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2014 DIGILAW 52 (JK)

Mohd. Subhan Khanday v. Ab. Wahid Mir

2014-02-13

ALI MOHAMMAD MAGREY

body2014
1. In the instant petition, filed under Section 561 Cr.P.C petitioner seeks quashment of complaint titled Abdul Wahid Mir v. Mohammad Subhan Khanday and also the orders passed by the Court of Special Mobile Magistrate, Passenger Tax and Electricity, Srinagar on 29.09.2013. 2. Facts which have arisen for disposal of the instant petition are detailed out as under; 3. That an FIR No. 24/2013 under Sections 147, 148, 149, 447 and 120-B RPC [Refer JK'S Criminal Major Acts Ed. 2014] was registered by Police Station, Safakadal on 01.03.2013 in respect of killing of the petitioner's wife Mst. Saja. 4. That after conducting investigation in the matter, the Police presented a challan against the accused in the Court of Chief Judicial Magistrate, Srinagar, who committed the case to the Court of learned Principal Sessions Judge, Srinagar and the learned Sessions Judge, Srinagar has forwarded the case to the Additional Sessions Judge, Srinagar for trial. 5. Respondent herein filed a complaint before the Court of Chief Judicial Magistrate, Srinagar on 27.09.2013 under Section 302 RPC against the petitioner for murdering his wife Mst. Saja. Learned Chief Judicial Magistrate transferred the case to the Court of Special Mobile Magistrate, Passenger Tax and Electricity, Srinagar and on receipt of the complaint from the Court of CJM, Srinagar, the learned trial Court on 30.09.2013, recorded the statements of the complainant and three witnesses and directed the respondent to produce further evidence on 01.10.2013. From 30.09.2013 till 06.11.2013, the trial Magistrate recorded the evidence of sixteen witnesses. 6. Petitioner is aggrieved of the complaint filed by respondent against him pending before the Court of Special Mobile Magistrate, Passenger Tax and Electricity, Srinagar and also of the orders passed by the trial Court on 27.09.2013 and thereafter and assails the same amongst other grounds on the following; (a) "That the petitioner's wife was killed by the father of the respondent and others on 01.03.2013. The FIR No. 24/2013 was accordingly registered by Police Station, Safakadal, Srinagar under Sections 302, 147, 148, 149, 447, 120-B RPC against the accused persons. The FIR No. 24/2013 was accordingly registered by Police Station, Safakadal, Srinagar under Sections 302, 147, 148, 149, 447, 120-B RPC against the accused persons. After conducting investigation in the matter, the police finally produced a challan against Sultan Mir, Ashiq Mir, Zahoor Ahmad Mir, Qadir Mir, Gani Mir, Razak Mir, Ghulam Nabi Mir, Mohammad Amin Mir, Mohammad Rajab Mir, Nazir Ahmad Mir and Bashir Ahmad Mir in the Court of CJM, Srinagar, who committed the same to the Court of Principal Sessions Judge, Srinagar. The Principal Sessions Judge, Srinagar, thereafter transferred the case to the Court of Additional Sessions Judge, Srinagar for disposal under law. The Court of Additional Sessions Judge, Srinagar has not as yet framed charge in the case because of non-availability of the Presiding Officer. In order to subvert the proceedings of the challan titled State v. Sultan Mir and ors., the respondent who happens to be the son of one of the accused Manzoor Ahmad Mir, has manufactured and manipulated the filing of the complaint under Section 302 RPC against the petitioner in the Court of CJM Srinagar on 27.09.2013, which was transferred to the Court of Special Mobile Magistrate, Passenger Tax and Electricity, Srinagar for disposal by CJM, Srinagar. It is respectfully submitted that when the Police after investigating the murder of the petitioner's wife, has come to a definite conclusion that she was killed by the accused persons of FIR No. 24/2013, the respondent herein had no right to file a complaint under Section 302 RPC against the petitioner in the Court of CJM, Srinagar. The complaint on the face of it being legally invalid and unsustainable in the eyes of law, therefore, same is liable to be quashed. (b) That assuming for the sake of argument, but not admitting that in presence of the challan filed in the Court of Additional Sessions Judge, Srinagar against the accused persons of FIR. No. 24/2013, the respondent could file a complaint under Section 302 RPC against the petitioner in the Court of CJM Srinagar. who can also transfer it to the Court of Special Mobile Magistrate, Passenger Tax and Electricity, Srinagar for disposal under law, yet without taking cognizance in the matter, the trial Court had no jurisdiction to record evidence in the case. who can also transfer it to the Court of Special Mobile Magistrate, Passenger Tax and Electricity, Srinagar for disposal under law, yet without taking cognizance in the matter, the trial Court had no jurisdiction to record evidence in the case. It is pertinent to mention here that in terms of Section 200 of the Code of Criminal Procedure, when a complaint is filed before a Magistrate, the said Magistrate shall at once examine the complainant and the witnesses present, if any, upon oath and reduce to writing the substance of the examination which shall be signed by the complainant and the witnesses and also by the Magistrate. After recording evidence, the Magistrate can, for reasons to be recorded in writing postpone the issue of process for compelling attendance of the person complained against and either enquire into the case himself or direct an enquiry or investigation to be made by any Magistrate subordinate to him or by a police officer or by such other person as he thinks fit for the purpose of ascertaining truth or falsehood of the complaint. After following the procedure envisaged by Section 202 Cr. PC. (c) If in the opinion of the Magistrate, taking cognizance of an offence, there is sufficient ground for proceeding, he shall issue summons/ warrant for the attendance of the accused and then proceed with the case in accordance with other provisions of the Criminal Procedure Code. In the instant case, the complaint came up for consideration for the first time after transfer before the trial Magistrate on 27.09.2013. Since the Court time was over, therefore, he posted the case on 30.09.2013. On 30.09.2013, he recorded statement of the complainant and three witnesses and gave time to the complainant to produce further evidence in the matter. Ever since from 30.09.2013, the trial Magistrate is recording evidence in the case and he has summoned those persons also as witnesses to the case, who have been arrayed as accused by the Police in FIR No. 24/2013. The trial Magistrate has thus neither proceeded under Section 200 nor under Section 202 Cr. P. C. He has also not taken cognizance of the matter in terms of Section 204 Cr. P. C. All the orders thus passed from 27.09.2013 in the complaint being abuse of process of Court, deserves to be quashed and the complaint filed by the respondent also deserves to be quashed. P. C. He has also not taken cognizance of the matter in terms of Section 204 Cr. P. C. All the orders thus passed from 27.09.2013 in the complaint being abuse of process of Court, deserves to be quashed and the complaint filed by the respondent also deserves to be quashed. (d) That the manner and method in which the trial Magistrate has recorded orders from 27.09.2013 in the case amply show that for securing ends of justice, it is necessary to quash the complaint as well as all the orders passed therein by the trial Court from 27.09.2013 and onwards so that the ends of justice are secured as otherwise, the continuation of proceedings in the trial Court is bound to cause miscarriage of justice. (e) That without prejudice to what has been stated above, it is further submitted that the very filing of the complaint by the respondent against the petitioner in the Court of CJM, Srinagar, is malafide and based on extraneous considerations. The respondent has levelled false unfounded and baseless allegations, he has tried to carve out a defence for the accused persons of FIR No. 24/2013, so as to save them from the clutches of law. These accused persons whose names are also given in the complaint, caused the death of the petitioner's wife and the Police after investigation of the case has filed challan against them in the Court of competent jurisdiction. The trial Magistrate on the application of the respondent has been summoning these accused persons as witnesses and is recording their statements in total violation of law. The complaint being motivated and it having been filed by the respondent in violation of law and false and frivolous allegations having been leveled therein against the petitioner and the trial Court having proceeded in the complaint in a very arbitrary, illegal and improper manner, therefore, the complaint as also the orders passed therein on 27.09.2013 deserve to be quashed. (f) That if the complaint filed by the respondent and the orders passed therein by the trial Court are not quashed, it will amount to subversion of law and will defeat the very registration of the case against the accused persons and their prosecution in the Court for the commission of the crime. (f) That if the complaint filed by the respondent and the orders passed therein by the trial Court are not quashed, it will amount to subversion of law and will defeat the very registration of the case against the accused persons and their prosecution in the Court for the commission of the crime. It is, therefore, necessary to quash the complaint and also the orders passed therein by the trial Court and direct the Additional Sessions Judge, Srinagar to proceed with the case and after framing charge against the accused persons, proceed with the trial of the case expeditiously." 7. On consideration of the matter, this Court in terms of order passed on 14.11.2013 besides notice stayed the proceedings and called for the records. 8. On notice Mr. Molvi Aijaz, Advocate appeared on behalf of respondent and sought consideration of the matter for dismissal of the petition. 9. Heard learned counsel for the parties and perused the trial Court records. 10. Mr. Qayoom, learned appearing counsel for the petitioner submitted that respondent has filed the complaint with oblique motive and malafide intention after a period of about seven months from the date of occurrence, only to stall the proceedings of the case, pending trial against the father of respondent and other relations before the Court of Additional Sessions Judge, Srinagar, in FIR No. 24/2013 under Sections 302,147, 148,149, 447 and 120-B RPC. The trial Court in gross violation of the Provisions of Criminal Procedure Code has initiated the process of enquiry/investigation and the proceedings before the trial Magistrate are nothing but to run parallel proceedings to that of the Sessions Court. Learned counsel has invited attention of the Court to the Scheme of law provided for entertaining complaints by Magistrates and the procedure to be adopted to. Learned counsel submitted that the trial Magistrate after taking cognizance of the complaint has no power to conduct any enquiry/ investigation regarding the offence mentioned in the complaint, and the trial Magistrate has to commit the case to Sessions Court where already the trial on the same offences is pending. Learned counsel for the petitioner has referred to various provisions of Criminal Procedure Code dealing with the complaints to Magistrates, which are detailed out as under: Section 190(a) Cr.PC authorizes the Magistrate to take cognizance of the offence, if it appears that allegations contained in complaint constitute an offence. Section 200 Cr. Learned counsel for the petitioner has referred to various provisions of Criminal Procedure Code dealing with the complaints to Magistrates, which are detailed out as under: Section 190(a) Cr.PC authorizes the Magistrate to take cognizance of the offence, if it appears that allegations contained in complaint constitute an offence. Section 200 Cr. PC provides that a Magistrate when he takes cognizance of offences on complaint, shall at once examine the complaint and the witnesses present, if any, upon oath, and the substance of the examination shall be reduced to writing and shall be signed by the complainant and the witnesses and also by the Magistrate. Section 202 provides for dismissal of complaint. Section 204 of Cr. PC provides for issuance of the process. Exercising of powers under Section 204 Cr. PC is of significant importance, as when the learned Magistrate decides to issue the process, such orders affects the liberty of a person guaranteed under Article 21 of the Constitution of India. The moment the process is issued and the accused person is asked to file bail bonds, his liberty is definitely affected and abridged. The learned Magistrate has to prima facie satisfy itself that the process is to be issued against the accused person for having allegedly committed the offences. He is required to briefly refer to allegations made in complaint and has to record reasons in brief before ordering for issuance of process under Section 204 Cr. P. C. Section 205 deals with the attendance of accused and provide copy of the complaint and other documents and also copies of statements and committal of case to Court of Sessions when offence is triable exclusively by it and the procedure to be followed when there is a complaint case and Police investigation in respect of the same offence. 11. Learned counsel for the petitioner submitted that the Magistrate after having taking cognizance of the complaint ought to have committed the case to the Court of Sessions as the offences mentioned in the complaint are triable exclusively by it, however, instead of committing the case to the Court of Sessions after taking cognizance, the Magistrate has initiated proceedings and recorded evidence so as to hold final trial In the complaint. Learned counsel while elaborating his argument in the context demonstrated that the Magistrate has initiated the proceedings and started recording evidence as if he is finally holding trial, which is none of his power, therefore, the result of proceedings in the complaint by the trial court is abuse of process of court and requires to be quashed. Learned counsel has referred to and relied upon the following Judgments; " AIR 2005 SC 4284 titled CREF Finance Ltd. v. Shree Shanthi Homes Pvt. Ltd. and AIR 1980 SC 1780 titled Kewal Krishan v. Suraj Bhan." 12. Mr. M. A. Qayoom, learned counsel for the petitioner has referred to Section 193 of Cr. P. C and demonstrate that the Magistrate has to commit the complaint to the Court of Sessions after taking cognizance and has not to record any evidence. 13. Mr. Molvi Aijaz, learned appearing counsel for the respondent submitted that the instant petition is not maintainable as there is no violation of any provisions of Criminal Procedure Code by the trial Court while dealing with the complaint of the respondent. Learned counsel while elaborating his arguments submitted that trial Magistrate has under law followed the provisions of Criminal Procedure Code while entertaining the complaint of the respondent. Learned counsel has invited the attention of this Court to Section 200 which provides for examination of the complaint by a Magistrate taking cognizance of offence on complaint and empowers him to examine the complainant and the witnesses present, if any, upon oath and substance of the examination to be reduced to writing and shall be signed by the complainant and the witnesses as also by the Magistrate. Learned counsel has invited the attention of this Court to Section 202, which provides postponement for issuance of process. Learned counsel submitted that the Magistrate in terms of Section 190(a) Cr.P.C has taken cognizance on complaint and has deferred issuance of process in terms of Section 202 and is enquiring the case and recording evidence in order to arrive to a conclusion as to whether the case of the complainant is to be entertained, in terms of Section 203 the complaint is required to be dismissed in case of insufficiency of material or evidence. Learned counsel has admitted the proposition of law with reference to the committal of the case to the Court of Sessions when offence is triable exclusively by it but submitted that the Magistrate has not reached that stage as he is yet to satisfy himself regarding issuance of process. Learned counsel submitted that question of adherence to Section 205-D and 205-E will only to be pressed into service by the Magistrate after he is satisfied that the case for issuance of process is made out. Learned counsel submitted that the Magistrate before issuance of process can examine as many witnesses as he likes in order to satisfy himself regarding issuance of process. Learned counsel submitted that no prejudice is caused to the petitioner because as yet no process has been issued against him therefore, he has no cause of action to maintain the present petition. Learned counsel has referred to and relied upon the following Judgments; "2004 Cri. L. J.4623 titled Gangadhar Janardan Mhatre v. State of Maharashtra and Ors., AIR 2010 Supreme Court 2261 titled Shivjee Singh v. Nagendra Tiwary and Ors., 2010 (4) Crimes 184 (SC) titled Pal @ Palla v. State of Uttar Pardesh." 14. In rebuttal Mr. M. A. Qayoom, learned counsel for the petitioner submitted that Magistrate on cognizance of the complaint if satisfied that the offence is triable exclusively by Sessions Court. The Magistrate cannot proceed ahead by recording evidence but has to commit it to the Sessions Court. The Judgments referred to and relied upon by the parties has no application as the Magistrate has not issued any process, therefore by merely entertaining the complaint does not cause any prejudice to the interest of the petitioner. 15. Mr. Qayoom, learned counsel for the petitioner submitted that Hon'ble Supreme Court in case titled Kewal Krishan v. Suraj Bhan and anr. AIR 1980 SC 1780 while dealing with the cases having reference to counter cases exclusively triable by Sessions Court held that the counter cases should be tried separately but by same Court. The proposition of law cannot be applied to the present case at this stage, unless the trial Magistrate comes to the conclusion that there is prima facie evidence in support of charges leveled against the accused and process issued. Learned Magistrate at this stage is only holding the preliminary enquiry under section 200 and 202 Cr. PC. The proposition of law cannot be applied to the present case at this stage, unless the trial Magistrate comes to the conclusion that there is prima facie evidence in support of charges leveled against the accused and process issued. Learned Magistrate at this stage is only holding the preliminary enquiry under section 200 and 202 Cr. PC. In order to see as to whether or not there is "sufficient ground for proceeding" against the accused. The submission of Mr. M. A. Qayoom, learned counsel for the petitioner that the Magistrate if weighing evidence meticulously exceeds his jurisdiction has substance. 16. From the perusal of the trial Court records it is seen that the learned Magistrate is recording evidence during the preliminary enquiry under Sections 200 and 202 Cr. P. C, to the extent which is not at all required as this type of recording of evidence is only required after issuing the process and even at the stage of conducting preliminary enquiry under Sections 203/204 Magistrate has only to see whether there is prima facie evidence in support of charges. In the present case the Magistrate weighing evidence meticulously therefore, exceeds his jurisdiction, as such, interference called for. 17. This proposition has already been detailed out by the Hon'ble Supreme Court in case tilted Kewal Krishan v. Suraj Bhan in paragraph 8 and 9 which are quoted below:- "8 So far as the three Revenue officers, named as co-accused in the complaint are concerned, there was absolutely no ground to proceed against them. Similarly, so far as the accused who were allottees of the land are concerned, the order of the Magistrate dismissing the complaint against them is also unassailable. The only debatable question is: Whether the Magistrate should have summarily dismissed the complaint under Section 203, Criminal Procedure Code against Suraj Bhan accused. The witnesses examined under Sections 200 and 202 in the preliminary inquiry did state that it was Suraj Bhan who had shot dead Banta Singh and had also caused the serious gunshot injury to Kewal Krishan, complainant. The question as to in what circumstances Banta Singh received the fatal gun-shot injuries, was in issue in the cross-case also, which was instituted on a police report under Section 173, Criminal Procedure Code against Kewal Krishan and others, and had been committed to the Court of Session for trial. The question as to in what circumstances Banta Singh received the fatal gun-shot injuries, was in issue in the cross-case also, which was instituted on a police report under Section 173, Criminal Procedure Code against Kewal Krishan and others, and had been committed to the Court of Session for trial. That is to say, the story set up by Kewal Krishan in his complaint in regard to the death of Banter Singh, was likely to be his defence version in the counter-case in which he was being tried for the murder of Banta Singh. In short, both these cases exclusively triable by the Court of Session, one instituted on a police report under Section 173, Criminal Procedure Code and the other initiated on a criminal complaint, arose out of the same transaction. There was thus a risk of two courts coming to conflicting findings. To obviate such a risk, it is ordinarily desirable that the two cases should be tried separately but by the same Court. If any authority is needed, reference may be made to Bannappa; AIR 1944 Born 146; Judhister; 27 Cal WN 700; (AIR 1923 Cal 644) and Periasiuami, 1937 Mad WN 998. 8. In the instant case, there was prima facie evidence against Suraj Bhan accused which required to be weighed and appreciated by the Court of Session. At the state of Sections 203 and 204, Criminal Procedure Code in a case exclusively triable by the Court of Session, all that the Magistrate has to do is to see whether on a cursory perusal of the complaint and the evidence recorded during the preliminary inquiry under Sections 200 and 202, Criminal Procedure Code, there is prima facie evidence in support of the charge leveled against the accused. All that he has to see is whether or not there is "sufficient ground for proceeding" against the accused. At this stage, the Magistrate is not to weigh the evidence meticulously as if he were, the trial Court. The standard to be adopted by the Magistrate in scrutinizing the evidence is not the same as the one which is to be kept in view at the stage of framing charges. At this stage, the Magistrate is not to weigh the evidence meticulously as if he were, the trial Court. The standard to be adopted by the Magistrate in scrutinizing the evidence is not the same as the one which is to be kept in view at the stage of framing charges. This Court has held in Ramesh Singh's case (ibid), that even at the stage of framing charges the truth, veracity and effect of the evidence which the complainant produces or proposes to adduce at the trial, is not to be meticulously judged. The standard of proof and judgment, which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of framing charges. A fortiori, at the stage of Sections 202/204, if there is prima facie evidence in support of the allegations in the complaint relating to a case exclusively triable by the Court of Session, that will be a sufficient ground for issuing process to the accused and committing them for trial to the Court of Session." 18. As per settled position of law, Hon'ble Supreme Court has detailed out circumstances under which power can be exercised to prevent abuse of process of court or otherwise secure ends of justice. 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." 19. 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. 20. 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. 20. Apex Court in the cases reported 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 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 , 2004 (3) JKJ 609 [HC], 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: "(i) 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. (ii) 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. (iii) 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. (iv) 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. (iv) 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. (v) 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. (vi) 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: (vii) 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 grudge." 21. 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. 22. 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. 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. 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 All 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." 23. It will be profitable to take note of Section 268 and 269 of Cr. PC Svt 1989 (for short Svt 1989). The power under Section 482 is not intended to scuttle justice at the threshold." 23. It will be profitable to take note of Section 268 and 269 of Cr. PC Svt 1989 (for short Svt 1989). "268: Discharge: If upon consideration of record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is no sufficient ground for proceeding against the accused he shall discharge the accused and record his reasons for so doing. 269: Framing of charge: If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which (a) Is not exclusively triable by the Court of Sessions, he may frame charge against the accused and by order, transfer the case to the Chief Judicial Magistrate or any Judicial Magistrate competent to try the case and thereupon the Chief Judicial Magistrate or any Judicial Magistrate to whom a case may have been transferred shall try the offence in accordance with the procedure provided for the trial of warrant cases instituted on police report. (b) is exclusively triable by the Court he shall frame in writing a charge against the accused." 24. If the trial magistrate on the strength of evidence recorded arrives to a conclusion that there is primafacie evidence in support of the allegations made in the complaint relating to a case exclusively triable by Court of Sessions and there is sufficient ground for issuance of process to the accused he may do so and commit the case for trial to the Court of Sessions. 25. The standard to be adopted by the Magistrate in scrutinizing the evidence is not the same as the one which is to be kept in view at the stage of framing charge. Even at the stage of framing charge the truth, veracity and effect of the evidence which the complainant produces or proposes to adduce at the trial, is not to be meticulously judged. The standard of proof and the judgment which is to be applied finally before finding accused guilty or otherwise, is not exactly to be applied at the stage of framing charge. The standard of proof and the judgment which is to be applied finally before finding accused guilty or otherwise, is not exactly to be applied at the stage of framing charge. If there is primafacie evidence in support of the allegations in the complaint relating to the case exclusively triable by the Court of Sessions, that will be sufficient ground for issuing process to the accused and commit him for trial to the Court of Sessions. 26. From the above observations, it is held that trial Magistrate has exceeded its jurisdiction and procedure followed is uncalled-for, therefore, trial Magistrate is reminded of his power vested under Criminal Code with reference to the offence which is exclusively triable by Sessions Court. 27. In the given circumstances, let the trial Magistrate consider the matter finally on the strength of available evidence and in case the allegations are primafacie established he shall have to issue process and commit the case to Sessions Court for trial and in case the allegations are not primafacie established on the strength of recorded evidence the Magistrate shall dismiss the complaint in terms of Section 203 Cr.P.C. 28. Registry to send down the copy of this order along with the record to the Court below for further proceedings. 29. The trial Magistrate to consider the matter on 24th Feb. 2014 as per directions. Disposed of along with connected IA.