Jammu & Kashmir High Court
Rajni Kant Tiwari vs State Th.Home Deptt.And Anr. on 27 September, 2013
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
Petition under section 561-A Cr. P.C. No. 211/2012
Cr.M.A. Nos. 242/2012 and 247/2012
Date of decision:27.09.2013
Maj Rajni Kant Tiwari vs. State and ors.
Coram:
HON'BLE MR. JUSTICE JANAK RAJ KOTWAL-JUDGE
Appearing counsel:
For petitioner (s): Mr. M. M. Baru, Advocate
For respondent(s): Mr. Salim Malik, Dy. AG vice
Mr. Gagan Basotra, Sr. AAG for Nos. 1 and 2
R-3 set ex parte.
(i) Whether to be reported in
Press, Journal/Media: Yes/No
(ii) Whether to be reported in
Journal/Digest: Yes/No
1. This petition seeks invoking of the inherent jurisdiction of this Court under Section 561-A of the Code of Criminal Procedure (for short the Code) for quashing First Information Report (FIR) No. 15/2012 dated 14.01.2012 under section 363 RPC of Police Station, Akhnoor.
2. Heard. I have perused the record.
3. I may state, briefly, the facts emerging from the record produced by the petitioner, which are essential to dispose of this petition:
24. Petitioner and respondent No. 3 are husband and wife.
They got married on 08.07.2003 and are blessed with a male child, Ruchir Tiwari. Their matrimonial life, however, remained disturbed inasmuch as respondent No. 3 had lodged an FIR under secs. 498-A, 323, 504, 506, 427 IPC read with Sec.3/4 Dowry Prohibition Act against the petitioner and his family members at Police Station, Lanka, District, Varanasi (UP) which was registered as Crime No. 89/2009 dated 14.3.2009. However, at a later stage parties had arrived at a compromise. In April, 2011 petitioner, who is Major in Indian Army, was transferred to Akhnoor in J&K State. Respondent No. 3 along with their son joined the petitioner at Akhnoor. On 30.12.2011, petitioner filed application under section 100 of the Code in the court of learned Judicial Magistrate, 1st Class, Akhnoor. He alleged that on his return to Akhnoor after availing leave, he found his house locked from outside. Whereabouts of his wife and son were not known. On breaking open the locks of the house, he found that gold items and cash were also missing. He came to know that his father-in-law with the help of some goons has forcibly removed his wife and child and has confined both of them in his house at Varanasi. Petitioner, therefore, sought issuance of search warrant under section 100 of the Code for their search and producing them before the court. Learned Judicial 3 Magistrate after hearing petitioner's counsel, issued search warrant directing SHO, Police Station, Akhnoor to search the house of the father(Chander Dev Pandey) of respondent No. 3, situate at Plot No. 36/37, Madhav Market, Colony Lanka, Varanasi (UP) and produce the respondent No. 3 and child, Ruchir Tiwari, in the Court on 21.01.2012.
5. Order passed by the learned Magistrate on 28.01.2012, copy whereof has been produced by the petitioner, would show that the respondent No. 3 and the child were produced before the learned Magistrate on 12.01.2012 in compliance with the search warrant issued by him. As respondent No. 3 wanted to make her statement in presence of her father so the learned Magistrate kept them on sapurdari of one K. P. Dubey with a direction to appear on 14.01.2012 and posted the matter for 14.01.2012. Respondent No. 3 attended the court on 14.01.2012 but the petitioner did turn up. The order passed by the learned Magistrate on 28.01.2012 (supra) read with FIR No. 15/2012 (supra) registered with Police Station, Akhnoor on 14.01.2012 would show that on 14.01.2012, respondent No. 3 had filed an application before the learned Magistrate alleging that on that day she along with her family members was sitting in the court room. Suddenly her husband (petitioner herein) and his two brothers, Krishan Kant Tiwari and Ajay Tiwari 4 came there and forcibly removed the child, Ruchir Tiwari, from her lap and took him away by an Army Jeep to some unknown place. She, thus, alleged that the child has been kidnapped by the petitioner along with four army personnel. Learned Magistrate forwarded the complaint to SHO, Police Station, Akhnoor with a direction "to register FIR against the accused and take strict necessary action under law". On this application FIR No. 15/2012 under section 363 RPC has been registered, which is sought to be quashed in this petition.
5. Petitioner seeks quashing of the FIR on the ground that the allegations leveled by the respondent No. 3 are false, baseless and frivolous and do not disclose any prima facie case against the petitioner even if the contentions in the FIR are taken at their face value. No offence is made out against the petitioner. Since the petitioner is natural guardian of the child, he cannot be legally accused of kidnapping his own son. While not refusing that on 14.01.2012 he had removed the child from the court premises, the petitioner has contended that on 12.01.2012 when respondent No. 3 along with the child of the petitioner had appeared in the court, the child on seeing him had started shouting saying 'PAPA' 'PAPA' and wanted to come in his arms. However, he was not allowed by his mother. On 14.01.2012, he came to attend the court proceedings, he was standing in the court 5 premises, the child on seeing him came to his arms shouting 'PAPA' 'PAPA' and started saying that he does not want to go back to his mother and wants to stay with him. On seeing this, respondent No. 3 and her father thought that the minor may not agree to go with them so father of respondent No. 3 started extending threats to the petitioner.
6. Mr. M. M. Baru, learned counsel for the petitioner submitted that the petitioner, being father and thereby natural guardian of the minor, cannot be said to have committed offence of kidnapping his own son even if he had taken the child with him from the court premises. Learned counsel, therefore, submitted that no prima facie case of kidnapping is either disclosed in the FIR or is constituted and the FIR is liable to be quashed. In support, Mr. Baru relied upon Khyali Ram and others v. State of U. P. 1971 CRI. L. J. 1365.
7. Per contra, Mr. Salim Malik, Dy. AG appearing vice Gagan Basotra, Sr. AAG submitted that the judgment relied upon by the learned counsel for the petitioner would not apply in this case. The petitioner by invoking judicial process had secured the presence of the child in the court had taken him away without waiting for the judicial order in this regard.
68. 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 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 are:
"108.........
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.7
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.8
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".
9. In Khyali Ram's case (supra) Allahabad High Court in somewhat but not exactly similar situation has observed that "Applicant Khayali Ram is admittedly the father of the minor Kalua.... as Khyali Ram is the natural guardian even if he has removed the minor from the custody of the mother there is no question of committing an offence under section 363 Indian Penal Code". High Court has gone further observing that "in order to constitute an offence under section 363 IPC there must be kidnapping of a person from lawful guardianship. Here Khyali Ram is himself the lawful guardian of the child. It cannot, therefore, be said that he committed an offence under section 363 of IPC by getting the custody of his own son from his wife".
10. High Court made further observation in para 5, which reads:
"No doubt, under Section 6 of the Hindu Minority and Guardianship Act, 1956, the custody of a minor who has not completed the age of five years shall ordinarily be with the mother but the father being the natural guardian of a Hindu minor cannot be held to have committed an offence of kidnapping by 9 removing his minor son from the custody of the mother."
11. The High Court therefore, quashed the order passed by learned Magistrate taking cognizance under section 363 IPC.
12. The Khyali Ram's case, however, would not apply in this case given the significant difference in fact situation of the two cases. In Khyali Ram's case, as the order rendered by the High Court would show, child was removed from the custody of the mother and High Court was of the view that offence of kidnapping under section 363 IPC is not made out. Situation in this case, however, is not only different but peculiar and raises a serious question about the conduct of an Army Officer, who after submitting himself to legal process as long as it suited him has violated law when it suited him otherwise. Petitioner secured presence of the mother and the child in the court by invoking jurisdiction of the Magistrate under section 100 of the Code. In his presence the mother and the child were produced before the Magistrate on 12.01.2012 and both of them were kept on Supardari of one K.P. Dubey with a direction to appear before the court on 14.01.2012. Petitioner has admitted his presence before in the Court of learned Magistrate on 12.01.2012 in para 31 of his petition. All of them came in the court on 14.01.2012. On 14.01.2012, the child as a matter of fact 10 was not in the custody of his mother only but was in custodia legis, having been kept on sapurdari by order of the Magistrate. The alleged forcible removing of the child by the petitioner, therefore has taken place at a time when the child was in custodia legis so the benefit of the judgment in Khyali Ram's case, in Khyali Ram's case, relied upon by the petitioner's counsel would not be available.
13. Petitioner's contention that his child has of his own come to the petitioner too would not weigh against respondent No. 3's allegation that petitioner and his accomplice had removed the child forcibly and left the court premises by an army jeep. Petitioner's contention, though not sufficient to dislodge respondent No. 3's allegation at this pre investigation stage, however, loses its genuineness by the conduct of the petitioner himself. Petitioner having secured presence of the child in the court by using the process of the court, has not stated in the petition as to why he did not feel it proper to bring the incident to the notice of learned Magistrate immediately or when the case would have been called and why did he left the court without attending the hearing. Allegation of the respondent No. 3 when considered in light of petitioner's admission that he had removed the child from the court premises on that day, makes out not only a prima facie case but a strong prima facie case of kidnapping against 11 the petitioner and question of quashing of FIR at pre investigation stage does not arise.
14. For the aforementioned, petition is dismissed as without any merit.
(Janak Raj Kotwal) Judge Jammu:
27.09.2013 Rakesh