Jammu & Kashmir High Court - Srinagar Bench
Abdul Gani Bhat vs Dr. Abdul Rashid Sahaf on 7 July, 2017
Author: Tashi Rabstan
Bench: Tashi Rabstan
HIGH COURT OF JAMMU & KASHMIR AT
SRINAGAR
561-A no. 23/2016
Date of Order: 07.07.2017
Abdul Gani Bhat
Versus
Dr.Abdul Rashid Sahaf
Coram:
Hon'ble Mr Justice Tashi Rabstan, Judge
Appearing Counsel:
For the petitioner(s): Petitioner present in person.
For the respondents:
Whether approved for reporting? Yes/No
1. Petitioner, appearing in person, submits that the matter may be disposed of, at this stage. Petition, given submission of petitioner, is taken up for final disposal.
2. Petitioner invokes exercise of inherent powers of this Court under section 561-A Cr. P.C. for quashing the order dated 13th March 2015 passed by learned Chief Judicial Magistrate, Srinagar, as also order dated 29th June 2015 passed by learned Fourth Additional District Judge, Srinagar in case titled Abdul Gani Bhat vs. Dr. Abdul Rashid Sahaf.
3. Heard petitioner in person and considered the matter.
4. Facts as averred in the petition are that petitioner has filed a Complaint under Section 156(3) of Cr.P.C. against respondent for impersonation and production of manufactured / false documents before learned Chief 561-A no.23/2016 Page 1 of 8 Judicial Magistrate, Srinagar. The manufactured documents, according to petitioner, are:
i. Itemised reply to the issues raised by the petitioner in the plaint from Principal Islamia College , Srinagar ii. Letter from Principal Islamia college Srinagar to Chairman Islamia College Governing Board; (Chief Minister, J&K State), Srinagar iii. Charge Sheet from Principal Islamia College.
5. Learned Trial Magistrate, after threadbare discussion and taking note of all factual and legal facets of the matter vide order dated 13th March 2015, dismissed petitioner's complaint, with following apposite observations:
"Section 156(3) of Cr.P.C. as has been sought to be involved by complainant is not applicable in such cases, at the threshold stage, so it appears due to omission or lack of knowledge, complainant has sought to invoke the provision wrongly.
Now coming to the other aspect whether this complaint is maintainable and whether for offences alleged congnizance can be taken for proceedings against accused or not. The simple allegations of complainant against accused are that he manipulated some documents which were not genuine during the pendency of the proceedings in the complaint filed by him in 2001. Admittedly both the complaints filed by complainant before Court of Ld. JMIC (Judge Small Causes) Srinagar on 16th of February 2006 on the record of certain documents produced by accused before Ld. JMIC (Sub Registrar) Srinagar dated 20th of July 2002 have been quashed by the then Lord Chief Justice Hon'ble Mr. Justice K.S. Radakrishna on 5.6.2008 while disposing off petition under section 561-A Cr.PC. The operative part of judgment is reproduced hereunder:
"Considering the entire facts and circumstances of the case, I am of the view that this is a fit case where this Court should exercise its inherent jurisdiction under Section 561-A Cr.P.C. Accordingly, this petition is allowed and the complaints filed by the complainant on June 30, 2001 and February 16,2006 pending before Judicial Magistrate ( Sub Registrar/Judge Small Causes Court, Srinagar) and the proceedings conducted thereon are quashed and the petition is allowed as above."
6. Against order of learned Trial Magistrate dated 13th March 2015, petitioner filed revision before learned 4th Additional 561-A no.23/2016 Page 2 of 8 Session Judge, Srinagar. Learned Revisiional Court, after considering all aspects of the matter, has dismissed revision petition vide order dated 29th June 2015. Dissatisfied therewith, petitioner challenges both orders through the medium of the present petition under Section 561-A Cr.P.C. on various grounds made mention of therein.
7. It has been emphasized times without number through authoritative judicial pronouncements that inherent powers under Section 561-A Cr. P.C. are to be exercised rarely, sparingly and with due circumspection. The power cannot be used to stifle investigation or even prosecution as the law is to be allowed to have its own course and the investigation or prosecution to be taken to its logical end. A very limited scope is available to find out as to whether the case falls within broader parameters as provided and envisaged under Section 561-A Cr. P.C.
8. The Apex Court in State of Haryana v. Bhajan Lal AIR 1992 SC 604 as also in cases reported as AIR 1992 SC 892, AIR 1996 SC 309, AIR 1996 SC 2983, AIR 1999 SC 3596, AIR 1999 SC 1044, AIR 1999 SC 1216, AIR 2002 SC 671, AIR 2004 SC 3967, AIR 2005 SC 3212, SLJ 2005 (I) 118: 2004 (3) JKJ 609 [HC], 2008 AIR SCW 1003, 2008 AIR SCW 1993, 2008 AIR SCW 561-A no.23/2016 Page 3 of 8 1998, 2008 AIR SCW 4614, 2008 AIR SCW 7680, 2008 AIR SCW 2778, AIR 2010 SC 201, has discussed the scope of Section 561-A Cr.P.C. corresponding to Section 482 Cr.P.C. of Central Code and has laid down the following tests:
a. 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;
b. where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. 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;
c. 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;
d. 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;
e. 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;
f. 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;
g. 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.
9. The Apex Court has also held in Bhajan Lal's case (supra) that the power of quashing criminal proceedings should be 561-A no.23/2016 Page 4 of 8 exercised very sparingly. Paragraph 109 thereof is profitable to be reproduced hereunder:-
"109. 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 any arbitrary jurisdiction on the court to act according to its whim or caprice."
10. The Apex Court in Som Mittal v. Govt. of Karnataka 2008 AIR SCW 1003, and M.N. Ojha v. Alok Kumar Srivastav AIR 2010 SC 201, while laying down the tests, has held that the remedy under Section 561-A Cr.P.C and inherent power should not be exercised by the courts in a routine manner, rather should be exercised sparingly, carefully with caution and in rarest of rare cases. Court has not to function as a court of appeal or revision.
11. This Court in a case Mian Abdul Qayoom v. State & ors. 2011 (I) JKJ 470 (HC) has held that the court should refrain from making prima facie decision at the infancy stage or in a case where all the facts are incomplete and hazy.
12. It may not be out of place to mention here that the inherent power cannot be naturally invoked in respect of any matter covered by a specific provision of the court. It is only whether the High Court is satisfied either that an 561-A no.23/2016 Page 5 of 8 order passed under Code would be rendered ineffective or that the process of any court would be abused or that the ends of justice would not be secured, then the High Court must exercise its inherent powers under Section 561-A Cr.P.C. This power can be invoked only in an event when the aggrieved party is unnecessarily harassed and has no other remedy open to it. The power under section 561-A is not intended to scuttle justice but to secure justice. In the present case petitioner filed a complaint for proceeding against respondent under Section 156(3) Cr.P.C. The allegations made by petitioner is that he had filed a complaint for defamation against respondent for defamatory write-up published by him against petitioner, to which respondent filed reply and that respondent cooked and manufactured some documents. Respondent put in attendance before Trial Magistrate. It was found and observed by Trial Magistrate that Section 156(3) sought to be invoked by petitioner was not applicable to the case. Further allegation of petitioner before Trial Magistrate was that respondent had manipulated some documents, which were not genuine during pendency of proceedings in a complaint filed by him in 2001. Learned Trial Magistrate also discussed that complaints filed by petitioner before 561-A no.23/2016 Page 6 of 8 learned Judicial Magistrate 1st Class, Judge Small Causes, Srinagar, had been quashed by this Court in a Petition under section 561-A Cr.P.C. Trial Court even reproduced operative portion of the judgement dated 5th June 2008 passed by this Court in petition under Section 561-A Cr.P.C., whereby the petition was allowed and complaints filed by petitioner on June 30, 2001 and February 16, 2006, pending before Judicial Magistrate (Sub Registrar/ Judge Small Causes Court, Srinagar) and the proceedings initiated thereon were quashed. Thus, the Trial Magistrate has rightly dismissed petitioner's complaint.
13. Petitioner filed revision against order of learned Trial Magistrate dated 13th March 2015. Learned 4th Additional Sessions Judge, Srinagar, by a comprehensive judgement, discussed all aspects of the matter and rightly dismissed petitioner's revision. Learned Trial Magistrate as well as Revisional Court have rightly observed that once complaint filed by petitioner on same allegations had already been decided by the highest court of the State, the proceedings, therefore, cannot re-open again.
Applying the aforesaid test, the petition is bereft of merit and petitioner fails to make out a case for exercise of inherent powers under Section 561-A Cr.P.C. to quash the 561-A no.23/2016 Page 7 of 8 orders passed by learned Trial Magistrate and Revisional Court.
14. In the given circumstances, learned Trial Magistrate as well as Revisional Court have passed well-reasoned orders, which need no interference. Accordingly, petition on hand is dismissed. Petitioner is saddled with costs of Rs.25,000/- to be deposited by him before the Registry of this Court within four weeks.
15. Copy be sent down.
(Tashi Rabstan) Judge Srinagar 07th July 2017 Ajaz Ahmad I pronounce this judgement under Rule 138(3) of the J&K High Court Rules, 1999.
( M. K. Hanjura ) Judge Srinagar 07th July 2017 Ajaz Ahmad 561-A no.23/2016 Page 8 of 8