara under section 100 Cr. P.C. and got the search warrants addressed to SHO concerned. The respondent though insisting that Mst. Mehmooda was wrongly confined, later withdrew the application under section 100 Cr.P.C. filed on 21st. January, 2010 in the court of CJM Handwara. The respondent appears to have decided not to bank upon the process of the court but to take law into his own hands. The respondent allegedly abducted Mst. Mehmooda a few days after he withdrew the application under section 100 Cr.P.C. The case FIR No. 14/2010 under section 366 RPC came to be registered at P/S Kralgund whereafter a search operation appears to have been launched and Mst. Mehmooda recovered from the house of Riyaz Ahmad of Ashpora Handwara, where the petitioner had allegedly confined her. Mst. Mehmooda made her stand clear in statement 164-A Cr.P.C. and belied the case set up by the respondent that she had married the respondent. Mst. Mehmooda instead complained that she had been abducted and that the respondent had even tried to exceed limits. Mst. Mehmooda made her stand clear in statement 164-A Cr.P.C. and belied the case set up by the respondent that she had married the respondent. Mst. Mehmooda instead complained that she had been abducted and that the respondent had even tried to exceed limits. The respondent after failing in his attempt to do on his own what he wanted to do by setting the law and police machinery in motion, decided once again to turn to the court and obtain a search warrant under section 100 Cr.P.C. The respondent this time, as stated, approached JMIC Kupwara and did not meet any resistance whatsoever, though the parties having been shown in the application as residents of a place not within the territorial jurisdiction of Judicial Magistrate Kupwara ought to have put the learned JMIC Kupwara on caution and persuaded him to give the application a closer look. Be that as it may, JMIC Kupwara felt persuaded to issue a search warrant under section 100 Cr.P.C. and even though informed by SHO concerned that respondent had not approached the court with clean hands and was accused in a case of abduction and further that the lady who was said to have been confined, was not under wrongful confinement and had been taken for medical examination at district hospital Kupwara, refused to relent and proceeded to issue yet another direction for production of Mst. Mehmooda and even gave veiled warning to SHO concerned that in the event Mst. Mehmooda was not produced before the court action may be taken against the officer. 5. Having regard to the above facts and events duly catalogued in the documents placed on the file there can be no worse example of abuse of process of the court than one presented by order of JMIC Kupwara dated 19 March 2010, and 25 March 2010 as a follow up to the first order. 6. The case squarely falls within category 7 identified in State of Haryana v. Bhajan Lal, AIR 1992 SC 602, as one where the court would be justified in invoking its inherent powers and ordering quashment of the proceedings. 7. For the reasons discussed, the petition is accepted and the order dated 19-03-2010 as also the orders passed as a sequel thereto are quashed. The appeal is disposed of.