Jammu & Kashmir High Court - Srinagar Bench
Ghulam Mustafa Khateeb vs Masooda Amin And Others on 23 May, 2018
Author: M.K.Hanjura
Bench: M.K.Hanjura
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
...
561-A no.142/2016 MP no.01/2016 c/w 561-A no.143/2016 561-A no.144/2016 OWP no.802/2016 Date of order: 23.05.2018 Ghulam Mustaffa Khateeb v. Masooda Amin and others Anuj Bharat Nair v. Masooda Amin and others Aijaz Ahmad Khan v. Masooda Amin and others Aamir Jalali v. Masooda Amin and others Coram:
Hon'ble Mr Justice M.K.Hanjura, Judge Appearing Counsel:
For Petitioner(s): Mr Javed Iqbal, Advocate For Respondent(s): Mr F. A. Wani, Advocate Whether approved for reporting? Yes/No
1. A clutch of these petitions circles the complaint preferred by the respondent no.1 against the petitioners and proceedings emanated therefrom. Impugned, therefore, in the petitions on hand, mooted under Section 561-A of the Code of Criminal Procedure (Cr.P.C.), are the orders dated 12.03.2015, 22.08.2015 and 25.04.2016, passed by the learned 1st Additional Munsiff, Judicial Magistrate 1st Class, Srinagar (for brevity the "Trial Magistrate"), and quashment of the complaint titled Masooda Amin v.
Mustaffa Khateeb and others, is as well implored for by the petitioners.
2. The case set up by the petitioners in all these petitions is that Bajaj Allianz General Insurance Company (for short 561-A no.142/2016 Page 1 of 36 c/w 561-A no.143/2016 561-A no.144/2016 OWP no.802/2016 the "company") is a Private Insurance Company, incorporated under the Companies Act, 1956. The company conducts its business of the insurance in India, based on a certificate of the registration issued by the Insurance Regulatory Development Authority (IRDA). The petitioners claim that they have been in the service of the company in the different capacities and at the different positions. Respondent no.1, it is averred, came to be appointed in the company as Junior Executive Claims vide order dated 25.02.2008 and subsequently elevated as Executive Claims in the year 2010. She was thereafter redesignated as Executive Sales (Trainings) vide order dated 18.01.2014. In September 2014, the unprecedented floods hit the State of J&K in general and the Valley in particular, causing immense loss and damage through the length and breadth of the Valley. It is claimed that the company since have had the huge insurance business in the Valley, as such, it rose to the occasion aiming at to extend the help and support to the insured, opened various extension counters/makeshift offices, including one at Nallamar Road, Srinagar, for receiving intimations and settling the insurance claims of the insured. It is maintained by the petitioners that the aforesaid exercise, however, did in no way authorise or empower any of the officers/employees of the company to deviate from the settled process, procedure and norms, 561-A no.142/2016 Page 2 of 36 c/w 561-A no.143/2016 561-A no.144/2016 OWP no.802/2016 while entertaining and settling the claims of the insured. Entertaining the claim forms intimations and allocating/ forwarding the same to the Surveyors had been the job assigned to the particular officers/employees. The respondent no.1, however, have had not been assigned any kind of such job, in that the respondent no.1 during that period had been holding the position of the Executive Operations assigned to her in terms of order dated 10.06.2014. The respondent no.1 had no role either to allocate or to forward the registered claims of the insurance to any of the surveyors.
3. It is next averred that during the said floods the head office of the company situated at Karan Nagar, Srinagar, even did not remain immune from the floods and the respondent no.1, taking the undue advantage of the said situation, have had started accepting and entertaining the claim forms from the insured and without any competence, power and the authority allocating and forwarding the same to one Mr Adil, working with the Panel Surveyor of the company, namely, M/s G.N.Teeli. the said unauthorised and illegal act of omission and commission resulted in huge losses to the company inasmuch as on the various occasions unpleasant situation for the company before this Court, which was monitoring the settlement of insurance cases at that relevant point of time. The said acts of the respondent 561-A no.142/2016 Page 3 of 36 c/w 561-A no.143/2016 561-A no.144/2016 OWP no.802/2016 no.1, according to the petitioners, surfaced during the month of November-December 2014, when an inhouse fact finding inquiry was conducted and as a consequence whereof, cognisance was taken by the officers of the company and show cause notice was issued to the respondent no.1 and she was placed under suspension vide letter dated 30.12.2014. An explanation was sought from the respondent no.1 for the acts of omission and commission committed by the respondent no.1. The notice was responded to by the respondent no.1. It is asserted that the company ultimately after considering the entire matter and material relating to the acts of omission and commission committed by the respondent no.1, which also consisted of her voluntary admission/confession, decided to terminate the services of the respondent no.1 and consequently issued an order of termination dated 03.03.2015. Thereagainst, the respondent no.1 filed a Civil Suit before the court of the learned 1st Additional Munsiff, Srinagar, and earned an interim relief in her favour in an application for interim relief. The said suit came to be contested by the company and on consideration of the written statement as also objections, so filed by the company, the learned 1st Additional Munsiff, Srinagar, vide order dated 25.04.2016, vacated the interim order. It is contended that the respondent no.1, prior to the institution of the aforesaid 561-A no.142/2016 Page 4 of 36 c/w 561-A no.143/2016 561-A no.144/2016 OWP no.802/2016 civil suit, had filed a Criminal Complaint against the petitioners, alleging commission of offences punishable under Section 341, 348, 354, 506 and 509 of Ranbir Penal Code (RPC). The petitioners contend that they came to know that an inquiry was conducted on the said complaint of the respondent no.1, by the police station Karan Nagar, and the statement of the petitioners was recorded during the course of the said inquiry by the Inquiry Officer, besides the statement of the other officers of the company posted in the same office viz. Karan Nagar, Srinagar, where the respondent no.1 had been working.
4. According to the petitioners, the learned Trial Magistrate, on entertaining the complaint of the respondent no.1 on 12.03.2015, recorded the statement of the complainant and one of her witnesses. However, the learned Trial Magistrate postponed the issuance of the process and referred the matter to the police for conducting/ holding inquiry into the matter in light of the averments made in the complaint and the statement recorded by the Trial Magistrate. The police concerned conducted the inquiry and submitted a detailed report to the learned Trial Magistrate and had found in the inquiry that no offence muchless those alleged to have been committed by the accused persons, have been committed. It is maintained that the learned Trial Magistrate formulated certain questions after the report was submitted by the 561-A no.142/2016 Page 5 of 36 c/w 561-A no.143/2016 561-A no.144/2016 OWP no.802/2016 police, seeking further report vis-à-vis the said questions vide order dated 22.08.2015. The learned Trial Magistrate, without waiting for a report from the police, proceeded to Issue the Process against the petitioners for commission of the offences punishable under Sections 341 and 348 of Ranbir Penal Code (RPC).
5. The petitioners also state that they have come to know about the filing of another complaint by the respondent no.1 before the court of the learned Special Mobile Magistrate, Passenger Tax and Excise (PT&E), having been presented on 6.4.2015, wherein the petitioners had been impleaded as accused, alleging commission of offences punishable under Section 341 and 348 RPC. Another complaint reportedly has been filed by the respondent no.1 before the court of Special Mobile Magistrate, 13 Commission, for commission of various offences, which reportedly was dismissed.
6. I have heard the learned counsel for the parties at length and considered the matter.
7. Learned counsel for the petitioners, to reinforce and fortify the case set up by the petitioners, states that the complaint lodged by the respondent no.1 is a retaliatory measure to the termination of her services as otherwise had the alleged incident happened, nothing prevented her from instituting the complaint or else lodging a prosecution or registering a case against the accused persons there and then without 561-A no.142/2016 Page 6 of 36 c/w 561-A no.143/2016 561-A no.144/2016 OWP no.802/2016 wasting any time and waiting till 12.03.2015. The complaint did not disclose and spell out the actual date of alleged incident in the complaint or in the preliminary statement of the respondent no.1, yet the said date has been referred to by the police in its report, filed before the learned Trial Court, which is the date when in fact an inhouse inquiry was held by the officers of the Company for inquiring into the acts of omission and commission alleged to have been committed by the respondent no.1. His next submission is that the learned Trial Court while entertaining the complaint filed by the respondent no.1, referred it to the police for inquiry as the learned Trial Court found a case for cognisance and issue of process could not be made out by the respondent no.1. The inquiry conducted by the police concluded in reporting that no offence has been committed by the alleged accused persons. According to the learned counsel for the petitioners, the learned Trial Court had no reason muchless a justifiable one to proceed further in the matter including issuing process against the petitioners. He has also contended that the impugned orders passed by the learned Trial Magistrate are erroneous and against the settled principles of law laid down by the Supreme Court in a number of decisions. The allegations made in the complaint on their face value do not make out an offence against the petitioners. Learned 561-A no.142/2016 Page 7 of 36 c/w 561-A no.143/2016 561-A no.144/2016 OWP no.802/2016 counsel for the petitioners, to buttress the arguments advanced by him, has placed reliance on the law laid down in the cases of State of Haryana v. Bhajan Lal and others 1992 Supp (1) SCC 335; Pepsi Foods Ltd and another v. Special Judicial Magistrate and others (1998) 5 SCC 749; P.S. Meherhomji v. K.T. Vijay Kumar and others (2015) 1 SCC 788; Ramdev Food Products Private Limited v. State of Gujarat (2015) 6 SCC 439; and Vineet Kumar and others v. State of U.P. and another AIR 2017 SC 1884.
8. The learned counsel for the respondent no.1, to counter what the learned counsel for the petitioners averred, has vehemently stated that the impugned order need not be interfered with inasmuch as the learned Magistrate is not bound to accept the opinion of the police; even the Magistrate may prefer to ignore the conclusion of the police and take cognizance of the offence. He also avers that a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) of the Code even if the police report details that no case is made out against the accused. The Magistrate can take into account the statement of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of the process to the accused. Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the investigating officer gives an opinion that the investigation has made out a case against the 561-A no.142/2016 Page 8 of 36 c/w 561-A no.143/2016 561-A no.144/2016 OWP no.802/2016 accused. The Magistrate can ignore the conclusions arrived at by the investigation officer and even in absence of such report from the investigation officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, in exercise of his powers under Section 190(1)(b) and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in Sections 200 and 202 of the Code for taking cognizance of a case under Section 190(1) (a) though it is open to him to act under Section 200 or Section 202 also.
9. What emerges from the file and the learned Trial Court record is foremost to be dealt with concomitant with what the settled principles of law envisage and stipulate relating to the subject matter of the case in hand.
10. A letter dated 30th December 2014 (Annexure B to writ petition) appears to have been addressed by the Bajaj Allianz General Company Limited to the respondent no.1, intimating her that she had been appointed by the company as the Junior Executive Claims on 1st March 2008 vide appointment letter dated 25th February 2008 and while working as the Executive Operations, she had to strictly follow the rules and regulations laid down by the company including the terms and conditions of Employment Contract. The letter dated 30th December 2014 also divulges 561-A no.142/2016 Page 9 of 36 c/w 561-A no.143/2016 561-A no.144/2016 OWP no.802/2016 that while working in the company, the respondent no.1 committed misconduct of service. The respondent no.1 was also informed that basing on investigation, the company was contemplating to take the suitable disciplinary action against the respondent no.1 for her misconduct and till further orders were passed, the respondent no.1 was placed under suspension. The respondent no.1 was as well informed that she would be given opportunity to submit her reply. As claimed by the petitioners, the respondent no.1 filed the reply (Annexure C to petition) in response to letter dated 30th December 2014. In her reply the respondent no.1 had submitted that she had not committed any commission or omission which would amount to any misconduct on her part inasmuch as the allegations levelled against her are totally baseless, concocted and untrue because she had been performing her duties strictly in accordance with her appointment letter dated 28.02.2008 and that she has never indulged in such acts warranting disciplinary action against her. By letter dated 3rd March 2015 (Annexure E to petition), the respondent no.1 was terminated from the service of the company with effect from 30.12.2014. Aggrieved thereof, the respondent no.1, as maintained by the petitioners, filed a civil suit before the learned 1st Additional Munsiff, Srinagar.
561-A no.142/2016 Page 10 of 36 c/w 561-A no.143/2016 561-A no.144/2016 OWP no.802/201611. On 12th March 2015, a written complaint under Sections 341, 348, 354, 506, 509 Ranbir Penal Code (RPC), the respondent no.1, Masooda Amin daughter of Mohammad Amin, filed before the court of the learned Chief Judicial Magistrate, Srinagar. Her case in the complaint is that she had been working in Bajaj Allianz General Company Limited at its Branch Office Karan Nagar, Srinagar, since 1st March 2008 and she was promoted as the Executive Operations. She claims that in view of the untimely flood, which struck the Valley, the company's business was rendered inert and owing to declaration of emergency, she was asked to open a counter at Nallamar Road, Srinagar, for entertainment of the claims/intimations of the customers and in consequence thereto, the claims in thousands poured in. It is groused by the complainant/ respondent no.1 that the accused, looking for a nick to downplay the complainant on one pretext over the another, started interfering into her assignment while unduly calling her in the office cabin, casting the sarcastic remarks against her, thereby harassing her. The harassment, as complained by the respondent no.1, exaggerated when all the accused called the complainant/respondent no.1 in her cabin while confining the later for six hours confronting with the abusive language. It is also alleged that on next day all the accused were ready as if the respondent no.1 was 561-A no.142/2016 Page 11 of 36 c/w 561-A no.143/2016 561-A no.144/2016 OWP no.802/2016 to be either murdered or raped and suddenly the accused no.5 - petitioner in 561-A no.143/2016, snatched the purse and the bag of the complainant and started looking into it. It is also alleged that the accused/petitioners tortured and abused the complainant/respondent no.1. The respondent no.1 also claims that though she approached the concerned police station for lodgement of the FIR but the same was denied. It is also asserted that in the meantime to counter the complainant, the accused started espousing the grounds for getting her walking papers, the outcome of which came readily on 30th December 2014, through a letter with the subject to contemplate disciplinary action, citing the allegation of misconduct towards the duties. The respondent no.1 maintains that she replied the notice.
12. The learned Chief Judicial Magistrate, Srinagar, assigned the complaint of the respondent no.1, to the learned Trial Magistrate (1st Additional Munsiff, Srinagar). After recording the statements of the respondent no.1 and her witness and upon going through the contents of the complaint, the learned Trial Magistrate postponed the issue of process and in order to properly ascertain the truthfulness or otherwise of the complaint, forwarded the matter to the Station House Officer Police Station Karan Nagar, Srinagar, with a direction to investigate/enquire the matter in light of the averments made in the complaint 561-A no.142/2016 Page 12 of 36 c/w 561-A no.143/2016 561-A no.144/2016 OWP no.802/2016 under Section 202 Cr.P.C. and submit the report before the court of the learned Trial Magistrate by or before next date of hearing.
13. The Trial Court record also reveals that the concerned police submitted the report along with the statements of the witnesses as also certain documents of the company, in which it was, inter alia, reported that the complainant/ respondent no.1 had purportedly signed the intimations which was beyond her powers/jurisdiction. The learned Trial Magistrate while passing order dated 22nd August 2015, mentioned and observed therein that the SHO P/S Karan Nagar had submitted a detailed report along with the statement of the witnesses and certain documents of the company. The learned Trial Magistrate, however, appears to have not been swayed by the report submitted by the police and as a sequel thereto, it directed SHO P/S Karan Nagar to submit a detailed report. While passing the order dated 22nd August 2015, the learned Trial Magistrate framed some questionnaires. What were those questions framed by the learned Trial Magistrate, would, therefore, be profitable to be glanced over by reproducing the order dated 22nd August 2015, infra:
"To The S.H.O. Police Station Karan Nagar, Srinagar.561-A no.142/2016 Page 13 of 36 c/w 561-A no.143/2016 561-A no.144/2016 OWP no.802/2016
By virtue of order dated 12.03.2015, you were directed to conduct an inquiry/investigation into the facts of above mentioned complaint, to which you submitted a detailed report along with the statements of the witnesses and certain documents of Bajaj Allianz Company. In your inquiry report you have not submitted copies of the intimations purportedly signed by the said complainant, Masooda Amin beyond her powers/jurisdiction. However, with respect to investigation you are directed to confirm that in the room/cabin where inquiry has been conducted by the team of officials of Bajaj Allianz:
(i) Whether said cabin was open or closed one;
(ii) Whether in addition to the persons named in the list of non-applicants, some female member was also present in the cabin;
(iii) Whether the hand bag of the complainant was frisked by the inquiry team present there or not and if yes the mode thereof.
You are directed to submit the report before this court within a weeks time positively along with copies of intimation purportedly signed by the complainant. Copy of the complaint along with the report is annexed along with this order, by or before 02.09.15."
14. While the final report was yet to be filed by the police, the learned Trial Magistrate, by the order impugned dated 25th April 2016, issued the process against the petitioners. It would be advantageous to reproduce relevant portion of the impugned order dated 25th April 2016 hereunder:
"I have gone through the contents of the complaint, the inquiry conducted by the police and the subsequent questionnaire which was framed before this court, I hereby come to the following conclusion:
At this stage, it prima facie shows that with respect to Official misconduct, the questioning was carried with respect lady employee/complainant who is in her 30s by the respondents in their chambers, however, she was not given any opportunity of being heard or any prior notice. Further 561-A no.142/2016 Page 14 of 36 c/w 561-A no.143/2016 561-A no.144/2016 OWP no.802/2016 the said questioning was conducted without any other female member in the said cabin and the accused No.2 and 5 have misused their official position and authority by frisking the purse of the complainant, therefore, at this stage, I find enough material against the accused No. 2 and 5 i.e. Aamir Jalali and Anuj Nayer for commission of offence under section 341 and 509 RPC and rest of the accused for offences under section 341, 348 RPC.
Section 204 CrPC clothes the Magistrate with a power to issue process against the alleged accused persons. It is prima facie established by virtue of the inquiry conducted in the matter that the statement of witnesses recorded by the police officials show that witnesses were present in the office when the questioning was going on. The statement recorded by the police with respect accused no.1 show that his signature has been forged but along with their report, the police has not placed any such document which shows forged signature of the accused No.1.
Having regard to the aforesaid discussion, I am of the opinion that sufficient grounds do exist for proceeding against the alleged accused person No.1 and 5 for the commission of offence under section 341, 509 RPC and rest of the accused persons under section 341, 348 RPC.
Accordingly, registry is directed to issue process by way of summons against the alleged accused persons and answer the allegations of the complainant."
15. Important facets concerning the lodgement of the complaints, cognizance thereof and initiation of the proceedings emanating therefrom are to be dealt with strictly in accordance with the Code of Criminal Procedure. The Code of Criminal Procedure (Cr.P.C.) is the principal legislation on the procedure for the administration of the substantive criminal law in India. Anent the J&K State, the Code of Criminal Procedure was sanctioned by His Highness the Maharaja Bahadur vide Notification no.43-L/ 1989 dated 4th January 1933/26th Poh, 1989 and published 561-A no.142/2016 Page 15 of 36 c/w 561-A no.143/2016 561-A no.144/2016 OWP no.802/2016 in Government Gazette on 17th Kartik, 1990. It provides the mode and method for investigation of the crime, apprehension of suspected the criminals, collection of the evidence, determination of the guilt or innocence of the accused person and the determination of the punishment of the guilty. It also deals with public nuisance, prevention of the offences and maintenance of the wife, the child and the parents. The Code of Criminal Procedure contains 565 Sections.
16. Chapter XIV of the Code of Criminal Procedure relates to information to the police and their powers to investigate. Section 154 is relevant regarding registration of a cognizable offence and that provision reads as follows:
"154. Information in cognizable cases. -
(1) Every information relating to the commission of a cognizable offence if given orally to an officer-in-charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.
Provided that if the information is given by the woman against whom an offence under section 326A, section 326B, section 354, section 354A, section 354B, section 354C, section 354D, section 376, section 376A, section 376B, section 376C, section 376D, section 376E or section 509 of the Indian Penal Code is alleged to have been committed or attempted, then such information shall be recorded, by a woman police officer or any woman officer and such woman shall be provided legal assistance and also the assistance of a healthcare worker or women's organization or both:
561-A no.142/2016 Page 16 of 36 c/w 561-A no.143/2016 561-A no.144/2016 OWP no.802/2016Provided further that-
(a) in the event of such woman being temporarily or permanently mentally or physically disabled, then such information shall be recorded by a police officer, at the residence of the person seeking to report such offence or at a convenient place of such woman's choice, in the presence of a special educator or an interpreter or a medical officer, as the case may be;
(b) the recording of such information may, as far as practicable, be video-graphed;
(2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant against a proper receipt.
(3) Any person aggrieved by a refusal on the part of an officer-in-charge of a police station to record the information referred to in sub-section (1) may deliver personally or cause to be delivered or send by post the substance of such information, in writing to the Superintendent of Police concerned who if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer-in-
charge of the police station in relation to that offence."
17. The legal mandate enshrined in the Section 154 is that every information relating to the commission of a cognizable offence (as defined under Section 4 (1)(d) of the Code), if given orally ( in which case it is to be reduced into writing) or in writing to an officer incharge of a police station (within the meaning of Section 4 (1)(l) of the Code) and signed by the informant should be entered in a book to be kept by such officer in such form as the Government may prescribe which form is commonly called as "First Information report" and 561-A no.142/2016 Page 17 of 36 c/w 561-A no.143/2016 561-A no.144/2016 OWP no.802/2016 which act of entertaining the information in the said form is known as registration of a crime or a case.
18. However, an adieu is to be given here to Section 154 of the Code, in that in the present case a complaint has been filed by the respondent no.1 before the learned Trial Magistrate, vituperating the allegations against the petitioners that attract punishment under the provisions of Section 341, 348, 354, 506 and 509 of Ranbir Penal Code (RPC). Having said so, it would be gainful to have coup d'oeil of Section 190 of the Code of Criminal Procedure, which stipulates:
"190. Cognizance of offences by Magistrates.
(1) Except as hereinafter provided, any Chief Judicial Magistrate and any other Magistrate specially empowered in this behalf, may take cognizance of any offence-
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
(2) the High Court may empower any Judicial Magistrate to take cognizance under sub-section (1), clause (a) or clause
(b), of offences for which he may try to commit for trial. (3) The High Court may empower any Judicial Magistrate of the first or second class to take cognizance under sub-section
91), clause (c), of offences for which he may try to commit for trial."
19. Section 190 of the Code of Criminal Procedures, inter alia, envisages that any Chief Judicial Magistrate and any other Judicial Magistrate specially empowered in this behalf may take cognizance of any offence: upon receiving a complaint of facts which constitute such offence; upon a report in 561-A no.142/2016 Page 18 of 36 c/w 561-A no.143/2016 561-A no.144/2016 OWP no.802/2016 writing of such facts made by any police officer; upon information received from any person other than a police officer, or upon his own knowledge or suspicion, that such offence has been committed. There are four methods of taking cognizance of offences by the Courts competent to try the same. The court, called upon to take cognizance of the offence, must apply its mind to the facts placed before it either upon a police report or upon a complaint or in some other manner the court comes to know about it and in the case of Court of Session upon commitment of the case by the Magistrate. [See: A.R. Antulay v. R.S. Nayak (1984) 2 SCC 500].
20. When a Magistrate receives a complaint, which may be either oral or in writing as defined under Clause (e) of Section 4 of the Code, he has two courses open before him. He may take cognizance under Section 190(l)(a) by applying his mind to the facts of the case and thereafter proceed in the manner provided in Sections 200 and 202 Cr.P.C. By virtue of Section 200, he is required to examine the complainant and the witnesses present, if any. If the Magistrate finds that there is sufficient ground for proceeding, he may issue process under Section 204. But if the Magistrate does not feel satisfied, he may either dismiss the complaint under Section 203 Cr.P.C. or postpone the issue of process and take recourse to Section 202, which 561-A no.142/2016 Page 19 of 36 c/w 561-A no.143/2016 561-A no.144/2016 OWP no.802/2016 provides that he may inquire into the case himself or may direct an investigation to be made by a police officer or such other person as he thinks fit, for the purpose of deciding whether or not there are sufficient grounds to proceed. If he finds the grounds to be sufficient he may issue the process or otherwise he may dismiss the complaint under Section 203 Cr.P.C. after briefly recording his reasons for so doing. Germane to point out here is that it is well settled principle of rule of law that the Magistrate is not bound to issue process immediately on a complaint filed before it. The Magistrate can postpone the issue of process when he has doubts about the truth of complaint. In the present case as well, the learned Magistrate on receipt of the complaint did not issue the process, albeit it had recorded the statement of the complainant as well as her witnesses, but it deferred the issue of the process as it deemed it proper to ascertain the truthfulness or otherwise of the complaint. Thus, the learned Trial Magistrate had doubts about the truthfulness of the complaint, notwithstanding recording the statements of the complainant and her witnesses, that is the reason that the learned Trial Magistrate deferred and postponed the issue of the process against the petitioners and forwarded the matter to SHO P/S Karan Nagar for investigation/inquiry under Section 202 Cr.P.C. Had the learned Trial Magistrate, at the first glimpse, been 561-A no.142/2016 Page 20 of 36 c/w 561-A no.143/2016 561-A no.144/2016 OWP no.802/2016 convinced of and persuaded by the contents of the complaint and the statements of the respondent no.1 and her witnesses, he would have never reverted to Section 202 Cr.P.C. In such circumstances, the learned Trial Magistrate had to wait for the conclusive report of the police, by giving it more time as during that vouchsafed time heavens would not have fallen. My aforesaid view is fortified by the decision rendered in Tilak Raj Pandoh v. Jagan Nath 2005 (Supp) JKJ HC-64.
21. The nature of cases dealt with under Section 202 are cases where material available is not clear and sufficient to proceed further. The Magistrate is in seisin of the matter having taken the cognizance. He has to decide whether there is ground to proceed further. The Supreme Court and the High Courts have very often pointed out in these cases what the Magistrate has to see, is whether there is evidence in support of the allegations of the complainant and not, whether the evidence is sufficient to warrant a conviction. The learned Judges in some of the cases have been at pains to observe that an enquiry under Section 202 is not to be likened to a trial which can only take place after process is issued, and that there can be only one trial. It is pertinent to mention here that summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant 561-A no.142/2016 Page 21 of 36 c/w 561-A no.143/2016 561-A no.144/2016 OWP no.802/2016 has to bring only two witnesses to support his allegations to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused. Section 202 says that the Magistrate may, if he thinks fit, postpone the issue of process for compelling the attendance of the person complained against and direct an inquiry for the purpose of ascertaining the truth of falsehood of the complaint; in other words, the scope of an inquiry under the section is aiming at to ascertain the truth or falsehood of the complaint; that is, for ascertaining whether there is evidence in support of the complaint so as to justify the issue of process and commencement of proceedings against 561-A no.142/2016 Page 22 of 36 c/w 561-A no.143/2016 561-A no.144/2016 OWP no.802/2016 the person concerned. Same is true qua present case. However, learned Trial Magistrate without waiting for the final report of the police, proceeded ahead in the matter and issued process against the petitioners.
22. The main and the material point to be decided in this matter is when a Magistrate dealing with a criminal complaint, takes cognizance thereof, postpones issuance of process and directs a police officer to investigate and submit a report, whether it is proper on his part to issue process at a later date on the same material before receipt of the final report called for? In order to answer this question, it would be worthwhile to see what Section 202 (1) says. It runs as follows:
"202. Postponement of issue of process.--
(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit for the purpose of ascertaining the truth or falsehood of the complaint:
Provided that, save where the complaint has been made by a Court, no such direction shall be made unless the complainant has been examined on oath under the provisions of section 200.
(2) In any inquiry or investigation under this section is made by a person no being a Magistrate or a police officer, such person shall exercise all the powers conferred by this Code on an officer-in-charge of a police station except that he shall not have power to arrest without warrant. (3) Any Magistrate inquiring into a case under this section may, if he thinks fit, take evidence of witnesses on oath."561-A no.142/2016 Page 23 of 36 c/w 561-A no.143/2016 561-A no.144/2016 OWP no.802/2016
23. Section 203 of the Code of Criminal Procedure says thus:
"203. Dismissal of complaint. -
The Magistrate before whom a complaint is made or to whom it has been transferred, may dismiss the complaint, if, after considering the statement on oath (if any) of the complainant and the witnesses and the result of the investigation or inquiry (if any) under Section 202, there is in his judgment no sufficient ground for proceeding. In such cases he shall briefly record his reasons for so doing."
24. From the perusal of Section 203 of the Code, it is very clear that once the report is called under Section 202, the same has to be considered and then only further action, namely, dismissal of the complaint under Section 203 or issuing of the process under Section 204 can be taken. If the Magistrate finds that the material on record is sufficient to issue the process, after perusal of the complaint and the statement of the complainant and the documents, if any, the Magistrate can straightway issue process. But, when the Magistrate finds that the material on record is insufficient and it is necessary to inquire into the matter and directs an inquiry under Section 202 of the Code, the question arises whether on the same material which was, at one point of time, found inadequate or insufficient, can be the basis for issue of process? This issue has already been considered and dealt with by the Supreme Court in Mohammad Ataullah v. Ram Saran Mahto, AIR 1981 SC 1155 : (1981) 2 SCC 266, wherein the proposition, that after calling for a police report, in the absence of any additional material in the 561-A no.142/2016 Page 24 of 36 c/w 561-A no.143/2016 561-A no.144/2016 OWP no.802/2016 police report, if an order issuing process is passed by a Magistrate, the same cannot be sustained in law, has been laid down by the Supreme Court. In that case, the Magistrate had called for a report under Section 202 Cr. P.C. from the Executive Officer of Samastipur Municipality, who, the Supreme Court was told, was a Magistrate. The Executive Officer of Samastipur Municipality submitted a cryptic report on the basis of which the process was issued against three persons by the Magistrate. The Supreme Court quashed the process holding that there was no additional material warranting the issuance of the process. It did not consider the cryptic report to be the additional material. Same is true about the present case. The learned Trial Magistrate, in the present case, when a complaint was filed by the respondent no.1, deferred the issue of the process against the petitioners and forwarded the matter to police for the investigation inasmuch as after going through the contents of the complaint, statements of complainant and her witnesses, the learned Trial Court did not find sufficient grounds to issue process against the petitioners. The inquiry report submitted by the police did not convince the learned Trial Magistrate as it appears that on the basis whereof the process could not have been issued and further report was directed to be submitted by the police. Nevertheless, the learned Trial Magistrate, by impugned 561-A no.142/2016 Page 25 of 36 c/w 561-A no.143/2016 561-A no.144/2016 OWP no.802/2016 order dated 25.04.2016, when nothing new and substantial was brought before it, issued the process against the petitioners. If we go within the prism of and the ratio laid down by the Supreme Court in the case of Mohammad Ataullah (supra), the impugned order dated 25.04.2016 is impaired by diminution in law. Once the Magistrate insists on some additional material for his subjective satisfaction, it is necessary for him to withhold the issuance of the process till the additional material augmenting the subjective satisfaction is received. Same view has been taken in Hamchandra and anr v. Ramrao and anr., 1990(2) Crimes 746 ; Kunwarjee Jivraj Lodhaya & ors v. Bhagchand Motilal Raka and anr. 1992 Mh.L.J. 377; P.K. Ramkrishna and anr v. Neelkanth M. Kamble, 1996 Cri.L.J. 2119.
25. It is imperative to mention here that indubitably the judicial process should not be an instrument of oppression or needless harassment. The court should be circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing the process, lest it would be an instrument in the hands of private complainant as vendetta to harass the persons needlessly. It is equally well settled, as ingeminated herein above, that summoning of an accused in a criminal case is a serious matter and the order taking cognizance by the Magistrate summoning the accused must 561-A no.142/2016 Page 26 of 36 c/w 561-A no.143/2016 561-A no.144/2016 OWP no.802/2016 reflect that he has applied his mind to the facts of the case and the law applicable thereto.
26. Time and again the scope of the jurisdiction of the High Court under Section 561-A of the J&K Code of Criminal Procedure, which is pari materia to Section 482 of the Central Code of Criminal Procedure, has been examined and several principles which govern the exercise of jurisdiction of the High Court under Section 561-A of the Code has been laid down. A three-Judge Bench of the Supreme Court in State of Karnataka v. L. Muniswamy and others 1977 (2) SCC 699, held that the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. In paragraph 07 of the judgment following has been stated:
"7....In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature.561-A no.142/2016 Page 27 of 36 c/w 561-A no.143/2016 561-A no.144/2016 OWP no.802/2016
The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice, between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction."
27. The judgment of the Court in the State of Haryana and others v. Bhajan Lal and others, 1992 Supp (1) SCC 335, has elaborately considered the scope and ambit of Section 482 Cr. P.C. and Article 226 of the Constitution of India in the context of quashing the proceedings in criminal investigation. After noticing various earlier pronouncements, the Supreme Court enumerated certain categories of cases by way of illustration, where the power under Section 482 Cr. P.C. can be exercised to prevent abuse of the process of the Court or secure ends of justice. Paragraph 102, which enumerates seven categories of cases where power can be exercised under Section 482 Cr. P.C. are extracted as follows:
"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid 561-A no.142/2016 Page 28 of 36 c/w 561-A no.143/2016 561-A no.144/2016 OWP no.802/2016 formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(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 156 (1) of the Code except under an order of a Magistrate within the purview of Section 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 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. (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 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. (7) 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."
28. A three-Judge Bench of the Supreme Court in State of Karnataka v. M. Devenderappa and another, 2002 (3) SCC 561-A no.142/2016 Page 29 of 36 c/w 561-A no.143/2016 561-A no.144/2016 OWP no.802/2016 89, had an occasion to consider the ambit of Section 482 Cr.P.C. By analysing the scope of Section 482 Cr.P.C., the Supreme Court has laid down that the authority of the Court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice the Court has power to prevent abuse. It further held that the Court would be justified to quash any proceeding if it finds that the initiation/continuance thereof amounts to the abuse of the process of the Court or quashing of these proceedings would otherwise serve the ends of justice. Following was laid down in paragraph 6:
"6......All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise 561-A no.142/2016 Page 30 of 36 c/w 561-A no.143/2016 561-A no.144/2016 OWP no.802/2016 serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto."
29. Further in paragraph 8 following was stated:
"8.....Judicial process should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death. The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal (AIR 1992 SC 604)."
30. In Sunder Babu and others v. State of Tamil Nadu, 2009 (14) SCC 244, the Supreme Court was considering the challenge to the order of the Madras High Court, where an Application was under Section 482 Cr.P.C. to quash the criminal proceedings under Section 498A IPC and Section 4 of Dowry Prohibition Act, 1961. It was contended before the Supreme Court that the complaint filed was nothing but an abuse of the process of the law and the allegations were unfounded. The prosecuting agency contested the petition filed under Section 482 Cr.P.C., taking the stand that a bare 561-A no.142/2016 Page 31 of 36 c/w 561-A no.143/2016 561-A no.144/2016 OWP no.802/2016 perusal of the complaint discloses commission of the alleged offences and, therefore, it is not a case which needed to be allowed. The High Court accepted the case of the prosecution and dismissed the application. The Supreme Court after referring to the judgment in Bhajan Lal's case (supra), held that the case fell within Category 07. The Supreme Court, relying on Category 07, has held that Application under Section 482 deserved to be allowed and it quashed the proceedings. Insofar as the present case is concerned, it also squarely falls within Category 07 as laid down by the Supreme Court of in Bhajan Lal's case (supra).
31. In another case in Priya Vrat Singh and others v. Shyam Ji Sahai 2008 (8) SCC 232, the Supreme Court relied on Category 07 as laid down in State of Haryana v. Bhajan Lal (supra). In the above case the Allahabad High Court had dismissed an Application filed under Section 482 Cr.P.C. to quash the proceedings under Section 494, 120-B, and 109 IPC and Section 3 and 4 of the Dowry Prohibition Act. After noticing the background facts and parameters for exercise of the power under Section 482 Cr. P.C., the Supreme Court has held that Section 482 Cr. P.C. does not confer any new power on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give 561-A no.142/2016 Page 32 of 36 c/w 561-A no.143/2016 561-A no.144/2016 OWP no.802/2016 effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. The Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine, which finds expression in the section, which merely recognises and preserves inherent powers of the High Courts. All courts, whether the civil or criminal, possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in the course of the administration of justice on the principle quando lex aliquid alicui concedit, concedere videtur id sine quo res ipsa esse non potest (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under section 482 Cr.P.C., the Court does not function as a court of appeal or revision. Inherent jurisdiction under Section 482 Cr.P.C. though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito 561-A no.142/2016 Page 33 of 36 c/w 561-A no.143/2016 561-A no.144/2016 OWP no.802/2016 justitiae to do real and substantial justice for the administration of which alone the courts exist. Authority of the court exists for advancement of the justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers, the court would be justified to quash any proceeding if it finds that the initiation / continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice.
32. The powers, as noticed above, possessed by the High Court under Section 561-A of the Code, are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-
561-A no.142/2016 Page 34 of 36 c/w 561-A no.143/2016 561-A no.144/2016 OWP no.802/2016and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. [See: Janata Dal v. H.S.Chowdhary, AIR 1993 SC 892; Raghubir Saran (Dr.) v. State of Bihar, AIR 1964 SC 1; and Minu Kumari v. State of Bihar, AIR 2006 SC 1937]
33. Inherent power, given the above discourse, given to the High Court under Section 482 Cr. P.C. is with the purpose and object of advancement of the justice. In case the solemn process of the Court is sought to be abused by a person with some oblique motive, the Court has to thwart the attempt at the very threshold. The Court cannot permit a prosecution to go on if the case falls in one of the categories as illustratively enumerated by the Supreme Court in State of Haryana v. Bhajan Lal (supra). Judicial process is a solemn proceeding, which cannot be allowed to be converted into an instrument of the operation or harassment. When there is material to indicate that a criminal proceeding is manifestly attended with mala fide and proceeding is maliciously instituted with an ulterior motive, the High Court or for that matter this Court will not hesitate in exercise of its jurisdiction under Section 561-A Cr. P.C. to quash the proceeding under Category 07 as enumerated in State of Haryana v. Bhajan Lal (supra), which is to the following effect:
561-A no.142/2016 Page 35 of 36 c/w 561-A no.143/2016 561-A no.144/2016 OWP no.802/2016"(7) 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."
34. Based on the holistic consideration of the facts and circumstances summarised in the foregoing paragraphs, the present case appears to be one where Category 07 of the illustrations given in the case of State of Haryana v. Bhajan Lal (supra) is clearly applicable.
35. Having regard to what has been said and done above, I think that there is necessity to exercise jurisdiction under Section 561-A Cr.P.C. Hence, the orders dated 12.03.2015, 22.08.2015 as also the order dated 25.04.2016, passed by the court of the 1st Additional Munsiff, Judicial Magistrate 1st Class, Srinagar, issuing the process against the petitioners, are set aside and as a corollary the complaint titled Masooda Amin v. Ghulam Mustafa Khateeb and others, is also quashed.
36. The record be sent down along with copy of this order.
( M. K. Hanjura ) Judge Srinagar 23.05.2018 Ajaz Ahmad 561-A no.142/2016 Page 36 of 36 c/w 561-A no.143/2016 561-A no.144/2016 OWP no.802/2016