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2017 DIGILAW 880 (JK)

Manzoor Hussain Shah v. State

2017-09-22

SANJAY KUMAR GUPTA

body2017
JUDGMENT : 1. Through the medium of instant petition filed under Section 561-A Cr.P.C., petitioner seeks quashing of FIR No.112/2017 dated 16.05.2015 under Section 452, 323, 336 Ranbir Penal code registered in Police Station Bahu Fort at the instance of respondent No.4 against the petitioner. 2. It is stated in the petition that the petitioner, who is serving in CRPF, is the owner in possession of a residential house over a plot of land measuring 10 Marlas falling under Khasra No. 357 min situated at Aklyarabad, Sunjawan, Bathindi, Jammu, where the petitioner is residing alongwith his wife and children. The respondent No. 4, namely, Ghulam Rasool, who is the Numberdar of the locality is also residing nearby the house of the petitioner and is under the habit of encroaching the land of the innocent persons of the locality by threatening them. The respondent No. 1 caused obstruction in the use of the lind Road (Lane) adjacent to the house of the petitioner and other locals of the area and the lane is not the personal lane of any person of the locality and the respondent No. 4 installed gate in the said lane and on this, the petitioner and his wife filed a suit for mandatory injunction before the Court of learned Special Sub Judge (13th Finance) for directing the respondent No. 4 to demolish the iron gate installed in Khasra No. 357 min and the Court vide its order dated 20th February, 2017 has directed the parties to maintain status-quo on spot. 3. It is also stated in the petitioner that respondent No. 4 in order to harass the petitioner lodged a false and frivolous complaint before the respondent No. 2, namely, SHO, Police Station, Bahu Fort, Jammu and on the basis of the false and frivolous complaint, FIR No. 112/2017 (Annexure-B) came to be registered by the respondent No. 2 against the petitioner u/s 323, 336 and 452 Ranbir Penal code. The petitioner seeks quashment of the same inter alia on the grounds, which read as under:- (a) The respondent No. 4 in order to harass the petitioner in view of the filing of the civil suit by the petitioner against the respondent No. 4 lodged the false and frivolous complaint against him. The petitioner seeks quashment of the same inter alia on the grounds, which read as under:- (a) The respondent No. 4 in order to harass the petitioner in view of the filing of the civil suit by the petitioner against the respondent No. 4 lodged the false and frivolous complaint against him. (b) The FIR does not disclose the date and time of the occurrence, which also clearly amplifies that the FIR is the off shoot of the false and the frivolous complaint lodged by the respondent No. 4. (c) The impugned FIR is against the true facts of the case and the respondent No. 2 is harassing the petitioner and is bent upon to arrest him in the false and frivolous case. (d) The respondent No. 4 in order to satisfy his personal grudge has lodged the false and frivolous FIR against the petitioner herein. (e) The petitioner has not committed any act, which is punishable under law and no identical petition has been filed by him in any other Court of law. 4. Respondent Nos.1 to 3 have not filed the objections. 5. Respondent No.4 has filed objections stating therein that the facts are not correctly stated by the petitioner, hence vehemently denied. It is submitted that perusal of sale agreement attached with the suit titled, Manzoor Hussain Shah Vs. Gh. Rasool and others pending in the court of learned Sub-Judge Special Mobile Magistrate, Jammu wherein, on 20th February, 2017, the learned trial Court has directed the parties to maintain status-quo on spot as it exists today, on which the petitioner is relying upon, the Khasra number of the land has been shown as 353 min measuring 06 marlas situated at village Mominabad Sunjwan adjacent to Irfan Masjid, Tehsil and District, Jammu. In the petition, the petitioner has mentioned Khasra number of the land as 357 measuring 10 marlas situated at Aklyarabad, Sunjwan Bathindi. It is further submitted that Khasra No. 357, as alleged in the petition is not situated adjacent to the land/residential house possessed by the answering respondent No. 4 in Khasra No. 2279 of village Sunjwan. It is submitted that respondent No. 4 is residing at Mohalla Khairabad of village Sunjwan and the petitioner is the resident of Mohalla Jalalabad, Sunjwan, which is 1 KM away from the land and the residential house of the answering respondent No. 4. It is submitted that respondent No. 4 is residing at Mohalla Khairabad of village Sunjwan and the petitioner is the resident of Mohalla Jalalabad, Sunjwan, which is 1 KM away from the land and the residential house of the answering respondent No. 4. Respondent no.4 is the original inhabitant of village Sunjwan and has constructed his residential house in Khasra No. 2279 of the same village. Respondent No. 4 has constructed link road and installed Iron Gate on his own land, which is being used by respondent No. 4 exclusively falling under Khasra No. 2279 of village Sunjwan. Khasra No. 357, as alleged in the petition is not situated adjacent to the residential house of the respondent. It is also submitted that on 16th May, 2017 at about 9.00 AM, the petitioner alongwith his other family members forcibly entered the residential house of respondent No. 4 and mercilessly beaten up his daughter, namely, Shazia age 24 years and son, namely, Anayat Ali age 33 years. They received serious injuries on their person. The daughter of respondent suffered fractured on her right wrist. The respondent No. 4 immediately informed the police and the injured were shifted to Government Hospital, Gandhi Nagar, Jammu for treatment by the police. On the same day, i.e., 16th May, 2017, an FIR No. 112/2017 u/s 452, 323 and 336 Ranbir Penal code came to be registered against the petitioner at 18.30 hours at P/S Bahu Fort, Jammu. It is submitted that the petitioner has committed a serious offence and he is liable to be punished under law. 6. Heard learned counsel for the parties and considered the law on the subject. 7. In AIR 2017 Supreme Court 37 in case titled State of Telangana v Habib Abdullah Jeelani and 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. 7. In AIR 2017 Supreme Court 37 in case titled State of Telangana v Habib Abdullah Jeelani and 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 Cr.P.C 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. 8. In the present case, the contents of FIR reads as under:- On 16.5.2017 complainant filed a written complaint to I/C P/P Bathindi stating as under:- Subject :- Complaint against Manzoor Hussain Shah R/o Jalalabad Sunjawan Jammu. Sir. With due respect and humble submission, I beg to state that said person mentioned in subject above threatened to all my family members and he entered in my house beaten to my daughter, I told him so many time but he did not bother. He wants possession on my land and pelted stone on my daughter, so I therefore request you to register FIR and take action as soon as possible. 9. On this application, police has registered FIR no.112/2017 under section 452/323/336 Ranbir Penal code. 10. Bare perusal of contents of FIR, it is evident that no, time, date and year with regard occurrence has been mentioned. Further, there is no mention of house number and situation of house where accused allegedly entered. No name of daughter to whom accused allegedly beaten has been mentioned. 11. 10. Bare perusal of contents of FIR, it is evident that no, time, date and year with regard occurrence has been mentioned. Further, there is no mention of house number and situation of house where accused allegedly entered. No name of daughter to whom accused allegedly beaten has been mentioned. 11. From the perusal of photocopy of order dated 20.02.2017, it reveals that civil litigation is pending between petitioners family and complainant and his family including his sons and daughter with regard to installation of iron gate on land falling under Khasra No.357, Aklyarabad Sunjawan, Bathindi Jammu. This civil suit has been filed by petitioner herein. The court of Sub Judge Special Mobile Magistrate has already granted status quo on spot on 20.2.2017. In this way, this FIR is required to be quashed on two grounds in terms of above law (State of Telangana v Habib Abdullah Jeelani and ors) supra. Firstly the allegations made in the first information report 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/petitioner. Further, even if these allegations are accepted as mentioned in the first information report , it do not disclose a cognizable offence, justifying an investigation by police officer under Section 156(1) of the Code of criminal procedure . Further, it can be inferred that this criminal proceeding is manifestly attended with mala fide and 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 and also in order to settle civil dispute. 12. Hence, this petition is allowed. FIR No.112/2017 dated 16.05.2015 under Section 452, 323, 336 Ranbir Penal code registered in Police Station Bahu Fort is quashed. A copy of this order be sent to concerned police station for compliance.