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2011 DIGILAW 312 (JK)

Gh. Mohammad Rather & Ors. v. State of J&K & Ors.

2011-06-06

MANSOOR AHMAD MIR

body2011
1. Learned counsel for respondents 1 to 3 filed status report in the open court, made part of the file. 2. FIR No. 28/2009 under Sections 420, 468, 471 was lodged in P/S Bijbehara, and investigation was handed over to Crime Branch. It appears that investigation is almost complete. It is apt to reproduce relevant portion of the status report herein: "2. That consequently a case FIR No. 28/2009 under section 420, 468, 471 was lodged and the investigation was set in motion. The investigation was handed over to the respondent. The statement of witnesses were recorded under section 161-A Cr. P.C. The original record was therefore seized and FSL opinion was also obtained, which proyed the offences under section 420, 468, 471 RFC and also during the investigation section 120-B RFC has been added, and the said offences have also been proved against the accused persons." 3. 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. 4. 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." 5. 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. 6. 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. 7. 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. 6. 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. 7. 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 7608; 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 collated 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. 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. 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." 8. 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 Vs. Siddalingesh reported in 2008 AIR SCW 1993; A. P Vs. Bajjoori Kanthaiah reported as 2008 AIR SCW 7860 and Reshma Bano Vs. State of Uttar Pradesh reported in 2008 AIR SCW 1998. 9. 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 enroute. Court should also 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 Code of Criminal Procedure. 10. Apex Court in case titled as R. P. Kapur Vs. State of Punjab reported in AIR 1960 SC 866 and case titled State of Andhra Pradesh Vs. Golconda Linga Swamy, reported in AIR 2004 SC 3967 has laid' down the same principle. 10. Apex Court in case titled as R. P. Kapur Vs. State of Punjab reported in AIR 1960 SC 866 and case titled State of Andhra Pradesh Vs. 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 jurisdiction 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." 11. Keeping in view the status report and the allegations contained in the FIR, no case is made out for interference. 12. Having glance of the above discussion, this petition merits dismissal and dismissed as such.