Ahmed Din And Another vs Union Territory Of J&K And Another

Through the medium of the instant petition, the petitioners have challenged FIR No.9 of 2021 of for offences under Sections 354, 452 IPC

registered with Police Station Mahore District Reasi.

It is contended in the petition that respondent No. 2 happens to be a relative of the petitioners and in the year 1992, the husband of the said

respondent, namely Ghulam Rasool approached the petitioners seeking help for arranging so me land for construction of a house in village Gugar

(Shadool), as the house of respondent No. 2 had been washed away in a landslide. It is averred that the petitioners gave a piece of land to the husband

of the respondent No. 2 with the condition that he will pay the amount of consideration or in the alternative give land in exchange to the petitioners.

Accordingly, a piece of land was provided by the petitioners to the husband of respondent No. 2 for construction of house.

It is further contended that in the year 1995, the petitioners asked the husband of the respondent No. 2 to pay the amount of consideration of the

land or to give land in exchange, but he did not acceed to the demand of the petitioners, because of which the relations between the parties became

strained. It is averred that in the month of November 2020 the husband of respondent No. 2 encroached upon more land belonging to the petitioners

and this compelled the petitioners to lodge a complaint against him before the police on 28th November, 2020.It is alleged that as a counterblast of this,

respondent No. 2 at the instance of her husband, with a view to wreak vengeance upon the petitioners, lodged the impugned FIR against the

petitioners.

The impugned FIR has been challenged by the petitioners on the ground that the allegations made therein are false and improbable besides being

mala fide in nature, keeping the view the strained relations between the parties as narrated herein before. It is further contended that on the date of

occurrence petitioner No. 2 was present on duty in Govt. Primary School, Kundhala where he is posted as a teacher and, as such, there was no

chance for him to be on the spot of alleged occurrence at the relevant time.

Respondent No. 1 has filed its response to the petition. In its response, the respondent No. 1 submitted that the impugned FIR came to be registered

on the basis of complaint lodged by respondent no. 2, according to which on 03.03.2021 at about 4 p.m when she was all alone at her home, the

petitioners trespassed into her house and outraged her modesty by touching her breasts and pushing her towards the ground. It was further alleged

that petitioner No. 1 remained outside the house, whereas the other petitioner tore apart her clothes. After investigation of the case, offences under

Sections 452, 354, 34 IPC are stated to have been established against the petitioners.

I have heard learned counsel for the parties and perused the material on record.

Before considering the merits of the case, we have to be clear as regards the legal position pertaining to exercise of jurisdiction by High Court

under Section 482 of Cr.P.C, which reads as under:-

“482.Saving of inherent powers of High Court : Nothing in this Code shall be deemed to limit or affect the inherent powers of the High

Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court

or otherwise to secure the ends of justice.â€​

From a perusal of the aforesaid provision, it is clear that inherent power of the High Court can be exercised to make such orders as are necessary

to give effect to any order under the Code of Criminal Procedure, or to prevent abuse of the process of the Court and also to secure the ends of

justice.

In the landmark case of State of Haryana vs. Bhajan Lal, 1992 Supp (1) SCC 335,a two Judge Bench of the Supreme Court of India considered in

detail the provisions of Section 482 and the power of the High Court to quash the criminal proceedings/the FIR. The Supreme Court summarized legal

position by laying the following guidelines to be followed by High Courts in exercise of their inherent powers to quash a criminal proceeding:

(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 Section 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 F.I.R. 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 F.I.R. 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 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 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.

It has been consistently held by the Supreme Court that even though the inherent jurisdiction of the High Court under Section 482 Cr.P.C is very

wide, it 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 the courts exist. In order to

come to a conclusion whether in a particular case the High Court should exercise its power under Section 482 Cr.P.C to quash the criminal

proceeding, we have to be guided by the principles and the guidelines laid down by the Supreme Court as quoted hereinabove.

In the backdrop of aforenoted legal position, let us now advert to the facts of the instant case. It is clearly alleged in the impugned FIR that on the

day of occurrence one of the petitioners trespassed into the house of respondent No. 2 and outraged her modesty by touching her breasts and pushing

her towards the ground, whereas the other one stood guard outside the house.

The response/status report submitted by respondent No. 1 reveals that the prosecutrix i.e., respondent No. 2 has reiterated and reaffirmed the

allegations made in the FIR in her statement recorded before the Court under Section 164 Cr.P.C during investigation of the case. The status report

further shows that the statements of the other witnesses recorded under Section 161 Cr.P.C have also confirmed the allegations made in the FIR.

Thus, in the instant case the allegations made in the FIR prima facie disclose commission of cognizable offences against the petitioners. Not only

this, even the evidence collected in support of the allegations made in the impugned FIR show that the offences are made out against the petitioners.

Thus, it is not a case where the allegations made in the FIR and the material collected in support thereof do not disclose any offence against the

accused. Therefore, in the instant case, the tests laid down by the Supreme Court in Bhajan Lal’s case (supra) for exercising jurisdiction under

Section 482 Cr. P. C by this Court are not satisfied.

Much emphasis has been laid by learned counsel for the petitioners on the strained relations between the husband of respondent No. 2 and the

petitioners on account of which, according to the learned counsel, the impugned FIR came to be lodged. So far as the mala fides in lodging the

complaint or criminal prosecution against an accused is concerned, the same can be investigated into by the investigating agency during investigation

of the case. The question that arises for consideration is whether it is open to this Court to enter the arena of investigation so as to determine the

veracity of allegations made in the FIR or to test the merits of the allegations of malafides levelled by the petitioners.

The scope of inherent power of the High Court under Section 482 of Cr.P.C has been discussed by the Supreme Court in State of Andhra

Pradesh vs. Golconda Lingaswamy, 2004 (6) SCC 522,and it has been observed as under:-

“5. Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The section does not

confer any new powers 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 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. 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 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 alique concedit, conceditur et 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 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 such abuse. It would be an abuse of

the 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 or continuance of it amounts to abuse of the process of court or

quashing of these proceedings would otherwise 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.

In dealing with the last category, it is important to bear in mind the distinction between a case where there is no legal evidence or where

there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation,

may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily

embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would

not be sustained. That is the function of the trial Judge. Judicial process, no doubt 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…..

As noted above, the powers possessed by the High Court under Section 482 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. 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-and-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 [(1992) 4 SCC 305 : 1993 SCC (Cri) 36 : AIR 1993 SC 892] and Raghubir Saran (Dr.) v. State of Bihar [AIR 1964 SC 1 :

(1964) 1 Cri LJ 1] .] It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in

order to determine whether a conviction would be sustainable and on such premises, arrive at a conclusion that the proceedings are to be

quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In a proceeding

instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not

disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which

cognisance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under

Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out

whether the case would end in conviction or acquittal. The complaint/FIR has to be read as a whole. If it appears that on consideration of

the allegations in the light of the statement made on oath of the complainant or disclosed in the FIR that the ingredients of the offence or

offences are disclosed and there is no material to show that the complaint/FIR is mala fide, frivolous or vexatious, in that event there would

be no justification for interference by the High Court. When information is lodged at the police station and an offence is registered, then the

mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in court

which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by

themselves be the basis for quashing the proceeding.â€​

Again in the case of Zandu Pharmaceutical Works Ltd. Vs. Mohd. Sharaful Haque (2005)1SCC122, in paragraph 11, the Supreme Court has

observed and held as under:

“11. … the powers possessed by the High Court under Section 482 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-and-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. It would not be proper for the High Court to

analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on

such premise arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and

conclude that the complaint cannot be proceeded with. In a proceeding instituted on complaint, exercise of the inherent powers to quash the

proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the

allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the

High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. It is not, however, necessary that there

should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint

has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant

that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or

vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police

station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected

during the investigation and evidence led in court which decides the fate of the accused person. The allegations of mala fides against the

informant are of no consequence and cannot by themselves be the basis for quashing the proceedings.â€​

Court. When information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of

secondary importance. It is the material collected during the investigation and evidence led in court which decides the fate of the accused

person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the

proceeding.â€​

From the forgoing enunciation of law on the subject, it is clear that this Court in exercise of its power under Section 482 Cr.P.C cannot go into the

merits of the allegations made in the FIR or the merits of the allegations of mala fides made by the petitioners. So long as the contents of the FIR and

the material collected by the investigating officer during the investigation of the case discloses commission of cognizable offences against the

petitioners, this Court cannot come to the rescue of the petitioners in these proceedings. Though inherent power vested in High Court under Section

482 Cr.P.C is very wide, yet the power must be exercised sparingly only when the tests laid down by the Supreme Court in Bhajan Lal’s case

(supra) are satisfied. As already noted, the instant case is not of the nature where this Court should exercise its power under Section 482 Cr.P.C for

quashing the impugned FIR.

For the forgoing reasons, I do not find any merit in this petition, the same is, accordingly, dismissed. The interim order shall stand vacated.

Vide order dated 18.03.2021 passed by this Court, the petitioners were admitted to interim anticipatory bail, subject to certain conditions. The said

order is in force till date.

As already noted, the status report filed by respondent No. 1 shows that investigation of the case is almost complete because the statements of the

witnesses under Section 161 Cr.P.C have been recorded and the statement of respondent No. 2 under Section 164 Cr.P.C has also been recorded. It

is not a case where any recovery is to be affected from the petitioners, as such their custodial interrogation may not be required.

In these circumstances, the interim anticipatory bail granted to the petitioners vide aforesaid order, is made absolute, subject to the condition that the

petitioners shall continue to cooperate with the investigating agency and they shall comply with the conditions laid down in the order dated 18.03.2021.

The application stands disposed of, accordingly.