Mohd Shafi And Ors vs Mohd Iqbal

In the instant petition filed under Section 561-A Cr.P.C., the petitioners inter alia seek quashment of the complaint titled Mohd Iqbal vs Mohd Shafi alias Billa and others as well as the order dated 08.05.2018 by virtue of which the trial court (learned City Judge, Jammu) has taken cognizance against the petitioners for commission of offence under Sections 341, 323, 504 RPC.

The brief facts of the case are that petitioner no.1 is the absolute and exclusive owner of plot of land measuring 46 Kanals falling under survey number 193/7 situated at village Raj Nagar Budhal which the petitioner has purchased from the father of the respondent; admittedly there is a land dispute between the petitioner no.1 and respondent with regard to the suit property as mentioned above and on the basis of the rivalry the respondent threatened the petitioner no.1 on numerous occasions but the petitioner no.1 refused to succumb to the threats of the respondent. On 09-04-2018, the respondent through his counsel served a legal notice to the petitioner nos.1 & 2 claiming therein that the land in question has been taken by the petitioner nos. l and 2 from the father of the respondent on rent basis and further instructed the petitioner nos. l and 2 to pay the arrears of rent. All the petitioners are above 60 years of age and are illiterates; all are farmers by profession, the respondent who is a habitual litigant by taking the benefit of their innocence and old age filed a complaint before learned Chief Judicial Magistrate, Jammu who forwarded the same to the court of learned City Judge, Jammu against the petitioners on false frivolous and vexatious grounds claiming therein that the petitioners have assaulted him and threatened him. It is worthwhile to mention here that the petitioner no.3 is of 85 years of age and is paralytic left side and is bed ridden which is very well established by the medical report issued by the Medical Officer Primary Health Centre Budhal and rest of the petitioners are 60 years, 75 years, 70 years and 35 years respectively, it is very hard to believe that the petitioners who are unable to walk without the support of someone else have assaulted the respondent in broad day light in Jammu. The respondent in order to settle a civil dispute has adopted the illegal and arbitrary means by filing a false frivolous and vexatious complaint against the petitioners and by virtue of the same the petitioners are being harassed for their no fault, hence this instant petition.

I have considered the contentions of counsel for petitioners.

In case titled State of Telangana v Habib Abdullah Jeelani reported in AIR 2017 SUPREME COURT 37, it is held as under:-

"11. Once an FIR is registered, the accused persons can always approach the High Court under Section 482 CrPC or under Article 226 of the Constitution for quashing of the FIR. In Bhajan Lal (supra) the two-Judge Bench after referring to Hazari Lal Gupta v. Rameshwar Prasad, Jehan Singh v. Delhi Administration, Amar Nath v. State of Haryana, Kurukshetra University v. State of Haryana, State of Bihar v. J.A.C. Saldanha, State of West Bengal v. Swapan Kumar Guha, Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi, Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre, State of Bihar v. Murad Ali Khan and some other authorities that had dealt with the contours of exercise of inherent powers of the High Court, thought it appropriate to mention certain category of cases by way of illustration wherein the extraordinary power under Article 226 of the Constitution or inherent power under Section 482 CrPC could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice. The Court also observed that it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad cases wherein such power should be exercised. The illustrations given by the Court need to be recapitulated:-

"(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 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."

It is worthy to note that the Court has clarified that the said parameters or guidelines are not exhaustive but only illustrative. Nevertheless, it throws light on the circumstances and situations where court's inherent power can be exercised.

There can be no dispute over the proposition that inherent power in a matter of quashment of FIR has to be exercised sparingly and with caution and when and only when such exercise is justified by the test specifically laid down in the provision itself. There is no denial of the fact that the power under Section 482 CrPC is very wide but it needs no special emphasis to state that conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the Court."

I have considered the contents of the complaint, the relevant paras 2 to 10 of the complaint read as under;

"2. That the fact of complainant is owner of land measuring 46 kanals under Kh. No.193/7 situated at Budhal Tehsil budhal District Rajouri; the applicant has given the said land to the accused person nos.1 and 2 on rent in the year 2006.

That the accused persons have given rent to the applicant for the years 2004 to 2008 and thereafter the accused persons have not paid any rent to the applicant. The applicant has approached to the accused persons for many time for paying the rent amount to the applicant in the past but all in vain.

That applicant has served a legal notice to accused No. 1 & 2 through his counsel by way of registered letter copy of Notice is enclosed herewith as annexure A.

That the above named accused persons after getting the knowledge of above mentioned legal notice have given threats to applicant for numbers of times for withdrawing the said legal notice and on 06.05.2018 the applicant came to Jammu to meet namely Mussart Iqbal who is presently studying at Jammu and residing Trikuta Nagar on rent.

That the accused persons after getting the knowledge of residence of the applicant at Jammu, had came to applicant's rental house and without the permission of the applicant entered in the room of applicant's son and started beating the applicant with fist and blows and used filthy language on this occasion applicant made hue and cry on this some local people gathered on spot who saved the life of applicant from the clutches of the accused persons. When the accused persons saw that the local people gathered on spot, they fled away from the spot and while going they have given threats to the applicant that they will come again with Lathi & gun and will kill the applicant, his son and other family members if applicant will not withdraw his legal notice. So the accused persons have committed the offence u/s 452, 323, 504 & 506 RPC and necessary FIR against the accused persons be registered and they should be punished under law.

That the accused persons have committed offence under sections 452, 323 504, 506 RPC intentionally and deliberately and also openly given threats to the applicant and his family. The applicant has approached to the P/S Trikuta Nagar to register FIR against the accused persons, the police of P/S Trikuta Nagar has not taken any action against accused persons as yet.

That the applicant has also forwarded copy of application to the SSP, Jammu for rederessal of his grievances vide his application sent through registered post. But the police have not taken any action against the accused persons, the applicant left no option except to file present complaint.

That accused persons have committed the offences u/s 452, 323, 504, and 506 RPC and hence liable to be punished accordingly.

That through the mode of present application, the complainant seeks indulgence of this Hon'ble Court for initiating legal action against the accused persons under law."

From bare perusal of the complaint, it is evident that no date, month or year has been mentioned in the complaint as to when the alleged accused persons entered into the room of son of the complainant and started beating him with fists and blows. A general allegation has been leveled that accused/petitioners herein have beaten the applicant with fists and blows and used filthy language. All the petitioners are resident of Tehsil Budhal which is more than 200 kms from Jammu; the land in dispute also falls at Budhal. It is impossible that all the petitioners who are five in numbers, out of which four are more than 70 years, will come to Jammu to give fists and blows to complainant. The matter appears to be of a civil nature and the complainant has tried to settle the dispute under the garb of criminal proceeding, which is not permissible under law.

These criminal proceedings are manifestly attended with mala fide and have been maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite them due to private and personal grudge. The allegations made in the 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. The Magistrate has taken cognizance in a very casual manner and in an unmindfull manner.

In view of the above, this petition is allowed. Complaint titled Mohd Iqbal vs Mohd Shafi alias Billa and others pending before learned City Judge, Jammu is quashed. Order dated 08.05.2018 by virtue of which the trial court has taken cognizance against the petitioners for commission of offence under Sections 341,323,504 RPC is also set aside.

This judgment is pronounced by me in terms of Rule 138(3) of The Jammu & Kashmir High Court Rules, 1999.