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Judgment
By the medium of this petition, filed under Section 561_A Cr. PC, the petitioner seeks quashment of FIR bearing No. 46/2015 dated 31.10.2015, registered at Police Station Vigilance Organization Kashmir, punishable under Section 5(1)(d) read with Section 5(2) PC Act and 420, 467, 468, 471, 120-B RPC. For this summoning of the records from the concerned Court for perusal is also sought.
Before appreciating and looking into the merits of the petition, it will be profitable to give a brief account of the facts as noted in petition along with grounds taken their for quashment.
It has been pleaded in the petition that in the month of November, 2008, the petitioner came to be transferred Tehsildar Settlement Office, Srinagar and posted as patwari Halqa Panzinara, in terms of order dated 17.11.2008. During his posting as Patwari Panzinara, one Ghulam Hassan Kawa S/o Abdul Rehman Kawa R/o Sarai Dangerpora approached him for issuance of revenue extracts of his land measuring 2 kanals under survey No. 873 min falling under khewat No. 43 min of estate Ranbirgarh Partapgarh. On the basis of record available in the office, the petitioner issued revenue extracts for the said land and he subsequently executed a Sale Deed with one Mushtaq Ahmad Dar, which has been registered by learned Sub Registrar Srinagar on 16th June, 2012. The petitioner on his promotion as Girdawar got transferred in the month of December, 2012. On 31.10.2015, an FIR bearing No. 46/2015 stand registered by respondent No. 2, under different Sections of prevention of Corruption Act read with Section 420, 467, 468, 471, 120-B RPC, against some Revenue Officials, who were posted as Tehsildar, Naib Tehsildar and Patwari for estate Ranbirgarh Pratapgarh during the period of 1997 to 1999. The petitioner at all was not posted as Patwari in Ranbirgarh during that period. It is further submitted that the allegations and accusations against the petitioner are not only false, baseless and concocted, but vague and unfounded as well. The registration of the case against the petitioner has adversely affected the service rights of the petitioner, as the petitioner despite his promotion to the post of Naib Tehsildar has not been allowed to join against the said post.
Considered rival arguments and perused the material on record.
Hon'ble Apex Court in State of Orissa v. Suraj Kumar Sahoo, reported in (2005) 13 SCC 540, has sounded a note of caution regarding the power of High Court to be exercised in terms of Section 561-A Cr. PC, corresponding to Section 482 of Central Code. Their lordships enunciated that 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, being of magnitude and cannot be seen in their true perspective without sufficient material before the Court. While exercising inherent jurisdiction as observed their lordships is not permissible for the Court to act as if it was a trial Court. It would be none of the duties of the High Court to appreciate the evidence to conclude whether the material produced are sufficient or not for holding the accused guilty.
It would also herein proper to refer judgment the judgment of Hon'ble Apex Court titled Janta Dal v. H. S. Chowdhary, reported in AIR 1993 SC 892, 1993 CriLJ 600, while summarize the principles in the light of which inherent powers can be exercised has observed:
The criminal Courts are clothed with inherent power to make such orders as may be necessary for the ends of justice. Such power though unrestricted and undefined should not be capriciously or arbitrarily exercised, but should be exercised in appropriate cases, ex debito justitiae to do real and substantial justice for the administration of which alone the Courts exist. 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. Courts must be careful to see that its decision in exercise of this power is based on sound principles.
The Judicial Committee in (1) Emperor v. Nazir Ahmad and (2) Lala Jai Ram Das v. Emperor has taken the view that Section 561-A of the old Code gave no new powers but only provided that those which the Court already inherently possessed should be preserved. This view holds the field till date.
This Court in Dr. Raghubir Sharon v. The State of Bihar had an occasion to examine the extent of inherent power of the High Court and its jurisdiction when to be exercised. Mudholkar, J speaking for himself and Raghubar Dayal, J after referring a series of decisions of the Privy Council and of the various High Courts held thus:
...every High Court as the highest court exercising criminal jurisdiction in a State has inherent power to make any order for the purpose of securing the ends of justice.... Being an extraordinary power it will, however, not be pressed in aid except for remedying a flagrant abuse by a subordinate Court to is powers....
See Talab Hazi Hussain v. Madhukar Purshottam Mondkar and Anr. [1958] SCR 1226 and Pampapathy v. State of Mysore [1966] (Supp.) SCR 477.
Thus, the inherent power under this Section can be exercised by the High Court (1) to give effect to any order passed under the Code; or (2) to prevent abuse of the process of any Court; or (3) otherwise to secure the ends of justice. In relation to exercise of inherent powers of the High Court, it has been observed in Madhu Limaye v. State of Maharashtra that the power in not to be resorted to if there is a specific provision in the Code for the redress of grievance of the aggrieved party and that it should be exercised very sparingly to prevent abuse of process of any Court or otherwise to secure the ends of justice and that it should not be exercised as against the express bar of law engrafted in any other provision of the Code. Vide (1) Talab Hazi Hussain v. Madhukar Purshottam ; (2) Khushi Ram v. Hashim and Ors. AIR 1959 SC 542; and (3) State of Orissa v. Ram Chander Agarwala .
This inherent power conferred by Section 482 of the Code should not be exercised to stifle a legitimate prosecution. The High Court being the highest Court of a State should normally retrain from giving a premature decision in a case wherein the entire facts are extremely 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 great 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 the cases in which the High Court will exercise its extraordinary jurisdiction to quashing the proceedings at any stage. This Court in State of Haryana and Ors. v. Ch. Bhajan Lal and Ors. [1990] 3 Supp. SCR 256 to which both of us were parties have dealt with this question at length and enunciated the law listing out the circumstances under which the High Court can exercise its jurisdiction in quashing proceedings. We do not, therefore, think it necessary in the present case to extensively deal with the import and intendment of the powers under Sections 397, 401 and 482 of the Code.
The Apex Court in the case of Satvinder Kaur v. State, reported in AIR 1999, SC 3597 held that the appreciation of the evidence is the function of the Court when seized of the matter. At the stage of investigation, the material collected by an investigating officer cannot be judicially scrutinized for arriving at a conclusion (in the said case about the jurisdiction of the police station). Further their lordships observed that for the purpose of exercising its power under Section 482 Cr. PC, to quash an FIR or a complaint, the High Court would have to proceed entirely on the basis of the allegation made in the complaint or the documents accompanying the same per se, it has no jurisdiction to examine the correctness of otherwise of the allegations.
In the light of settled legal position, it requires to be underscored that the inherent jurisdiction under Section 561-A Cr. PC has to be exercised sparingly, carefully and with caution.
Viewing the matter in the above backdrop, I am of the opinion that this Court would not be justified in embarking upon an enquiry as sought by the petitioner herein regarding his stand about the prosecution story or for returning any finding as to the nature of allegations levelled in the FIR. The facts as projected by the petitioner before this Court are half backed and it is not deemed apt at this stage to conclude that the allegations levelled against the petitioner are vexatious in nature and so there is abuse of process of Court. The police has statutory power to investigate the allegation regarding commission of cognizable offence and the process of investigation cannot be halted at its very debut. The petitioner can approach even the Investigating Agency apprise it about its stand and the veracity of same can be examined accordingly. Therefore, the petition of petitioner entails dismissal and is, accordingly, dismissed, in limini.
A copy of this order be forwarded to the respondent No. 2-Senior Superintendent of Police, Vigilance Organization, Kashmir.