Ghulam Nabi Kamlak vs UT of J&K &Anr

Vinod Chatterji Koul, J

Through the medium of the instant petition, the petitioners are seeking quashment of FIR No. 0018 of 2021  dated  13.01.2021  registered  with  Police  Station Bahu Fort, Jammu, for commission of offences

punishable under Section 323, 341 and 147 of IPC.

The impugned FIR appears to be counterblast of FIR No.0015 of 2021 lodged by the petitioners against the private respondent with Police Station, Bahu Fort, Jammu.

To understand the controversy, it would be appropriate to have a brief resume of the facts which is stated hereinbelow:

Respondent No.4-In charge Police Station, Bahu Fort, Jammu, has lodged FIR in question against the petitioners on the complaint ofprivate respondent-Shabnam Naza’s counterblast of FIR No.0015 of 2021 lodged by petitionerNo.1 against the private respondent. The private respondent on 11.01.2021 near herhouse at Rahim Nagar, Narwal Bala Jammu, along with herrelatives and other people of the area started to encroach the Nallah which flowsadjacent to her house and people of the area informed the police agency who cameon spot and during the police visiting hours on the same day, private respondentherein along with some other people started stone pelting on the petitioners due to which daughter of the petitioner No.1got injured and police official present on the spot shifted her to GMCJammu for treatment. A case FIR No.0015 of 2021was lodgedwith the Police StationBahu Fort, Jammu by the petitioners against the private respondent, her mother and some otherpeople involved in the said occurrence. On 13.01.2021, private respondent also approached the police agency and lodged a case FIR No. 0018 of 2021 dated 13.01.2021 against the petitioners of the same incident of 11.01.2021.

The petitioners invoke exercise of inherent powers by this Court under Section 482 of the Code of Criminal Procedure and pray for quashing of impugned F.I.R. The petitioners submit that the impugned F.I.R. does not disclose any offence; that by creating false story of thesame incident of 11.01.2021,private respondent as an afterthought has lodged FIR against the petitioners which isbad in the eyes of law. It is submitted that dispute between the parties being civil in nature, the registration of F.I.R. on the complaint of the respondent No.3 is an abuse of the process of law with a view to pressurize and intimidate the petitioners.

It is an admitted position that petitioners have lodged FIR No.0015 of 2021 against private respondent. The said FIR has been lodged on 11.01.2021 when private respondent near her house at Rahim Nagar, Narwal Bala Jammu, along with her relatives and other people of the area are alleged to have started to encroach the Nallah which flows adjacent to her house and people of the area informed the police agency who came on spot and during the police visiting hours on the same day, private respondent herein along with some other people started stone pelting on the petitioners due to which daughter of the petitioner No.1 got injured and police official present on the spot shifted her to GMC Jammu for treatment. A case FIR No.0015 of 2021 was lodged with the Police Station Bahu Fort, Jammu by the petitioners against the private respondent, her mother and some other people involved in the said occurrence. As counterblast private respondent on 13.01.2021, lodged impugned FIR No. 0018 of 2021 dated 13.01.2021 against the petitioners with respect to the same incident of 11.01.2021.

In view of settled principle of law, this Court is of the considered opinion that at the time of using inherent powers under Section 482 Cr.P.C., the only facts mentioned in the FIR and other material available on record produced would be looked into for this purpose. Perusal of impugned FIR reflects and depicts it being a counterblast to the one that has been lodged by petitioners and, thus, requiring this Court to exercise powers as envisaged under Section 482 Cr.P.C.

So, on the face of it, impugned FIR appears to be a counterblast to the FIR no.0015, earlier lodged by petitioners. It is settled that if an FIR does not disclose commission of an offence, the Court would be justified in quashing it preventing the abuse of process of law. In the present matter as well, from perusal of contents of impugned FIR, it is crystal clear that only omnibus and vague allegations have been made by complainant and impugned counterblast FIR has been got lodged with an ulterior motive by complainant for pressurizing petitioners and keeping the impugned FIR alive is clear abuse of process of law, more particularly when it is settled principle of law that if FIR does not disclose commission of offence, the Court would be justified in quashing the FIR.

Law on the subject is settled.Time and again scope of jurisdiction of the High Court under Section 482 Cr.P.C. has been examined and several principles that govern the exercise of the jurisdiction of the High Court thereunder have been laid down. A three-Judge Bench of the Supreme Court in State of Karnataka v. L. Muniswamy and others 1977 (2) SCC 699, has 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. 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.”

The law on the question as to when registration of an FIR is challenged, seeking quashment thereof by an accused under Section 482 Cr.P.C. and what are the powers of the High Court and how the High Court should deal with such questions, is fairly well settled by the Supreme Court in a catena of decisions, including in the case State of Haryana and others v. Bhajan Lal and others, 1992 Supp (1) SCC 335, in which the Supreme Court 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 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.”

A three-Judge Bench of the Supreme Court in State of Karnataka v. M. Devenderappa and another, 2002 (3) SCC 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 has 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 id sine quo res ipsaesse 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 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.”

It would also be appropriate to reproduce para 08 hereunder:

“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).”

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 Madras High Court, where an Application was preferred under Section 482 Cr.P.C. to quash 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 process of law and allegations were unfounded. The prosecuting agency contested the petition filed under Section 482 Cr.P.C., taking the stand that a bare perusal of complaint disclosed commission of alleged offences and, therefore, it was not a case that needed to be allowed. The High Court accepted the case of 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 of the Code, 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 in the case of Bhajan Lal (supra).

The Supreme Court in another case titled as Priya Vrat Singh and others v. Shyam Ji Sahai reported in 2008 (8) SCC  232,  relied  on  Category  07  as  laid  down  in Bhajan Lal’s case (supra). In the said 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 powers 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 as it only saves the inherent power which the Court possessed before enactment of the Code. It envisages three circumstances under which 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. 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 ipsaesse 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 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.

The powers, as noticed above, 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. [Vide: 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].

In the case of Dineshbhai Chandubhai Patel vs. State of Gujarat and others, reported in 2018 (3) SCC 104, the Supreme Court has laid down following at paragraph 26:-

“26. This Court in State of West Bengal &Ors. Vs. Swapan Kumar Guha &Ors (AIR 1982 SC 949) had the occasion to deal with this issue. Y.V. Chandrachud, the learned Chief Justice speaking for Three Judge Bench laid down the following principle:

“Whether an offence has been disclosed or not must necessarily depend on the facts and circumstances of each particular case. If on a consideration of the relevant materials, the Court is satisfied that an offence is disclosed, the Court will normally not interfere with the investigation into the offence and will generally allow the investigation in the offence to be completed for collecting materials for proving the offence.

The condition precedent to the commencement of investigation under S.157 of the Code is that the F.I.R. must disclose, prima facie, that a cognizable offence has been committed. It is wrong to suppose that the police have an unfettered discretion to commence investigation under S.157 of the Code. Their right of inquiry is conditioned by the existence of reason to suspect the commission of a cognizable offence and they cannot, reasonably, have reason so to suspect unless the F.I.R., prima facie, discloses the commission of such offence. If that condition is satisfied, the investigation must go on. The Court has then no power to stop the investigation, for to do so would be to trench upon the lawful power of the police to investigate into cognizable offences.”

The  Supreme  Court  in  the  case  of  Neeharika Infrastructure Pvt. Ltd v. State of Maharashtra and others, reported in 2021 SCC Online SC 315, has, inter alia, laid down following principles of law:

“23. In view of the above and for the reasons stated above, our final conclusions on the principal/core issue, whether the High Court would be justified in passing an interim order of stay of investigation and/or "no coercive steps to be adopted", during the pendency of the quashing petition under Section 482 Cr.P.C and/or under Article 226 of the Constitution of India and in what circumstances and whether the High Court would be justified in passing the order of not to arrest the accused or "no coercive steps to be adopted" during the investigation or till the final report/ chargesheet is filed under Section 173 Cr.P.C., while dismissing/ disposing of/not entertaining/not quashing the criminal proceedings/ complaint/FIR in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India, our final conclusions are as under:

i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence;

ii) Courts would not thwart any investigation into the cognizable offences;

iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on;

iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the 'rarest of rare cases (not to be confused with the formation in the context of death penalty).

v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;

vi) Criminal proceedings ought not to be scuttled at the initial stage;

vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule;

viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere;

ix) The functions of the judiciary and the police are complementary, not overlapping;

x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;

xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;

xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;

xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court;

xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint;

xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR”

Inherent power, in view of above discourse, given to the High Court under Section 482 Cr.P.C. is with the purpose and object of advancement of justice. In case 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 the case of Bhajan Lal (supra). Judicial process is a solemn proceeding, which cannot be allowed to be converted into an instrument of the oppression or harassment. When there is a material to indicate that a criminal proceeding is manifestly attended with mala fide and a proceeding is maliciously instituted with an ulterior motive, the High Court or for that matter this Court will not hesitate in exercising its jurisdiction under Section 482 Cr. P.C. to quash the FIR/proceeding under various categories enumerated in State of Haryana v. Bhajan Lal (supra).

Based on the holistic consideration of the facts and circumstances summarised in the foregoing paragraphs, the present case appears to be one where Categories 03, 05 and 07 of the illustrations given in the case of State of Haryana v. Bhajan Lal (supra) is clearly applicable to both the cases.

In the light of aforesaid discussion and the proposition of law and facts mentioned, this Court is of the considered opinion that even if the entire facts mentioned in the impugned FIR are taken at their face value and accepted in its entirety, prima facie, no offence is made out against petitioners. Accordingly, the impugned FIR No. 0018 of 2021 dated 13.01.2021 registered with police station Bahu Fort, Jammu, for commission of offences punishable under Section 323, 341 and 147 of IPCis hereby quashed and proceedings, if any, initiated/emanating therefrom are as well quashed.

Disposed of.