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2012 DIGILAW 629 (JK)

Naresh Sabharwal & others v. State

2012-10-04

MANSOOR AHMAD MIR

body2012
Mansoor Ahmad Mir, J.— 1. By the medium of this petition, filed under Section 561-A of Code of Criminal Procedure (for short, Cr.P.C.), the petitioners are seeking to quash order dated 04.06.2012 passed by the Special Municipal Magistrae, Jammu in file No.68/Challan, in case, titled as, Stae vs Naresh Sabharwal & others, on the grounds taken in it. 2. It appears that an FIR, bearing No.7/2008, was lodged in Police Station Women Cell, Jammu, by the complainant under sections 498-A, 406 and 109 of Ranbir Penal Code (for short, RPC) against the petitioners herein, investigation was conducted and charge sheet came to be presented before the trial court, i.e., Special Municipal Magistrate, Jammu, on 03.12.2008. After about four years, the trial court heard the arguments at the stage of framing of charges against the petitioners-accused and prima facie it came to the conclusion that petitioner no.1appears to have been involved for the commission of offences punishable under section 498-A read with section 406 of Ranbir Penal Code (for short, RPC), whereas petitioners 2 and 3 appear to have been involved for the commission of offences punishable under sections 498-A, 406 and 109 RPC. Charges were read out to the petitioners-accused, they pleaded not guilty and claimed to be tried. Accordingly, vide order dated 04.06.2012, impugned herein, the prosecution was directed to lead evidence. 3. I have gone through the petition and the order passed by the trial court. 4. FIR was lodged at the Police Station, Women Cell, Jammu, which set the police agency in motion. Trial court, after examining the final report submitted by the police under section 173 Cr.P.C. and the application filed by the petitioners-accused under section 156 Cr.P.C., prima facie came to the conclusion that acts of cruelty as well as demand of dowry have been attributed to the accused by the complainant, which fact has also been substantiated by the material/evidence collected by the Investigating Officer during the course of investigation. Petitioners-accused 1 and 2 had handed over the belongings of complainant to accused no.3 and property worth Rs.2,73,800/- of complainant had also been misappropriated by accused no.3, thereby causing wrongful gain to her and wrongful loss to the complainant. Trial court while framing charge against the petitioners-accused was of the view that the property in question falls within the definition of stri dhan. 5. Trial court while framing charge against the petitioners-accused was of the view that the property in question falls within the definition of stri dhan. 5. It is worthwhile to mention here that the petitioners/accused have not questioned the lodging of FIR, conducting of investigation and presentation of charge sheet on 03.12.2008 till today. It appears that filing of this petition is just to cause delay in conducting the trial. 6. It would be appropriate 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.” 7. 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. 8. The Apex Court in Som Mittal vs Govt. of Karnataka, 2008 AIR SCW 1003, and M. N. Ojha vs Alok Kumar Srivastav, AIR 2010 SC 201 , while laying down the tests, has held that the remedy under section 561-A Cr.P.C. (corresponding to Section 482 Cr.P.C of Central Code) and inherent power should not be exercised by the Courts in a routine manner, rather has to be exercised sparingly, carefully with caution and in rarest of rare cases. 9. Applying the aforesaid tests, it can be safely said that the petitioner has failed to carve out a case. 10. This Court also in a case, Mian Abdul Qayoom vs State & others, 561-A Cr.P.C. 98/2010, decided on 31.12.2010, reported in 2011 (1) JKJ 470 (HC), has held that the Courts should refrain from making prima facie decision at the infancy stage or in a case where all the facts are incomplete and hazy. 11. The power under section 561-A Cr.P.C. has to be exercised cautiously, carefully and sparingly and Court has not to function as a Court of appeal or revision. The case of the petitioners does not fall in any of the said parameters. 11. The power under section 561-A Cr.P.C. has to be exercised cautiously, carefully and sparingly and Court has not to function as a Court of appeal or revision. The case of the petitioners does not fall in any of the said parameters. It is beaten law of the land that conducting of investigation cannot be scuttled away en-route. 12. In the given circumstances, I am of the considered view that the trial court has passed a well reasoned order and needs no interference. Accordingly, this petition is dismissed in limine along with connected Cr.M.P. 13. Registry to convey the order to the trial court, i.e., Special Municipal Magistrate, Jammu.