Dr. Tehmina Akhtar vs Syed Shamim Ahmad

M.Y. Kakwoosa, J.—Both these petitions are being taken up together as they can be disposed of by a common Judgment and the same

have been filed u/s 561-A of the Code of Criminal Procedure for quashing the criminal complaint titled Alhaj Engineer Syed Shamim Ahmad v.

Tehmina Akhtar and others pending in the Court of Chief Judicial Magistrate, Jammu and the order of that Court dated Nov. 2, 1998 with all other

proceedings passed therein. First petition was filed by Dr. Tehmina Akhtar and others, who is accused 1 in the complaint and another petition is

filed by State of Jammu and Kashmir through Mohd. Amin Bhat, who is accused No. 8. In both the petitions, petitioners have urged that the

complaint lodged by respondent No. 1 does not disclose the commission of offence even if the complaint is believed at its face value.

In Petition No. 130/98, petitioners have urged that the respondent has filed the complaint with mala fide intention to pressurise her not to contest

matrimonial cases pending in the court of Addl. Sessions Judge (Matrimonial Cases), Jammu, where the respondent has filed applications for the

custody of minor daughter u/s 25 of the Guardianship and Wards Act. The complaint has been filed by the respondent just to harass her and her

relatives, who have been roped in, as accused persons in the frivolous complaint, so the petitioners have submitted that the Chief Judicial

Magistrate, Jammu while issuing process has abused his judicial power, which they want to be quashed.

In the second petition also, petitioner Mohd. Amin Bhat S.P. (CID) Foreign Registration Officer too has prayed for quashing the complaint

against him on the ground that the commission of no offence is disclosed from the complaint against him and moreover whatever he did that was in

the official capacity in the discharge of his official duties; without prior sanction, he could not be proscuted. He has submitted that respondent 1 is a

Pak national, he stayed beyond the period shown in the Vissa, so as per rules and law, he had to take steps for the deportion of respondent 1,

which pained him and he (respondent 1) without obtaining sanction u/s 197 of the Code of Criminal Procedure lodged complaint against him,

which is liable to be quashed on the ground of lack of sanction.

Before proceeding further to appreciate the merits of the case, it is feasible to adumberate the facts, from which the present two petitions under

disposal emanate.Respondent 1 is admittedly a Pak national settled in Dubai. He has contracted marriage with petitioner Dr. Tehmina Akhatar at

Delhi on 19th Dec. 1984. Petitioner No. 1 is thus alleged to be wedded wife of the respondent-complainant. Out of the said wedlock, a female

child Miss Atiya Shamim was born on 17-8-1985 at Sheikh Rashid Hospital of Dubai. Photo copy of birth notification No. 2634 issued by

Ministry of Health Department of preventive medicines, District Dubai on 17-8-1985 is enclosed. Birth Certiicate of the Hospital and of the

Ministry of Health, Govt. of U.A.E. is along with the complaint. So according to the complainant, Atiya Shamim, who is of 13 years of age is the

nonresident Pak national was studying in Dubai and was promoted to Class Junior IV to join academic year 1994. in the year 1994 during the

School Vacations of the said minor daughter, petitioner, who is accused 1 in the complaint in a dramatic manner managed to pay visit to Delhi to

meet his relations with the consent of respondent 1 in July, 1994 on Pakistani passport. She along with her daughter reached Delhi took all the gold

ornaments and cash worth Rupees 3,50,000 from the respondent complainant. Visa was only for thirty days and the place of visit was only Delhi.

Respondent also came to Delhi and he returned to Dubai to resume his normal duties, but during the visit, petitioner along with the daughter

succeeded in flying to Jammu clandestinely without any proper permission. She had mala fide intentions to escape from the complainant along with

her daughter. Complainant respondent No. 1 wrote many a times to the petitioner to come to join him in Dubai and send him Rs. 20,000/- more

and Air Tickets for her minor daughter, on one pretext or the other she avoided to come, but was clandestinely manipulating the documents with

the aid of other accused persons during this period, creating false evidence to show that the daughter was an Indian National. Ultimately, she

refused to come. She played fraud. The complainant-respondent himself came to pick up his wife and daughter, but they refused to come. Here,

he came to know that the petitioner had prepared fake back dated Birth Certificate from Jammu Municipality under her pre-planned scheme for

the minor daughter of complainant and who was falsely declared as born in Jammu on 17-8-1984, which is obviously prior to the date of actual

marriage of petitioner with respondent No. 1. It is further alleged that petitioner 1 also procured even an Indian Passport in the fake name of Noor

Fatima for the said minor daughter of the complainant. Again by way playing fraud by misrepresenting the material facts before the Passport Issuing

Authority. He has annexed copy of the fake passport and copy of fake birth certificate issued by Municipality, Jammu. Accused also filed

application to the Supreme Court of India for getting the custody of the child. Supreme Court directed to proceed before the proper forum for

such relief. According to the complainant, accused 8 Mohd. Amin Bhat, who is a police officer harassed the complainant and threatened him of

dire consequences, if the complainant proceeded against his wife and daughter. Accused No. 8 had developed relations with his wife, so at every

stage, he aided the petitioner and tried his best for the complainant's deportation, so that petitioner 1 could not be proceeded against.

In para 27 of the complaint, respondent No. 1 has given the details of the documents and affidavits allegedly forged and wrongly submitted

before Public servants by the petitioner. According to the respondent No. 1 complainant, petitioner sworn an affidavit on 27-7 -1984 in support of

fake Nikhanama allegedly contracted on 20-7-1984 to show the fake date of birth as 17-4-1984 of minor daughter in Jammu. While the fact is

that actual Nikhanama is 19-12-1984 and the date of birth of daughter is 17-8-1985, but the fake date of birth was shown as 17-8-1984, i.e.

before the marriage was contracted. The daughter was born in Dubai and not in Jammu. Marriage was contracted in Delhi and not in Jammu.

Similarly false affidavit was sworn in deliberately and submitted by the petitioner accused to the public servant (Health Officer), Municipality

Jammu in the month of August 1987 and made him to believe declaring the original certificate is bogus and false and the Health Officer issued fresh

Certificate on the fasle affidavit. Document A-22 is a photo copy of and filed with the passport, wherein the passport, has been obtained in the

name of Noor Fatima showing date of birth as 17-8-1984. Both these have been done before the Public Officer, that the daughter was born in

Jammu and the nationality of respondent father of the daughter Indian and resident of Mohalla Dalpatian, while the actual fact is that respondent 1

is Pak national, Pak-non-resident settled in Dubai. This all was done to obtain wrong date of birth certificate of the daughter showing her Indian

born from Indian couple. Thus she made the public officer to believe that the daughter is Indian, his father is Indian, residing in Mohalla Dilptian,

date of birth and marriage certificte were obtained to get the Indian passport for the daughter. Not only this Atiy a Shamim was shown as Noor

Fatima.

Heard the learned counsel for the parties at length. Learned counsel for the petitioners has vehemently argued that no offence whatsoever is

disclosed from the complaint. According to him, offences shown in the complaint are mostly covered by Section 195, Cr.P.C. and the complainant

respondent No. 1 has no locus standi to lodge a complaint, because he is not a public servant. It is the public officer, who can lodge complaint.

Secondly, he has urged that even if the petitioners have committed any offence for obtaining false passport, complaint without obtaining sanction

u/s 15 of the Passport Act cannot be lodged: Lastly, it was argued that there is no material on record to justify the issue of process when the

intention of complainant is to achieve an alian objective of repatriation of his daughter. Regarding Mohammad Amin S.P. it was argued that

complaint against him, in the absence of sanction u/s 197, Cr.P.C. cannot be lodged.

Learned counsel for the other side has contended that Sections 191 and 192, RPC are not covered by Section 195, Cr.P.C. and complaint can

very much lie, if a false evidence is created or false affidavit sworn in before public servant to make him to believe a document, a valid which

otherwise is, fake.

Before entering upon the issues involved in this petition, first it is to be seen and settled as to what is the scope of this Court in dealing with the

petitions u/s 561-A Cr.P.C. of the State. Inherent power under this section, we have to exercise only when there is abuse of process of law.

Ordinarily courts do not interfere in the exercise of power of the Magistrates but wherever it is apparently found that the Magistrate proceed in a

criminal case not in accordance with law, but there is abuse of the process of law, inherent power with the High Court is to be invoked. This

power is to be exercised with great care and caution and in a rare of rarest cases when the offence itself is not disclosed. Apex Court has time and

again settled the legal position, especially in State of Haryana and others Vs. Ch. Bhajan Lal and others, . Reliance on this judgment wasLald again

by the Apex Court in Mrs. Rupan Deol Bajaj and another Vs. Kanwar Pal Singh Gill and another, . The Court has detailed the circumstances

wherein the High Court can exercise the inherent power u/s 482, which is para materia to Section 561-A of the State Criminal Procedure Code,

Some categories of cases have been illustrated, wherein such power could be exercised to check the abuse of the process of law in Court or

otherwise to secure the ends of justice, Though exhaustive list has not been given, but some guidelines have beenLald down as follows :-

(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, u/s 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 uncontro verted 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 u/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 gievance 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.

We also give a note of a caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with

circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or

genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an

arbitrary jurisdiction on the Court to act according to its whim or caprice.

Not only this, in Manager, Liberty Shoes v. State of J. & K. 1988 KLJ 227 (sic) single Bench of this Court also has in a detailed manner

discussed the scope of this provision and has discussed the latest law held by the apex Court in this behalf, from which it is manifestly clear that this

power under this section is to be exercised very sparingly and in rare of rarest cases just to check the abuse of power and to exercise this power in

the ends of justice.

Applying the said law in the present case, one can comfortably at the first reading of the complaint come to the conclusion that the complaint

discloses some offences. It is not necessary that the complaint should disclose only those offences, which have been mentioned in the complaint,

but process can be issued when any offence is made out from the complaint. Word ""any offence"" does not confine only to the offences mentioned

in the complaint. I am very much constrained to discuss in detail about the offences, which the complaint discloses least it may touch the merits of

the case itself and may prejudice the parties in the trial Court. Here we are concerned only whether any offence is disclosed from the complaint. To

appreciate the point involved, it is feasible to quote Clauses 1 (a) and (b) of Section 195 of the Cr.P.C. as under :-

(a) Prosecution for contempt of lawful authority of public servants.-

Of any offence punishable under Sections 172 to 188 of the Ranbir Penal Code, except on a complaint in writing of public servant concerned, or

of some other public servant to whom he is subordinate;

(b) Prosecution for certain offences against public justice.-

Of any offence punishable under any of the following sections of the same Code, namely, Sections 193,194,195,196,199,200, 205,206, 207,

208, 209, 210, 211 and 228 when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, except on the

complaint in writing of such Court or of some other Court to which such Court is subordinate;

It is a fact that every body is not allowed to lodge a complaint mentioned in clauses (a) and (b) of Section 195 of the Cr.P.C, but it does not

mean that no offence at all is disclosed from the present complaint. At the cost of repetition, it is clear from he facts that application form ha;, been

submitted by respondent before the Municipality, Health Officer, Jammu showing him date of birth of the minoi daughter Miss Atiya Shamirr false.

Her birth place was shown falsely to be Mohalla Dalpatian, Jammu and not Dubai. Whereas complaint discloses that she is Pak national R/o

Pubai. Marriage date was falsely shown to obtain date of Birth Certificate from the Public Officer, Municipality, Jammu. Her name was shown as

Noor Fatima instead of Miss Atiya Shamim, complainant, who is the father of the daughter was,nown as a resident of Indian national R/o Mohalla

Dalpatian, Jammu instead of Pak National R/o Dubai and the respondent 1 succeeded in obtaining the false date of birth certificate in the fake

name of Noor Fatima. All these documents, she produced before the Passport Authority and obtained Indian Passport for the minor daughter

Miss Atiya Shamim. Even the Health Officer, Municipality was made to believe that earlier valid Certificate issued was bogus. From all this

according to the complainant, the intention of the respondent 1 was to restrain fraudulently the father from taking his daughter back to Dubai. A

statement which the man believes to be false, when he is bound to give a true statement gives a false statement. This discloses offence u/s 191 of

the RPC. Similarly, Section 192, RPC also. When a false entry is being made in a document; which may appear in evidence in ajudicial

proceeding, or in a proceeding taken by law before a public servant and such public servant form an opinion of such false evidence that is also an

offence. However, as I have stated that apparently from the face of the record, complaint though does not seem to have been written by a

professional man but at the same time, it does disclose some offences. What are those offences that we leave to the Magistrate to see at the stage

of framing of the charge, if any, after fully scrutinising the same. Here at this time, we are only concerned whether the allegations disclose any

offence. From the complaint itself, allegations does not appear so absurd, inherently improbable on the basis of which no prudent man ever reach

of just conclusion that there is a sufficient ground for proceedings against the accused. This gets support from the police report also. When the

complaint was lodged before the Senior Superintendent of Police, who sent it to some Inspector for enquiry, S.P. report is clear to show that all

the material has been seized by the CBI and CBI is enquiring the matter. It is not proper for the Slate Police to look into the matter. From this

report also, it is clear that the complaint is not bogus, but some offences are disclosed from such complaint. It is true that the complaint against

Mohd. Amin does not lie without obtaining sanction u/s 197, RPC for being a public officer. It is also true that offence under Passport Act cannot

be taken cognizance without sanction u/s 15 of the Act, but it does not mean no offence at all is disclosed from the complaint.

Lastly, learned counsel for the petitioners stated that respondent 1 has no locus standi to lodge a complaint, because no harm is caused to him.

I am not convinced by his argument, complaint can be lodged by anybody. Once the offence is committed, the offence is always committed against

public in general. This is consonance with the views expressed in a case cited in A.R. Antulay Vs. Ramdas Sriniwas Nayak and Another, in which

the Apex Court has held that once offence is committed, it is always against the general public. So the complainant has locus-standi to lodge the

complaint. Secondly, in the present case, process has been issued by the Chief Judicial Magistrate, Jammu, which is fully covered u/s 190 of

Cr.P.C. to take cognizance of an offence upon receiving a complaint of facts which constitute offence and upon a resport in writing of such facts

made by any police officer.

For these reasons, I am, therefore, convinced that vis-a-vis the respondent No.l no abuse of process of law has been committed, which

invokes the inherent power u/s 561-A of the Cr.P.C.

13.I have gone through the complaint and the whole material, it is manifestly clear that no offence is disclosed against the respondents Nos. 2 to 7.

In the complaint also, no clear allegations have been against these respondents. I think that they have been roped in just to mount pressure on

respondent 1. Similarly, with regard to respondent No. 8, petition u/s 561, Cr.P.C. has separately been filed which is connected with it. I have

gone through this petition, it is fact that Mohd. Amin has filed this petition on behalf of the State. No permission has been sought by him to file the

same. However, Court is not armless to treat it as an application by Mohd. Amin himself. I have gone through this application, it appears that

respondent No. 1 complainant, who is a Pak national, entered India and registered himself in the office of F.R.O. He was seen shuttling between

Jammu and Srinagar and had over-stayed unauthorisedly in the State and his passport was cancelled and the respondent 8 who was working as

Foreign Registration Officer acted for the deportation of respondent No. 1 in accordance with law, when the passport of the respondent No. 1

was cancelled. There is no personal allegations against him, so he could have been proceeded against only after obtaining the sanction u/s 197,

Cr.P.C. No offence is disclosed against him also.

It is held that complaint if accepted as it is, discloses some offence against the petitioner Tehmina Akhtar and disclosure of offence does not

mean that the offence is made out. It means that the complaint itself if accepted discloses the offence to which the Magistrate after scrutiny at the

proper stage will look into as to which of the offences, if any, are made out and the petition is allowed to the extent that no offence is disclosed

against respondents Nos. 2 to 8. The second petition is allowed to the effect that no offence is disclosed against respondent Mohd. Amin Bhat, so

the process be sent to Chief Judicial Magistrate, Jammu for proceeding further in accordance with law against the petitioner only, who is accused

No. 1 Petitioner and Respondent No. 1 will present themselves before Chief Judicial Magistrate, Jammu on 15th of March, 1999.

Comment, if any, made in this Judgment will not prejudice the merits of the case and Magistrate shall proceed only in accordance with law.