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2017 DIGILAW 378 (JK)

Yudhvir Singh v. State of J&K

2017-07-19

SANJAY KUMAR GUPTA

body2017
JUDGMENT : 1. Petitioner has filed the instant petition under Section 561-A of the Code of Criminal Procedure seeking quashment of FIR No. 192/2016 dated 22.12.2016 registered at Police Station, R.S.Pura for commission of offences under Sections 8/21/22/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, the NDPS Act). 2. The brief facts of the case on hand are that during the routine checking on 22.12.2016, a vehicle bearing registration No. PB08DJ-6945 Make TUV-300 Mahindra was found parked on the road side at Village Agra Chak. During checking, it was found that 100 gms of heroine was illegally transported by the petitioner and the same was found from the concealed box of the above said vehicle. In this regard, an FIR No. 192/2016 was registered against the petitioner at Police Station, R.S.Pura. 3. As per the police version, the petitioner was sitting in the said vehicle and on seeing the police party, the petitioner fled away from the spot leaving behind his vehicle. 4. It is contended that the petitioner was never caught by the police on the site but on mere suspicion the name of petitioner was given in the FIR, which is totally against the provisions of law. It is also contended that the vehicle from which the said heroine was recovered does not belong to the petitioner as the said vehicle is registered in the name of S. Jasbir Singh, who being the registered owner of the said vehicle filed an application for release of the said vehicle. 5. It is further contended by the learned counsel for the petitioner that on plain reading of the FIR, no offence is made out against the petitioner as the provisions of the NDPS Act clearly says that the person must be conscious about the possession of the intoxicant substance whereas in the present case the petitioner was never arrested from the spot and involvement of the petitioner cannot be established merely on the ground that on seeing the police the petitioner was fled away from the spot. Hence, the present petition. 6. Heard counsel for petitioner, who has reiterated all grounds taken in memo of petition. 7. Under inherent powers under section 561-A Cr.P.C. High Court can quash the FIR, if it did not prima facie disclose any offence. But Court should be reluctant to interfere into the investigation at an interlocutory stage. Hence, the present petition. 6. Heard counsel for petitioner, who has reiterated all grounds taken in memo of petition. 7. Under inherent powers under section 561-A Cr.P.C. High Court can quash the FIR, if it did not prima facie disclose any offence. But Court should be reluctant to interfere into the investigation at an interlocutory stage. However, if upon the admitted facts and the evidence collected during investigation by investigating agency and without weighing or sifting evidence, no case is made out against the accused only then it can be quashed. Where the allegations in the FIR taken at their face value, do not constitute the offence alleged the FIR can be quashed. These are cardinal principles of laws. 8. 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 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. 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. 9. In the instant case, from the perusal of FIR, it reveals that cognizable offence under section8/21/22/29 has been made out against the petitioner. The petitioner, in the memo of this petition, has raised disputed questions of fact, which cannot be appreciated in a petition under Section 561-A Cr.P.C. Further FIR no. 9. In the instant case, from the perusal of FIR, it reveals that cognizable offence under section8/21/22/29 has been made out against the petitioner. The petitioner, in the memo of this petition, has raised disputed questions of fact, which cannot be appreciated in a petition under Section 561-A Cr.P.C. Further FIR no. 192/2016 U/S 8/21/22/29 would have culminated into challan, because more than six months has passed from the date of occurrence. So petitioner is at liberty to take all grounds taken in this petition, before court at the time of framing of charge. 10. Hence this petition is dismissed alongwith connected MP, if any.