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2017 DIGILAW 428 (JK)

Prof Abdul Gani Bhat v. Altaf-u-Rehman Sofi

2017-07-25

TASHI RABSTAN

body2017
JUDGMENT : 1. Petitioner invokes exercise of inherent powers of this Court under section 561-A Cr. P.C. for quashing the order dated 13th March 2015 passed by learned Chief Judicial Magistrate, Srinagar, (for brevity “Trial Magistrate”) as also order dated 29th July 2015 passed by learned Additional Sessions Judge, Srinagar (for short “Revisional Court”) in case titled Abdul Gani Bhat vs. Altaf-u-Rehman Sofi. 2. Heard petitioner in person as also counsel for respondent, and considered the matter. 3. Succinct facts as emanating from petition on hand are that petitioner filed a Complaint under Section 191, 191 RPC and Contempt of Courts Act against respondent. Petitioner averred in his complaint that respondent along with one Dr. Muzaffar Ahmad Khan were involved in case FIR no.66/1997 and investigation was proved against them and challan presented but due to influence the cases against them were shelved. Further contention of petitioner in the complaint was that Dr Muzaffar Ahmad Khan floated a defamatory write-up against petitioner on 18th August 1999, to tarnish petitioner’s character and image. A defamatory complaint was lodged by petitioner against Dr. Muzaffar Ahmad Khan. Petitioner’s further contention was that respondent had given false statement and fabricated false evidence. Petitioner finally sought initiation of proceedings under Section 191, 192 and Contempt of Courts Act against respondent. 4. Respondent caused his appearance before the Trial Magistrate and filed his returns in reply to the petitioner’s complaint. Learned Trial Magistrate, after threadbare discussion and taking note of all factual and legal facets of the matter vide order dated 13th March 2015, dismissed petitioner’s complaint, 5. Against order of learned Trial Magistrate dated 13th March 2015, petitioner filed revision before learned Additional Sessions Judge, Srinagar. Learned Revisional Court, after considering all aspects of the matter, has dismissed revision petition vide order dated 29th July 2015. Dissatisfied therewith, petitioner challenges both orders through the medium of the present petition under Section 561-A Cr.P.C. on various grounds made mention of therein. 6. It has been emphasized times without number through authoritative judicial pronouncements that inherent powers under Section 561-A Cr. P.C. are to be exercised rarely, sparingly and with due circumspection. The power cannot be used to stifle investigation or even prosecution as the law is to be allowed to have its own course and the investigation or prosecution to be taken to its logical end. P.C. are to be exercised rarely, sparingly and with due circumspection. The power cannot be used to stifle investigation or even prosecution as the law is to be allowed to have its own course and the investigation or prosecution to be taken to its logical end. A very limited scope is available to find out as to whether the case falls within broader parameters as provided and envisaged under Section 561-A Cr. P.C. 7. The Apex Court in State of Haryana v. Bhajan Lal AIR 1992 SC 604 as also in cases reported as 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 (I) 118: 2004 (3) JKJ 609 [HC], 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. corresponding to Section 482 Cr. P.C. of Central Code and has laid down the following tests: a. 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; b. where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. 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; c. 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; d. 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; e. 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; f. 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; g. 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. 8. The Apex Court has also held in Bhajan Lal’s case (supra) that the power of quashing criminal proceedings should be exercised very sparingly. Paragraph 109 thereof is profitable to be reproduced hereunder:- “109. 8. The Apex Court has also held in Bhajan Lal’s case (supra) that the power of quashing criminal proceedings should be exercised very sparingly. Paragraph 109 thereof is profitable to be reproduced hereunder:- “109. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer any arbitrary jurisdiction on the court to act according to its whim or caprice.” 9. The Apex Court in Som Mittal v. Govt. of Karnataka 2008 AIR SCW 1003, and M.N. Ojha v. Alok Kumar Srivastav AIR 2010 SC 201 , while laying down the tests, has held that the remedy under Section 561-A Cr.P.C and inherent power should not be exercised by the courts in a routine manner, rather should be exercised sparingly, carefully with caution and in rarest of rare cases. Court has not to function as a court of appeal or revision. 10. This Court in a case Mian Abdul Qayoom v. State & ors. 2011 (I) JKJ 470 (HC) has held that the court should refrain from making prima facie decision at the infancy stage or in a case where all the facts are incomplete and hazy. 11. It may not be out of place to mention here that inherent power cannot be naturally invoked in respect of any matter covered by a specific provision of the Code. It is only after the High Court is satisfied that either an order passed under the Code would be rendered ineffective or that the process of any court would be abused or that the ends of justice would not be secured, then the High Court must exercise its inherent powers under Section 561-A Cr. P.C. This power can be invoked only in an event when aggrieved party is unnecessarily harassed and has no other remedy open to it. The power under section 561-A is not intended to scuttle justice but to secure justice. In the present case petitioner filed a complaint for proceeding against respondent under Section 191, 192 RPC and Contempt of Courts Act. Respondent replied the complaint. The power under section 561-A is not intended to scuttle justice but to secure justice. In the present case petitioner filed a complaint for proceeding against respondent under Section 191, 192 RPC and Contempt of Courts Act. Respondent replied the complaint. Complainant and counsel for respondent were heard. It was found and observed by the Trial Magistrate that the complaint filed by petitioner was quashed by the High Court and petitioner never took stand regarding filing of fake documents or making a false statement during pendency of complaint. Trial Court also observed that the allegations agitated by complainant had never been pointed out during pendency of complaint filed by petitioner on 28th November 2001 and once complaint had been dismissed, the document produced by respondent in the complaint were genuine and no false statement therein was made. It is also made mention of Trial Court hat petitioner has failed to rebut the statement of respondent regarding dismissal of LPA no.181/2008 by the Division Bench of this court. The Trial Court also observed and opined that allegations levelled in the complaint pertained to certain inter se official communications and same do not constitute any offence against public justice nor any case of perjury made out. Thus, the Trial Magistrate has rightly dismissed petitioner’s complaint. 12. Petitioner filed revision against order of learned Trial Magistrate dated 13th March 2015. Learned Additional Sessions Judge, Srinagar, by a comprehensive judgement, discussed all aspects of the matter and rightly dismissed petitioner’s revision. Learned Trial Magistrate as well as Revisional Court have rightly observed that ingredients of offences under Section 191, 193 RPC are not made out and petitioner cannot assume the status of complainant, like in the other cases and claim the same legal rights and the role of petitioner in terms of Section 476 Cr. P.C. is to be brought to the concerned court that perjury had been committed in a particular case and that it is upon that court to deal with the matter as per law. P.C. is to be brought to the concerned court that perjury had been committed in a particular case and that it is upon that court to deal with the matter as per law. It is also rightly observed by the Revisional Court that it is within the judicial discretion of concerned court to conduct or not to conduct the inquiry and it is also not mandatory for the court to institute complaint after that, inasmuch informant has no legal right to insist the court to proceed against accused as post information proceedings are within judicial discretion and control of the concerned court and that petitioner cannot insist to proceed with the complaint as same would be against the settled proposition of law. Applying the aforesaid test, the petition is bereft of merit and petitioner fails to make out a case for exercise of inherent powers under Section 561-A Cr. P.C. to quash the orders passed by learned Trial Magistrate and Revisional Court. 13. In the given circumstances, learned Trial Magistrate as well as Revisional Court have passed well-reasoned orders, which need no interference. Accordingly, petition on hand is dismissed. 14. Copy be sent down.