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2017 DIGILAW 535 (JK)

Sunil Kumar v. Bhavani Rajput

2017-08-04

SANJAY KUMAR GUPTA

body2017
JUDGMENT : 1. This Petition under Section 103/104 of the Constitution of Jammu & Kashmir read with Section 561-A Cr.P.C. has been preferred seeking quashing of the order dated 10.11.2014 passed by learned Chief Judicial Magistrate Jammu and the proceedings initiated on the application/complaint purportedly filed under Section 156(3) of Cr.P.C. 2. Facts fiving rise to the present petition, in brief, are that respondent No.1 is the daughter of Sh. Balraj Singh, who is an employee of the Police Department and has been issued a service revolver. Said Sh. Balraj Singh by using his service revolver fired upon the petitioners seriously injuring petitioner No.1 with the one bullet hitting the abdomen and other bullet injuring the index finger of the right arm. Petitioner No.1 was immediately removed to the Hospital from where he was referred to the Government Medical College, Jammu. An FIR No.158/2014 dated 01.11.2014 was registered against the father of respondent No.1. During treatment of petitioner No.1, it was found that the said petitioner was seriously injured and required more intense treatment, therefore, he was removed to DMC Ludhiana and despite having suffered two bullet injuries the petitioner could survive. Shri Balraj Singh was immediately taken into custody and is still under custody. That ten days after the incident, Shri Balraj Singh with the aid of legal advisors, cooked up a story against the petitioners and got filed a misconceived application purportedly under Section 156(3) of Cr.P.C. by respondent No.1 in the Court of learned Chief Judicial Magistrate, Jammu. However, learned Chief Judicial Magistrate, instead of dismissing the said application filed by respondent No.1, passed a casual ministerial order dated 10.11.2014 directing respondent No.2 to register a case against the petitioners and proceed against them. It is stated that the intention of respondent No.1 was only to put pressure upon the petitioners to withdraw the case already filed by the petitioners against her father so that he could be saved. 3. It is stated that the intention of respondent No.1 was only to put pressure upon the petitioners to withdraw the case already filed by the petitioners against her father so that he could be saved. 3. Order impugned dated 10.11.2014 passed in application filed under Section 156(3) of Cr.P.C. is assailed on the ground that Code of Criminal Procedure does not contemplate on the application under Section 156(3) of Cr.P.C. If at all there is any offence or any complaint, a proper complaint is to be filed and it is upon the same, the Court to either take cognizance of the matter or issue directions under Section 154 or Section 156 of Cr.P.C. A perusal of the said application reveals that there is no list of witnesses. The acts of omission and commission of respondent No.1 and consequent action taken by other two respondents is nothing but abuse of the process of law. Since the petitioners themselves were victims of the miscues of fire arm issued by the Govt. to the police officer and one of them is undergoing treatment, the accused person by using the name of his own daughter has abused the process of Court by initiating the process against the petitioners. 4. Noting of the Registry indicates that Mr. Satinder Singh, Advocate, has filed power of attorney on behalf of respondent No.1. When the matter was taken up for consideration by this Court, no one appeared on behalf of respondent No.1. 5. I have considered the rival contentions and gone though the law of the subject. 6. In AIR 2017 SUPREME COURT 37 in case titled State of Telangana v Habib Abdullah Jeelani & Ors, 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. 6. In AIR 2017 SUPREME COURT 37 in case titled State of Telangana v Habib Abdullah Jeelani & Ors, 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. (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. (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.” 7. 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.” 7. The relevant para of complaint on which FIR has been lodged reads as under :- “That on 1st of November, 2014 at about 8.30 PM the complainant along with her father were on their way to home in their own car bearing registration No.1544-JK02AX from Bishnah via village Natral and another Alto car without having any number plate was also coming on the same route in front of the car of father of the complainant. The father of complainant demanded side to cross their Alto car for quite some time by giving horn but the driver of the Alto car did not give way to the father of the complainant to pass the said Alto car, which was being driven by the driver of the aforesaid vehicle in a zig zag fashion. That on reaching near village Shahpur at canal side the Alto car halted at the Bridge, from where the road also leads to the village of the complainant. The occupants of the Alto car numbering five persons, out of which two are known to the complainant and other three persons seemed to be strangers, but the complainant can identify if they are shown physically to the complainant. That the arrest of father of the complainant is unjustified on the ground that he himself presented voluntarily before the Incharge Police Station Bishnah to narrate the whole episode showing and justifying that there is no assault on his part in the whole matter, but the police concerned from police station has not paid any heed towards the facts and circumstances of the case, but being influenced by the other side, the father of the complainant was shown to be arrested on 02.11.2014, which arrest is unjustified and needs to be quashed on completion of investigation of present complaint of the complainant.” 8. Bare perusal of complaint, it is evident that it has been lodged after 10 days of occurrence; perusal of FIR no.154/2014 dated 1.11.2014, it reveals that Balraj Singh, father of complainant /respondent no.1, has been involved under section 307/RPC and 3/25 A. Act on the allegation that he fired upon petitioner-Sunil Kumar on 01.11.2014, thereby causing serious injuries to petitioner no.1. 9. The relevant part of complaint as mentioned above it is evident that it has been cleverly drafted thereby causing illusion of criminal Act; but if allegations of complaint are taken as it and read along with other attending circumstances, it appears that complaint is attended with mala fide and it has been 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. Balraj Singh has projected her daughter Miss Bawani Rajput to file complaint against the petitioners to settle his own criminal case which has been launched by petitioner Sunil Kumar in FIR No.158/2014 u/s 307/RPC 3/25 A. 10. Hence this petition is allowed and order dated 10.11.2014 by virtue of which Magistrate has directed the Police Station Bishnah to lodge FIR in terms of section 156(3) Cr.P.C on the basis on written complaint lodged by respondent, is set aside as it would be abuse of process of law. 11. Disposed of in the afore mentioned terms.