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2022 DIGILAW 10 (JK)

Abdul Haq Zargar v. Shafia Akhter

2022-01-31

SANJAY DHAR

body2022
ORDER : Sanjay Dhar, J.-The petitioner has challenged the complaint filed by the respondent against him before the Court of learned Chief Judicial Magistrate, Doda (hereinafter referred to as the “Magistrate”), as also the order dated 10.05.2016 passed by the learned Magistrate in the aforesaid complaint. 2. Facts emerging from the record reveal that the respondent has filed a criminal complaint before the learned Magistrate. In the said complaint, it has been alleged that in the year, 2003, she had entered into a wedlock with the son of the petitioner, namely, Nadeem Ul Haq, who died in the year, 2008. Out of the said wedlock, one son was born. It is alleged in the complaint that after the death of the husband of the respondent, the petitioner started harassing the complainant/respondent and even deprived her of the relief granted by the police department. It is further alleged in the complaint that the petitioner would always harass her and would always try to defame her, as a consequence whereof, she was compelled to marry a second time, which did not go well with the petitioner. Ultimately, on 04.05.2016 at about 11.30 AM, when the complainant was coming back from the Police Lines, Doda, the petitioner abused her and tried to grapple with her. The complainant goes on to allege that with great difficulty, she was able to save herself from the clutches of the petitioner, who threatened to finish her off and to molest her. 3. The learned Magistrate after recording the preliminary statement of the complainant/respondent and her witness, recorded his satisfaction that prima facie offence under Sections 341 and 504 RPC are made out against the petitioner and, accordingly, process was issued against him in terms of order dt. 10.05.2016. 4. It is the aforesaid complaint and the order of issuing process against the petitioner, which has been challenged by the petitioner by way of instant petition. In the petition, it is contended that the second marriage of respondent with one Aftab Ahmed is illegal and against the rules, as the said Aftab Ahmed was already a married person. Thus, according to the petitioner, the said Aftab Ahmed has violated the Rule 22 (2) of the Government Employees (Conduct) Rules, 1971, regarding which the petitioner has already filed a complaint before the police department. Thus, according to the petitioner, the said Aftab Ahmed has violated the Rule 22 (2) of the Government Employees (Conduct) Rules, 1971, regarding which the petitioner has already filed a complaint before the police department. According to the petitioner, an inquiry has been initiated against the aforesaid Aftab Ahmed by the police department and as a counterblast to this action of the petitioner, the respondent has filed the impugned complaint, which is false and frivolous. 5. It is has been further contended that the complaint and the proceedings initiated thereon are sheer abuse of process of law and as such, the same are liable to be quashed. Petitioner disputes the allegations made in the complaint and claims that the incident narrated in the complaint has never taken place as the same is improbable. 6. I have heard learned counsel for the parties and perused the record including the record of the Trial Court. 7. The main contention that has been urged by the learned counsel for the petitioner is that the complaint filed by the respondent against him is a counterblast to the complaint, which the petitioner had filed before the police department against the husband of the respondent. According to the learned counsel, the act of filing the impugned complaint by the respondent is an act of vengeance and there is no semblance of truth in the allegations made in the complaint. The learned counsel has emphasized the fact that the petitioner is a person, aged more than 70 years and comes from a respectable background, as such, it is improbable that he would commit an act of the nature alleged in the complaint. 8. Before dealing with the contentions urged by learned Counsel for the petitioner it would be apt to understand the scope of inherent power of the High Court under Section 482 of Cr.P.C. The same has been discussed by the Supreme Court in State of Andhra Pradesh vs. Golconds Linga Swamy, 2004 (6) SCC 522 . In paras 5, 7 and 8 it has been observed as under:- 5. Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The Section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The Section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. 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 that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the Section which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle quando lex aliquid alique concedit, conceditur et id sine quo res ipsa esse non potest (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the Section, the Court does not function as a court of appeal or revision. Inherent jurisdiction under the Section though wide 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. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent such abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent such abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercises of the powers court would be justified to quash any proceeding if it finds that initiation or continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto. 7. In dealing with the last category, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process no doubt should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the Section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death. At the same time the Section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death. The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal (1992 Supp (1) SCC 335) A note of caution was, however, added that the power should be exercised sparingly and that too in rarest of rare cases. The illustrative categories indicated by this Court are as follows: “(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 F.I.R. 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 F.I.R. 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 S. 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. (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. 8. As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. High Court being the highest Court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. (See : The Janata Dal etc. v. H.S. Chowdhary and others, etc. ( AIR 1993 SC 892 ), Dr. Raghubir Saran v. State of Bihar and another ( AIR 1964 SC 1 )). It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises, arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint/F.I.R. has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant or disclosed in the F.I.R. that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint/F.I.R. is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in Court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by itself be the basis for quashing the proceeding. 9. It is the material collected during the investigation and evidence led in Court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by itself be the basis for quashing the proceeding. 9. Recently the Supreme Court in the case of M/s Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra and others (Criminal Appeal No. 330 of 2021 decided on 13.04.2021, has laid down the following principles:- i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence; ii) Courts would not thwart any investigation into the cognizable offences; iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on; iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the ‘rarest of rare cases (not to be confused with the formation in the context of death penalty). v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to there liability or genuineness or otherwise of the allegations made in the FIR/complaint; vi) Criminal proceedings ought not to be scuttled at the initial stage; vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule; viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere; ix) The functions of the judiciary and the police are complementary, not over lapping; x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences; xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice; xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure; xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court; xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint; xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section482 Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR; xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or “no coercive steps to be adopted” and the accused should be relegated to apply for anticipatory bail under Section 438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or “no coercive steps” either during the investigation or till the investigation is completed and/or till the final report/ chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of the quashing petition under Section 482Cr.P.C. and/or under Article 226 of the Constitution of India. xvii) Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted and/or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can consider what was weighed with the High Court while passing such an interim order. xviii) Whenever an interim order is passed by the High Court of “no coercive steps to be adopted” within the aforesaid parameters, the High Court must clarify what does it mean by “no coercive steps to be adopted” as the term “no coercive steps to be adopted” can be said to be too vague and/or broad which can be misunderstood and/or misapplied. 10. From the forgoing enunciation of law on the subject, it is clear that the power under Section 482 Cr.P.C to quash criminal proceedings has to be exercised sparingly only in deserving cases in the circumstances illustrated in the aforesaid judgments. 11. 10. From the forgoing enunciation of law on the subject, it is clear that the power under Section 482 Cr.P.C to quash criminal proceedings has to be exercised sparingly only in deserving cases in the circumstances illustrated in the aforesaid judgments. 11. Coming to the facts of the instant case, the complaint filed by the respondent against the petitioner, particularly, contents of para (3) of the said complaint discloses commission of offences by the petitioner herein. In the aforesaid para of the complaint details of the incident including the date, time and place are clearly mentioned. Thus, it is not a case where general and vague allegations have been made by the respondent/complainant against the petitioner. These specific allegations are supported by the preliminary statement of the petitioner and her witness. Therefore, it cannot be stated that the complaint and the material in support thereof does not disclose commission of any offence by the petitioner. The question whether this particular incident actually did take place, can be decided only during the trial of the complaint and not in these proceedings. 12. The merits of the contention of the petitioner, that the complaint has been lodged by the respondent against him by way of an act of vengeance as he had filed a complaint with the police department against her husband, cannot be gone into by this Court in these proceedings. Even the allegation of malafides against the complainant by itself is not a ground for quashing the criminal proceedings. This would be a defence available to the petitioner before the Trial Court and it is for the said Court to determine the merits of the complaint in the light of the defence, that may be put up by the petitioner before the said Court. This Court in exercise of its power under Section 482 of Cr.P.C would not be within its jurisdiction to scuttle and stifle the genuine prosecution, like the one which is the subject matter of this petition. 13. For the foregoing reasons, I do not find merit in this petition. The same is, accordingly, dismissed. The interim order dated 22.12.2016 shall stand vacated. 14. A copy of this order be sent to the learned Trial Court for information.