Jammu & Kashmir High Court
Lekh Raj & Ors. vs State And Anr. on 25 August, 2017
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
561-A No. 154/2013
Date of order:- 25.08.2017
Lekh Raj & others V. State of J&K& anr.
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearing Counsel:
For the petitioner(s): Ms. Samriti Atri, Advocate and
Ms. Gitanjali Goswami, Advocate vice
Mr. Ashok Sharma, Advocate
For the respondent(s) Mr. Amit Chopra, GA.
i. Whether approved for reporting in Press/Media : Yes/No/Optional ii. Whether to be reported in Digest/Journal : Yes/No
1. Petitioners invoke inherent jurisdiction of this Court under Section 561-A Cr.P.C. for quashing of criminal proceedings in FIR No.529/2011 u/s 451, 325, 323 RPC pending trial against the petitioners in the Court of learned Chief Judicial Magistrate, Rajouri, in FIR No.529/2011 under Sections 451,325,323 RPC.
2. In the petition, it is stated that on a written report of one Chaman Lal S/o Raja Ram R/o Village Sewa Jagir, Tehsil and District Rajouri, a case under Sections 451, 325, 323 RPC was registered in Police Station Rajouri dated 03.10.2011 with the allegation that on the night of 10th of September, 2011, the petitioners along with Jagdish Raj S/o Lochan Dass and Rakesh Kumar S/o Madan Lal who are his neighbourers and were inimical to him and his family members since long on the basis of land dispute; that they came there and started abusing him and his family members on which he asked the accused not to abuse. So saying the said accused persons attacked the 561-A No.154/2013 Page 1 of 5 complainant and his mother Kanta Devi after effecting entry inside the compound of his house and started man handling them with fits and kicks. His mother, because of assault, got injured and was admitted in hospital at Rajouri. It is further alleged by the complainant in his report that the bradari members asking him for compromise and because of his ill health and being handicap the delay has been caused in lodging the report. It is further contended that after registration of the said case, the investigation of the case was entrusted Head constable Beig Hussain, who investigated the case and after completion of the investigation, submitted a challan under Sections 451,325 RPC against petitioner No.1 and under Sections 451,323 RPC against petitioner nos. 2&3 by further stating that no case against Rakesh Kumar and Jagdish Raj was found made out who were also named in the FIR, which is pending trial in the Court of CJM, Rajouri.
3. The complaint being misconceived and against the provisions of law is required to be quashed on the following grounds:-
i) That at the very outset it has been admitted by the complainant Chaman Lal in the FIR that there was an old enmity on the basis of land dispute existing between the petitioners and him and his family members.
ii. The FIR in the case was lodged by the complainant in Police Station on 03.10.2011 i.e. after a delay of more than three weeks from the date of alleged occurrence which allegedly took place on 10.09.2011. This fact is one of the circumstances to show that the case against the petitioners has been falsely lodged by the complainant on the basis of a land dispute.
iii. That the petitioner Inderjeet alias Sanjeev Kumar on behalf of the public of Sewa Jagir, had lodged a complaint against the complainant Chaman lal before DFO, Rajouri as early as on 15.03.2010 i.e long before the present false case was lodged by the complainant upon the petitioners in which the petitioner had alleged that Chaman lal had constructed d Dhara (kachha house) by encroaching the forest land outside the forest closure which had been kept vacant by the forest department to provide drinking water to the cattle of 561-A No.154/2013 Page 2 of 5 the villagers. On the said report lodged by the petitioner Sanjeev Kumar against the complainant, the forest department demolished the Dhara of the complainant which had been raised by the complainant over night by encroaching the forest land. This fact clearly finds place in the challan submitted by the police against the petitioners, the basis of enmity. The fact of encroachment upon the forest land by the complainant has also been proved by the report of the Halqa patwari dated 23.03.2010.
iv. That even long prior to the alleged occurrence petitioner No.3 had lodged a report with SSP Rajouri against the complainant Chaman lal alleging that the complainant Chaman Lal had blocked her way while she was carrying her cattle, threatened her and assaulted her.
v. On 20.01.2010, a panchyat nama was prepared panchayat members and residents of village Sewa Jagir restraining all sundry and outside the forest closure none would occupy the place as the said place is used by the residents of the cillage as a path way for the cattle. So much so even a resolution was also passed by their Panchayat halta Sewa Jagir on 21.10.2012 disclosing therein that the present case was foisted by the complainant Chaman Lal against the petitioners by falsely implicating them.
vi. That as already submitted, the complainant had named five persons in his report lodged with the police, however, the case was found false on investigation by the police against Jagdish and Rakesh. This fact also speaks in many words about the falsity of the prosecution case pending trial before the learned CJM, Rajouri.
vii. That in the FIR the complainant stated that the occurrence took place during the night, whereas according to the prosecution case projected in the challan, the alleged occurrence took place in the evening.
viii. That most of the alleged eye witnesses are the family members of the complainant and are interested witnesses.
4. Heard learned counsel for the parties and have perused the case file.
561-A No.154/2013 Page 3 of 55. The law with regard to quashment of FIR/ challan /complant is now well settled. These can only be quashed in order to prevent abuse of process of law or to otherwise secure the ends of justice.
6. The expression ends of justice and to prevent abuse of process of any court are intended to work out either when an innocent person is unjustifiable subjected to an undeserving prosecution or if an ex facie all merited prosecution is throttled at the threshold without allowing the material in support of it.
7. This court while exercising the power under section 561-A Cr.P.C., Court does not function as court of trial, appeal or revision. Inherent jurisdiction has to be exercised disparity, careful and with great caution. These powers cannot be used to stifle the legitimate prosecution. This is discretionary power vested in High Court to do substantial justice. High Court cannot examine the evidence as to whether charge for alleged offence is made put or not. This is prerogative of trial court where challan is produced.
8. Where accused has opportunity to advance submission before trial court that material on record does not call for framing of charge or accused has opportunity to rebut the case of prosecution in defense, than High court shall not exercise power under section 561-A Cr.P.C.
9. In present case already challan in FIR No.529/2011 under Sections 451, 325, 323 RPC has been produced before competent Court of law and proceeding would be going on as this court has not stayed the proceeding. All the grounds taken in this petition are pertaining to appreciation of facts, which this court cannot appreciate in this petition. Further counsel for petitioners have failed to satisfy the Court thereby showing that the allegations at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. That petitioners have also failed to point out as to whether there is an express 561-A No.154/2013 Page 4 of 5 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.
10. Hence I don't find any sufficient grounds to quash the proceedings. Hence, this petition is dismissed. However, petitioners can raise any plea before trial Court in defense.
(Sanjay Kumar Gupta) Judge Jammu 25.08.2017 Vijay 561-A No.154/2013 Page 5 of 5