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2019 DIGILAW 24 (JK)

Vijay Singh Choudhary v. Toshi Devi

2019-01-28

SANJAY KUMAR GUPTA

body2019
JUDGMENT : 1. Through the medium of the instant petition filed under Section 561-A Cr.PC, the petitioner inter alia seeks quashing of order dated 04.03.2014 passed by the learned Chief Judicial Magistrate, Jammu in a complaint filed by respondent No.1 titled Toshi Devi vs Pardeep Kumar and others whereby the CJM had directed the SHO Police Station Domana to register and investigate the case under law. 2. In the petition, it has been stated that the petitioner is serving in J&K Police as Inspector and was posted as Incharge Police Station Domana in the year 2013 and presently posted in CID Wing of J&K Police, Jammu. 2. In the petition, it has been stated that the petitioner is serving in J&K Police as Inspector and was posted as Incharge Police Station Domana in the year 2013 and presently posted in CID Wing of J&K Police, Jammu. In the year 2013, respondent No.2 herein filed a civil suit against respondent No.1 and others before the court of learned 1st Additional Munsiff (Forest Magistrate), Jammu in the court vide its order dated 02.11.2013 had restrained respondent No.1 from making any sort of interference in the suit property; that on 18.11.2013 the said court directed the Incharge Police Station, Domana to implement the court order dated 02.11.2013; that the petitioner who was incharge Police Station, Domana directed the subordinate officers to get the order implemented; that the said officer when went for implementation of the order, the respondent No.1 produced another order dated 06.07.2012 which was also passed by the leaned 1st Additional Munsiff (Forest Magistrate), Jammu in case titled Toshi Devi and another vs Pardeep Kumar and another in which the court had directed to maintain status quo; that both the parties i.e. respondent No.1 & 2 were litigating against same property being co-sharers and co-owners; that both were backing on the orders passed by the learned 1st Additional Munsiff (Forest Magistrate), Jammu in different cases on different dates; that the petitioner who was at that time posted as SHO, Police Station, Domana, wrote a letter to Tehsildar Jammu on 21.11.2013 requesting him to depute patwari Halqa Seri Rakwalan to visit on spot for demarcation of the land so that the order passed by the court is implemented in its letter and spirit; that on 23.11.2013, the petitioner along with Patwari Halqa went on spot for demarcation of land, but before the petitioner reached there, respondent No.2 had already ploughed the land; that the order dated 18.11.2013 was served upon respondent no.1 by the subordinate officer accompanied by the petitioner and she was told not to cause interference into the land as per the order of learned 1st Additional Munsiff (Forest Magistrate), Jammu; that respondent No.1 Toshi Devi filed a complaint u/s 447/147 RPC against ten persons including the petitioner; that the complaint was filed before the CJM, Jammu, who ordered the SDPO Domana to get the matter investigated under law on 25.11.2013. After conducting the detailed enquiry and recording the statements of many persons submitted the report before the CJM, Jammu on 11.01.2014 stating that the land in dispute was in possession of Toshi Devi and when Toshi Devi was sowing the paddy crop, Pardeep Kumar started interfering and there was clash between both the parties and FIRs were registered against each other, then both the parties filed civil litigations and stay orders were issued; that after submission of the report before the learned CJM, Jammu, the CJM Jammu without going through the report of SDPO, has observed that the report reveals commission of cognizable offence and directed SHO, Police Station, Domana to register FIR against the petitioner and others and investigate the case. 3. I have considered the rival contentions of the parties. In AIR 2017 SC 37 in case titled State of Telangana v Habib Abdullah Jeelani & 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 CrPC 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 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. (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.” It is worthy to note that the Court has clarified that the said parameters or guidelines are not exhaustive but only illustrative. Nevertheless, it throws light on the circumstances and situations where court’s inherent power can be exercised. 12. There can be no dispute over the proposition that inherent power in a matter of quashment of FIR has to be exercised sparingly and with caution and when and only when such exercise is justified by the test specifically laid down in the provision itself. There is no denial of the fact that the power under Section 482 CrPC is very wide but it needs no special emphasis to state that conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the Court. As per above law, criminal proceeding is liable to be quashed, if it does not disclose any offence or is frivolous, vexatious or oppressive. Further if the allegations set out in complaint do not constitute offence of which cognizance has been taken by the Magistrate, criminal proceeding can be quashed. 4. From bare perusal of the documents attached with the petition, it is evident that respondent No.2 herein filed a civil suit for permanent prohibitory injunction against respondent No.1 and other before the learned 1st Additional Munsiff (Forest Magistrate), Jammu in respect of the land in question on 02.11.2013, the learned Magistrate vide its order dated 02.11.2013 passed in an application for temporary injunction restrained the respondent No.1-(Toshi Devi and others) from interfering into the suit property. On 18.11.2013, the learned 1st Additional Munsiff (Forest Magistrate), Jammu, in the application of the plaintiff therein directed the SHO Police Station, Domana to implement the order dated 02.11.2013 in its letter and spirit. The petitioner being SHO of Police Station, Domana on receipt of that order, directed the In-charge Police Post Pouni Chak to implement the order in its letter and spirit as per direction of the learned 1st Additional Munsiff (Forest Magistrate), Jammu. Except this he has done nothing. Therefore, I am of the view that no case is made out against the petitioner under Section 447/147 RPC as alleged by complainant/respondent No.1 herein in his complaint. The police officers have responsibilities to enforce laws, prevent crimes, respond to emergencies, and to provide support services. In case police officers are involved in false and vexatious complaint, then it would become difficult to execute the court order, because police provides support service in execution of court orders. The police officers have responsibilities to enforce laws, prevent crimes, respond to emergencies, and to provide support services. In case police officers are involved in false and vexatious complaint, then it would become difficult to execute the court order, because police provides support service in execution of court orders. It is not the case of complainant that police agency has on its own went on spot; police had gone on spot on the direction of court order for implementing the court direction dated 02.11.2013 in its letter and spirit. 5. In view of the above, this petition is allowed and it is held that criminal proceedings launched against the petitioner in the complaint filed by the respondent No.1 titled Toshi Devi vs Pardeep Kumar is manifestly attended with mala fide and has been 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. All these allegations 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 petitioner. Therefore, the proceeding against petitioner is, thus, quashed; however, the concerned police is directed to proceed ahead with other private persons mentioned in said complaint.