Research › Search › Judgment

J&K High Court · body

2019 DIGILAW 120 (JK)

Ganesh Gupta v. Joginder Lal

2019-03-12

SANJAY KUMAR GUPTA

body2019
JUDGMENT Through the instant petition filed under Section 561-A of the Code of Criminal Procedure (hereinafter for short, Cr. P.C ) petitioner seeks quashment of the criminal complaint No. 361/ Cr. Misc. titled Joginder Lal Advocate vs. Ganesh Gupta filed against him by the respondents under Section 323, 341,504, 506 RPC, pending trial before the Court of learned Munsiff, Judicial Magistrate 1st Class, Akhnoor 2. The case of the petitioner is that a false, frivolous, baseless and vexatious complaint has been filed against him by the complainant-respondent in connivance with the brother of the petitioner, namely, Neeraj Gupta who is very close friend of the complainant who both, have taken into their heads to cause harassment, humiliation and to keep the petitioner involved into uncalled for litigation as well as to defame the petitioner in the society and further the complaint do not fulfill the necessary ingredients of the Section under which cognizance has been taken and process issued against the petitioner by the trial court. 3. Learned counsel for the petitioner states that the petitioner became aware of the execution of a Gift Deed in favour of the brother of the petitioner by his grandmother. It is stated that the brother and the complainant/respondent who is a lawyer by profession and practicing mainly at Akhnoor are very close friends and the Gift Deed was also drawn and drafted by the complainant-respondent. Having become aware of the Gift Deed, the petitioner challenged the same in the court of law on account of the fact of the competency of the grandmother of the petitioner and his brother to execute the said Gift Deed and the said Gift Deed is a subject matter of adjudication in the court of law. It is further stated in order to keep involved the petitioner in uncalled litigation, the said brother of the petitioner even got the false complaint lodged with the Women Cell against the wife of the petitioner, another younger brother of the petitioner, namely, Ram Gupta and not against the said Neeraj Gupta knowingly that the marriage of said Neeraj Gupta was dowry less and in the garb of the complaint, the said Neeraj Gupta in the company of the police took all the household items which were purchased by the father of the petitioner. 4. 4. It is submitted that the petitioner is not at all involved in the commission of any crime against the respondent and the respondent is guilty of concealing the true facts from the trial court as he has deliberately concealed the registration of a complaint lodged by the respondent against the petitioner by the Police Station, Akhnoor under Section 107/151 Cr.P.C. It is stated that in the said complaint registered by the respondent, the petitioner had to seek bail from the Tehsildar, Akhnoor, who admitted the petitioner to bail. 5. The petitioner being aggrieved of the order dated 03.08.2010, challenges the same on the following grounds:- “(i) That the initiation of the complaint under challenge in the present petition is vocative of Article 20 (2) of the Constitution of India which provides that no one can be tried twice for the same offence and the present complaint is also hit by the principles of double jeopardy and the fact that the complaint u/s 107/151Cr.P.C. has already been registered by the concerned Police on the complaint of the respondent for the same incident, the taking of cognizance based on frivolity of allegations was unwarranted and as such the same amounts to abuse of the process of the court and law and the complaint under challenge as such merits to be quashed. (ii) That the allegations made in the complaint against the petitioner are absurd and there was no sufficient ground for proceeding against the petitioner as the same is manifestly attended with mala fide and the proceedings have been maliciously instituted so as to bring bad name to the petitioner as a whole, the prosecution case does not at all connect the petitioner with the commission of the crime for there is no willful act on the part of the petitioner or any mens rea, which could result into registration of criminal proceedings against the petitioner and as such complaint merits quashment. (iii) That the bald allegation made against the petitioner is the result of the anxiety of the complainant to rope in the petitioner without any justification and without his having indulged in any act so as to attract the provisions of the above referred Sections under which the complaint has been filed against him. (iii) That the bald allegation made against the petitioner is the result of the anxiety of the complainant to rope in the petitioner without any justification and without his having indulged in any act so as to attract the provisions of the above referred Sections under which the complaint has been filed against him. The allegations even if taken at their face value and accepted in their entirety do not furnish the legal basis to the Trial Court to take cognizance of the offences alleged against the petitioner and he should not be left to face the ordeal of the trial and as such the complaint as well as the proceedings against the petitioner deserves to be quashed. (iv) The petitioner is innocent and has been victimized by the complainant/respondent by making false allegations and he is more interested in the persecution rather than the prosecution of the petitioner and it is under these circumstances and also held by the higher courts invariably that the efforts of the courts should be to see that an innocent person should not be made to suffer on account of unfounded, baseless and malicious allegations, the proceedings against the petitioner in above referred complaint as such deserves to be quashed. (v) That the allegations against the petitioner are vague baseless unfounded and such vague allegations cannot give rise to suspicion and as such the vague allegations do not attract the provision of Sections 323/341/504/506 RPC. The Hon’ble Court may kindly appreciate that the averments in the complaint are far stretched but in the humble submission of the petitioner do not attract the provisions of the Sections in which the court below has unfortunately taken the cognizance due to non-application of mind for no case of hurt, wrongful restrainment, criminal intimidation as provided under Section 504/506, insult intended to provoke a breach of piece and for that matter the provisions of Section323/341/504/506 of the Ranbir Penal Code are prima-facie not constituted in the plain reading in the complaint itself particularly when the police authorities have already taken cognizance and initiated proceedings under Section 107/151 Cr. P.C and as such proceedings against the petitioner deserves to be quashed and the petitioner who is innocent person be saved from facing the ordeal of a criminal trial. P.C and as such proceedings against the petitioner deserves to be quashed and the petitioner who is innocent person be saved from facing the ordeal of a criminal trial. (vi) That the allegations leveled in the complaint even if taken at their face value and accepted in their entirety do not prima-facie constitute an offence or make out any case against the petitioner much less the taking of cognizance of the complaint and as such the complaint merits to be quashed.” 6. I have considered the rival contentions. Before dealing with the matter the contents of the complaint filed by the respondent before the court below reads as under:- “1. That the complainant is a law abiding citizen of India and also an Advocate by profession. The grandmother of the accused person has execute a gift deed in favour of accused’s brother, namely, Neeraj Gupta which was drawn and drafted by the complainant and the same was registered before the Sub-Registrar, Akhnoor since then the accused has an enmity with the complainant. 2. That after the registration of the said gift deed, the accused threatened the complainant and asked the complainant that he would eliminate him. 3. That on 02.08.2010 at about 8.00 A.M when the complainant was going to his office on his Motorcycle the accused stood in the street and came in front of the Motorcycle and pushed the complainant and tried to make him fall from the motorcycle and the accused abused the complainant before the people who were present on the spot and also tried to slap the complainant and caught him from his collar then the complainant went to the Police Station, Akhnoor for lodging the FIR against the accused and submitted an written application and what did the police has done the complainant has not any knowledge. 4. That on the same day, when the complainant was coming from the market, the accused again restrained the complainant’s way to move ahead and then abused and slapped the complainant before some people and again threatened for dire consequences. It is pertinent to mention here that the accused is strong headed and influenced person and that is why he could not be booked under the above mentioned Section of R.P.C.” 7. The court below after recording the statement of complainant and one witness took cognizance under Section 323/341/ 504/506/ RPC and issued process. 8. It is pertinent to mention here that the accused is strong headed and influenced person and that is why he could not be booked under the above mentioned Section of R.P.C.” 7. The court below after recording the statement of complainant and one witness took cognizance under Section 323/341/ 504/506/ RPC and issued process. 8. Section 561-A Cr.P.C deals with “Saving of inherent power of High Court. It reads as under:- “Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.” 9. The powers of the High Court U/s 561-A Cr.P.C are partly administrative and partly judicial. It is used in 3 circumstances in which the inherent jurisdiction may be exercised, namely, “to give effect to an order under CrPC, to prevent abuse of the process of the court, and to secure the ends of justice”. The section is a sort of reminder to the High Courts that they are not merely courts in law, but also courts of justice and possess inherent powers to remove injustice”. The inherent power of the High Court is an inalienable attribute of the position it holds with respect to the courts subordinate to it. They are necessarily judicial when they are exercisable with respect to a judicial order and for securing the ends of justice. The jurisdiction under this Section is discretionary; therefore, the high court may refuse to exercise the discretion if a party has not approached it with clean hands. Inherent powers, include powers to quash FIR, investigation or any criminal proceedings pending before the High Court or any Courts subordinate to it and are of wide magnitude and ramification. Such powers can be exercised to secure ends of justice, prevent abuse of the process of any court and to make such orders as may be necessary to give effect to any order under this Code, depending upon the facts of a given case. Court can always take note of any miscarriage of justice and prevent the same by exercising its powers under this section. These powers are neither limited nor curtailed by any other provisions of the Code. Court can always take note of any miscarriage of justice and prevent the same by exercising its powers under this section. These powers are neither limited nor curtailed by any other provisions of the Code. However, such inherent powers are to be exercised sparingly and with caution. It is well settled that the inherent powers under this section can be exercised only when no other remedy is available to the litigant and not where a specific remedy is provided by the statute. If an effective alternative remedy is available, the High Court will not exercise its powers under this section, especially when the applicant may not have availed of that remedy. Ordinarily, a High Court will not interfere at an interlocutory stage of criminal proceeding in a subordinate court but High Court is under an obligation to interfere if there is harassment of any person by illegal prosecution. It would also do so when there are any exceptional or extraordinary reasons for doing so. 10. In the landmark case State of Haryana v. Bhajan Lal (1992 Supp.(1) SCC 335), a two-judge bench of the Supreme Court of India considered in detail, the provisions of section 482 and the power of the High Court to quash criminal proceedings or FIR. The Supreme Court summarized the legal position by laying the following guidelines to be followed by High Courts in exercise of their inherent powers to quash a criminal complaint: 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 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. 3. Where the 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.” 11. Even though the inherent jurisdiction of the High Court under Section 482 is very wide, it has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone, courts exist. In a proceeding under this section, the High Court will not enter into any finding of facts, particularly when the matter has been concluded by concurrent finding of facts of two courts below. It is well settled that the inherent powers under this Section can be exercised only when no other remedy is available to the litigant. 12. It is also law that statutory power of police to investigate the allegations levelled in FIR in order to inquire about truthfulness of allegations, cannot be curtailed by High court while exercise of this power. It is well settled that the inherent powers under this Section can be exercised only when no other remedy is available to the litigant. 12. It is also law that statutory power of police to investigate the allegations levelled in FIR in order to inquire about truthfulness of allegations, cannot be curtailed by High court while exercise of this power. Further this court while exercising the power under this Section does not function as a court of appeal, revision or trial court; further this court cannot act as investigation officer of FIR impugned. It is only the I/O, who can investigate the factual matrix of allegations, when a case of cognizable offence is made. A legitimate prosecution cannot be curtailed while exercising this power. 13. In present case, petitioner has raised disputed questions of facts which cannot be adjudicated upon in this petition; these are defence which petitioner has to establish during trial by cross examining the complainant, his witnesses and during his defence witness. 14. In view of above this petition is dismissed. Petitioner has liberty to take all these defence during the course of trial. Interim direction, if any, shall stand vacated. Rashid Ali Dar, J.—This judgment is pronounced by me, in terms of Rule 138(3) of the Jammu and Kashmir High Court Rules, 1999.