Jammu & Kashmir High Court
Mohd. Iqbal Manhas vs Abdul Ahad Khan And Anr. on 25 August, 2017
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
Case: 561-A Cr.P.C. No.116/2006 & MP No.115/2006
Date of Decision: 25.08.2017
Mohd. Iqbal Manhas Vs. Abdul Ahad Khan & anr.
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta
Appearing counsel:
For the petitioner(s) : Mr. O. P.Thakur, Advocate.
For the respondent(s) : Mr. P. N. Goja, Advocate.
i. Whether approved for reporting in Press/Media : Yes/No/Optional ii. Whether to be reported in Digest/Journal : Yes/No
1. Through the medium of instant petition under Section 561-A Cr.P.C., petitioner seeks quashing of order dated 12.12.2002 passed by learned City Judge (JMIC) Srinagar whereby the process has been issued against the petitioner and respondent No.2 under Sections 406, 352 and 420 RPC in a complaint filed by respondent No.1 titled Abdul Ahad Khan Vs. Mohd. Iqbal Manhas & anr. Petitioner also seeks quashing of subsequent orders passed in the said complaint.
2. In the petition, it is submitted that the petitioner was working as Foreman Civil with Hindustan Construction Company at Banihal. On 14.04.2004, the petitioner was on duty and in a blast he was seriously injured. The petitioner suffered injuries on both of his eyes. He was referred to SHMS Hospital Srinagar. Thereafter he got treatment of his eyes at Amritsar, but he has not recovered. His visual disability is 100%, which has been certified by the Medical Board of Govt. Medical College and Associates 561-A Cr.P.C. No.116 of 2006 Page 1 of 9 Hospital, Jammu. That the petitioner instituted a suit for declaration dated 14.08.2002 in the Court of learned Munsiff Banihal against respondent No.1 to the effect that the agreement dated 06.08.2002 was null and void and illegal as the same was got executed under threat of life. That in September, 2006 the petitioner was informed from the office of Naib Tehsildar Banihal that the attachment order under Section 88 of Cr.P.C. has been issued by the learned Magistrate Srinagar in a criminal complaint filed by Abdul Ahad Khan against him. Since the petitioner is suffering 100% visual disability and was not in a position to go to Srinagar for collecting the documents, he engaged the services of Sh. M.D. Singh, Advocate, who is practicing at Banihal. He obtained the certified copies of the complaint and some interim orders passed therein on 29.09.2006. The petitioner came to know for the first time that criminal complaint has been filed by respondent No.1 against him and respondent No.2 in the Court of learned City Judge, Srinagar.
3. It is also submitted that respondent No.1 filed the said complaint, as a counter blast to the suit filed by the petitioner, on 12.12.2002 against the petitioner and respondent No.2 under Sections 405, 418, 350 read with Section 406, 352 and 420 RPC. In the said complaint, respondent No.1 has pleaded that the petitioner and respondent No.2 had undertaken some work at Baghlihar Project at Banihal and provided two tippers to them on fare basis for carrying the material required for construction work in the said Baghlihar Project. Respondent No.1 has further pleaded that the said tippers were used by the petitioner and respondent No.2 for specified period. In the complaint, it is pleaded by respondent No.1 that a sum of Rs.1,19,000/- was payable by them to him. He further alleged that an amount of Rs.54,000/- was paid and balance amount of Rs.65,000/- was outstanding against them. Respondent No.1 pleaded that an agreement was executed on 06.08.2002 between the petitioner and respondent No.2 on the one hand and respondent No.1 on the other hand, whereby an amount of 561-A Cr.P.C. No.116 of 2006 Page 2 of 9 Rs.65,000/- was to be paid upto 20.08.2002. Respondent No.1 also pleaded in the complaint that by entering into an agreement a trust was created between him and the petitioner & respondent No.2.
4. It is further submitted that the complaint was filed in the Court of learned City Judge (JMIC) Srinagar and on 12.12.2002 learned City Judge passed non reasoned order whereby the process has been issued against the petitioner and respondent No.2 under Sections 406, 452 and 420 RPC. The petitioner had no knowledge about the filing of the said complaint as nor he was ever served in the said complaint. The learned Magistrate issued the proceedings under Section 87 & 88 of the Criminal Procedure Code against the petitioner. The direction was given to the Collector for attachment of the moveable and immovable property of the petitioner and Collector further directed the subordinate officers to attach the property to the petitioner. That the learned City Judge, Srinagar vide order 06.06.2006 has recorded that the proclamation was not served and adjourned the case to 04.08.2006; on 06.06.2006 respondent No.1 was also absent. Learned City Judge Srinagar vide order dated 04.08.2006 has issued the warrants under Section 88 of Cr.P.C. for attachment of the moveable and immoveable property of the petitioner and direction was given to the Collector to submit the report.
5. In the petition, it is stated that learned City Judge, Srinagar has issued the process under Sections 406, 420 and 352 RPC. It is submitted that a bare perusal of the complaint would show that the aforesaid offences has not been made out. Order dated 12.12.2002 and subsequent orders passed thereafter in the said complaint have been challenged, inter alia, on the ground that the same are contrary to the facts of the case and law on the point, as such, the same deserve to be quashed. A bare perusal of the complaint would show that no offence under Section 406 RPC has been made out. That no property was entrusted to the petitioner by respondent 561-A Cr.P.C. No.116 of 2006 Page 3 of 9 No.1, which is one of the ingredients of the offence of criminal breach of trust. Similarly, the offence of cheating under Section 420 RPC is also not made out as in the complaint respondent No.1 has not disclosed as to how the alleged cheating was committed by the petitioner. The question of cheating does not arise. This aspect of the case has not been considered by the learned City Judge Srinagar before issuing the process by virtue of order dated 12.12.2002. From the averments made in the complaint, the alleged offences have been committed at Banihal. Assuming though vehemently denying that the offence under Sections 420 and 406 RPC were made out, yet it is submitted that the learned City Judge Srinagar had no territorial jurisdiction to entertain the complaint and take cognizance of the said offences against petitioner and respondent No.2. So far as offence under Section 352 RPC is concerned, it is submitted that the same is also not made out in the complaint as the allegations contained in the complaint do not satisfy the requirement of law for issuing the process against the person.
6. On the basis of afore mentioned submissions, learned counsel for the petitioner prays for quashing of order dated 12.12.2002 passed by learned City Judge (JMIC) Srinagar as also subsequent orders passed thereto.
7. Learned counsel for the respondents has opposed the submissions of learned counsel for the petitioner and supported the impugned order passed by learned City Judge, Srinagar, stating that the same being passed on the basis of material available on record.
8. Heard learned counsel for the parties and considered the law on the subject.
9. The law with regard to inherent power of High Court has been reiterated in numbers of cases by Apex court. In recent case in AIR 2017 SUPREME COURT 37 in case titled State of Telangana v Habib Abdullah Jeelani & ors., it is held as under :-
561-A Cr.P.C. No.116 of 2006 Page 4 of 9"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 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 CrPC 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 561-A Cr.P.C. No.116 of 2006 Page 5 of 9 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."
10. In order to appreciate the facts of present case, it is apt to reproduce relevant paragraphs of the complaint and the same are reproduced as under:-
"3. That the complainant had during the course of his business at the request of above named accused persons who had undertaken some work in Bagliyar Project at Banihal, provided 2 Tippers bearing Registration Nos.JKD/6667 and JK01-B/7129 to the above said accused persons on fare basis on which both the parties i.e. the complainant and the accused persons had agreed and the said Tippers of the complainant were engaged by the accused persons for carrying the material viz construction work in the said Bagilyar project and the said Tippers were used by the accused persons for a specific period. Therefore a sufficient amount was accumulated thus, so agreed fare amount which is amounting to Rs.1.19 lacs (Rupees one lac and nineteen thousand only).561-A Cr.P.C. No.116 of 2006 Page 6 of 9
4. That out of Rs.1,19,000/-, the accused persons paid only Rs.54,000/- (Rupees fifty four thousand) only to the complainant, however, after the above said amount, the accused persons did not pay Rs.65,000/- which though, was agreed fare amount to the complainant and when the complainant repeatedly requested the accused persons for the payment of the same, the accused persons turned deaf and did not respond to the requests of the complainant.
7. It is important to mention here that the accused persons retained an agreement themselves to deceive the complainant. That the complainant would not have been entered into an Agreement if he would have the knowledge that the accused persons will cheat him.
8. That, by entering into agreement, a trust was created between the complainant and accused persons and the accused persons entrusted and had dominion over the copy of the agreement with the purpose that accused persons will discharge the duty and trust in mode of and according to the conditions of the agreement, but unfortunately the accused persons used the agreement and in violation of law, and further have willfully caused the complainant to suffer physically, monetarily and mentally.
9. That the accused persons have not only taken the recourse of invoking the jurisdiction of civil Court by instituting a suit in the Hon'ble Court of Munsiff Banihal which though is based on false grounds, but the accused persons have also employed their muscle power and approach which has left the complainant in constant fear. It is further submitted that the accused persons personally using force and with the aid and some gundas are forcing the complainant to refrain from making demand of money and further are forcing the complainant to refrain from contesting 561-A Cr.P.C. No.116 of 2006 Page 7 of 9 the case instituted in the Court of Munsiff Banihal, therefore, the accused persons have caused injury, fear and annoyance to the complainant. Further for fulfilling their motive the accused persons have beaten the complainant when he was walking near Habakadal Srinagar. The complainant had approached for recording his F.I.R. with the Police Station concerned due to unknown reasons the concerned Police has refused to record the F.I.R. As such the complainant approaches this Hon'ble Court for safeguard of life and liberty."
11. Bare perusal on these relevant Paras of complaint it is evident that civil dispute between parties is pending before Munsiff court Banihal with regard to recovery of some amount due hiring of Tippers of the complainant which were engaged by petitioners herein for carrying the material viz construction work in the said Bagilyar project; as per contents of complaint out of Rs.1,19,000/-, the accused/petitioners had paid only Rs.54,000/- (Rupees fifty four thousand) only to the complainant and Rs.65,000/ was outstanding. This suit has been filed by petitioners herein.
12. With regard to cause of action for filing the complaint at Srinagar court of city judge, complainant has stated that further for fulfilling their motive the accused persons have beaten the complainant when he was walking near Habakadal Srinagar. In complaint no date, time, month and year has been mentioned with regard to this occurrence. Even essential ingredients for constituting the offences u/s 406/352/420/RPC for which cognizance has been taken by JMIC, are not made out. The Magistrate has taken cognizance in a casual manner, without going through the complaint and law on the subject, which is not proper. Calling of a person in criminal case is serious matter; it is not as simple for Magistrate to record statement of complainant and one witness, and takes cognizance. It is legal duty of Magistrate to apply his judicial mind before taking cognizance, in order to 561-A Cr.P.C. No.116 of 2006 Page 8 of 9 satisfy as to whether essential ingredients of alleged offence/s are made out or not.
13. In present case, the allegations made in 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. Further the allegations made in the 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. This 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.
14. Hence this petition is allowed and complaint titled Abdul Ahad Khan Vs. Mohd. Iqbal Manhas & anr. pending before City Judge (JMIC) Srinagar is quashed and the process issued against the petitioner and respondent No.2 under Sections 406, 352 and 420 RPC in a complaint filed by respondent No.1 is also quashed. Let a copy of this order be sent to concerned Court.
(Sanjay Kumar Gupta) Judge Jammu, 25.08.2017 Narinder 561-A Cr.P.C. No.116 of 2006 Page 9 of 9