Research › Search › Judgment

J&K High Court · body

2018 DIGILAW 477 (JK)

Mohammad Yaseen Baktoo v. State of JK

2018-07-04

M.K.HANJURA

body2018
JUDGMENT : 1. In this petition, filed under Section 561 A of the Code of Criminal Procedure (Cr. P.C), the petitioners have called in question the order of the learned Chief Judicial Magistrate, Srinagar, dated 8th of November, 2017, directing the Superintendent of Police (SP), North, to take necessary action under law in the application submitted before him by one Bashir Ahmad Karanai S/o Abdur Rahim R/o Nigeen/ respondent No.4 herein this petition, under Section 156(3) of the Code of Criminal Procedure (Cr. P.C. ) and submit a report by 17th of November, 2017. 2. The petitioners contend that the FIR in question, being FIR No.54/2017 of Police Station, Khanyar, registered for the commission of offences punishable under Sections 420 and 468 of the Ranbir Penal Code (RPC), on the basis of the application filed by the respondent No.4 herein, before the Court of learned Chief Judicial Magistrate, and the order dated 8th of November, 2017, passed by the learned Chief Judicial Magistrate, Srinagar, are patently illegal, unwarranted and against the mandate of law and, therefore, deserve to be set aside/ quashed by this Court. It is further contended that the applicant before the Court of learned Chief Judicial Magistrate, i.e. the respondent No.4 herein, is a member of the Managing Committee and, in order to settle the scores, he knocked at the doors of the Criminal Court, i.e. the Court of the learned Chief Judicial Magistrate, Srinagar, which, it is stated, in a mechanical and irresponsible manner, forwarded the application to Superintendent of Police (SP), North, without any authority of law and procedure, and an FIR was against the office bearers of the Management Committee. The order passed by the learned Chief Judicial Magistrate, it is contended, is bad in law and a frozen abuse of the process of law. The procedure, as laid down under Section 156(3) of the Code of Criminal Procedure (Cr. P.C.), has not been followed in its letter and spirit and, therefore, it is urged that the same may be set aside/ quashed. 3. It will be appropriate to refer to the complaint filed by the applicant-Bashir Ahmad Karnai, i.e. the respondent No.4 herein, before the Court of learned Chief Judicial Magistrate which is attached to the petition as Annexure-D. The application states that the applicant is a member of the Travel Agents Society of Kashmir having its office at Bishamber Nagar, Srinagar. 3. It will be appropriate to refer to the complaint filed by the applicant-Bashir Ahmad Karnai, i.e. the respondent No.4 herein, before the Court of learned Chief Judicial Magistrate which is attached to the petition as Annexure-D. The application states that the applicant is a member of the Travel Agents Society of Kashmir having its office at Bishamber Nagar, Srinagar. This Society, it is stated, receives funds from the Department of Tourism, Government of Jammu & Kashmir, for organizing road-shows and promotion of tourism. It is pleaded that the non-applicant No.1, i.e. one of the petitioners before this Court, is the Treasurer of the said Society and the other petitioners before this Court are the President and the Secretary General of the said Society, respectively. It is further contended in the application that on 5th of November, 2017, several members of the Society, including the applicant, i.e. the respondent No.4 herein and the petitioners before this Court, met in order to check the accounts of the Society and a number of discrepancies were found in the accounts. The petitioners before this Court, i.e. the non-applicants in the application before the Court of learned Chief Judicial Magistrate, did not give any satisfactory reply to the questions posed to them by the other members of the Society vis-à-vis the amount spent out of the accounts of the Society. It is also contended that when the applicant in the application filed before the learned Chief Judicial Magistrate (respondent No.4 herein) asked questions regarding the embezzlement of the funds of the Society, the petitioners before this Court, i.e. the non-applicants before the Court of learned Chief Judicial Magistrate, abused and physically assaulted the applicant. 4. Heard and considered. 5. The law is that in exercise of the wholesome powers vested in the High Court under Section 482 of the Criminal Procedure Code, corresponding to Section 561 of the J&K Criminal Procedure Code, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court’s inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a Court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, on which the structure of the prosecution rests and the like, would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law, though justice has got to be administered according to the laws made by the Legislature. The compelling necessity for making these observations is that without a proper realization of the object and the purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the State and its subjects, it would be impossible to appreciate the width and the contours of that salient jurisdiction. 6. In the law laid down by the Supreme Court in the case of “State of Haryana & Ors. v. Bhajan Lal & Ors., reported in “1992 Supp. (1) SCC 335”, the Supreme Court has elaborately considered the scope of Section 482 of the Criminal Procedure Code (Cr. P.C). In this case, the Supreme Court had the occasion to determine the extent and power of the High Court to quash the entire criminal proceeding including the FIR. The case arose out of an FIR registered under Sections 161, 165 of the Indian Penal Code (IPC) and Section 5(2) of the Prevention of Corruption Act, 1947. After noticing the earlier pronouncements on the subject, the Supreme Court detailed, with lace, certain categories of cases by way of illustration where power under Section 482 of the Criminal Procedure Code (Cr. P.C.) can be exercised to prevent the abuse of the process of the Court or secure the ends of justice. Paragraph No. 102 of the judgment provides seven categories of cases where the provisions of Section 482 of the Criminal Procedure Code (Cr. P.C.) can be invoked and these are extracted below : “(i) 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. P.C.) can be invoked and these are extracted below : “(i) 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. (ii) 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. (iii) 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. (iv) 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. (v) 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. (vi) 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. (vii) 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.” 7. The application filed before the Court of learned Chief Judicial Magistrate by the applicant, i.e. the respondent No.4 herein, brings it to the fore that it is the Government of Jammu and Kashmir, through the Tourism Department, that provides funds to the Society of which the petitioners are the office bearers acting in the capacity of Treasurer, President and the Secretary General, respectively. The Society receives funds from the Department of Tourism for organizing roadshows and the promotion of Tourism. The applicant states in the aforesaid application that these funds have been embezzled by the petitioners before this Court and a case bearing FIR No.54 of 2017 of Police Station Khanyar was registered against them and the investigation ensued. The investigation of the case cannot be scuttled or thwarted, at this stage, when the police authorities are probing into the aspect of the embezzlement of the money provided to the Society by the Government. The case does not have any civil lineage or flavor as contended by the learned counsel for the petitioners as also the petitioners in their petition. 8. Viewed in the context of what has been said and done above, the petition of the petitioners is found to be devoid of any merit. It entails dismissal and is, accordingly, dismissed alongwith all connected MPs. Interim directions, if any, in force as on date shall stand vacated. 9. Registry to send a copy of this order to the Court below for information.