Jammu & Kashmir High Court - Srinagar Bench
Rajeev Agarwal vs Manzoor Ahmad Naik And Ors on 25 July, 2013
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR 561-A No. 239 of 2012 IA(Cr.) No. 497 of 2012 Rajeev Agarwal Petitioners Manzoor Ahmad Naik and ors. Respondents !Mr. Tasaduq H. Khawja, Advocate ^Mr. G. Q. Bhat, Advocate Honble Mr. Justice Janak Raj Kotwal, Judge Date: 25/07/2013 : J U D G M E N T :
1. This petition seeks invoking of the inherent powers of this Court under Section 561-A of the Code of Criminal Procedure (for short the Code) for quashing of a complaint under Sections 420 and 506 RPC filed by respondent No. 1 against petitioner and proforma respondents 2 to 5 in the Court of learned Chief Judicial Magistrate, Anangnag and order dated 20.09.2012, whereby the learned trial Court, after taking cognizance and recording initial statements of the complainant and his witness, has issued process against the petitioner and the proforma respondents.
2. Heard. I have perused the record.
3. Briefly, the facts which are essential to dispose of this petition are these:
3.1 Petitioner-Rajiv Agarwal and proforma respondents are resident of a place falling in Tehsil and District Rewari (Haryana). They are the members of the same family. Respondent No. 1 (complainant) is a resident of Tehsil, Dhamhal Hangipora, District, Kulgam, Kashmir (J&K). The two witnesses, namely, Sanjay Sangam and Parveen Rao, whose initial statements have been recorded at the time of filing of complaint also reside at Rewari, Harayana.
3. 2 On 09.08.2012, petitioner lodges a report against PW-Parveen Rao at Police Station, Rewari City. On this report, offence under Sec. 506 was registered against him as FIR No. 253 of the said Police Station. In his report the petitioner inter alia alleges that the said Parveen Rao wants to grab 72 kanals of land owned by the petitioner about which his uncle, Puran Chand (respondent) is holding his power-of-attorney. A copy of the FIR is annexed with this petition. On 20.09.2012 respondent No. 1 files the complaint under Sections 420 and 506 RPC against the petitioner and the proforma respondents. In this complaint, above said Parveen Rao appears as one of thetwo witnesses, whose preliminary statements were recorded.
3.3 Case set out in the complaint, briefly, is that respondent No. 1 (complainant) had been visiting the State of Haryana in connection with his business. Accused persons met him in Harayana, he expressed his desire to purchase land in the said State and requested them to show him some land. Accused persons showed different lands to him and promised to sell him 25 kanals of land situated at Rewari for a consideration of Rs.
67,18,750/. Accused persons came to Kashmir on16.7.2007, met him in hotel Four bhi at Anantnag and received from him Rs.14, 00,000/ as first installment towards sale consideration of the said land. They again visited Anantnag on 23.03.2010 and obtained Rs. 18, 00,000/ more from him towards sale consideration of the said land. After that he demanded possession of the land from the accused, but they kept avoiding. He then came to know that accused have no authority qua the said land and they have cheated him of Rs. 32,00,000/. Accused persons kept avoiding him right from23.3.2010. Finally they came to Anantnag on17.09.2012. He asked them to return his money or transfer the land to him but they refused and tried to hit him with their private car. He had a narrow escape.
3. 4. On presentation of the complaint on 20.09.2012, learned Chief Judicial Magistrate on the same day recorded initial statements of the complainant and two the witnesses, recorded his satisfaction that a prima facie case under Sections 420 and 506 RPC against the accused persons is made out and issued process against them.
4. Petitioner has sought quashing of the complaint and the order dated 20.09.2012 whereby process has been issued against him and the proforma respondents, mainly on the ground that the complaint is false and frivolous and has been managed by PW- Parveen Rao to harass the petitioners and his other family members. It is contended that allegations leveled in the complaint are absurd and inherently improbable inasmuch as the petitioner and the proforma respondents have never been to Kashmir valley. Learned Chief Judicial Magistrate, Anantnag has issued process in a routine manner without application of mind. Issuance of process on such false and frivolous complaint has caused miscarriage of justice and is sheer abuse of process of the Court.
5. Mr. T. H. Khawja, learned counsel for the petitioner, while reiterating all the grounds taken in the petition, would say that besides the allegationsbeing absurd and frivolous, the complaint has been filed with ulterior motive and mala fide intention on the behest of PW Parveen Rao who is involved in a land dispute with the petitioner. In support of his contention that the complaint is a brain child PW Parveen Rao, ld. Counsel cited the presence of said Parveen Rao in the Court room all through the hearing of this case on 23. 5. 2013. Ld. counsel submitted that the complainant at the behest of PW Prveen Rao has misused the process of the Court and compelling the petitioners and the others to face the trial miles away from their native place would cause miscarriage of justice and unreasonable infringement to their fundamental right to liberty. Ld. counsel relied upon State of Haryana v Bhajan Lal, AIR 1992 SC 604 and sought to project that case is covered under illustrations 5 & 7 provided by the Honble Supreme Court in the said judgment and is a fit case for quashment by this Court.
6. Per contra, Mr. G. Q. Bhat, ld. Counsel for respondent No. 1 (complainant) would say that no case for quashing complaint and proceedings is made out as a strong prima facie case against the accused persons exists and it cannot be said without and before trial that allegations are absurdand much less false. He relied upon 2004 (1) JKJ 290, 2007 (11) JKJ 343 and 2007 (11) 532.
7. High Court under section 561-A of the Code (sec. 482 of the Central Code) is vested with inherent jurisdiction to make such order as may be necessary to give effect to any order under the Code or to prevent abuse of process of any Court or otherwise to secure the ends of justice. This jurisdiction of the High Court can be invoked to seek quashing of FIR and investigation by the police or any criminal proceedings pending in any Court if it is shown to the satisfaction of the Court that such proceedings is the abuse of process of that Court or tends to cause miscarriage of justice or the quashing is otherwise required to secure the ends of justice. The jurisdiction of the High Court is vast indeed but it is well settled that this jurisdiction is to be exercised cautiously, carefully and sparingly and the Court has not to function as a Court of appeal or revision. Supreme Court in State of Haryana v Bhajan Lal, AIR 1992 SC 604, has given categories of cases by way of illustration wherein such power can be used either to prevent the abuse of process of Court or to secure the ends of justice. The categories given by the Honble Apex Honble Court are:
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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 S. 156(1) of the Code except under an order of a Magistrate within the purview of S. 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 cognizance 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 S. 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 Act concerned (under which a criminal proceedings is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party.
7. Where a criminal proceedings is manifestly attended with mala fides 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.
8. Story recited in the complaint spreads over a period of around five years starting in the year, 2007 and ending with filing of the complaint in the Court of ld.
Chief Judicial Magistrate, Anantnag in the year, 2012. It is worthwhile to underline that the complaint came to be filed shortly after the petitioner had lodged a report against above said Parveen Rao, who appeared as a witness in support of the complaint and made the initial statement before the Court. Contention of the petitioner that filing of the complaint has been managed by said Parveen Roa assumes no less importance and cannot be taken lightly or ruled out in face of the presence of the latter in this Court all through the hearing of the case on 23.5.2013 and the timing of the complaint.
9. Improbability in the story narrated in the complaint is writ large in the story itself. No doubt could have been attributed to the complainants plan topurchase land in the state of Haryana and for that purpose he having approached some person(s) known to him or dealing in real estate business. But there is a matter of serious concern. It is quite improbable nay absurd to say and believe that as many as five persons (accused), all of them members of same family including one lady, would be involved in identifying and offering the land for sale to him. Even more improbable is to say that all of them had traveled together from Rewari, Haryana to Anantnag, Kashmir for collecting the sale consideration at two different times and the complainant would have made payment of huge amount to them without any receipt or without ascertaining their title to the land to be sold. It is nothing but ridiculous to say that, after having obtained Rs. 32, 00,000/ from the complainant by cheating him and having avoided to hand over the possession of land or return the money to him for over two years, all the accused persons had again come to Anantnag for collecting the remaining sale consideration and would have attempted to kill the complainant by hitting him with their car. It would not be unsafe or exaggeration to say that the story narrated by the complainant is nothing but unfettered figment of ill-conceived imagination. Ill imaginative character of the complainants story gets amplified by the nature of supporting evidence rendered by two witnesses in their initialstatements. Their statements are facsimile of the story narrated in the complaint and stated by the complainant in his initial statements. Their statements show improbability and absurdity of high order. They have rendered evidence as regards all episodes of the complainants story spreading over a period of five years ranging from Rewari to Anantnag, ignoring as to how that was possible.
10. To make out a prima facie case is sine qua non for commencing criminal proceedings on a complaint. But that alone does not suffice or clinch the matter. Principle laid down in Bhajan Lals case provides that proceedings can be quashed if the allegations suffer from inherent improbability or are absurd, proceedings can also be quashed where it is manifestly attended with mala fides or instituted with ulterior motive. This is provided under illustrations 5 and 7 in the judgment. Judgments relied upon by ld. respondents counsel do not lay down law contrary to Bhajan Lals case.
11. For the reasons stated and discussed above, I am of a considered view that this case is squarely covered under illustrations 5 and 7 of the Bhajan Lals case and hold that allowing the proceedings to continue would amount to abuse of the process of the Court and will cause miscarriage of justice.
12. Viewed thus, the complaint filed by the complainant and the order dated 20. 9. 2012 passed by the ld. Chief Judcial Magistrate, Anantnag are quashed.
13. Record to be remitted back along with a copy of this order and file to be consigned to records.
(Janak Raj Kotwal) Judge Srinagar 25.07.2013 Karam This Judgment is pronounced by me at Srinagar in terms of Rule 138 (3) of Jammu and Kashmir High Court Rules, 1999.
(Mohammad Yaqoob Mir) Judge