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2017 DIGILAW 612 (JK)

Mansa Ram v. State

2017-08-11

SANJAY KUMAR GUPTA

body2017
JUDGMENT : 1. Through the medium of instant petition under Section 561-A Cr.P.C. preferred by the petitioners seek quashing of FIR No.32/2013 dated 08.08.2013 for offences under Sections 323/452/147/506 RPC registered in Police Station Pouni, District Reasi. 2. In the petition, it has been stated that the petitioner No.1 is the owner in possession of land measuring 02 kanals and 12 marlas falling in Khasra No.04 situated in village Majra Kund, Tehsil & District Reasi. Petitioner Nos.2 & 4 are the sons of petitioner No.1 and petitioner Nos.3 & 5 are the wives of petitioner Nos.2 & 4 respectively. 3. It is averred that in the year 2013 one Romesh Chander, who is the son of the brother of petitioner No.1, started making illegal attempts to grab and encroach upon the land of petitioner No.1 measuring 02 kanals and 12 marlas falling in Khasra No.04 and started to disturb the peaceful possession of petitioner No.1. It is stated that said Romesh Chander has absolutely no right in the said land. That on 05.04.2013, in order to restrain Romesh Chander, petitioner No.1 had filed a civil suit titled Mansa Ram Vs. Romesh Chander for permanent prohibitory injunction, which is sub-judice before the Court of learned Sub Judge. That on 06.04.2013, learned Sub Judge passed an order of maintaining status quo with regard to the suit property and the said order is still in force till date. Despite order 06.04.2013, said Romesh Chander continued to interfere with the possession of the petitioner No.1 over the suit property, which compelled the petitioner No.1 to file an application for implementation of the order of status quo through SHO Police Station Pouni and the learned Sub Judge Reasi vide order dated 02.05.2013 directed the concerned police to ensure the compliance of the order dated 06.04.2013. That even after order dated 02.05.2013 passed by the learned Sub Judge, said Romesh Kumar did not stop in his pursuit of illegal encroachment in respect of the suit property and constructed a shed on the said suit property when none of the family members of petitioner No.1 was at home. This compelled petitioner No.1 to file an application for initiating contempt proceedings against the said Romesh Chander on 01.07.2013, which is still pending disposal before the Court of Sub Judge, Reasi. 4. This compelled petitioner No.1 to file an application for initiating contempt proceedings against the said Romesh Chander on 01.07.2013, which is still pending disposal before the Court of Sub Judge, Reasi. 4. It is further averred that said Romesh Chander, with an ulterior motive to grab the land of petitioners, had filed a false and frivolous complaint through his wife namely Rita Devi before learned Chief Judicial Magistrate against the petitioners which was transferred to the Court of learned Munsiff, Reasi, who ordered respondent No.2 to proceed under law under Section 156(3) Cr.P.C., which has resulted into the registration of FIR No.32/2013 under Section 323/452/147/506 RPC dated 08.08.2013. 5. Learned counsel for the petitioners seeks quashing of the afore said FIR No.32/2013, inter alia, on the grounds that from the perusal of the FIR, it is crystal clear that the same has been filed with an intention to pressurize the petitioners to withdraw his case pending disposal. From the FIR, it is also clear that the offences for which the petitioners have been charged are not made out at all as the very factum of the civil dispute is not even mentioned in the FIR, which makes it more clear that the impugned FIR has been registered with the intention to harass the petitioners. Bare perusal of the FIR further reveals that the complaint is based only on the civil dispute pending between petitioner No.1 and said Romesh Chander before learned Sub Judge, Reasi and the said fact has been concealed by the complainant from respondent No.2 and as such is an abuse of process of law. 6. State, in the objections, has stated that the instant petition is not maintainable since prima facie case is made out against the petitioners as such the FIR came to be registered. It is further stated that once FIR is registered, it becomes an obligation on the part of the investigating agency to investigate the matter and bring the real facts/truth before the Court for further action in the matter. That on perusal of the FIR, it discloses the cognizable offence which has to be investigated under law. It is further submitted that the jurisdiction of this Court under Section 561-A Cr.P.C. is very limited and the present case does not warrant any interference by invoking the exercise of the inherent jurisdiction. That on perusal of the FIR, it discloses the cognizable offence which has to be investigated under law. It is further submitted that the jurisdiction of this Court under Section 561-A Cr.P.C. is very limited and the present case does not warrant any interference by invoking the exercise of the inherent jurisdiction. The case is still under investigation and the question whether the petitioners are involved in commission of the offence or not is the question of fact, which can be agitated before the trial Court once the challan is produced against them and there is no illegality in registration of the said FIR. It is also submitted that the petitioners instead of cooperating with the police have unnecessarily dragged the answering respondents into litigation. 7. Heard learned counsel for the petitioners and GA. I have also gone through the file and considered the law on the subject. 8. In AIR 2017 SUPREME COURT 37 in case titled State of Telangana v Habib Abdullah Jeelani, 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.” 8. (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.” 8. Keeping in view above law into consideration, now I will appreciate as to whether FIR has been lodged with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge or not. 9. Civil litigation between parties is pending before Sub Judge Reasi with regard to land measuring 2k 12m falling under kh.no. 4 situated at village Kund Tehsil and District Reasi; the Court on 6.4.2013 has granted order of status-quo on spot in ex-parte in an application for temporary injunction filed by petitioner- Mansa Ram in a suit for permanent injunction against complainant/defendant; thereafter it further appears that Court on 2.5.2013 directed the police concern to implement the said order on application filed by petitioner Mansa Ram; it is also evident from interim orders passed in suit, copies of which have been attached with the petition, that complainant /defendant appeared before said Court in application also on 31.7.2013 and sought time to file objections and case was posted for objection on 17.8.2013; but instead of filing objection, he lodged a complaint before police and got lodged FIR under section 452/323/506/147/RPC. The Girdawari entry of 2013 also reveals name of petitioner Mansa Ram in possession and cultivation column. 10. Thus, the veracity of the fact alleged by the parties with regard to possession of land could only have been ascertained on the basis of evidence and documents by a Civil Court of competent jurisdiction. The dispute in question is purely of civil nature. Further counsel for petitioner has placed on record a certified copy of order dated 20.5.2014 passed in suit, which reveals that parties have effected compromise and so suit has been dismissed as withdrawn. So there would be no chance of any conviction of petitioner in criminal case. Courts are already burdened with so many cases. 11. In the facts and circumstances of this case, initiating criminal proceedings by the respondents against the petitioners is clearly an abuse of the process of the Court. Hence, this petition is allowed. So there would be no chance of any conviction of petitioner in criminal case. Courts are already burdened with so many cases. 11. In the facts and circumstances of this case, initiating criminal proceedings by the respondents against the petitioners is clearly an abuse of the process of the Court. Hence, this petition is allowed. Resultantly, FIR No.32/2013 dated 08.08.2013 for offences under Sections 323/452/147/506 RPC registered in Police Station Pouni, District Reasi, is quashed.