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2017 DIGILAW 1056 (JK)

Junaid Bashir Dar v. State of J&K

2017-12-12

ALI MOHAMMAD MAGREY

body2017
JUDGMENT : 01. The petitioners are seeking relief with reference to the powers available in the Court under Section 561-A Cr. P.C. for quashment of FIR bearing No. 55/2015 registered at Police Station Kral Khud, Srinagar, under Section 436 RPC as well as the criminal proceedings initiated against the petitioners by the Court of 2nd Additional Sessions Judge, Srinagar, in furtherance of the final report submitted in the form of Challan No. 12/2016 as also the charge framed against them by the learned trial Court vide order dated 6th of December, 2016. 02. The brief facts leading to the filing of the instant petition are that case FIR No. 55/2015 stands registered at Police Station Kral Khud, Srinagar, under Section 436 RPC against the petitioners and, on completion of the investigation, the final report in terms of Section 178 of the Cr. P.C. stands submitted before the Court of learned Principal Sessions Judge, Srinagar, which, in turn, has been transferred to the Court of learned 2nd Additional Sessions Judge, Srinagar. The learned trial Court, as stated, has framed the charge against the petitioners on 6th of December, 2016, and, on commencement of the trial, same is pending. 03. The petitioners have questioned the very basis of the complaint being false and frivolous, based on no evidence and aimed at harassing the petitioners for no good cause. 04. The petitioners, while demonstrating the facts and the grounds of challenge, have discussed the material evidence available with the trial Court as procured by the investigating authorities. Reference is made to the seizure memo, thereby seizing Charcoal, burned pieces of wood and burned cloth from the scene of occurrence with further discussion on chemical analysis of the opinion furnished by the Director, Forensic Science Laboratory, Srinagar. It is stated that the Forensic Science Laboratory, Srinagar, has certified that no inflammable substance was detected in the exhibit number H-10/16, therefore, the investigating authorities have no material with reference to the commission of offences by the petitioners which can form the basis for proceeding against them. It is also stated that the learned trial Court, while scanning the material evidence brought on record by the prosecution, has not considered the disclosure of offences on the basis of such material against the petitioners. It is also stated that the learned trial Court, while scanning the material evidence brought on record by the prosecution, has not considered the disclosure of offences on the basis of such material against the petitioners. In essence, the petitioners have assailed the evidence brought on record by the prosecution so as to demonstrate that no case is made out for framing of charge against them, as has been done by the learned trial Court. 05. On the set of facts and the grounds urged, coupled with the submissions made, it is stated that the charge framed by the learned trial Court is without any basis and without scanning the material evidence brought on record by the prosecution. 06. Heard the learned counsel for the petitioners, perused the record and considered the matter. 07. Though, the petitioners seek quashment of charge framed against them by the learned trial Court, but the order, in terms whereof, the charge has been framed against them has not been brought on record. 08. Be that as it may, there is no question of quashing either the FIR or the subsequent proceedings commencing thereon pending before the trial Court after framing of the charge. 09. Framing of charge is the power of the trial Court on simple scanning of material evidence brought on record by the prosecution. There is no need to discuss in detail the material evidence brought on record by the prosecution. It is made clear that, in terms of well settled principles of law, the petitioners are innocent unless their guilt is proved beyond any shadow of doubt before the trial Court, so where is the question of abuse of the process of law on part of the learned trial Court dealing with a case which has been brought before it by the prosecution in terms of applicable laws. 10. Law on the subject is no more res integra vis-à-vis seeking quashment of the FIR(s) registered with the police authorities and the subsequent proceedings commencing thereon before the competent Court of law on the basis of submission of final report and for framing of charge, would form no basis for challenge in this Court. 11. Before going to the merits of the case, the question is as to whether the FIR containing allegations which set the police authorities in motion, can be quashed at the threshold stage? 11. Before going to the merits of the case, the question is as to whether the FIR containing allegations which set the police authorities in motion, can be quashed at the threshold stage? The answer has to be in the negative, for, the remedy under Section 561-A Cr. P. C. can be invoked/pressed into service only 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 secure the ends of justice; and iv. to prevent mis-carriage of justice. 12. In the instant case, keeping in view the allegations contained in the FIR, it can, by no stretch of imagination, be said that the case of the petitioners falls within the ambit/contours of Section 561-A Cr. P.C., as enumerated above. 13. The Apex Court, in the cases reported as 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 , 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 and AIR 2010 SC 201 , has discussed the scope of the Section 561-A Cr. P.C., corresponding to Section 482 Cr. P.C. of the 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. 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 grudge.” 14. Applying the tests laid down above, it can be safely said that the entire matter is at its infancy stage and does not fall within the four corners of the aforesaid tests. 15. The Apex Court has also held that the power is to be exercised cautiously, carefully and sparingly, and, the 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. Bojjoori Kanthaiah reported as 2008 AIR SCW 7860 and Reshma Bano vs. State of Uttar Pradesh reported in 2008 AIR SCW 1998. 16. 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. Bojjoori Kanthaiah reported as 2008 AIR SCW 7860 and Reshma Bano vs. State of Uttar Pradesh reported in 2008 AIR SCW 1998. 16. This Court, at this stage, has only to ascertain whether the allegations contained in the FIR do or do not disclose the commission of offences, and, 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 the FIR discloses the commission of offences, then the 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 the Criminal Code. 17. The Apex Court in AIR 2004 SC 3967 , AIR 1972 SC 484 , AIR 1974 SC 1446, AIR 1977 SC 2229 and AIR 1989 SC 01, has laid down the same principle. It is apt to reproduce Paragraph Nos. 10, 13, 14, 15, 17 & 19 out of the judgment titled as “Som Mittal Vs. 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 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 vs. 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 vs. 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. 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.” 18. While keeping in view the scope of Section 561-A Cr. P.C., the Court should refrain from making a prima facie decision at interlocutory stage when entire facts of the case are incomplete, hazy and, moreso, when the material evidence is yet to be collected and issues involved could not be seen in their true perspective. 19. The Apex Court in case titled 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 Paragraph No. 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 malfide, 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. 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.” 20. Prima facie, it appears, that the allegations contained in the FIR relate to the offences which are cognizable and non-cognizable, as such, warrant investigation. 21. In view of the above factual background coupled with the law discussed hereinabove, there is no merit in this petition, as such, same is dismissed alongwith connected MP(s). However, there shall be no order as to costs.