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2023 DIGILAW 111 (JK)

Ab. Qayoom v. State of J&K

2023-03-17

VINOD CHATERJI KOUL

body2023
JUDGMENT : 1. Inherent jurisdiction under section 561-A Cr.P.C. (now 482 Cr.P.C. is being invoked by the petitioner seeking quashment of FIR bearing No. 18/2014, dated 02.04.2014 registered with Police Station, Woman Cell, Canal Road, Jammu for commission of offences punishable under sections 498-A RPC (for brevity 'impugned FIR'). 2. The factual matrix of the matter, as reflected from the complaint, which came to be filed by the respondent No. 3 herein is that the marriage of the complainant- respondent No. 3 herein was solemnized with the petitioner-Abdul Qayoom on 08.11.2006. It is alleged in the complaint that after marriage petitioner started misbehaving with the complainant and his attitude became cruel and hostile towards the complainant and her parents. It is alleged that after marriage she came to know that petitioner is a divorcee from his first marriage which had taken place in the year 1990 and out of the said marriage he has three children. It is alleged that with the financial assistance from the parents of the complainant-respondent No. 3 herein, the petitioner has constructed a house at Narwal, Jammu and after the construction work of the house was over, the petitioner again demanded dowry from the complainant. The parents of the complainant-respondent No. 3 again fulfilled the desire of the petitioner and both of them shifted to Jammu and started living in the newly constructed house, however, petitioner started neglecting her and in spite of repeated request, there was no change in the attitude and conduct of the petitioner. It was also alleged that conduct of petitioner was never smooth and cordial with the complainant-respondent No. 3 herein. It is alleged in the complain that even one day petitioner tried to kill her, but she escaped from the clutches of the petitioner and ultimately on 10.11.2013 she was thrown out of the matrimonial house by the petitioner and since then she is residing with her parents in her parental house. 3. Mr. Basit M. Keng, learned counsel appearing for the petitioner submits that petitioner is an innocent person and has not committed any offence, but the complainant-respondent No. 3 has filed a false and frivolous complaint against the petitioner-herein before respondent No. 2. 3. Mr. Basit M. Keng, learned counsel appearing for the petitioner submits that petitioner is an innocent person and has not committed any offence, but the complainant-respondent No. 3 has filed a false and frivolous complaint against the petitioner-herein before respondent No. 2. It is stated that petitioner got married to respondent No. 3 who was a divorcee from her first marriage with the consent of all the family members and mostly stayed together at Rajouri or Poonch as the petitioner who is a government servant was mostly posted there. Only after a few days from the marriage, the attitude of the respondent No. 3 towards the petitioner and his family members became cruel and hostile. She would abuse the old parents of the petitioner and would not allow the petitioner to meet or maintain his children from his first marriage. It is further stated that petitioner tried to bear this attitude so as to make his marriage woth, but to no avail. Eventually, after seven long years of bearing the hostility, antagonism and cruelty, the petitioner divorced the respondent No. 3 in accordance with Muslim Shariat Law. 4. Learned counsel for the petitioner further submits that after receiving dower (Haq Mehar) the respondent No. 3 started harassing the petitioner and also threatened to lodge a complain against him. In order to avoid all such further acts, petitioner filed a civil suit for declaration declaring the respondent No. 3 under the light of the Talaqnama dated 10.11.2013, as a divorced lady, with a further direction to the respondent No. 3 not to call the petitioner her husband in which notices were issued to the respondents and the matter is still pending before the Court of learned Munsif, Rajouri. 5. The petitioner-herein challenges the impugned FIR No. 18/2014 on the following grounds:- (i) That the impugned Fir registered against the petitioner for offences under section 498-A RPC is completely false and frivolous; (ii) That the impugned FIR filed against the petitioner is nothing but a means of harassment manipulated by the respondent No. 3 in connivance with some people acting against the petitioner; (iii) That the impugned FIR has been registered against the petitioner after almost four months from the date when the respondent No. 3 was divorced by the petitioner; (iv) That the impugned FIR has been registered at the behest of respondent no. 3 only after the petitioner filed a civil suit for declaration declaring the respondent No. 3 under the light of the talaqnama dated 10.11.2013 as a divorced lady; (v) That the impugned FIR deserves to be quashed as the same has been lodged after a huge delay and without giving any cogent reason for the delay in lodging the impugned FIR and, as such, deserves to be quashed. 6. It is contended by the learned counsel for the petitioner that otherwise as well, the allegations made in the impugned FIR, if taken on their face value and accepted in their entirety, do not prima-facie constitute any offence or else make out a case against the petitioner. 7. Heard learned counsel for the parties and perused the record. 8. A perusal of the record tends to show that the impugned FIR has been registered for offence under section 498-A RPC against the petitioner, however, in view of the interim order dated 07.08.2014 passed by this Court, investigation of the instant case has not been completed by the Investigating Officer. 9. It may not be out of place to mention here that the Supreme Court in State of Telangana v. Habib Abdullah Jeelani, reported in 2017 (2) SCC 779 , has held that the powers under section 482 Cr.PC. or under Article 226 of the Constitution of India, to quash the FIR, is to be exercised in a very sparing manner as is not to be used to choke or smother the prosecution that is legitimate. Inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice. Such power has to be exercised sparingly, with circumspection and in the rarest of rare cases. Inherent powers in a matter of quashing FIR have to be exercised sparingly and with caution and only when such exercise is justifying by the test specifically laid down in provision itself. Power under Section 482 Cr.P.C., is a very wide, but conferment of wide power requires the Court to be more conscious. It casts an onerous and more diligent duty on the Court. 10. Power under Section 482 Cr.P.C., is a very wide, but conferment of wide power requires the Court to be more conscious. It casts an onerous and more diligent duty on the Court. 10. The Supreme Court in the case of State of Haryana & ors v. Bhajan Lal and others 1992 Suppl (1) SCC 335, has elaborately considered the scope and ambit of Section 482 Cr.P.C. and Article 226 of the Constitution of India in the background of quashing the proceedings in criminal investigation. After noticing various earlier pronouncements, the Supreme Court enumerated certain categories of cases by way of illustration, where the power under Section 482 Cr. P.C. can be exercised to prevent abuse of the process of the Court or secure ends of justice. Paragraph 102, which enumerates seven categories of cases where power can be exercised under Section 482 Cr. P.C. are extracted as follows: "102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though 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 kinds of cases wherein such power should be exercised. (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 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (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 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. 11. In another case titled as State of Andhra Pradesh v. Golconda Linga Swamy, reported in (2004) 6 SCC 522 , while dealing with the inherent powers of the High Court under Section 482 Cr. P.C, Hon'ble Supreme Court, in paragraphs 5, 7 and 8, has observed as under: "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. 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. 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. 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. 12. In the above backdrop, it may be added here that Section 482 of the Code of Criminal Procedure, preserves inherent powers of the High Court to prevent an abuse of process of any court or to secure ends of justice. The provision does not confer new powers. It only recognizes and preserves powers which inhere in the High Court. The High Court, while forming an opinion as to whether a criminal proceeding or complaint or FIR should be quashed in exercise of its jurisdiction under Section 482 Cr. P.C., must evaluate whether the ends of justice would justify the exercise of the inherent power. While inherent power of the High Court has a wide ambit and plenitude, it has to be exercised to secure ends of justice or to prevent an abuse of the process of any court. 13. A perusal of the record tends to show that the complainant-respondent No. 3 claiming herself to be legally wedded wife of petitioner-Abdul Qayoom filed a complaint under Sections 498-A RPC before the Police Station Women Cell, Jammu against the petitioner. She alleged that right from the beginning of marriage petitioner started misbehaving with the complainant and his attitude became cruel and hostile towards the complainant and her parents. It is alleged that after marriage she also came to know that petitioner is a divorcee from his first marriage which had taken place in the year 1990 and out of the said marriage he has three children. In the complaint it was further alleged that despite providing financial assistance by the parents of the complainant-respondent No. 3 herein she was thrown out of the matrimonial house. 14. In the complaint it was further alleged that despite providing financial assistance by the parents of the complainant-respondent No. 3 herein she was thrown out of the matrimonial house. 14. In the instant case, in view of the interim order passed by this Court on 10.06.2014, investigation by the police has not been completed and at this stage it would be premature to pronounce the conclusion that based on hazy facts 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 complaint 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 law, therefore, registration of FIR cannot be said to be abuse of process of law. Further, the allegations leveled in the impugned FIR regarding the commission of the alleged offences are required to be proved during the trial by adducing the evidence and the grounds taken by the petitioner in the instant petition can be taken in defence before the Trial Court. 15. Resultantly, the interim order dated 10.06.2014 is vacated and official respondents are directed to proceed with the investigation and on completing the same produce the challan before the competent Court. 16. The instant petition is without any merit and is, accordingly, dismissed along with connected CM(s).