Research › Search › Judgment

J&K High Court · body

2010 DIGILAW 656 (JK)

Mian Ab. Qayoom v. State

2010-12-31

Mansoor Ahmad Mir

body2010
1. Petitioner has invoked the jurisdiction of this Court by the medium of this petition under Section 561-A Code of Criminal Procedure (for short Cr.P.C) seeking quashment of the F.I.R no. 102 of 2010 Police Station Hira Nagar under Sections 13 of Prevention of unlawful Activities Act (for short Act), 121, 120-B and 124-A of Ranbir Penal Code (for short R.P.C) on the grounds taken in the memo of the petition. 2. It is averred that the petitioner came to be detained in terms of detention order No. DMS/PSA/20/2010 dated 7th of July’ 2010 passed by the District Magistrate, Srinagar and lodged at Sub Jail, Hira Nagar, challenged the same by the medium of writ petition, was revoked, rendering the writ petition infructuous and dismissed as such. During the pendency of the said writ petition, respondent no. 2 managed and manipulated filing of a false and frivolous F.I.R (subject matter of the petition) against the petitioner on unfounded and baseless grounds. The F.I.R is aimed at to cause harassment and involve the petitioner in illegal and malicious prosecution, it is outcome of ulterior motives, extraneous malafide consideration and to ensure the custody of the petitioner on flimsy grounds. F.I.R can be lodged for alleged commission of offence only on the complaint by District Magistrate-Deputy Commissioner, thus, came to be lodged without the jurisdiction and competence. Quashment of F.I.R is sought not only to avoid mis-carriage of justice, but also to prevent the abuse of process of law and to secure the ends of justice. 3. Respondents have filed the reply and resisted the petition on the grounds taken in it. 4. The main ground taken by the respondents is that the investigation of the case is at its infancy and as such the F.I.R cannot be quashed at this stage, if quashed, same would amount to interference with investigation. 5. In terms of said F.I.R, allegations against the petitioner are that while meeting the visitors in jail, he incited and instigated them and detenues to raise voice against the Government of Jammu and Kashmir and Government of India in order to carry on the present turmoil in the State, so that the sovereignty, integrity and peace of the State is disturbed. He also instigated the public at large in Kashmir Valley to carry on agitation in order to achieve freedom of Jammu and Kashmir from India, as he hatched a criminal conspiracy with detenues, visitors and other persons to carry out his illegal activities, designs and plans. 6. Respondents have specifically denied the malafides, ulterior motives and other grounds taken in the petition. 7. The question is as to whether the F.I.R containing allegations, which set the police in motion, can be quashed at this very thresh-hold stage? The answer is in negative for the following reasons. It is apt to reproduce Section 561-A Cr.P.C herein:- "561-A. Saving of inherent power of High Court. Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice." 8. This remedy can be invoked/ pressed into service or may be exercised in the following circumstances:- i) To pass orders in order to give effect to an order passed under Cr.P.C; ii) to prevent abuse of process of Court; iii) to otherwise secure the ends of justice; and iv) to prevent mis-carriage of justice. 9. The Investigating officer has filed the status report which transpires that the investigation is still at it’s threshhold stage. The investigating officer has yet to ascertain the particulars of telephone numbers, the persons who used the telephones and who are the detenues who are also allegedly involved in the commission of offences and he is yet to take the investigation to its logical end. 10. Keeping in view the allegations contained in the F.I.R, by no stretch of imagination it can be said that the case of petitioner falls within the ambit/contours of Section 561-A Cr.P.C. 11. 10. Keeping in view the allegations contained in the F.I.R, by no stretch of imagination it can be said that the case of petitioner falls within the ambit/contours of Section 561-A Cr.P.C. 11. Apex Court in the cases reported in AIR 1960 SC 866 ; AIR 1964 SC 01; AIR 1972 SC 484 ; AIR 1974 SC 1146 ; AIR 1977 SC 1489 ; AIR 1977 SC 2229 ; AIR 1980 SC 326 ; AIR 1989 SC 01; AIR 1990 SC 494 ; AIR 1991 SC 1260 ; AIR 1992 SC 604 ; AIR 1992 SC 892; AIR 1996 SC 309 ; AIR 1996 SC 2983 ; AIR 1999 SC 3596 ; AIR 1999 SC 1044 ; AIR 1999 SC 1216 ; AIR 2002 SC 671 ; AIR 2004 SC 3967 ; AIR 2005 SC 3212 ;SLJ 2005 VOL-I 118; 2008 AIR SCW 1003; 2008 AIR SCW 1993; 2008 AIR SCW 1998; 2008 AIR SCW 4614; 2008 AIR SCW 7680; 2008 AIR SCW 2778; AIR 2010 SC 201 has discussed the scope of Section 561-A Cr.P.C corresponding to Section 482 Cr.P.C of Central Code and has laid down the following tests: "1. Where the allegations made in the first information report or the complaint even if 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 Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 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 Magistrate as contemplated under Section 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. 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 concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party; 7. Where a criminal proceeding is manifestly attended with mala fide 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." 12. Applying the tests laid down, it can be safely said that the entire matter is at its infancy stage and does not fall within the four corners of the tests laid down. 13. Apex Court also held that power is to be exercised cautiously, carefully and sparingly and Court has not to function as a Court of appeal or revision. It has also laid down the parameters and guidelines in cases titled as K.L.E Society & Ors. v. Siddalingesh reported in 2008 AIR SCW 1993; A.P v. Bajjoori Kanthaiah reported as 2008 AIR SCW 7860 and Reshma Bano v. State of Uttar Pradesh reported in 2008 AIR SCW 1998. 14. This Court has only to ascertain whether the allegations made in the F.I.R do disclose or do not disclose the commission of offences, if it does, then it cannot be quashed at its thresh-hold stage. It is not proper to scuttle away the investigation at its thresh-hold stage, if F.I.R discloses the commission of offences, High Court should not interfere with the investigation which would amount to stalling the investigation and jurisdiction of statutory authorities to exercise powers in accordance with the provisions of criminal Code. 15. Apex Court in AIR 2004 SC 3967 , AIR 1972 SC 484 , AIR 1974 SC 1446, AIR 1977 SC 2229 , AIR 1989 SC 01, has laid down the same principle. It is apt to reproduce para 10, 13, 14, 15, 17 & 19 out of the judgment titled as Som Mittal v. Govt. 15. Apex Court in AIR 2004 SC 3967 , AIR 1972 SC 484 , AIR 1974 SC 1446, AIR 1977 SC 2229 , AIR 1989 SC 01, has laid down the same principle. It is apt to reproduce para 10, 13, 14, 15, 17 & 19 out of the judgment titled as Som Mittal v. Govt. of Karnataka, reported in 2008 AIR SCW 1003 herein. "10. In a catena of decisions this Court has deprecated the interference by the High Court in exercise of its inherent powers under Section 482 of the Code in a routine manner. It has been consistently held that the power under Section 482 must be exercised sparingly, with circumspection and in rarest of rare cases. Exercise of inherent power under Section 482 of the Code of Criminal Procedure is not the rule but it is an exception. The exception is applied only when it is brought to the notice of the Court that grave miscarriage of justice would be committed if the trial is allowed to proceed where the accused would be harassed unnecessarily if the trial is allowed to linger when prima facie it appears to Court that the trial would likely to be ended in acquittal. In other words, the inherent power of the Court under Section 482 of the Code of Criminal Procedure can be invoked by the High Court either to prevent abuse of process of any Court or otherwise to secure the ends of justice." "13. In State of Bihar v. J.A.C. Saldanha (1980) 1 SCC 554 this Court pointed out at SCC p. 574: "The High Court in exercise of the extraordinary jurisdiction committed a grave error by making observations on seriously disputed questions of facts taking its cue from affidavits which in such a situation would hardly provide any reliable material. In our opinion the High Court was clearly in error in giving the direction virtually amounting to a mandamus to close the case before the investigation is complete. We say no more." "14. In our opinion the High Court was clearly in error in giving the direction virtually amounting to a mandamus to close the case before the investigation is complete. We say no more." "14. In Hazari Lal Gupta v. Rameshwar Prasad (1972) 1 SCC 452 this Court at SCC p. 455 pointed out: "In exercising jurisdiction under Section 561-A of the Criminal Procedure Code, the High Court can quash proceedings if there is no legal evidence or if there is any impediment to the institution or continuance of proceedings but the High Court does not ordinarily inquire as to whether the evidence is reliable or not. Where again, investigation into the circumstances of an alleged cognizable offence is carried on under the provisions of the Criminal Procedure Code, the High Court does not interfere with such investigation because it would then be the impeding investigation and jurisdiction of statutory authorities to exercise power in accordance with the provisions of the Criminal Procedure Code." "15. In Jehan Singh v. Delhi Administration (1974) 4 SCC 522 the application filed by the accused under Section 561-A of the old Code for quashing the investigation was dismissed as being premature and incompetent on the finding that prima facie, the allegations in the FIR, if assumed to be correct, constitute a cognizable offence." "17. In State of Bihar v. Murad Ali Khan (1988) 4 SCC 655 this Court held that the jurisdiction under Section 482 of the Code has to be exercised sparingly and with circumspection and has given the working that in exercising that jurisdiction, the High Court should not embark upon an enquiry whether the allegations in the complaint are likely to be established by evidence or not." "19. We may observe here that despite this Court consistently held in catena of decisions that inherent power of the High Court should not be exercised according to whims and caprice and it has to be exercised sparingly, with circumspection and in the rarest of rare cases, we often come across the High Court exercising the inherent power under Section 482 of the Code of Criminal Procedure in a routine manner at its whims and caprice setting at naught the cognizance taken and the FIR lodged at the threshold committing grave miscarriage of justice. While it is true that so long as the inherent power of Section 482 is in the Statute Book, exercise of such power is not impermissible but it must be noted that such power has to be exercised sparingly with circumspection and in the rarest of rare cases, the sole aim of which is to secure the ends of justice. The power under Section 482 is not intended to scuttle justice at the threshold." 16. While keeping in view the scope of Section 561-A Cr.P.C, the Court should refrain from making prima facie decision at interlocutory stage when entire facts of the case are incomplete, hazy and more so, when material evidence is yet to be collected and issues involved could not be seen in their true perspective. 17. In the given circumstances, the allegations of mala fides against the informant/informer would be of secondary importance and are of no consequence. Thus the main ground taken by the petitioner that F.I.R is the outcome of ulterior motives, extraneous malafides considerations and to ensure the custody of the petitioner on flimsy grounds cannot be made basis for quashment of the proceedings. 18. Apex Court in case titled as R.P.Kapur v. State of Punjab reported in AIR 1960 SC 866 and case titled State of Andhra Pradesh v. Golconda Linga Swamy, reported in AIR 2004 SC 3967 has laid down the same principle. It is apt to reproduce para 8 of the judgment reported in AIR 2004 SC 3967 herein:- "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 that 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 proceeding." 19. 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 proceeding." 19. Prima facie it appears that the allegations contained in the F.I.R relate to the offences which are cognizable and non-cognizable, warrant investigation. 20. In the given circumstances, no permission is required for conducting the investigation. It is for the investigating officer to collect the material and see whether the allegations contained in the F.I.R are true, required to be enquired and who are the persons who are prima facie involved. 21. Keeping all these things in view, the investigation is at its infancy, interlocutory, premature stage and everything is in a hazy manner. If the F.I.R is quashed at this stage, it would amount to foeticide meaning thereby to compel a lady, who has conceived, for abortion virtually it means to kill a child before birth. 22. Learned counsel for the petitioner argued that in terms of section 196 of the Code, the police cannot investigate the matter unless a complaint is made by the District Magistrate and no prosecution can be initiated for the commission of offences punishable under Chapter VI of the Code, except on a complaint made by the District Magistrate. The argument though attractive is devoid of any force for the following reasons. 23. The police is conducting investigation in terms of Chapter XIV Part V of the Code. Section 196 of the Code is not part of that Chapter but is part of Chapter XV Part VII. Part V of Chapter XIV deals with "information to the police and their powers to investigate", whereas Part VI of Chapter XIV deals with "proceedings in prosecutions" and Chapter XV deals with "jurisdiction of the criminal courts in inquiries and trials". It is apt to reproduce Section 196 of the Code herein:- "196. Prosecution for offences against the State. Part V of Chapter XIV deals with "information to the police and their powers to investigate", whereas Part VI of Chapter XIV deals with "proceedings in prosecutions" and Chapter XV deals with "jurisdiction of the criminal courts in inquiries and trials". It is apt to reproduce Section 196 of the Code herein:- "196. Prosecution for offences against the State. No Court shall take cognizance of any offence punishable under Chapter VI or IX-A of the Ranbir Penal Code (except section 127, 1[and section 171-F, so far as it relates to the offence of personation], or punishable under section 108-A, or section 153-A, or section 294-A, 2[or section 295-A] or section 505 of the Ranbir Penal Code, unless upon complaint made by or order of, or under authority from 3[the Government or District Magistrate or such other officer as may be empowered by the Government in this behalf." 24. A plain reading of the aforesaid provision makes it abundantly clear that no prosecution can be initiated under this section except on a complaint made by the District Magistrate. The expression "upon a complaint" used in the aforesaid provision is explict and significant. 25. It provides that no Court shall take cognizance on any offence punishable under Chapter VI, unless a complaint is made by the District Magistrate/ competent authority of the Government. This provision comes into play only when police files the charge sheet not before that. Thus, F.I.R can be lodged without the complaint. If the Investigating Officer comes to a conclusion that a case is made out and has to present final charge sheet in terms of Section 173 of the Code before the Court, it cannot take cognizance unless complaint is made by the District Magistrate or the authority competent. 26. Having glance of the above discussion, this petition merits dismissal and dismissed as such.