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2023 DIGILAW 268 (JK)

Kali v. Union Territory of J&K

2023-07-12

VINOD CHATTERJI KOUL

body2023
JUDGMENT : 1. Petitioners, through the medium of this petition, have invoked the inherent jurisdiction of this Court in terms of Section 482 Cr. P.C seeking quashment of FIR 26/2020 dated 26.11.2020 registered at Police Station, Women Cell, Udhampur under Sections 498-A/323 IPC, on the instance of respondent No.3, qua the petitioners and all consequential proceedings thereof being abuse of process of law and to defeat the order dated 17.11.2020 passed by this Court in WP(C) 1836/2020 titled “Noor Bibi & Ors. vs. UT of J & K & Ors.” 2. The impugned FIR is being challenged by the petitioners on the following grounds : (1) That the impugned FIR is against the facts and law therefore, the impugned FIR required to be quashed. (2) That the impugned FIR none other than the to defeat the order dated 17.11.2020 Passed by this Hon'ble court in WP(C) No. 1836/2020 Titled "Noor Bibi & Ors. Vs UT & Ors." Whereby directed not to harass the Petitioners and when Petitioners Individually have served this order to Respondent no. 2 then she should respect the order of this Hon'ble court have lodge the impugned FIR with Malafide intentions because the Impugned FIR had not contain any whisper of proceedings going on before the Respondent no.2 since month ago therefore, the impugned FIR is not Sustainable in the eyes of law and requires to be Quashed. (3) That the impugned FIR has lodged by the respondent no. 2 totally in contravention of judgment and guidelines laid down by Hon'ble Supreme Court in case titled "Rajesh Sharma V/s State of U.P. reported in (2017) AIR (SC) 3869." It was held in Para 14:- "Section 498A was inserted in the statute with the laudable object of punishing cruelty at the hands of husband or his relatives against a wife particularly when such cruelty had potential to result in suicide or murder of a woman as mentioned in the Statement of Objects and Reasons of the Act 46 of 1983. The expression "cruelty" in Section 498A covers conduct which may drive the women to commit suicide or cause grave injury (mental or physical) or danger to life or harassment with a view to coerce her to meet unlawful demand." It is a matter of serious concern that large numbers of cases continue to be filed under Section 498A alleging harassment of married women. We have already referred to some of the statistics from the Crime Records Bureau. This Court had earlier noticed the fact that most of such complaints are filed in the heat of the moment over trivial issues. Many of such complaints are not bonafide. At the time of filing of the complaint, implications and consequences are not visualized. At times such complaints lead to uncalled for harassment not only to the accused but also to the complainant. Uncalled for arrest may ruin the chances of settlement. This Court had earlier observed that a serious review of the provision was warranted. The matter also appears to have been considered by the Law Commission, the Malimath Committee, the Committee on Petitions in the Rajya Sabha, the Home Ministry, which have been referred to in the earlier part of the Judgment. The abuse of the provision was also noted in the judgments of this Court referred to earlier. Some High Courts have issued directions to check such abuse. In Arnesh Kumar (supra) this Court gave directions to safeguard uncalled for arrests. Recommendation has also been made by the Law Commission to make the offence compoundable” Further in Para 19 laid down following guidelines: - Thus, after careful consideration of the whole issue, we consider it fit to give following directions:- (i) (a) In every district one or more Family Welfare Committees be constituted by the District Legal Services Authorities preferably comprising of three members. The constitution and working of such committees may be reviewed from time to time and at least once in a year by the District and Sessions Judge of the district who is also the Chairman of the District Legal Services Authority. (b) The Committees may be constituted out of para legal volunteers/social workers/retired persons/wives of working officers/other citizens who may be found suitable and willing. (c) The Committee members will not be called as witnesses. (d) Every complaint under Section 498A received by the police or the Magistrate be referred to and looked into by such committee. Such committee may have interaction with the parties personally or by means of telephone or any other mode of communication including electronic communication. (e) Report of such committee be given to the Authority by whom the complaint is referred to it latest within one month from the date of receipt of complaint. Such committee may have interaction with the parties personally or by means of telephone or any other mode of communication including electronic communication. (e) Report of such committee be given to the Authority by whom the complaint is referred to it latest within one month from the date of receipt of complaint. (f) The committee may give its brief report about the factual aspects and its opinion in the matter. (g) Till report of the committee is received, no arrest should normally be effected. (h) The report may be then considered by the Investigating Officer or the Magistrate on its own merit. (i) Members of the committee may be given such basic minimum training as may be considered necessary by the Legal Services Authority from time to time. (j) The Members of the committee may be given such honorarium as may be considered viable. (k) It will be open to the District and Sessions Judge to utilize the cost fund wherever considered necessary and proper. (ii) Complaints under Section 498A and other connected offences may be investigated only by a designated Investigating Officer of the area. Such designations may be made within one month from today. Such designated officer may be required to undergo training for such duration (not less than one week) as may be considered appropriate. The training may be completed within four months from today; (iii) In cases where a settlement is reached, it will be open to the District and Sessions Judge or any other senior Judicial Officer nominated by him in the district to dispose of the proceedings including closing of the criminal case if dispute primarily relates to matrimonial discord; (iv) If a bail application is filed with at least one clear day's notice to the Public Prosecutor/complainant, the same may be decided as far as possible on the same day. Recovery of disputed dowry items may not by itself be a ground for denial of bail if maintenance or other rights of wife/minor children can otherwise be protected. Recovery of disputed dowry items may not by itself be a ground for denial of bail if maintenance or other rights of wife/minor children can otherwise be protected. Needless to say that in dealing with bail matters, individual roles, prima facie truth of the allegations, requirement of further arrest/ custody and interest of justice must be carefully weighed; (v) In respect of persons ordinarily residing out of India impounding of passports or issuance of Red Corner Notice should not be a routine; (vi) It will be open to the District Judge or a designated senior judicial officer nominated by the District Judge to club all connected cases between the parties arising out of matrimonial disputes so that a holistic view is taken by the Court to whom all such cases are entrusted; and (vii) Personal appearance of all family members and particularly outstation members may not be required and the trial court ought to grant exemption from personal appearance or permit appearance by video conferencing without adversely affecting progress of the trial. (viii) There directions will not apply to the offences involving tangible physical injuries or death. But Police agency has straight forwardly lodge the FIR and no offence under section 498-A/323 IPC has made out against the Petitioners therefore, the impugned FIR requires to be quashed. Copy of the Judgment is enclosed herewith & Marked as Annexure-V. (4) That the bare reading of the Impugned FIR clearly showing that as per allegation of the respondent no.3 incident was narrated is in very general in nature and no specific allegation against any one of the petitioners however, it was held by the Hon'ble Apex court and various High court that unless circumstances was not in such nature which forced/push a lady for committing to suicide section 498-A not attracted and even a person of common diligence will discard the concocted story as mentioned in the FIR hence the impugned FIR is sheer abusement of process of Justice hence requires to be quashed. (5) That no such offence has ever been committed as alleged in the impugned FIR moreover, the bare reading of the impugned FIR dearly showing that no offence under section 498-A/323IPC made out against the Petitioners hence requires to be quashed. (5) That no such offence has ever been committed as alleged in the impugned FIR moreover, the bare reading of the impugned FIR dearly showing that no offence under section 498-A/323IPC made out against the Petitioners hence requires to be quashed. (6) That the Hon'ble Apex court in case titled "State of Haryana V/s Bhajan Lal, 1992 Supp (1) SCC 335" has held that "Power under section 482 Cr.P.C. should be exercised where a criminal proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to harass him due to private and personal grudge" therefore, in light of aforesaid judgment of the Hon'ble Supreme court the Impugned FIR is nullity in the eyes of law hence requires to be quashed. (7) That it is settled law that the criminal courts are clothed with inherent power to make such orders as may be necessary for meeting of ends of justice. It is submitted that the powers should be exercised in appropriate cases and to do real and substantial justice for administration of justice which alone the courts exist. The powers under section 482 Cr.P.C. which the Hon'ble High court possessed are very wide and very plentitude and in the present case court should come to rescue of Petitioners who are not involved in any offence as alleged by the police in the impugned FIR is false and frivolous hence requires to be quash. 3. Respondent No.2-SHO/Incharge Police Station Women Cell, Udhampur in her counter has stated that on 26.11.2020, a written complaint was filed by Shamshad Begum W/o Mohd. Mushtaq Caster Gujjar R/o Balli Nallah Teshil & District Udhampur against her husband and in laws namely 01. Mohd. Mushtaq S/o Feroz Din (husband) 02. Ghulam Fatima D/o Feroz Din (Sister-in-law); 03. Asha Bibi D/o Feroz Din (Sister-inlaw); 04. Noor Bibi D/o Feroz Din (Sister-in-law); 05. Kali W/o Firoz Din (Mother-in-law) and 06. Modh. Haneef S/o Feroz Din (Brother-inlaw) all residents of Balli Nallah Tehsil & District Udhampur. 4. During course of the investigation, the I.O visited the spot, prepared site plan and recorded the statement of the complainant and other witnesses u/s 161 Cr.P.C. During investigation, it has been established that offences punishable under Section 498-A/323 IPC have been proved against the petitioner namely 01. Mohd. 4. During course of the investigation, the I.O visited the spot, prepared site plan and recorded the statement of the complainant and other witnesses u/s 161 Cr.P.C. During investigation, it has been established that offences punishable under Section 498-A/323 IPC have been proved against the petitioner namely 01. Mohd. Mushtaq S/o Feroz Din Caste Gujjar R/o Balli Nallah Tehsil & District Udhampur, whereas offence under Section 498-A IPC has been established against rest of the accused persons namely 02. Ghulam Fatima D/o Feroz Din (Sister-in-law); 03. Asha Bibi D/o Feroz Din (Sister-in-law); 04. Noor Bibi D/o Feroz Din (Sister-in-law); 05. Kali W/o Firoz Din (Mother-in-law) and 06. Modh. Haneef S/o Feroz Din (Brother-in-law) all residents of Balli Nallah Tehsil & District Udhampur. 5. Learned counsel for the respondents submits that the challan could not be presented because of the order dated 04.12.2020 passed by this Court whereby, the presentation of challan has been stayed. 6. Heard learned counsel for the parties and considered the matter. I have also perused the material available on record. 7. According to learned counsel for petitioners, allegations leveled are totally baseless, malicious and do not disclose any offence. It is contended that there being manifest, patent injustice apparent on the face of record of complaint and there is non-application of mind in passing the impugned order inasmuch as there is no evidence with regard to the allegations against the petitioners as is disclosed in the investigation of the police. It is averred that allegations made in the impugned 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 petitioners and despite such facts, petitioners are being harassed by respondents 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 is liable to be quashed. 8. Before analyzing the facts emanating from the record of the trial court, it would be apt to notice the legal position as regards the scope of powers of the High Court under Section 482 of the Code of 1973, to interfere with the proceedings/complaint filed before a Magistrate. 9. 8. Before analyzing the facts emanating from the record of the trial court, it would be apt to notice the legal position as regards the scope of powers of the High Court under Section 482 of the Code of 1973, to interfere with the proceedings/complaint filed before a Magistrate. 9. The power under Section 482 of Cr.P.C can be exercised by the High Court to prevent the abuse of process of the Court and otherwise to secure the ends of justice. The authority of the Court exists for advancement of justice and if any attempt is made to abuse the said authority, the Court has the power to prevent that abuse. These inherent powers of the High Court are wide in their scope. Wider the power, higher the degree of responsibility upon the authority vested with such power to exercise it with circumspection. These powers are generally exercised to secure the ends of justice. 10. The Supreme Court in the case of State of Haryana & Ors. vs. Ch. Bhajan Lal & Ors reported as 1992 Suppl (1) SCC 335, has dealt with the scope of power of High Court under Section 482 Cr.P.C 1973 in an elaborate manner. Paragraphs 102 and 103, 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. (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. (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. 103. (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. 103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.” 11. In Pepsi Foods Ltd. & Anr. vs. Special Judicial Magistrate & Ors. reported as (1998) 5 SCC 749 , the Supreme Court relying upon the ratio laid down by it in Bhajan Lal’s case (supra), observed as under : “22. It is settled that High Court can exercise its power of judicial review in criminal matters. In State of Haryana and others vs. Bhajan Lal and others, 1992 Supp (1) SCC 335, this court examined the extraordinary power under article 226 of the Constitution and also the inherent powers under Section 482 of the Code which it said could be exercised by the High Court either to prevent abuse of the process of any court or otherwise to secure the ends of justice. While laying down certain guidelines where the court will exercise jurisdiction under these provisions, it was also stated that these guidelines could not be inflexible or laying rigid formulae to the followed by the facts and circumstances of each case but with the sole purpose to prevent abuse of the process of any court or otherwise to secure the ends of justice. One of such guidelines is 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. Under Article 227 the power of superintendence by the High Court is not only of administrative nature but is also of judicial nature. Under Article 227 the power of superintendence by the High Court is not only of administrative nature but is also of judicial nature. This article confers vast powers on the High Court to prevent the abuse of the process of law by the inferior courts and to see that the stream of administration of justice remains clean and pure, The power conferred on the High Court under Articles 226 and 227 of the constitution and under Section 482 of the Code have no limits but more the power more due care and caution is to be exercised invoking these powers.” 12. From the foregoing survey of law on the subject, it is clear that in a case where allegations made in the complaint and evidence collected in support of the same do not disclose commission of any offence or make out a case against the accused, the High Court can exercise its powers under Section 482 of Cr.P.C to quash the proceedings against an accused. The inherent powers cannot be, however, exercised to stifle or impinge upon the proceedings. 13. The allegations contained in the complaint on the basis of which FIR in question has been registered by the Police Station, Women Cell Udhampur disclose commission of cognizable offences and since the allegations constituted commission of cognizable offences, police was required to register FIR. The police has thus rightly registered the FIR. The registration of FIR thus cannot be said to have been done in violation of any provision of law or same does not amount to miscarriage of justice. The police after registration of FIR has investigated the matter and recorded the statement of witnesses and the report shows that the police while investigation has found the commission of offences punishable under Section 498-A/323 IPC established against the accused. As indicated above, powers under Section 482 Cr.P.C can be exercised by the court only when it is shown that registration of FIR or the investigation thereto, has been carried in such a manner which amounts to miscarriage of justice. However, in this case, the grounds on which the FIR or investigation could be interfered with or quashed are not established. 14. Therefore, applying the law discussed above, it is held that there is no merit in these petitions and thus powers under Section 482 Cr.P.C to quash these proceedings cannot be exercised. 15. However, in this case, the grounds on which the FIR or investigation could be interfered with or quashed are not established. 14. Therefore, applying the law discussed above, it is held that there is no merit in these petitions and thus powers under Section 482 Cr.P.C to quash these proceedings cannot be exercised. 15. For the reasons discussed hereinabove, this Court is thus not inclined to interfere with the impugned order, accordingly, both the petitions are dismissed along-with connected application(s), if any. However, Respondent No. 2 SHO/Incharge Police Station Women Cell, Udhampur is at liberty to file challan before the competent court of law. 16. Interim directions, if any shall stand vacated.