Jammu & Kashmir High Court
Faisal Isshaq And Ors. vs State And Anr. on 12 October, 2017
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
1
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
561-A Cr.P.C. No.415/2017, MP No. 01/2017
Date of decision:12.10.2017
Faisal Isshaq and ors. Vs. State and Anr.
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta
Appearing counsel:
For Petitioner/appellant(s) : Mr. Himanshu Beotra, Advocate.
For respondent (s) : Mr. Amit Chopra, GA.
Mr. Jasbir Singh Jasrotia, Advocate.
Mr. Mohd. Zulkarnain, Advocate.
I.O (Bashir Ahmed) present in person.
i/ Whether to be reported in Yes/No
Press/Media?
ii/ Whether to be reported in Yes/No
Digest/Journal?
1. In the instant petition, the petitioners seek quashment of FIR No. 16/2017 dated 29th January, 2017 lodged by the respondent No. 1 at the behest of respondent No. 2 under Sections 447, 147 and 323 RPC.
2. The facts giving rise to the filing of the petition briefly stated are that, the petitioner No. 1 is an Advocate by profession, petitioner No. 2 is the father of petitioner No. 1 and petitioner No. 3 is the mother of petitioner No. 1. It is submitted that all the petitioners are the persons of good repute having deep roots in the society.
3. The petitioner No. 2 is the owner in profession of land measuring 1 Kanal 5 Marlas situated at village Saj, but the respondent No. 2, who had an evil eye on the aforesaid property, started interfering in the possession of the petitioner No. 2 in the aforesaid land and with criminal intention, tried to change the natural course of water passing nearby the land into the land of 561-A Cr.P.C. No. 415/2017 a/w MP No. 01/2017 Page 1 of 12 2 petitioner No. 2 and on 12th July, 2013, trespassed into the land of the petitioner No. 2 and started removing stones so as to change the natural course of rain water by cutting the land of the petitioner No. 2, which compelled the petitioner No. 2 to lodge an FIR (Annexure-A) bearing No. 134/2016 dated 23rd July, 2016 against the respondent No. 2 before the Police Station, Thana Mandi on 23rd July, 2016 through the direction of the Hon'ble Court under Sections 447, 427 and 505 RPC.
4. On 28th January, 2017, respondent No. 2 ad one-Billo started illegally threatening the petitioner No. 1, who is the son of the petitioner No. 2 and an Advocate by profession, which compelled the petitioner No. 1 to file a formal Complaint before the Police Station, Thana Mandi against the respondent No. 2 and the said Billo and since no action was taken by the Police Station, i.e., respondent No. 1, the petitioner No. 2 even filed an application (Annexure-B) before the learned Chief Judicial Magistrate, Rajouri on 18th February, 2017, seeking to call for status report in his Complaint dated 28th January, 2017.
5. On 29th January, 2017, the respondent No. 2, one-Mohd. Sher and one-
Farmida Begum in order to settle scores with the petitioner Nos. 1 and 2 attempted to kill the petitioner No. 1 and in furtherance of the same, the aforesaid three persons including respondent No. 2 attacked and hit the petitioner No. 1 with iron rod on his head and thereafter, attacked the petitioner No. 2 with stick and stone. Due to aforesaid attack, the petitioner No. 1 got serious head injury and was immediately taken to the hospital and thereafter, respondent No. 2 after the MLC of the petitioner No. 1 was done, registered an FIR bearing No. 15/2017 (Annexure-C) under Sections 307, 341, 323 and 34 RPC on 29th January 2017.
6. Afterthought, the respondent No. 2 also lodged a false and frivolous FIR (Annexure-D) bearing No. 16/2017 dated 29th January, 2017 with respondent No. 1 against the petitioners under Sections 447, 147 and 323 RPC vis-à-vis same occurrence, which is impugned in the present petition.
561-A Cr.P.C. No. 415/2017 a/w MP No. 01/2017 Page 2 of 12 37. The petitioners being aggrieved of the aforesaid FIR bearing No. 16/2017 dated 29th January, 2017 have challenged the same on the following grounds:-
(a) The impugned FIR is a share abuse of process of law, as the same has been filed with an ulterior motive to pressurize and harass the petitioners.
(b) The impugned FIR is even barred by law inasmuch as the second FIR with respect to the same occurrence and the incident is not permissible under law, as such the second FIR, i.e., impugned FIR in the present case is required to be quashed.
(c) The impugned FIR is the result of an afterthought in order to mount undue pressure upon the petitioners and to wreck vengeance against the petitioners. It is submitted that the petitioner No. 1 has already filed an FIR bearing No. 134/2016 dated 23rd July, 2016 against the respondent No. 2 and the petitioner No. 1 had also filed a Complaint on 28 th January, 2017 against the respondent No. 1, i.e., one day prior to the incident and in order to settle scores, the respondent No. 1 attacked the petitioners and FIR No. 15/2017 came to be lodged against him for the said illegal act, but to overcome the same as a counterblast, the respondent No. 1 filed a false FIR, i.e., impugned FIR against the petitioners.
(d) The present FIR has been lodged by the respondent No. 2 with an ulterior motive so as to take away the land owned and possessed by the petitioner No. 2 inasmuch as the respondent No. 2 has used an illegal tactics to dispossess the petitioner No. 1 from the land owned by him and in furtherance of same have even attempted to murder the son of petitioner No. 1 and lodged the impugned false and frivolous FIR, as such the impugned FIR is required to be quashed.
8. Objections have been filed on behalf of respondent No. 2, wherein it has been stated that the petition is not maintainable, as there is no situation or circumstance calling for exercise of extraordinary powers of this Hon'ble Court to quash the investigation in the matter.
9. There are specific contents in the FIR No. 16/2017 that on 29 th January, 2017, the accused persons, namely, Faisal Ishaq alongwith other accused has committed criminal trespass in the land of the respondent No. 2 having made preparation causing hurt, intimidation, insult and annoyance to the 561-A Cr.P.C. No. 415/2017 a/w MP No. 01/2017 Page 3 of 12 4 respondent No. 2, who is in actual possession of the land. First of all, on committing trespass, all the accused persons started beating the respondent No. 2 and his wife with sticks and legs and due to this, respondent No. 2 and his wife suffered grievous injury on their body. Knowing that such abuses and insult will provoke the respondent No. 2 to break the public peace and to commit some other offence, but the respondent No. 2 restrained him and maintained peace. The respondent No. 2 being a law abiding citizen has approached the concern Police Station, Thana Mandi for registration of FIR against the accused persons and requested that the accused persons be dealt under law. After sustaining the injuries, the respondent No. 2 and his wife were taken to CHC Hospital, Thana Mandi by Constable of the concerned Police Station, namely, Zahoo Ahmed for medical examination. The Concerned Medical Officer has examined the respondent No. 2 and his wife under MLC No. 264/2017 and 265/2017 dated 29th January, 2017 respectively. After examination, the Medical Officer issued a Certificate.
10. The perusal of the Certificate issued by the Medical Officer categorically mentioned the opinion given by him and as per his opinion; the injuries are grievous in nature and are caused by blunt object. The contents of the FIR constitute ingredients of the offences, so the police can take cognizance and investigate the case. The facts narrated in FIR are true, genuine and neither absurd nor inherently improbable. The FIR in the instant case on the fact, disclosed commission of offences so prima facie case is made out, as such, proceedings cannot be quashed. The said FIR has not been lodged maliciously or vexatious in order to wreak vengeance on the petitioners. The answering respondent No. 2 has no grudge, enmity of hatred against the petitioners, but the petitioners with one or the other acts of commission or omission harmed and caused loss to respondent No. 2, as such the respondent No. 2 had to file the proceedings to seek justice.
561-A Cr.P.C. No. 415/2017 a/w MP No. 01/2017 Page 4 of 12 511. Neither disputed question of fact be adjudicated upon in the proceedings under Section 561-A Cr. P.C nor inherent powers be exercised to embark upon an inquiry to ascertain correctness of allegations made in the FIR when there is prima facie material investigation cannot be scuttled. In case, the allegations made in FIR are found false during the investigation by police or the evidence is found deficient the Investigating Officer can reject the FIR, as such when the investigation is at preliminary stage, the proceedings under Section 561-A Cr. P.C are not maintainable and exercise of jurisdiction under this section may be done only in exceptional case. The case has not been able to progress to the next stage because of deliberate and malicious attempt by the petitioners in frustrating the criminal process by getting the investigation stayed by suppressing the fact and reality from the Hon'ble Court. The present petition is a glaring instance of gross abuse of process of law.
12. The allegations in the FIR taken at its face value and accepted in their entirety constitute the offence alleged, in such situation the proceedings under Section 561-A Cr.P.C are not maintainable and the petition in the instant case is not justified in invoking such powers of the Hon'ble Court to quash the investigation. The Investigating Agency when moved is called upon to investigate the allegations and to find out as to what case is made out against the accused on the basis of the evidence collected during the investigation. FIR should not be permitted to be quashed without affording the investigation agency to collect the evidence in support thereof. The respondent No. 2 has to substantiate his case before the Investigating Officer based upon the evidence both oral and documentary and in the case, the Challan is produced by the Investigation Officer, then before the Trial Court.
13. The instant petition has been made with an intention to harass and pressurize the respondent No. 2 to withdraw the case or not to make any incriminating statement against the petitioners. Merely pendency of a 561-A Cr.P.C. No. 415/2017 a/w MP No. 01/2017 Page 5 of 12 6 criminal case does not prevent the respondent No. 2 to file another criminal case, if subsequent to that, any cause of action arose or any offence is committed upon him by the petitioners. The aggrieved person can sue separately for separate cause of action. Merely pendency of criminal case is not a ground to quash the FIR, if an act constitutes an offence the petitioners are not absolved for criminal liability.
14. In the objections, it has also been stated that all the petitioners are very head strong, influential persons, as the petitioner No. 1 is an Advocate by profession and the petitioner No. 2 is also working in judiciary. Thus, by misusing their powers, they always harassed the respondent No. 2 and his other members of the family. The petitioner No. 1 being an Advocate has already registered two false FIRs bearing FIR Nos. 134/2016 and 15/2017 (stated supra) against the respondent No. 2. During the investigation with respect to FIR bearing FIR No. 134/2016, it was established that the FIR was registered on false and frivolous story. The informant of the said FIR has provided wrong/false information to the police. Hence, the proceeding under Section 182 RPC was initiated against the complaints.
15. It has also been submitted that respondent No. 2 has never interfered into the land, which belongs to the petitioner No. 2. As stated above, the petitioner No. 2 has moved an application under Section 156(3) Cr.P.C through petitioner No. 1 before the Chief Judicial Magistrate, Rajouri and the same was forwarded to the Police Station, Thana Mandi. Thereafter, on the basis of false information provided to the police an FIR No. 134/2016 under Sections 447, 427 and 505 RPC was registered against the respondent No. 2. During the investigation with respect to FIR bearing FIR no. 134/2016, it was established that the FIR was registered on false and frivolous story. The informant of the said FIR has provided wrong/false information to the police. Hence, the proceeding under Section 182 RPC was initiated against the complaints.
561-A Cr.P.C. No. 415/2017 a/w MP No. 01/2017 Page 6 of 12 716. It has also been submitted in the objections that the respondent No. 2 is a peace loving and law abiding citizen. He has never threatened the petitioners and the allegations leveled against him are false, frivolous, and incorrect. The contents of the Complaint constitute ingredients of the offences so the police took the cognizance by registering the FIR and investigated by the police. The facts narrated in the FIR are true, genuine and neither absurd or inherently improbable. The FIR in the instant case on the face, discloses commission of offences so prima facie case is made out. The police investigated the case and the same has been proved beyond any shadow of doubt. The said FIR has not been lodged maliciously or vexatiously in order to wreak vengeance on the petitioners. The answering respondents have no grudge, enmity or hatred against the petitioners, but the petitioners committed the offences, so the respondent No. 2 had to file the legal proceedings to seek justice.
17. The facts stated in the Complaint/FIR even if taken at their fact value and accepted in its entirety do prima facie constitutes and prove the commission of offences by the petitioners, so the petitioners are not justified in filing the instant petition to quash the criminal proceedings. The investigation in the case so the same cannot be interfered when the offences stand proved against the petitioners. Thus, there is no ground to challenged the said FIR and whatever grounds projected by the petitioners are baseless and false. Therefore, the petition is not maintainable, as there is no situation or circumstance, calling for exercise of extraordinary powers of this Hon'ble Court to quash the investigation in the matter.
18. The FIR was registered in the Police Station after the proper investigation was conducted, statements of prosecution witnesses were recorded by the Investigating Officer, which fully corroborate the statement of the respondent No. 2. As such, the commission of offence by the petitioners/accused stands proved. The investigation is complete and only Challan is to be presented. So in these circumstances, the proceedings do 561-A Cr.P.C. No. 415/2017 a/w MP No. 01/2017 Page 7 of 12 8 not warrant any interference. The facts narrated in the FIR are true, genuine and neither absurd nor inherently improbable. The FIR in the instant case on the face, discloses commission of offences so prima facie case is made out. The police investigated the case and the same has been proved beyond any shadow of doubt. The said FIR has not been lodged maliciously of vexatiously in order to wreak vengeance on the petitioners. The answering respondent has not grudge, enmity or hatred against the petitioners, but the petitioners committed the offences, so the respondent No. 2 had to file the legal proceedings to seek justice.
19. Though the petitioner Nos. 1 and 2 are the government employees and working in the Police Department. Both were present at the scene of occurrence and committed the above stated offences against the answering respondents. The Certificate of duty of the petitioner No. 2 is false, incorrect, hence denied. If the Hon'ble Court perused the Attendance Certificate of the petitioner No. 2, which shows that from 24 th January, 2015 to 26th January, 2016, the petitioner No. 2 was on duty, which means that he performed his duty continuously for 48 hours, which is not possible. The answering respondent never intended to take away the land owned and possessed by the petitioner No. 2.
20. I have considered the arguments and law on the subject. The scope of inherent power of High court for quashing FIR/complaint/charge sheet has been recently been highlighted by Apex Court in AIR 2017 SUPREME COURT 37 in case titled State of Telangana v Habib Abdullah Jeelani & ors., wherein it is held as under:-
"11. Once an FIR is registered, the accused persons can always approach the High Court under Section 482 Cr.P.C. or under Article 226 of the Constitution for quashing of the FIR. In Bhajan Lal (supra) the two-Judge Bench after referring to Hazari Lal Gupta v. Rameshwar Prasad[7], Jehan Singh v. Delhi Administration[8], Amar Nath v. State of Haryana[9], Kurukshetra University v. State of Haryana[10], State of Bihar v. J.A.C. Saldanha[11], State of West Bengal v. Swapan Kumar Guha[12], Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi[13], Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre[14], State of Bihar v. Murad 561-A Cr.P.C. No. 415/2017 a/w MP No. 01/2017 Page 8 of 12 9 Ali Khan[15] and some other authorities that had dealt with the contours of exercise of inherent powers of the High Court, thought it appropriate to mention certain category of cases by way of illustration wherein the extraordinary power under Article 226 of the Constitution or inherent power under Section 482 Cr.P.C. could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice. The Court also observed that 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 cases wherein such power should be exercised. The illustrations given by the Court need to be recapitulated:-
"(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 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."561-A Cr.P.C. No. 415/2017 a/w MP No. 01/2017 Page 9 of 12 10
It is worthy to note that the Court has clarified that the said parameters or guidelines are not exhaustive but only illustrative. Nevertheless, it throws light on the circumstances and situations where court's inherent power can be exercised.
12. There can be no dispute over the proposition that inherent power in a matter of quashment of FIR has to be exercised sparingly and with caution and when and only when such exercise is justified by the test specifically laid down in the provision itself. There is no denial of the fact that the power under Section 482 CrPC is very wide but it needs no special emphasis to state that conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the Court.
21. I have gone through the FIR under challenge. As per FIR the facts of matter are that on 29th January, 2017, complainant Mohd. Yunus lodged a written report with police station Thana Mandi against accused/petitioners that today there took place some altercation with regard to land between them; during altercation all accused persons started beating him with lathies mercilessly; other accused stated beating his wife with legs and hands; he had been injured seriously; on raising noise, accused fled away.
22. On this FIR u/s 447/147/323 was registered and investigation was commenced The injured were sent to hospital.
23. The photocopies of medical certificate and injury form of injured persons have been annexed by complainant/respondent. The injury form of Mohd. Yunus would reveal that he has sustained four injuries including fracture on Left hand thumb and doctor has opined that injury is grievous in nature; whereas Mst. Fareed Begum has sustained internal injuries which are simple in nature. So bare perusal of contents of FIR and medical certificate, it is evident that it constitute and disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code of criminal procedure.
24. The argument of learned counsel for petitioners that petitioner No.1 has already filed an FIR bearing No.134/2016 dated 23rd July, 2016 u/s 447/427 RPPC against the respondent No. 2 and in counter blast to this case, impugned FIR has been lodged, is not tenable because investigation in this FIR has been closed as not proved as Mohd. Yunus has been proved to 561-A Cr.P.C. No. 415/2017 a/w MP No. 01/2017 Page 10 of 12 11 have purchased the land in dispute, and police has asked for initiation of proceeding under section 182 RPC against complainant.
25. Another argument that the impugned FIR is even barred by law inasmuch as the second FIR with respect to the same occurrence and the incident is not permissible under law; because he has lodged FIR No.15/2017 against respondent no.2 and another for the said illegal act, but to overcome the same as a counterblast, the respondent No. 2 filed a false FIR, i.e., impugned FIR against the petitioners. I have considered this aspect of matter. In 2004 AIR (SC) 4320, three judges bench of Apex Court has held that:
"Criminal procedure code, 1973 - s. 154, 162, 156(3) - Indian penal code, 1860 - s. 452, 506, 147, 148, 307/149 - appellant and first respondent have lodged separate complaints giving different versions complaint of respondent was registered by the concerned police - petition u/s. 156(3) before the judicial magistrate - order of the magistrate directing the registration of a complaint - against the respondents concerned police registered criminal case u/s. 147, 148, 149 and 307 IPC - revision by respondent - order set aside by asj-appeal to high court - high court declined to interfere - once a FIR registered on the complaint of one party a second FIR is not registerable and no investigation based on the said second complaint could be carried out-appeal-alleged that filing a counter complaint is permissible - learned magistrate was justified in directing the police concerned to register a case and investigate the same and report back - both the learned additional sessions judge and the high court erred in coming to the conclusion that the same is hit by s. 161 or 162 of the code - s. 161 or 162 of the code does not refer to registration of a case-impugned orders of high court and learned additional sessions judge are set aside and that of the magistrate restored - appeal allowed. Relevant para ( 22 ) BE that as it may, if the law down by this Court in T. T. Antony's case is to be accepted as holding a second complaint in regard to the same incident filed as a counter complaint is prohibited under the Code then, in our opinion, such conclusion would lead to serious consequences. This will be clear from the hypothetical example given herein below i. e. if in regard to a crime committed by the real accused he takes the first opportunity to lodge a false complaint and the same is registered by the jurisdictional police then the aggrieved victim of such crime will be precluded from lodging a complaint giving his version of the incident in question consequently he will be deprived of his legitimated right to bring the real accused to books. This cannot be the purport of the Code.
( 23 ) WE have already noticed that in the t. T. Antony's case this Court did not consider the legal right of an aggrieved person to file counter claim, on the contrary from the observations found in the said judgment it clearly indicates that filing a counter complaint is permissible.561-A Cr.P.C. No. 415/2017 a/w MP No. 01/2017 Page 11 of 12 12
( 24 ) IN the instant case, it is seen in regard to the incident which took place on 20th May, 1995, the appellant and the 1st respondent herein have lodged separate complaints giving different versions but while the complaint of respondent was registered by the concerned police, the complaint of the appellant was not so registered, hence on his prayer the learned magistrate was justified in directing the police concerned to register a case and investigate the same and report back. In our opinion, both the learned Additional Sessions Judge and the high Court erred in coming to the conclusion that the same is hit by Section 161 or 162 of the Code which, in our considered opinion, has absolutely no bearing on the question involved. Section 161 or 162 of the Code does not refer to registration of a case, it only speaks of a statement to be recorded by the police in the course of the investigation and its evidentiary value.
( 25 ) FOR the reasons state above, this appeal succeeds and the impugned orders of the high Court and the learned Additional Sessions Judge are set aside and that of the Magistrate restored. Appeal allowed."
26. In view of what has been discussed above and law on the point, I do not find any ground to quash the FIR impugned. This petition is dismissed. Interim Stay, if any, is vacated.
(Sanjay Kumar Gupta) Judge Jammu 12.10.2017 Ram Krishan 561-A Cr.P.C. No. 415/2017 a/w MP No. 01/2017 Page 12 of 12