Jammu & Kashmir High Court
Anita Rani And Ors. vs State Of J&K; And Ors. on 3 November, 2018
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
CRMC No. 360/2016, IA No. 01/2016
Date of order: 03.11.2018
Anita Rani and ors. Vs State of J&K and ors.
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearing counsel:
For Petitioner(s) : Mr. Rahul Pant, Advocate
For respondent (s) : Mr. F. A. Natnoo, AAG
i) Whether to be reported in
Digest/Journal : Yes/No.
ii) Whether approved for reporting
in Press/Media : Yes/No.
1. Through the medium of instant petition filed under Section 561-A Cr.P.C., petitioners seek quashing of FIR No.147 of 2011 dated 10.05.2011 registered with Police Station, Kathua, for commission of offences under Sections 452/147/148/323/427 RPC and consequential proceedings i.e., the final report/challan pending before the Court of learned Judicial Magistrate 1st Class, Kathua in File No. 30/Cr. titled 'State vs. Dharamveer and ors.' as also the complaint under Section 186 RPC titled 'State vs. Anita Rani' made by respondents Nos.2 and 3 against the petitioner No.1, pending before the same Court.
2. In the petition, it is averred that the petitioners are the residents of Bhiwani, Haryana and petitioner No. 1 is the wife of petitioner No.2. It is stated that respondent No.4 used to visit petitioner No.2 at his house in Bhiwani, Haryana in connection with enrolling students for ETT Course in his college. In the year 2011, petitioner No.1 had come to Kathua alongwith her sister-in-law, namely, Veena, who had to appear in the ETT examination held in May 2011 through Dr. B. R. Ambedkar College of ETT, Kathua. Petitioner No.3 was also in Kathua at the relevant point of time to appear in the same examination. Some more candidates from CRMC No.360/2016 Page 1 of 6 Bhiwani, Haryana were also in Kathua for appearing in the said ETT examination.
3. Learned counsel for the petitioners states that despite the fact that the said ETT examination held in the year 2011, respondent No.4 was not giving the dates for practical test and was lingering on and avoiding the matter due to which the petitioner Nos.1 and 3 along with other candidates were forced to stay back in Kathua till 10.05.2011. Respondent No.4, as a matter of fact, had put up an illegal demand of Rs. 3,000/- per student for giving them pass marks in the practical test without appearing, to which most of the students had not agreed. Petitioner No.2, who came to know about the postponement of practical test on 08.05.2011, also reached Kathua on 10.05.2011 and tried to telephonically contact the respondent No. 4, but when despite repeated attempts no response was received, petitioner Nos.1 and 2 alongwith above named Veena went to the house of respondent No.4 to seek clarification on the issue. On reaching the house of respondent No.4, petitioners 1 and 2 saw the respondent No. 4 present inside the house through the windows, however, they were shocked when two ladies came out to tell them that respondent no. 4 is not at home. Upon being informed that they have seen respondent No.4 from the window, the above said two ladies started abusing the petitioner Nos.1 and 2 and forcibly pushed them out of the gate of the house. It is stated that in the scuffle, purse of the petitioner No.1, containing cash, documents and other belongings fell down and the same was taken away by one of the two ladies and was not returned despite repeated demand by them. It is further stated that petitioner Nos.1 and 2 thereafter left for the Police Station, Kathua to lodge a report with regard to the above incident. On reaching Police Station, Kathua, petitioners met with respondent No. 2 in his office. Petitioner No.1 tried to tell the entire story to respondent no. 2, however, the respondent No. 2 instead of listening to her complaint told CRMC No.360/2016 Page 2 of 6 her that respondent No.4 had already lodged a complaint against her and that a case has already been registered against her. It is stated that in the police station, respondents 2 and 3 misconducted with petitioner No. 1 and she was also beaten. It is further stated that in order to cover the mischief of respondent Nos.2 to 4, FIR No.147 of 2011 dated 10.05.2011 for commission of offences under Sections 452/147/148/323/427 RPC was lodged against the petitioners, which culminated in presenting of Challan, which is pending before the Court below.
4. Learned counsel for the petitioners further states that petitioners have also filed a complaint before the Court of the learned Chief Judicial Magistrate, Kathua against respondents 2 to 4 under Sections 294/354/323/109 and 379/34 RPC which was transferred to the Court of learned Judicial Magistrate 1st Class, Kathua. Thereafter, the learned Magistrate forwarded the said complaint to DIG Jammu-Kathua Range for holding of inquiry into the allegations and for submission of report. The inquiry was conducted and on 16.07.2011, DIG Jammu-Kathua Range submitted a detailed report in which he stated that the allegations leveled against the petitioners are doubtful. It is stated that the learned Magistrate after receipt of the above said report took cognizance in the complaint filed by the petitioners and vide order dated 29.08.2011 issued process for appearance of the accused.
5. Heard learned counsel for the parties and perused the record.
6. In 2008 (3) SCC 753 case titled Som Mittal v. Govt. of Karnataka, it has been held as under:-
"(10) In a catena of decisions this Court has deprecated the interference by the High Court in exercise of its inherent powers under Section 482 of the Code in a routine manner. It has been consistently held that the power under Section 482 must be exercised sparingly, with circumspection and in rarest of rare cases.
Exercise of inherent power under Section 482 of the Code of Criminal Procedure is not the rule but it is an exception. The CRMC No.360/2016 Page 3 of 6 exception is applied only when it is brought to the notice of the Court that grave miscarriage of justice would be committed if the trial is allowed to proceed where the accused would be harassed unnecessarily if the trial is allowed to linger when prima facie it appears to Court that the trial would likely to be ended in acquittal. In other words, the inherent power of the Court under Section 482 of the Code of Criminal Procedure can be invoked by the High Court either to prevent abuse of process of any Court or otherwise to secure the ends of justice.
(11) This Court, in a catena of decisions, consistently gave a note of caution that inherent power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. This Court also held that the High Court will not be justified in embarking upon an inquiry as to the reliability or genuineness or otherwise of the allegations made in the F.I.R. or the complaint and that the extra-ordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whims and caprice.
(12) We now refer to a few decisions of this Court deprecating the exercise of extra ordinary or inherent powers by the High Court according to its whims and caprice.
(13) In State of Bihar v. J.A.C. Saldanha (1980) 1 SCC 554 this Court pointed out at SCC p. 574:
The High Court in exercise of the extraordinary jurisdiction committed a grave error by making observations on seriously disputed questions of facts taking its cue from affidavits which in such a situation would hardly provide any reliable material. In our opinion the High Court was clearly in error in giving the direction virtually amounting to a mandamus to close the case before the investigation is complete. We say no more.
(14) In Hazari Lal Gupta v. Rameshwar Prasad (1972) 1 SCC 452 this Court at SCC p. 455 pointed out:
In exercising jurisdiction under Section 561-A of the Criminal Procedure Code, the High Court can quash proceedings if there is no legal evidence or if there is any impediment to the institution or continuance of proceedings but the High Court does not ordinarily inquire as to whether the evidence is reliable or not. Where again, investigation into the circumstances of an alleged cognizable offence is carried on under the provisions of the Criminal Procedure Code, the High Court does not interfere with such investigation because it would then be the impeding investigation and jurisdiction of statutory authorities to exercise power in accordance with the provisions of the Criminal Procedure Code.
(15) In Jehan Singh v. Delhi Administration (1974) 4 SCC 522 the application filed by the accused under Section 561-A of the old CRMC No.360/2016 Page 4 of 6 Code for quashing the investigation was dismissed as being premature and incompetent on the finding that prima facie, the allegations in the FIR, if assumed to be correct, constitute a cognizable offence.
(16) In Kurukshetra University v. State of Haryana (1977) 4 SCC 451, this Court pointed out:
It surprises us in the extreme that the High Court thought that in the exercise of its inherent powers under Section 482 of the Code of Criminal Procedure, it could quash a first information report. The police had not even commenced investigation into the complaint filed by the Warden of the University and no proceeding at all was pending in any court in pursuance of the FIR. It ought to be realized that inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice. That statutory power has to be exercised sparingly, with circumspection and in the rarest of rare cases.(emphasis supplied) (17) In State of Bihar v. Murad Ali Khan (1988) 4 SCC 655 this Court held that the jurisdiction under Section 482 of the Code has to be exercised sparingly and with circumspection and has given the working that in exercising that jurisdiction, the High Court should not embark upon an enquiry whether the allegations in the complaint are likely to be established by evidence or not."
7. The law with regard to quashing of criminal proceeding, is therefore 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. 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. This court while exercising the power under section 561-A Cr.P.C., does not function as court of trial, appeal or revision. Inherent jurisdiction has to be exercised sparingly, carefully 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.
8. Learned counsel for the petitioners states that inquiry conducted by the DIG Jammu-Kathua Range is sufficient piece of evidence, which can be CRMC No.360/2016 Page 5 of 6 considered for quashing the challan, because facts collected during inquiry clearly state that challan is false and concocted one. This argument does not hold good, because inquiry has not been conducted under Cr.P.C., whereas the challan has been produced after recording the statements of the witnesses in terms of Sections 164-A and 161 under Cr.P.C. The facts recorded or collected during inquiry proceeding can be used for contradiction or corroborating purpose; but cannot be based for quashing a challan, which has been produced after following legal principle underlying the Cr.P.C.
9. The conduct of petitioners is also most relevant in quashing the criminal proceedings. From the perusal of the challan, it reveals that it has been filed on 20.07.2011 and is pending before Judicial Magistrate 1st Class, Kathua, and till 05.05.2017, arguments on charge have not been heard against the accused persons due to their continuous absence. From the perusal of the interim orders, it is evident that at maximum times accused remained absent from the Court proceedings and the Court below at many times issued arrest warrant against them; file of court below would reveal that accused were absent from Court proceeding continuously from last more than ten dates and finally on 05.05.2017, they produced an order of this court thereby calling the record. In this way, petitioners have misused the process of law. They have appeared before trial court at their wish and choice. All other grounds may be good and valid for arguments while framing of charge, but not for quashing challan at threshold.
10. In view of the above, this petition is dismissed. Record be sent back immediately.
(Sanjay Kumar Gupta) Judge Jammu 03.11.2018 Bir CRMC No.360/2016 Page 6 of 6