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2017 DIGILAW 787 (JK)

Sandokh Singh v. State

2017-09-01

SANJAY KUMAR GUPTA

body2017
JUDGMENT : 1. Petitioners invoke inherent jurisdiction of this Court under Section 561-A Cr.P.C seeking quashment of the proceeding in case FIR No. 54/2017 u/s 447/323/427RPC dated 27.03.2017 registered by Police Station Ramnagar, pending before the Court of Judicial Magistrate Sub Judge Ramnagar. 2. In the petition, it is stated that petitioner No.1 as well as respondent No.2 (complainant) are real brothers; respondent No.2 has filed a complaint before the Court of Sub Judge Judicial Magistrate Ramnagar against the petitioners for the commission of offence under Sections 447, 323, 427 RPC on 27.03.2017. In the said complaint, the learned Judicial Magistrate has passed the following order: “Forwarded in original to Incharge Police Station Ramnagar for necessary action.” 3. It is further contended that on the direction passed by the learned Magistrate an FIR No.54/2017 dated 27.03.2017 stood registered under Sections 447, 427, 323 RPC and ultimately a Challan under Section 447, 427, 323, 109 RPC has been filed by the police before the Court of Sub Judge Judicial Magistrate Ramnagar on 09.06.2017. It is further stated that registration of the FIR at the instance of the real brother of petitioner No.1 on the direction passed by the learned magistrate and consequently filing of the report in case titled State v/s Parkash Chand and others is illegal and a sheer abuse of the process of the Court. It is further stated that registration of the said FIR on the direction passed by the Court is mandatory in terms of Section 156(3) as laid down by the Hon’ble Apex Court in terms of the constitutional Bench judgment titled Lalita Kumari vs State of U.P reported in 2013(5) Law Herald (SC) 4401. It is further stated that the occurrence is of 27.03.2017 at about 10 am and the magistrate was approached in the very same date without resorting to the provision of Section 154(1) or 154(3) Cr.P.C. and the investigation is procured by misuse of the provision. All the offence being bail able as such there is no provision in the Cr.P.C to challenge the same except to face the trial is grossly illegal proceeding. All the offence being bail able as such there is no provision in the Cr.P.C to challenge the same except to face the trial is grossly illegal proceeding. It is further stated that whenever a complaint is filed before the Magistrate, the Magistrate has to proceed in terms of Section 200 as well as 202 but in no case without adverting to the complaint the magistrate can pass any direction in terms of Section 156(3) CrPC as such the proceeding pending before the Court of Sub Judge Ramnagar are illegal and blatant abuse of process of law hence required to be quashed. 4. Heard learned counsel for both sides and considered the law on the subject. 5. The law with regard to quashment of FIR/complaint/challan is now well settled. These can only be quashed in order to prevent abuse of process of law or to otherwise secure the ends of justice. 6. The expression ends of justice and to prevent abuse of process of any court are intended to work out either when an innocent person is unjustifiable subjected to an undeserving prosecution or if an ex-facie all merited prosecution is throttled at the threshold without allowing the material in support of it. 7. This court while exercising the power under section 561-A Cr.P.C., Court does not function as court of trial, appeal or revision. Inherent jurisdiction has to be exercised disparity, careful and with great caution. These powers cannot be used to stifle the legitimate prosecution. This is discretionary power vested in High Court to do substantial justice. High Court cannot examine the evidence as to whether charge for alleged offence is made put or not. This is prerogative of trial court where challan is produced. Where accused has opportunity to advance submission before trial court that material on record does not call for framing of charge then High court shall not exercise power under section 561-A Cr.P.C. 8. In present case petitioner has opportunity to argue the matter before court below that no case has been made out on the facts and evidence collected during investigation against petitioners herein. 9. The argument of counsel for petitioner that he has no remedy except to face trial as this is a summon case, is without any legal support because as per section 249 Cr.P.C., Magistrate can pronounce judgment of acquittal at any time in summon case. 10. 9. The argument of counsel for petitioner that he has no remedy except to face trial as this is a summon case, is without any legal support because as per section 249 Cr.P.C., Magistrate can pronounce judgment of acquittal at any time in summon case. 10. All the pleas taken in the petition and that argued may be relevant for discharge of accused, but not for quashing the FIR, because all the pleas are pertaining to appreciation of facts. It is not case of petitioner that 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 proceeding. 11. In view of above discussion, this petition is dismissed. Interim stay, if any, is vacated. However, petitioner is at liberty to take all pleas of facts or law before Court below at the time of framing of charge.