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2018 DIGILAW 114 (JK)

ASHIQ HUSSAIN BHAT v. STATE

2018-02-27

ALI MOHAMMAD MAGREY

body2018
JUDGMENT : Ali Mohammad Magrey, J. 561-A no. 06/2018 Through the instant petition, petitioners seek quashment of FIR no. 04/2018 dated 06.01.2018 registered in Police Station Kulgam under sections 498-A, 392, 354 and 342 Ranbir Penal code. 2. Briefly stated the case of the petitioners is that petitioner no.1 and respondent no.2 were in marital relationship and as stated the relationship no more exists with reference to petitioner no.1 having divorced respondent no.2 on 18.06.2015. Respondent no.2 in the complaint submitted before Judicial Magistrate Kulgam has alleged as being beaten by petitioners in wrongful confinement and golden ornaments were snatched and cloths torn. Learned Magistrate on examination of the complaint directed the police to investigate the matter and report compliance on 09.01.2018. 3. It is submitted that instead of enquiring about the matter, the police has registered a case bearing FIR no. 04/2018 under sections 498-A, 392, 354 and 342 Ranbir Penal code. 4. It is submitted that since the learned magistrate has only asked to enquire into the matter and report compliance, therefore, there was no scope for the police to register the case. Challenge to the FIR is also made on the basis that the parties are facing civil and criminal proceedings before the Women's Commission Forum for violating of the terms and conditions of the compromise and second divorce deed with further averment that no offence has been committed by the petitioners as registered by the Police. 5. Petitioners in the petition further submit that the allegations made in the FIR or the complaint, even if they are taken in their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused and in order to prevent miscarriage of justice and abuse of process of law the court has power to quash the FIR. Learned counsel has referred to and relief upon AIR 2010 SCW 2494 ; 2017 (1) S.L.J, 213;2003 Legal Eagle 310; (2017) 9 Supreme Court cases 641; 2007 (1) JKJ 127 (HC); and 2006(11) SLJ 692. 6. Learned counsel for the complainant-respondent submits that there is no abuse of process of law and registering a case is within the mandate of section 156(3) of the Code of Criminal Procedure, 1973. Learned has referred to and relied upon AIR 2001 SC 571 . 6. Learned counsel for the complainant-respondent submits that there is no abuse of process of law and registering a case is within the mandate of section 156(3) of the Code of Criminal Procedure, 1973. Learned has referred to and relied upon AIR 2001 SC 571 . It is profitable to extract para 11 of the judgment: "....A complaint disclosing cognizable offences may well justify a Magistrate in sending the complaint, under Section 156(3) to the police for investigation. There is no reason why the time of the Magistrate should be wasted when primarily the duty to investigate in case involving cognizable offences is with the police. On the other hand, there may be occasions when the Magistrate may exercise his discretion and take cognizance of a cognizable offence" 7. Since the quashment of FIR registered against the petitioners in the Police Station Kulgam, consequent upon which action under law is initiated against them is concerned, it is profitable that before going to merits of the case, the question is as to whether the FIR containing allegations which set the police in motion, can be quashed at the threshold stage? The answer has to be in the negative, for, the remedy under Section 561-A Cr. P. C can be invoked/pressed into service only in the following circumstances: "(i) to pass orders in order to give effect to an order passed under Cr.PC (ii) to prevent abuse of process of Court (iii) to secure the ends of justice: and (iv) to prevent mis-carriage of justice". 8. In the instant case, keeping in view the allegations contained in the FIR, it can by no stretch of imagination be said that the case of petitioner falls within the ambit/contours of section 561-A Cr.PC as enumerated above. 9. 8. In the instant case, keeping in view the allegations contained in the FIR, it can by no stretch of imagination be said that the case of petitioner falls within the ambit/contours of section 561-A Cr.PC as enumerated above. 9. The Apex Court in the cases reported AIR 1960 SC 866 , AIR 1964 SC 01, AIR 1972 SC 484 , AIR 1974 SC 1146 , AIR 1977 SC 1489 , AIR 1977 SC 2229 , AIR 1980 SC 326 , AIR 1989 SC 01, AIR 1990 SC 494 , AIR 1991 SC 1260 , AIR 1992 SC 064, 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 VOL-I 118, 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.PC corresponding to Section 482 Cr.PC 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 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 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. c. Where the un-controverted 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 Magistrate as contemplated under Section 155(2) of the Code. 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 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 malafide and/or where the proceedings 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." 10. Applying the tests laid down, it can be safely said that the entire matter is at its infancy stage and does not fall within the four corners of the tests laid down. 11. Apex Court also held that power is to be exercised cautiously, carefully and sparingly and Court has not to function as a Court of appeal or revision. It has also laid down the parameters and guidelines in cases titled as "K.L.E Society and ors. v. Siddalingesh, reported in 2008 AIR SCW 1993; A.P. v. Bojjoori Kanthaiah, reported as 2008 AIR SCW 7860 and Reshma Bano v. State of Uttar Pradesh, reported in 2008 AIR SCW 1998". 12. This Court has only to ascertain whether the allegations made in the FIR do disclose or do not disclose the commission of offences, if it does, then it cannot be quashed at its thresh-hold stage. It is not proper to scuttle away the investigation at its thresh-hold stage, if FIR discloses the commission of offences, High Court should not interfere with the investigation which would amount to stalling the investigation and jurisdiction of statutory authorities to exercise powers in accordance with the provisions of criminal Code. 13. It is not proper to scuttle away the investigation at its thresh-hold stage, if FIR discloses the commission of offences, High Court should not interfere with the investigation which would amount to stalling the investigation and jurisdiction of statutory authorities to exercise powers in accordance with the provisions of criminal Code. 13. Apex Court in AIR 2004 SC 3967 , AIR 1972 SC 484 , AIR 1974 SC 1446, AIR 1977 SC 2229 , AIR 1989 SC 01, has laid down the same principle. It is apt to reproduce para 10, 13, 14, 15, 17 and 19 out of the judgment titled as Som Mittal v. Govt. of K. Karnataka, reported in 2008 AIR SCW 1003 herein: "10. In a catena of decisions this Court has deprecated the interference by the High Court in exercise of its inherent powers under Section 482 of the Code in a routine manner. It has been consistently held that the power under Section 482 must be exercised sparingly with circumspection and in rarest of rare cases. Exercise of inherent power under section 482 of the Code of Criminal Procedure, 1973 is not the rule but it is an exception. The exception is applied only when it is brought to the notice of the Court that grave miscarriage of justice would be committed if the trial is allowed to proceed where the accused would be harassed unnecessarily if the trial is allowed to linger when prima facie it appears to Court that the trial would likely to be ended in acquittal. In other words, the inherent power of the Court under section 482 of the Code of Criminal Procedure, 1973 can be invoked by the High Court either to prevent abuse of process of any Court or otherwise to secure the ends of justice. 13. In State of Bihar v. J.A.C. Saldanha, (1980) 1 SCC 554 this Court pointed out at SCC P. 574: The High Court in exercise of the extraordinary jurisdiction committed a grave error by making observations on seriously disputed questions of facts taking its cue from affidavits which in such a situation would hardly provide any reliable material. In our opinion the High Court was clearly in error in giving the direction virtually amounting to a mandamus to close the case before the investigation is complete. We say no more. 14. In our opinion the High Court was clearly in error in giving the direction virtually amounting to a mandamus to close the case before the investigation is complete. We say no more. 14. In Hazari Lal Gupta v Rameshwar Prasad, (1972) 1 SCC 452 this Court at SCC P. 455 pointed out: In exercising jurisdiction under section 561-A of the Criminal Procedure Code, the High Court can quash proceedings if there is no legal evidence or if there is any impediment to the institution or continuance of proceedings but the High Court does not ordinarily inquire as to whether the evidence is reliable or not. Where again, investigation into the circumstances of an alleged cognizable offence is carried on under the provisions of the Criminal Procedure Code, the High Court does not interfere with such investigation because it would then be the impeding investigation and jurisdiction of statutory authorities to exercise power in accordance with the provisions of the Criminal Procedure Code. 15. In Jehan Singh v. Delhi Administration, (1974) 4 SCC 522 the application filed by the accused under section 561-A of the old Code for quashing the investigation was dismissed as being premature and incompetent on the finding that prima facie the allegations in the FIR if assumed to be correct, constitute a cognizable offence. 17. In State of Bihar v. Murad Ali Khan, (1988) 4 SCC 655 this Court held that the jurisdiction under Section 482 of the Code has to be exercised sparingly and with circumspection and has given the working that in exercising that jurisdiction, the High Court should not embark upon an enquiry whether the allegations in the complaint are likely to be established by evidence or not. 19. We may observe here that despite this Court consistently held in catena of decisions that inherent power of the High Court should not be exercised according to whims and caprice and it has to be exercised sparingly with circumspection and in the rarest of rare cases, we often come across the High Court exercising the inherent power under section 482 of the Code of Criminal Procedure, 1973 in a routine manner at its whims and caprice setting at naught the cognizance taken and the FIR lodged at the threshold committing grave miscarriage of justice. While it is true that so long as the inherent power of Section 482 is in the Statute Book, exercise of such power is not impressible but it must be noted that such power has to be exercised sparingly with circumspection and in the rarest of rare cases, the sole aim of which is to secure the ends of justice. The power under Section 482 is not intended to scuttle justice at the threshold." 14. While keeping in view the scope of section 561-A Cr.PC the Court should refrain from making prima facie decision at interlocutory stage when entire facts of the case are incomplete, hazy and more so, when material evidence is yet to be collected and issues involved could not be seen in their true perspective. 15. Prima facie it appears that the allegations contained in the FIRs relate to the offences which are cognizable and non-cognizable, warrant investigation. 16. In view of the facts and circumstances and law quoted herein above, this petition has no merit, therefore, dismissed along with connected MPs, if any. Interim direction, if any, subsisting shall stand vacated. Registry to send down copy of this order to the trial court. 17. Dismissal of the petition shall not come in the way of petitioners to seek bail from the competent court of law and till two weeks the petitioners shall not be arrested.