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2019 DIGILAW 259 (JK)

Suresh Gautam v. Kartar Singh

2019-04-26

SANJAY KUMAR GUPTA

body2019
JUDGMENT : 1. In the present petition filed under Section 561-A of Cr.P.C., petitioner seeks quashment of the complaint together with summoning order dated 11.06.2014 issued in complaint titled Kartar Singh vs. Suresh Gautam, pending before the Chief Judicial Magistrate, Udhampur. 2. The case of the petitioner is that the respondent has filed the complaint before Chief Judicial Magistrate, Udhampur against the petitioner for the commission of offence under Section 342, 344, 504, 506, 323 RPC. It is stated that upon filing of the complaint, learned Chief Judicial Magistrate, Udhampur referred the complaint under Section 202 Cr.P.C. to the learned Mobile Magistrate Traffic, Udhampur for conducting an inquiry. The learned inquiry Magistrate was pleased enough to conduct the inquiry and during the course of inquiry, recorded the statement of complainant as well as his son Surinder Singh and on the strength of the statements made therein, was pleased enough to conclude the commission of offence under Section 348 along with 506 RPC, completely ignoring the facts that neither the complaint nor the statement recorded in support thereof, despite being drafted and filed by learned Advocate, does not disclose the commission of offence under Sections 348 & 506 and in the name of the inquiry, the inquiry Magistrate has merely recorded the statement of the complainant and that of his son only, on the basis whereof furnished the report contrary to the complaint. It is stated that the learned Chief Judicial Magistrate, Udhampur on the basis of inquiry report, issued the process against the petitioner for the commission of the offence under Sections 342, 348 & 506 RPC vide order dated 11.06.2014. It is further submitted that vide order dated 11.06.2014 while issuing the process, the learned Chief Judicial Magistrate, Udhampur simultaneously appointed the Commissioner to visit the police station, Rehambal as well as Police Post, Tikri so as to find out whether or not the son of complainant is being detained by the police or not, which prima-facie discloses the fact that the learned court did not believe the version of the complainant and on the other hand issued the process without waiting for the report of the Commissioner. It is stated that in pursuant to the order, the Commissioner submitted the report in negative. 3. The report of the Commissioner reads as under:- “That the Ld. It is stated that in pursuant to the order, the Commissioner submitted the report in negative. 3. The report of the Commissioner reads as under:- “That the Ld. Court in the above titled complaint appointed me as a commissioner and vide Order No. 107/CJMU, dated 11.06.2014, I was directed to visit the premises of both Police Station, Rehambal as well as Police Post, Tikri and to submit a report as to, whether or not the son of the complainant namely, Rakesh Singh is being detained by the authorities of the police or not. That I along with the complainant on 11.06.2014 itself visited the Police Post, Tikri at 2:30 P.M. and after informing the police personal on duty searched the lockup and other rooms located on first floor of the Police post but the son of the complainant was not found there. That we even searched/looked into the surrounding premises and vehicles parked in the police post but no one is found there. That after 45 min. of search we left the place for Police Station, Rehambal. That we reached the Police Station, Rehambal at about 3:30 and there too the search was made/conducted in whole building but the son of the complainant could not be found. Accordingly the commissioner report is submitted to the Ld. Court. Sahil Raina Dated: 12.06.2014 Advocate (Commissioner).” 4. Learned counsel for the petitioner states that the issuance of the summoning order, from the point of the view of appointment of commissioner specifically shows that either the process stands issued mechanically as the learned Magistrate still doubted the complaint as well as the inquiry report, as such, the process is vitiated by non-application of mind and result of failure to exercise the jurisdiction, as such, amounts to abuse of the process of the court. It is stated that another aspect of the matter is that when the complaint was listed for hearing on 02.07.2014 then taking of the matter at the instance of the complainant on 11.06.2014 itself is against the law. It is further stated that the motion made by complainant for preponement does reveals the motive of the complainant in filing the complaint as oblique as the complaint as well as the order issuing the process and the inquiry report does reveal the ongoing inquest proceeding initiated at Police Post, Tikri qua the suspicious death, rape of young lady Subadri Devi D/o Sh. Shoba Ram R/o Aghar Balliya, Tehsil & District Reasi, whose dead body was reported to have been found in the forest of Mand Tehsil Udhampur. 5. Learned counsel for the petitioner states that on 24.04.2014, information with regard to the death of a lady in unnatural circumstances in the forest of Village Mand was reported, pursuant whereto proceedings under Section 174 Cr.P.C. commenced at Police Post, Tikri and ASI, namely, Krishan Lal was conducting the proceedings. As the body was not identified so publication of the photographs was effected, pursuant whereto on 26.04.2014, the dead body was identified as Subadri Devi D/o Shiv Ram R/o Village Aghar Balliya Tehsil Reasi and the proceedings in accordance with law stands initiated. During the pendency of the proceeding, the respondent has filed the bail application pursuant whereto the report was submitted to the court that this Rakesh Singh was being called in relation to the death of Subadri Devi and has not been detained or arrested. 6. Learned counsel for the petitioner further states that after the conclusion of the inquiry proceedings, an FIR No. 92/2014 was registered with the police Station, Rehambal for commission of offences under Section 302/376/366 RPC against Rakesh Singh on 11.06.2014 and the said FIR was investigated and final charge sheet under Section 302/376/366 RPC stands presented before the Court at Udhampur. It is stated that the complaint has been filed merely for the harassment of the petitioner for discharging the public duties in accordance with law as such no offence has been committed by the petitioner while discharging the duties and hence the process issued against the petitioner results in the abuse of process of the court at the instance of the complainant having filed the complaint mala fide. 7. I have considered the rival contentions of parties. Before proceeding ahead, the operative part of the impugned order dated 11.06.2014, passed by Chief Judicial Magistrate, Udhampur reads as under:- “Thus what emerges prima-facie from the above discussion is that Rakesh Singh is "being held in wrongful confinement of Incharge Police Post, Tikri w.e.f. 06.05.2014 and the complainant has been threatened of dire consequences in case he approaches the court of law against the wrongful confinement of Rakesh Singh. Thus there is prima-facie material on record to proceed against the Incharge Police Post, Tikri for the commission of offences under Section 348 and 506 of RPC. Thus there is prima-facie material on record to proceed against the Incharge Police Post, Tikri for the commission of offences under Section 348 and 506 of RPC. That said, after considering the submissions made by the learned counsel for the complainant perusing the entire record including the pre-summoning evidence and the report of the enquiry received from the Ld. District Judicial Mobile Magistrate, Udhampur I am satisfied that the accused prima-facie appears to have committed offences made punishable under Sections 342, 348 and 506 of RPC. In the circumstances, process, by way of summons, compelling the attendance of the accused to answer a charge for offences under Sections 342, 348 and 506 of RPC is issued for 14.06.2014 Summons for service of the accused are forwarded to Sr. Superintendent of Police, Udhampur, along with a copy of the complaint and this order, under his own supervision and control. Further, taking into account the serious nature of allegations and the facts and circumstances of the case, the submission of the learned counsel for the complainant for appointment of Commissioner also-appear to be well-merited and deserves acceptance. Accordingly, Sh. Sahil Raina, Advocate is appointed as Commissioner with the direction to visit the premises of both Police Station: Rehambal as well as that of Police Post: Tikri, today itself and submit a report at the earliest as to whether or not the son of the complainant is being detained by the authorities of the police or not? The fee of the Commissioner for the purposed is fixed at Rs. 1500/- to be paid by the Complainant. The Complainant shall accompany the Commissioner at the time of visit to the premises of Police Station: Rehambal and Police Post: Tikri. Orders accordingly.” 8. From bare perusal of impugned order, it is evident that trial court (CJM) has recorded his satisfaction while passing the impugned order after got conducting the detail inquiry from subordinate JMIC under Section 202 Cr.P.C. with regard to truthfulness of allegations leveled in the complaint by respondent. This court does not find any illegality in the order of court below while taking cognizance of offence, as after going through the inquiry conducted by JMIC, prima facie, case has been made out. Police cannot keep any person in illegal confinement/custody. This court does not find any illegality in the order of court below while taking cognizance of offence, as after going through the inquiry conducted by JMIC, prima facie, case has been made out. Police cannot keep any person in illegal confinement/custody. Even if any person is accused of any offence, he has to be kept in custody only after obtaining remand order from Magistrate as per provisions of Cr.P.C. Exercise of power under Section 561-A Cr.P.C. is the exception and not rule- Inherent jurisdiction of High Court under this section may be exercised:- 1. To give effect to an order under the Code. 2. To prevent abuse of the process of Court. 3. To otherwise secure the ends of justice. 9. Perusal of this section makes it clear that the provisions of the Code are intended to limit or affect the inherent powers of the High Courts. Obviously the inherent power can be exercised only for any of the three purposes specifically mentioned in the section. This inherent power cannot naturally be invoked in respect of any matter covered by the specific provisions of the Code. It is only if the matter in question is not covered by any specific provision of the Code than this section can come into operation, subject further to the requirement that the exercise of such power must serve either of the three purposes mentioned in the said section. 10. It is only where the High Court is satisfied either that an order passed under the Code would be rendered ineffective or that the process of any court would be abused or that the ends of justice would not be secured, the power under this section can be used. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases which may possibly arise. 11. Under Section 561-A Cr.P.C., High court does not conduct a trial or appreciate evidence or function as court of appeal or revision. This power has to be exercised sparingly with circumspection and in the rarest of rare cases. While exercising powers under Section 561-A of the Cr.P.C., the Court has to keep in mind that it should not ordinarily embark upon any legal order passed by any Court. This power has to be exercised sparingly with circumspection and in the rarest of rare cases. While exercising powers under Section 561-A of the Cr.P.C., the Court has to keep in mind that it should not ordinarily embark upon any legal order passed by any Court. In present case, all the grounds taken in petition are pertaining to appreciation of facts, which this court cannot appreciate in detail. Petitioner has failed to apprise the court as to whether there is some legal bar engrafted in any law for taking cognizance by court below. 12. So petitioner has not made out any case for interference with the orders impugned. Hence, this petition is dismissed along with all connected MPs, if any.