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2023 DIGILAW 21 (JK)

Sohan Lal Sharma v. UT of J. & K.

2023-02-03

M.A.CHOWDHARY

body2023
JUDGMENT : 1. This petition has been filed under section 482 Cr.P.C. seeking quashment of the FIR No. 72/2022 dated 26.06.2022 registered at Police Station Thathri Doda, at the behest of respondent No. 2, wherein the petitioner-accused person was found involved in the commission of offence punishable under section 366/376 IPC. 2. Petitioner/accused pleaded following facts:- a) That the petitioner is a defence personnel serving in Army in a unit of Rashtriya Rifles as a sepoy and is presently posted at Anantnag. He is the only earning hand in the family comprising of old aged mother and himself. His father has died when the petitioner was of a tender age. b) That the daughter of the complainant who is doing her MA and is major girl residing in nearby village, managed Whatsapp number of the petitioner and started messaging him from her Mobile No. 9149699762 and expressed her desire to marry with the petitioner. At the time when the daughter of the complainant started sending messages to the petitioner, the petitioner was on his active duty in Kashmir Valley. The petitioner has never indulged in any such activity with the daughter of the complainant which could be termed as indecent or offensive. Thereafter the complainant and her daughter have been time and again approaching the mother of the petitioner for marriage of the petitioner with the daughter of the respondent no. 2 but the petitioner has all along refused the proposal. The daughter of the complainant has been time and again and at regular intervals pressurizing and trying to persuade the petitioner to marry with her but the petitioner always has categorically been telling her that he is not willing to marry her. She has been constantly text messaging the petitioner and using all her means to force the petitioner to marry her but the petitioner has never agreed to her demand and she has even been threatening the petitioner in her text messages that she will get her marriage solemnized with the petitioner even forcibly. She says in her text message: ''Mai apse Zabardasti bhi Shadi Krvayu gi. Par Abhi nhi. Tum ana par. Bht hua apka drama". She says in her text message: ''Mai apse Zabardasti bhi Shadi Krvayu gi. Par Abhi nhi. Tum ana par. Bht hua apka drama". This is chat of April 2022 at 10:40 p.m., there are other messages also which clearly show that it is the daughter of the respondent no.2 who has been constantly trying to force the petitioner to marry with her but the petitioner has always been showing no interest in marriage with the daughter of the respondent no. 2. c) That the missing of the daughter of the respondent no. 2 on 19.06.2022 and a report with the police on 20.06.2022 where the petitioner is nowhere figuring in the whole story of the complainant that her daughter had gone to Jammu, lived one night at Jammu and then went to Srinagar with some unknown lady lived with her in a hotel at Srinagar and then she was recovered by the Thathri Police from Outskirts of Srinagar. The petitioner has no concern with this whole episode but the complainant has tried to use this episode to falsely implicate the petitioner in a serious criminal case of abduction and rape only to blackmail the petitioner for contracting marriage with her daughter. The allegations of the complainant that the petitioner had called her daughter on phone during night at 10:00 p.m. and told her that he will marry with her and under this garb committed rape upon the daughter of the complainant, is a story which ex-facie appears to be fabrication and a plot to falsely involve the petitioner. d) That the falsity of the allegations is clear from the fact that once the complainant had lodged a missing report of her daughter with the respondent No. 1 and he, in pursuance to this report, recovered the girl (daughter of the complainant) from Srinagar, then the girl must have told the whole story to the respondent no. 1 and had there been any such thing happened with the girl, she would have told the Police and Police would have registered the case but that did not happen because after the police recovered the girl, based on her statement, the girl was handed over to the parents and missing report ostensibly closed as settled. 1 and had there been any such thing happened with the girl, she would have told the Police and Police would have registered the case but that did not happen because after the police recovered the girl, based on her statement, the girl was handed over to the parents and missing report ostensibly closed as settled. The report filed by the complainant on 26.06.2022 is completely an after-thought, a tailored and cosmetic story leveling totally baseless and frolicsome allegations against the petitioner and the respondent no. 1 without considering the consequences of the allegations upon the petitioner rushed to register a case under heinous offences of abduction and rape u/s 366/376 IPC against the petitioner being case FIR No. 72/2022 dated 26.06.2022 of Police Station Thathri Doda. 3. Respondent in his counter has stated that the petitioner is involved in the serious crime, the crime committed by the accused/petitioner is not only against the women is also against society as well. It is further contended that the present petition under section 482 Cr.P.C. is not maintainable as the petition is based on concocted story and involves factual disputes which can be adjudicated after full-fledged trial by leading evidence before the competent court of law. The investigation in the case is at very initial stage and scope of interference by the court in the matter of investigation is very bleak, thus present petition deserves to be dismissed. 4. Heard learned counsel for the parties and considered the matter. I have also perused the material available on record. 5. According to learned counsel for petitioner, allegations leveled are totally baseless, malicious and do not disclose any offence. It is averred that allegations made in the FIR, even if are taken on their face value and accepted in their entirety, do not prima facie constitute any offence or make out a case against the petitioner and despite the fact that petitioner is being harassed by respondent No. 2 by pressurizing the petitioner to marry with her and this is a beaten law of the land that where a criminal proceeding is manifestly attended with mala fide or maliciously instituted with an ulterior motive for wreaking vengeance on the accused, the same deserve to be quashed. 6. 6. Before dealing with the contentions raised by the petitioner, it would be apt to understand the scope of power of the High Court under section 482 of the Cr.P.C. The same has been discussed by the Supreme Court in the case titled, State of Andhra Pradesh v. Golconda Linga Swamy, 2004 (6) SCC 522 . Paras 5, 7 and 8 of the judgment are relevant to the context and the same are reproduced 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. 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. 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. 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. Ch. 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 : Janata Dal etc. v. H.S. Chowdhary and others, etc. ( AIR 1993 SC 892 ), Raghubir Saran (Dr.) 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.” 7. 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.” 7. On the same subject, recently the Supreme Court in the case of Neeharika Infrastructure Pvt. Ltd. (M/S) v. State of Maharastra & Ors., (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. 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 section 482 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 482 Cr.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. 8. 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. 9. 8. 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. 9. FIR sought to be quashed had been registered at Police Station Thathri of District Doda on 26.06.2022 on a report lodged by one Nirjella Devi W/O Bushan Kumar R/O Bag Barshalla, Thathri District Doda alleging therein that on 20.06.2022 her daughter a student of Government Degree College, Thathri did not return till 5 O'clock and that she had laid a missing report on 21.06.2022 in this regard at the Police Station and SHO had brought back her daughter after being recovered from Srinagar area to Police Station Thathri on 23.06.2022 and handed over her to them. On enquiry from her daughter she disclosed that one Sohan Lal (petitioner herein) used to call her telephonically frequently and a few days back at about 10 p.m. she was asked by him to come out and he would marry her and that in the promise of marriage, she was sexually ravished; that on 20.06.2022 she had gone to college he met her on her way, gave her Rs. 2000/- and told her to board a vehicle to reach Jammu wherefrom his man shall meet her and keep her there; that in Jammu, nobody met her and she kept roaming and next morning she went to Bus Stand where she was weeping and suddenly a woman met her to whom she narrated the story and that woman who was going to Srinagar took her along, she stayed in a hotel along with that woman and next day police had recovered her from Srinagar and brought back to Police Station Thathri. On this report, a case was registered vide impugned FIR for commission of offences punishable under sections 376/366 IPC. 10. During investigation of the case, the statement of the prosecutrix got recorded in terms of Section 164 Cr.P.C. on 04.07.2022 wherein she stated that she had affair with the petitioner who proposed her for marriage. On 24.05.2022 while she came back from the house of her sister at 9.30/10 p.m. accused intercepted her near shops and took her on the roof of a shop where she was subjected to rape and thereafter she was threatened of dire consequences. On 24.05.2022 while she came back from the house of her sister at 9.30/10 p.m. accused intercepted her near shops and took her on the roof of a shop where she was subjected to rape and thereafter she was threatened of dire consequences. He also assured her of contracting marriage. On 26.05.2022 she was again called by him, however, on her refusal to meet him, she was black-mailed of expose and when she did not meet him he started defaming her in public and his friends. He used to tease her while going to and fro college. She had been given an amount of Rs. 2000/- by the petitioner on 20.06.2022 to leave for Jammu and in case his man does not meet her in Jammu she was advised to go to Anantnag, where he will contract court marriage with her as they cannot solemnize the marriage at Thathri in view of their different castes. She spent her night in a cabin of watchman of a show-room in Rehari area of Jammu and next day she accompanied a lady to Srinagar. She had switched off her phone in Jammu as advised by the petitioner and on reaching Srinagar she switched on, her phone at 5/6 p.m. and on tracing her location, she was apprehended by the police and taken back to Thathri. On returning home, she had narrated the story to her mother, her parents took up the matter with the family of the petitioner for marriage and when they did not agree, FIR was lodged against the petitioner. 11. Coming to the facts of the instant case, the contents of the impugned FIR clearly disclose commission of cognizable offences by the petitioner. The veracity of these allegations cannot be gone into by this Court in the present proceedings. It is the investigating agency only, which is equipped to test the veracity of these allegations. This Court cannot arrogate to itself the powers of the investigating agency so as to determine the merits of the contention of the petitioner that the allegations made in the FIR are false. Even the allegations of mala fides against the informant by itself is not a ground for quashing the criminal proceedings. This Court cannot arrogate to itself the powers of the investigating agency so as to determine the merits of the contention of the petitioner that the allegations made in the FIR are false. Even the allegations of mala fides against the informant by itself is not a ground for quashing the criminal proceedings. The contention of learned counsel for the petitioner that respondent No. 2 has lodged the impugned FIR only to wreck vengeance upon him can also be gone into by the investigating agency during investigation of the case. 12. In view of the foregoing discussion, it is clear that this is not a case where contents of the FIR do not disclose commission of any offence against the petitioner but it is a case where the contents of the impugned FIR certainly disclose the commission of cognizable offences. Therefore, the exercise of jurisdiction under section 482 Cr.P.C. to quash the impugned FIR in the instant case, would amount to stifling a legitimate prosecution which is not permissible under law. 13. For the foregoing reasons, I do not find any merit in this petition and the same is dismissed accordingly.