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2017 DIGILAW 376 (JK)

Ghulam Mohd. v. Mohd Yousaf

2017-07-19

SANJAY KUMAR GUPTA

body2017
JUDGMENT : 1. This petition under Section 561-A Cr.P.C (for short the ‘Code’) has been filed seeking quashment of Criminal Complaint titled Mohd Yousuf vs. Ghulam Mohd and other as well as order dated 31.10.2014 passed by learned Judicial Magistrate Ist Class (Sub Judge) Jammu whereby the learned Sub Judge prima facie established the case for the commission of offence under Sections 451/504/506/511 RPC. 2. Relevant facts briefly are these: 3. Petitioners, in the petition, have stated that due to the ill will in the minds of the respondent, he used to harass the petitioners and was often threatening the petitioners to implicate them in some false and frivolous cases. It is further contended that keeping in same anonymity towards the petitioners, the respondent along with other persons hatched a criminal conspiracy and suggested one Mohd. Haniff to slit the throat of his daughter with a blade and level the allegation of murder against the petitioners so that the petitioners can be implicated in a criminal case, fearing from such acts of the respondent, the petitioners had moved an application before the concerned Tehsildar for taking some appropriate action. It is further stated that Tehsildar directed the concerned police post to investigate the matter, which was accordingly investigated by the incharge police post and proceedings were initiated against the respondent along with other persons. Learned counsel stated that in order to counter the proceedings initiated against the respondent in Kishtwar, he in order to harass the petitioners filed a false criminal Complaint U/s 323,341,147,451,452,504,506, and 511 RPC and 3/25 Arms Act on 25.08.2014 against the petitioners before the learned CJM, Jammu. 4. Learned counsel further stated that on 08.05.2015, the respondent along with some other persons forcibly entered into the house of petitioners, attacked, ransacked the house of the petitioners and took some valuable items from the house of the petitioners along with goats. Petitioners approached the concerned police Station and an FIR under Sections 451, 452,148, 336, 380, 325, 427, 504 and 506 RPC was lodged in the police Station Kishtwar against the respondent and the learned Magistrate on 31.10.2014 without appreciating the facts and without going into depth of the matter issued the process against the petitioners. 5. Today, there is no representation on behalf of the petitioners. 6. Heard learned counsel appearing on behalf of respondent and perused the record also. 7. 5. Today, there is no representation on behalf of the petitioners. 6. Heard learned counsel appearing on behalf of respondent and perused the record also. 7. From the perusal of order it reveals that respondent filed a complaint against the Petitioners, which was sent to concern police for investigation under section 202/Cr.P.C; after investigation a detail report was sent by police to magistrate; who after going through the complaint has passed the order on 31.10.2015. The said order reads as under:- “Heard learned counsel for the complainant and gone through the enquiry report submitted by the concerned police, statements as well as allegations leveled in the complaint, prima facie case for the commission of offences under Sections 451/504/506/511 RPC, have been established. Therefore, office is directed to issue summons to the accused for appearance, same shall be accompanied by the copy of complaint. Put up on 09.01.2015 for further proceedings.” 8. Petitioners seeking quashment of Criminal Complaint titled Mohd Yousuf vs. Ghulam Mohd and other mainly on the ground that no prima facie case against the petitioners is made out to establish the case for the commission of offence under Sections 451/504/506/511 RPC. 9. I have considered the rival contentions and gone though the law of the subject. 10. In AIR 2017 SC 37 in case titled ‘State of Telangana v Habib Adulla’, it is held as under :- 11. Once an FIR is registered, the accused persons can always approach the High Court under Section 482 CrPC or under Article 226 of the Constitution for quashing of the FIR. In Bhajan Lal (supra) the two-Judge Bench after referring to Hazari Lal Gupta v. Rameshwar Prasad, Jehan Singh v. Delhi Administration, Amar Nath v. State of Haryana, Kurukshetra University v. State of Haryana, State of Bihar v. J.A.C. Saldanha, State of West Bengal v. Swapan Kumar Guha, Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi, Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre, State of Bihar v. Murad Ali Khanand some other authorities that had dealt with the contours of exercise of inherent powers of the High Court, thought it appropriate to mention certain category of cases by way of illustration wherein the extraordinary power under Article 226 of the Constitution or inherent power under Section 482 CrPC could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice. The Court also observed that it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad cases wherein such power should be exercised. The illustrations given by the Court need to be recapitulated :- “(1) Where the allegations made in the first information report or the complaint, even if they 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 a 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.” It is worthy to note that the Court has clarified that the said parameters or guidelines are not exhaustive but only illustrative. Nevertheless, it throws light on the circumstances and situations where court’s inherent power can be exercised. 12. There can be no dispute over the proposition that inherent power in a matter of quashment of FIR has to be exercised sparingly and with caution and when and only when such exercise is justified by the test specifically laid down in the provision itself. There is no denial of the fact that the power under Section 482 CrPC is very wide but it needs no special emphasis to state that conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the Court. 13. In this regard, it would be seemly to reproduce a passage from Kurukshetra University (supra) wherein Chandrachud, J. (as His Lordship then was) opined thus:- “2. It surprises us in the extreme that the High Court thought that in the exercise of its inherent powers under Section 482 of the Code of Criminal Procedure, it could quash a first information report. The police had not even commenced investigation into the complaint filed by the Warden of the University and no proceeding at all was pending in any court in pursuance of the FIR. It ought to be realised that inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice. That statutory power has to be exercised sparingly, with circumspection and in the rarest of rare cases.” 14. We have referred to the said decisions only to stress upon the issue, how the exercise of jurisdiction by the High Court in a proceeding relating to quashment of FIR can be justified. We repeat even at the cost of repetition that the said power has to be exercised in a very sparing manner and is not to be used to choke or smother the prosecution that is legitimate. The surprise that was expressed almost four decades ago in Kurukshetra University’s case compels us to observe that we are also surprised by the impugned order.” 11. Keeping in view above law into consideration, I am of considered opinion that no case for quashing of order impugned has been made out. Because bare perusal of statements collected during by police during investigation under section 202 Cr.P.C, case for taking cognizance under sections 451/504/506/511 RPC, has been made out. Keeping in view above law into consideration, I am of considered opinion that no case for quashing of order impugned has been made out. Because bare perusal of statements collected during by police during investigation under section 202 Cr.P.C, case for taking cognizance under sections 451/504/506/511 RPC, has been made out. It is not a case that allegations made in complaint and evidence collected by police 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. It is also not a case that there is an express legal bar engrafted in any of the provisions of the law. 12. Hence I don’t find any exceptional case is made out for quashing the complaint. Interim stay, if any, is vacated.