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2017 DIGILAW 377 (JK)

Talib Hussain v. State of J&K

2017-07-19

SANJAY KUMAR GUPTA

body2017
JUDGMENT : 1. In this petition under Section 561-A of the code of Criminal Procedure, the petitioners inter alia seek quashment of FIR No.100/2014 dated 05.11.2014 registered at Police Station Manjakote against the petitioners under Section 307, 147, 447, 323, 109 RPC and 3/25 Arms Act. 2. Facts giving rise to filing of this petition briefly stated are that petitioner No.1 is owner and in possession of land falling under Khasra No.14 measuring 2 kanals 10 marlas situated at village Hayat Pura, Tehsil Manjakote district Rajouri, in which petitioner No.1 has constructed a house and shops. It is stated that respondent No.2 who is happened to be the Nephew of petitioner No.1 along with his father, brother and sister was causing interference in the aforesaid land in order to encroach the aforesaid land of petitioner No.1 with a view to raise construction over the said land. Petitioners had made several requests and approach number of times for not causing interference in the aforesaid piece of land which is and was in possession of petitioners but, respondent no.2 along with his family members did not pay any heed to the request of the petitioners and they were continuously harassing the petitioners by one pretext or the other in order to encroach the aforesaid land with a view to raise construction over it. On 16.07.2014, petitioner No.1 feeling aggrieved of the same, filed a suit before the Court of learned District Judge, Rajouri restraining respondent No.2, his father, brother and sister for causing interference in the aforesaid piece of land. The learned District Judge Rajouri after taking cognizance of the suit had transferred the same to the Court of learned Sub Judge, Rajouri. It is further stated that the learned Sub Judge Rajouri after hearing the counsel of petitioner No.1 had issued a notice to respondent No.2, his father, brother and sister for filing objections with a further direction to the parties to maintain status quo with respect to above mentioned suit land. On 27.10.2014, respondent No.2 filed his objections before the Court of learned Sub Judge, Rajouri. The suit was taken up for hearing before the Court of learned Sub Judge Rajouri. On 27.10.2014, respondent No.2 filed his objections before the Court of learned Sub Judge, Rajouri. The suit was taken up for hearing before the Court of learned Sub Judge Rajouri. When respondent no.2 failed to satisfy the court regarding causing of interference in the aforesaid land, which is in possession of petitioners, he filed a false and frivolous complaint before respondent No.1 for lodging FIR against petitioner No.1 who is well aware about the pendency of the above titled suit before the Court of learned Sub Judge, Rajouri without enquiring the allegations leveled by respondent No.2 in his complaint has registered FIR No.100/2014 with a view to over reach the Civil dispute between the parties and to harass the petitioners as also with a view to convert the civil litigation into a criminal one. It is further contended that as per revenue record, land measuring 2 Kanals 10 marlas was in possession of petitioners. Petitioners seek quashment of aforesaid FIR on the following amongst other grounds as under: i. Admittedly a civil suit was pending before the Court of learned Sub Judge Rajouri in which parties were directed to maintain status quo and when respondent No.2 failed to get interim order vacated, he filed a false and frivolous complaint before respondent No.1, as a result of which civil litigation has been converted into a criminal one only with a view to settle civil dispute as respondent No.2 was causing interference in the aforesaid land which is in possession of petitioner No.1. Therefore, FIR impugned is bad in the eyes of law and the same is liable to be quashed. ii. The aforesaid FIR is also liable to be quashed in view of the judgment passed by Hon’ble Supreme Court of India. The petitioners are being unnecessarily harassed and victimized at the hands of respondent No.2 who is filing reckless and false application one after the other before respondent No.1 only with a view to harass the petitioners in order to settle the land dispute. iii. The above mentioned FIR is also liable to be quashed in view of Guideline No.7 of the judgment passed by the Apex Court in case titled State of Harayana vs. Bhajan Lal. iii. The above mentioned FIR is also liable to be quashed in view of Guideline No.7 of the judgment passed by the Apex Court in case titled State of Harayana vs. Bhajan Lal. The said guideline is applicable in the case of the petitioner as respondent No.2 has filed a complaint on the basis of which FIR impugned has been registered with revengeful attitude for wreaking vengeance so that the petitioners will withdraw their claim on the aforesaid piece of land, the suit of which was pending before the Court of law. 3. I have considered the arguments and have also gone through the law on the subject. 4. 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 Khan and 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. 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. 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.” 5. 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.” 5. In the instant case, from the perusal of FIR, it reveals that accusation against petitioners is that complainant Abdul Quadir lodged a written report with police stating he along with his brother were grazing animals in their land meanwhile petitioners/accused on 5.11.2014 at about 4.30PM after forming unlawful assembly entered into the land situated at Dehri Dhrarar Manjokote District Rajouri and attacked with gun, pistol, lathies, kulhari etc. Talib Hussain accused fired on complainant’s brother with the result he was seriously injured; and other accused attacked with other weapons which they were holding. Accordingly police registered offences u/s 307/447/147/148 RPC and 3/25 Arms Act. These are cognizable offences, so FIR has rightly been registered. All these are accusation are serious in nature. The argument of counsel for petitions that respondent No.2 failed to get interim order vacated, so he has filed a false and frivolous complaint before respondent No.1, is not tenable, because offences mentioned in FIR are pertaining to assault with deadly weapons on injured. These are no where connected to civil suit pending. 6. There is no dispute with regard to law (in Bhajan Singh’ case supra) cited by counsel for petitioner, but is not applicable in present set of case on the ground that FIR in question shows commission of cognizable offences which requires full investigation. Petitioner have full right to participate in investigation and produce all evidence before I/O. It is duty of I/O to see truthfulness of allegations leveled in FIR by collecting all evidence from Complainant or accused persons. Investigation does not mean to collect evidence against accused only. The duty of Investigating Officer is also to hear the accused in order to see truthfulness of allegations leveled in the FIR. 7. Hence this petition is dismissed. Stay, if any, is vacated. Copy be sent to concern police.