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2010 DIGILAW 446 (JK)

Naresh Chowdhary v. State

2010-08-17

Mansoor Ahmad Mir

body2010
1. By the medium of this petition filed under Section 561-A of Code of Criminal Procedure [for short Cr.P.C], the petitioners have invoked the writ jurisdiction of this Court for quashment of the FIR no. 39 of 2009 and the final report i.e, challan presented by the police before the Court of Municipal Magistrate, Jammu, on the grounds taken in the petition. 2. It appears that a complaint came to be filed before the Chief Judicial Magistrate, Jammu, who directed the respondent no.1 to conduct investigation in terms of Section 156(3) of Cr.P.C. FIR no. 39 of 2009 came to be lodged, which set the police in motion and finally presented the charge sheet in terms of Section 173 of Cr.P.C before the Court of Chief Judicial Magistrate, Jammu, which came to be transferred to the Court of Municipal Magistrate, Jammu and is subjudice in the said Court as on today. 3. It is averred in the petition that already divorce proceedings are pending in between the parties (petitioner no.1 and respondent no.2) before the Matrimonial Court and during the pendency of the said petition, respondent no.2 has filed a complaint before the Chief Judicial Magistrate, Jammu, which is an after-thought and just to harass the petitioners. Respondent no.2 has not made any allegation of harassment, mental torture or cruelty against the petitioners while making her statement before the Matrimonial Court in the divorce petition. 4. Learned counsel for the respondents no.2 stated at bar that the respondent no.2 has already filed a complaint before the Superintend of Police, but when the Superintendent of Police has failed to take any action against the petitioner, she filed the complaint before the Magistrate. In support of his contentions, he has also produced a Photostat copy of the complaint, made part of the file. In para no.6 of the complaint, it is averred that the petitioners i.e. husband and his family members have been assaulting the petitioner i.e., respondent no.2 right from February’ 2009 and many a times threatened her in order to compel her to leave her matrimonial house. 5. The grounds taken by the petitioner in the petition in hand can not be thrashed out at this stage. They are to be gone into through trial and cannot be made basis for quashment of the entire proceedings. 6. 5. The grounds taken by the petitioner in the petition in hand can not be thrashed out at this stage. They are to be gone into through trial and cannot be made basis for quashment of the entire proceedings. 6. Learned counsel for the petitioners in support of his submissions has cited a judgment of Apex Court reported in (2009) 10 Supreme Court Cases, 184, titled as Neelu Chopra and Another v. Bharti. In the given circumstances of the case, the said judgment is not applicable to the case in hand for the simple reason that in the said judgment the husband of the petitioner had already expired and specific allegations were made against him, but no specific allegation was made against the other accused i.e., the parents of the husband. But in the instant case, the husband is alive and specific allegations are not only made against the husband but also against other members of the family. Thus, the argument is devoid of any force. 7. The Apex Court has also said that while deciding a petition under Section 561-A Cr.P.C, the Court has not to make meticulous analysis of the case to find out whether the case is made out for taking cognizance. It is apt to reproduce para 8 & 9 of a judgment reported in AIR 2009 SC 1863 titled as State of A.P v. Aravapally Venkanna & Anr., as under:- "8.....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 the 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 proceedings." "9. 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 proceedings." "9. Whether the material already in existence or to be collected during the investigation would be sufficient for holding the concerned accused persons guilty has to be considered at the time of trial. At the time of framing of charge, it can be decided whether prima facie case has been made out showing commission of an offence and involvement of the charged persons. At that stage also evidence cannot be gone into meticulously. It is immaterial whether the case is based on direct or circumstantial evidence. Charge can be framed, if there are material showing possibility about the commission of the crime as against certainty. That being so, the interference at the threshold with the F.I.R is to be in very exceptional circumstances as held in R.P.Kapoor’s case supra." 8. It is the beaten law of the land that inherent jurisdiction is to be exercised with great care and caution. It can be exercised only when the entire proceedings are abuse of process of law. In order to make a decision, the averments contained in the complaint-FIR and the final report submitted are to be taken into consideration. 9. While going through the FIR and the final report, one comes to inescapable conclusion that there are reasonable grounds to presume at this stage that the petitioners are involved in commission of offences under Sections 498-A & 109 of Ranbir Penal Code (for short R.P.C). 10. Having glance of the above discussions, this petition merits to be dismissed. Accordingly, same is dismissed. Interim direction, if any, is vacated. Trial Court is directed to conclude the trial within one year. Registry to send a copy of this order to the trial Court.