Jammu & Kashmir High Court - Srinagar Bench
Naseer Ahmad Dar vs Naseer Ahmad Dar on 13 December, 2017
Author: Ali Mohammad Magrey
Bench: Ali Mohammad Magrey
HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
561-A no. 174/2017
Date of Decision: 12.12.2017
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Naseer Ahmad Dar v Shahzad Ahmad Dar
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Coram:
Hon'ble Mr. Justice Ali Mohammad Magrey, Judge
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Appearing counsel:
For Appellant/Petitioner(s): Mr. Mir Suhail, adv.
For Respondents: Mr. Arif Sikender Mir, adv.
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i) Whether approved for reporting in law journal: Yes/No.
ii) Whether approved for press media: Yes/No ______________________________________________ This petition under Section 561-A Cr. P. C, has been filed by the petitioner seeking quashment of complaint and the proceedings pending before the Court of Judicial Magistrate, Baramulla in case titled Shahzad Ahmad Dar v. Naseer Ahmad Dar, whereby the learned Judicial Magistrate has taken cognizance and issued process in terms of order dated 05.11.2012.
Case of the petitioner is that a complaint under Section 138 read with section 140 of Negotiable Instrument Act was filed against him before the Judicial Magistrate, Baramulla titled as "Shahzad Ahmad Dar v. Naseer Ahmad Dar". It is submitted that respondent (therein) has issued a cheque of Rs.15.00 lacs which got bounced. It is submitted that Learned Judicial Magistrate Baramulla (hereinafter called "Trial Court") took cognizance of the matter without recording the statement of complainant on oath as per the procedure envisaged under section 200 of Cr.P.C, issued the process in terms of order dated 05.11.2012.
__________________________________________________________________________________ 561-A No. 174/2017 Page 1 of 6 It is further submitted that after taking of cognizance the petitioner appeared in the matter, recorded statement in terms of Section 242 Cr.P.C. It is submitted that petitioner (herein) in his statement stated that his some cheques were missing and regarding the missing cheques he had lodged a report before the concerned police station on 20.06.2012. It is submitted that a cheque was produced before the concerned Bank for withdrawal which in fact was one of the missing cheque for which the petitioner has already lodged a report in the concerned Police station.
It is submitted that the Learned Chief Judicial Magistrate Sopore also directed the police agency to investigate the matter in terms of Section 156(3) Cr.P.C.
Petitioner is aggrieved of the cognizance taken and process issued by the Magistrate which as stated has not been taken in accordance with law as envisaged in terms of Section 200 Cr.P.C, that there was a sufficient material before the court that the cheque was not issued for debt or liability and was in fact stolen one. It is submitted that the learned magistrate was required to reject the complaint thereby discharge/acquit the petitioner (accused) as is mandated under section 250, 253 and 369 Cr.P.C, therefore, the petitioner in view of the action of the learned trial court of which he is aggrieved of challenges the same on the grounds detailed out in the petition.
Heard learned counsel for the parties, perused the record and considered the matter.
Before going to merits of the case, the question is as to whether the complaint filed before the trial Court can be quashed at the __________________________________________________________________________________ 561-A No. 174/2017 Page 2 of 6 threshold stage? The answer has to be in the negative, for the remedy under Section 561-A Cr. P. C can be invoked/pressed into service only in the following circumstances:
(i) to pass orders in order to give effect to an order passed under Cr.P.C
(ii) to prevent abuse of process of Court
(iii) to secure the ends of justice: and
(iv) to prevent mis-carriage of justice.
In the instant case, keeping in view the allegations contained in the complaint, it can by no stretch of imagination be said that the case of petitioner falls within the ambit/contours of section 561-A Cr.P.C as enumerated above.
Since the Apex Court has held that power is to be exercised cautiously, carefully and sparingly and Court has not to function as a Court of appeal or revision. It has also laid down the parameters and guidelines in cases titled as K.L.E Society & ors v. Siddalingesh reported in 2008 AIR SCW 1993; A.P Vs Bojjoori Kanthaiah reported as 2008 AIR SCW 7860 and Reshma Bano Vs State of Uttar Pradesh reported in 2008 AIR SCW 1998.
This Court has only to ascertain whether the allegations made in the complaint do disclose or do not disclose the commission of offences, if it does, then it cannot be quashed at its thresh-hold stage. It is not proper to scuttle away the investigation at its thresh-hold stage, if the complaint discloses the commission of offences, High Court should not interfere with the investigation which would amount to stalling the investigation and jurisdiction of statutory authorities to exercise powers in accordance with the provisions of criminal Code.
__________________________________________________________________________________ 561-A No. 174/2017 Page 3 of 6 Apex Court in AIR 2004 SC 3967, AIR 1972 SC 484, AIR 1974 SC 1446, AIR 1977 SC 2229, AIR 1989 SC 01, has laid down the same principle. It is apt to reproduce para 10, 13, 14, 17 & 19 out of the judgment titled as Som Mittal Vs Govt. of Karnataka reported in 2008 AIR SCW 1003 herein:
"10. In a catena of decisions this Court has deprecated the interference by the High Court in exercise of its inherent powers under Section 482 of the Code in a routine manner. It has been consistently held that the power under Section 482 must be exercised sparingly with circumspection and in rarest of rare cases. Exercise of inherent power under section 482 of the Code of Criminal Procedure is not the rule but it is an exception. The exception is applied only when it is brought to the notice of the Court that grave miscarriage of justice would be committed if the trial is allowed to proceed where the accused would be harassed unnecessarily if the trial is allowed to linger when prima facie it appears to Court that the trial would likely to be ended in acquittal. In other words, the inherent power of the Court under section 482 of the Code of Criminal Procedure can be invoked by the High Court either to prevent abuse of process of any Court or otherwise to secure the ends of justice."
13. In State of Bihar v. J.A.C Saldanha (1980) 1 SCC 554 this Court pointed out at SCC P. 574:
The High Court in exercise of the extraordinary jurisdiction committed a grave error by making observations on seriously disputed questions of facts taking its cue from affidavits which in such a situation would hardly provide any reliable material. In our opinion the High Court was clearly in error in giving the direction virtually amounting to a mandamus to close the case before the investigation is complete. We say no more.
14. In Hazari Lal Gupta v Rameshwar Prasad (1972) 1 SCC 452 this Court at SCC P. 455 pointed out:
In exercising jurisdiction under section 561-A of the Criminal Procedure Code, the High Court can quash proceedings if there is no legal evidence or if there is any impediment to the institution or continuance of proceedings but the High Court does not ordinarily inquire as to whether the evidence is reliable or not. Where again, investigation into the circumstances of an alleged cognizable offence is carried on under the provisions of the Criminal Procedure Code, the __________________________________________________________________________________ 561-A No. 174/2017 Page 4 of 6 High Court does not interfere with such investigation because it would then be the impeding investigation and jurisdiction of statutory authorities to exercise power in accordance with the provisions of the Criminal Procedure Code.
17. In State of Bihar vs Murad Ali Khan (1988) 4 SCC 655 this Court held that the jurisdiction under Section 482 of the Code has to be exercised sparingly and with circumspection and has given the working that in exercising that jurisdiction, the High Court should not embark upon an enquiry whether the allegations in the complaint are likely to be established by evidence or not.
19. We may observe here that despite this Court consistently held in catena of decisions that inherent power of the High Court should not be exercised according to whims and caprice and it has to be exercised sparingly with circumspection and in the rarest of rare cases, we often come across the High Court exercising the inherent power under Section 482 of the Code of Criminal Procedure in a routine manner at its whims and caprice setting at naught the cognizance taken and the FIR lodged at the threshold committing grave miscarriage of justice. While it is true that so long as the inherent power of Section 482 is in the Statute Book, exercise of such power is not impressible but it must be noted that such power has to be exercised sparingly with circumspection and in the rarest of rare cases, the sole aim of which is to secure the ends of justice. The power under Section 482 is not intended to scuttle justice at the threshold."
Keeping in view the scope of section 561-A Cr.PC the Court should refrain from making prima facie decision at interlocutory stage when entire facts of the case are incomplete, hazy and moreso, when material evidence is yet to be collected and issues involved could not be seen in their true perspective.
Apex Court in case titled as R.P Kapur v. State of Punjab reported in AIR 1960 SC 866 and case titled State of Andhra Pradesh v. Golconda Linga Swamy reported in AIR 2004 SC 3967 has laid down the same principle. It is apt to reproduce para 8 of the judgment reported in AIR 2004 SC 3967 herein:
" 8....The complaint/FIR has to be read as a whole if it appears that on consideration of the allegations in the light of the statement made on __________________________________________________________________________________ 561-A No. 174/2017 Page 5 of 6 oath of the complainant or disclosed in the FIR that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint/FIR is malafide, 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 malafides 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 malafides against the informant are of no consequence and cannot by itself be the basis for quashing the proceeding."
Under these circumstances and the law quoted hereinabove, I decline to exercise discretion and do not interference with the order passed by learned Magistrate taking cognizance of the complaint and issuing process. The petition is therefore, dismissed.
No order as to costs.
Registry to send down the trial court records forthwith along with copy of order. Learned Magistrate shall issue notice to the appearing parties before proceeding further.
(Ali Mohammad Magrey) Judge Srinagar, 12.12.2017 Ayaz.
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