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2013 DIGILAW 377 (JK)

Jagdish Arora v. State Of J&K

2013-07-03

ALI MOHAMMAD MAGREY

body2013
1. Petitioners invoked the jurisdiction of this court by medium of this petition under section 561-A Code of Criminal Procedure ( for short Cr.P.C) seeking quashment of the FIR No: 70/2012 registered by respondent no. 1 against the petitioners in pursuance of directions passed by the Judicial Magistrate (Learned Electricity Magistrate) Jammu, under section 156 (3) Cr.P C. for the commission of offence under section 406 RPC, without jurisdiction in the matter and without application of judicious mind and against the facts detailed out in the petition which are reproduced as under: "2. That the petitioners are residents of Vikas Puri New Delhi and the respondent No: 2 is the resident of Flat 8.28, Cooksey Road Dixon Court, Small Heath Birmindgham B-10 OBS U.K and presently also residing in U. K with her divorced mother. It is humbly submitted that her father also settled in England, therefore, she is not the resident of India and her alleged temporary residence mentioned in the complaint and FIR at Subash Nagar, Jammu, belongs to her Nana and Nani, where she never resided and used in the complaint just to file the complaint at Jammu. It is humbly submitted that both the parties are not residents of Jammu & Kashmir, therefore, the respondent no: 2 had no occasion/cause to file an application under section 156(3) Cr.PC before the learned Chief Judicial Magistrate, Jammu, seeking direction for registering FIR against the petitioners, which stood registered by respondent No: 2 being FIR No: 70/12 in July 2012 without jurisdiction. 3. That the petitioners humbly submitted that marriage of the petitioner no. 3 and respondent No. 2 was registered with the Registrar of Marriage Delhi and immediately after few days of marriage, they went to Birmindgham U.K at parental home of respondent No: 2 and while leaving matrimonial home, the respondent No: 2 carried all her valuables and ornaments to U. K and settled and resided there. It is humbly submitted that the petitioner no: 3 was working in Petrol Pump in U.K. 3. It is humbly submitted that the petitioner no: 3 was working in Petrol Pump in U.K. 3. That the marriage of the petitioner No: 3 and respondent No: 2 was not consummated no issue was born out of their wedlock and due to strained relations, the respondent No: 2 and her mother Shashi Sharma after some months kicked out the petitioner No: 3 from their house, thus, he was forced to come back India, as is evident from the passport and visa of the petitioner No. 3. 4. That the petitioners 1 & 2 after the marriage due to old age, requested the respondent No: 2 to not to part away their only son to U.K and further requested her to live at Delhi ( her ` Matrimonial Home) but was of no avail and after some time, provoked the petitioner No: 3 to demand separate share in the properties and started harassing the petitioners 1 & 2, forced them to disown the son and daughter in law from their properties, which got published in the Newspaper " Punjab Kesari" Delhi in the month of August 2008. It is further submitted that the petitioners 1 & 2 also approached the SHO Police Station Uttam Nagar New Delhi on 24.8.2008 by way of written application in view of the harassment and threats of respondent No: 2 and her mother. 5. That the respondent No: 2 after the marriage once came to Delhi and stayed at a hotel and abused and threatened the petitioners for involvement in a false case and thereafter till lodging of FIR, never visited matrimonial home in India. 6. That the respondent No: 2 in connivance with her mother and nana who is residing at Subash Nagar Jammu, just to harass and humiliate the petitioners filed false and frivolous complaint under section 156(3) Cr.PC before Jammu Court, who had no jurisdiction to entertain and forward the said complaint without going through the contents of the said complaint and succeeded in the registration of FIR impugned No: 70/12 by respondent No: 1 in 2012. It is pertinent to mention here that the police authorities (respondent No: 1) was searching the petitioners to arrest them, hence were forced to rush to Jammu and approach the learned Principal Sessions Judge, Jammu, for grant of bail and bailed out vide order dated 19.11.2012. 7. It is pertinent to mention here that the police authorities (respondent No: 1) was searching the petitioners to arrest them, hence were forced to rush to Jammu and approach the learned Principal Sessions Judge, Jammu, for grant of bail and bailed out vide order dated 19.11.2012. 7. That it is humbly submitted that the respondent No. 2 never demanded her valuables from the petitioners but instead is happy in U.K and the petitioners humbly submitted that whatever the valuables of respondent No: 2 were available with them, the same stood handed over to the respondent No: 2 except the gifts which have been given to the close relations at Police Post Sarwal under the jurisdiction of respondent No: 1 on 8.12.2012. It is further submitted that the petitioners herein also undertake to compensate for the said gifts and left out items to the respondent No: 2, hence prays before this Hon'ble Court to have kind indulgence of this Hon'ble Court and quash the investigation and proceedings of the false and frivolous FIR impugned No: 70/12. 8. That the respondent had remedy to approach either learned Court and Police Station Uttam Nagar at Delhi or at Birmingdgham U.K and not in Jammu where neither the parents of the respondent No: 2 or the petitioners are residing thus the complaint and FIR was without jurisdiction, therefore, is required to be quashed. 9. That considering the averments of the complaint and FIR impugned, the ingredients for the commission of offence cannot be invoked. Even if entire material is considered at this stage, the alleged offence is not made out and as such in order to prevent the misuse of law and advance the cause of justice petitioners' family pray to invoke the inherent powers of this Hon'ble Court. 10. That the FIR impugned is not only false and frivolous but in the facts and circumstances of the case, it is evident that even the ingredients of Section 406 are not made out prima facie and as such the proceedings in the impugned false and frivolous FIR shall cause abuse and misuse of the process of law and will cause failure/miscarriage of justice." 2. On notice, respondent No: 1 filed status report. 3. The question is as to whether the FIR containing allegations which set the police in motion, can be quashed at this very thresh hold stage? On notice, respondent No: 1 filed status report. 3. The question is as to whether the FIR 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.PC 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." 4. 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.PC (ii) to prevent abuse of process of Court (iii) to otherwise secure the ends of justice: and (iv) to prevent mis-carriage of justice. 5. Keeping in view the allegation contained in the FIR by no stretch of imagination it can be said that the case of petitioner falls within the ambit/contours of section 561-A Cr.PC. 6. Apex Court in the cases reported AIR I960 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 064, 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.PC corresponding to Section 482 Cr.PC 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 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. 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 malafide and/or where the proceedings 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 grude." 7. 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. 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. 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. 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 v. Siddalingesh reported in 2008 AIR SCW 1993; A.P v. Bojjoori Kanthaiah reported as 2008 AIR SCW 7860 and Reshma Bano v. State of Uttar Pradesh reported in 2008 AIR SCW 1998. 9. This Court has only to ascertain whether the allegations made in the FIR 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 FIR 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. 10. 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 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 impressible 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." 11. While keeping in view the scope of section 561-A Cr.PC 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. 12. 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/FIR 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 FIR that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint/FIR is malafide, 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 malafides 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. When an information is lodged at the police station and an offence is registered, then the malafides 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 malafides against the informant are of no consequence and cannot by itself be the basis for quashing the proceeding." 13. Prima facie it appears that the allegations contained in the FIR relate to the offences which are cognizable and non-cognizable and warrant investigation. 14. Contention raised by learned counsel for the petitioners that the trial court has no jurisdiction because alleged offence has not taken place within territorial jurisdiction of the trial court and the complaint is time barred, is replied by the various judgments details whereof are given below: "1. (1988) 0 Cr.LJ 1581 2. (2007) 137 DLT 273 3. (2007) 0 Cr.LJ 2972 4. (1997) 2 RCR (Cri) 322 5. (1991) 1 Crimes (HC) 566 6. (2011) 0 AIR (MP) 3805 7. (2010) 2 Crimes (HC) 482, & 8. (1990) 98 PLR 187 ." 15. In view of the facts and circumstances and law quoted herein above, this petition has no merit, therefore, dismissed. 16. Interim direction if any shall stand vacated.