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Judgment
Ali Mohammad Magrey, J
Subject matter of the petition is FIR No. 2/2016 dated 14.06.2016 registered at Police Station Rajouri for offences under Section 498-A/109 of RPC.
It is submitted that petitioner No.1 is the husband of private respondent. Petitioner Nos. 2 and 3 are parents of petitioner No.1 and petitioner No.4 and
5 are sisters of petitioner No.1. All the petitioners are accused in FIR No. 2/2016. It is stated that private respondent was a widow and petitioner No.l
contracted Nikah with her in the year 2012. It is further stated that the private respondent earlier instituted FIR No. 310/2014 dated 19.06.2014 for the
offences under Sections 498-A/109 of RPC at Police Station Rajouri against petitioner Nos. 1 to 3 and the final challan in the said FIR has been
produced before the Court of Special Mobile Magistrate Rajouri and the petitioners are facing trial therein. It is stated that another FIR No. 02/2016
dated 14.06.2016 for the same offences leveling the same allegations against the petitioners and on the same facts is registered.
Before going to merits of the case, the question is as to whether the FIR containing allegations which set the police in motion, can be quashed at the
threshold stage? The answer has to be in the negative, for, the remedy under Section 561-A Cr. P. C. can be invoked/pressed into service only inthe
following circumstances:
(i) to pass orders in order to give effect to an order passed under Cr.PC
(ii) to prevent abuse of process of Court
(iii) to otherwise secure the ends of justice: and
(iv) to prevent mis-carriage of justice.
In the instant case, keeping in view the allegations contained in the FIR, it can by no stretch of imagination be said that the case of petitioner falls
within the ambit/contours of section 561-A Cr.PC as enumerated above.
The Apex Court in the cases reported AIR 1960 SC 866, AIR 1964 SC 01, AIR 1972 SC 484, AIR 1974 SC 1146, AIR 1977 SC 1489, AIR1977 SC
2229, AIR 1980 SC 326, AIR 1989 SC 01, AIR 1990 SC 494, AIR 1991 SC 1260, AIR 1992 SC 064, AIR 1992 SC 892, AIR 1996 SC 309,AIR 1996
SC 2983, AIR 1999 SC 3596, AIR 1999 SC 1044, AIR 1999 SC1216, AIR 2002 SC 671, AIR 2004 SC 3967, AIR 2005 SC 3212, SLJ 2005 VOL-I
118, 2008 AIR SCW 1003, 2008 AIR SCW 1993, 2008 AIR SCW 1998, 2008 AIR SCW 4614, 2008 AIR SCW 7680, 2008 AIR SCW 2778, AIR
2010 SC 201 has discussed the scope of Section 561-A Cr.PC corresponding to Section 482 Cr.PC of Central Code and has laid down the following
tests:
“ 1. Where the allegations made in the first information report or the complaint even if 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.
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.
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.
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 Magistrate as contemplated under Section 155(2) of the Code.
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.
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:
Where a criminal proceeding is manifestly attended with malafide and/or where the proceedings 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.â€
Applying the tests laid down, it can be safely said that the entire matter is at its infancy stage and does not fall within the four corners of the tests laid
down.
Apex Court also held that power is to be exercised cautiously, carefully and sparingly and Court has not to function as a Court of appeal or revision. It
has also laid down the parameters and guidelines in cases titled as K.L.E Society & ors v. Siddalingesh reported in 2008 AIR SCW 199;3 A.P
Vs Bojjoori Kanthaiah reported as 2008 AIR SCW 7860 and Reshma Bano Vs State of Uttar Pradesh reported in 2008 AIR SCW 1998.
This Court has only to ascertain whether the allegations made in the FIR do disclose or do not disclose the commission of offences, if it does, then it
cannot be quashed at its thresh-hold stage. It is not proper to scuttle away the investigation at its thresh-hold stage, if FIR discloses the commission of
offences, High Court should not interfere with the investigation which would amount to stalling the investigation and jurisdiction of statutory authorities
to exercise powers in accordance with the provisions of criminal Code.
Apex Court in AIR 2004 SC 3967, AIR 1972 SC 484, AIR 1974 SC 1446, AIR 1977 SC 2229, AIR 1989 SC 01, has laid down the same principle. It
is apt to reproduce para 10, 13, 14, 15, 17 & 19 out of the judgment titled as Som Mittal Vs Govt. of Karnataka reported in 2008 AIR SCW 1003
herein:
“10. In a catena of decisions this Court has deprecated the interference by the High Court in exercise of its inherent powers under Section 482 of
the Code in a routine manner. It has been consistently held that the power under Section 482 must be exercised sparingly with circumspection and in
rarest of rare cases. Exercise of inherent power under section 482 of the Code of Criminal Procedure is not the rule but it is an exception. The
exception is applied only when it is brought to the notice of the Court that grave miscarriage of justice would be committed if the trial is allowed to
proceed where the accused would be harassed unnecessarily if the trial is allowed to linger when prima facie it appears to Court that the trial would
likely to be ended in acquittal. In other words, the inherent power of the Court under section 482 of the Code of Criminal Procedure can be invoked by
the High Court either to prevent abuse of process of any Court or otherwise to secure the ends of justice.â€
13 In State of Bihar v. J.A.C Saldanha (1980) 1 SCC 554 this Court pointed out at SCC P. 574:
“ The High Court in exercise of the extraordinary jurisdiction committed a grave error by making observations on seriously disputed questions of
facts taking its cue from affidavits which in such a situation would hardly provide any reliable material. In our opinion the High Court was clearly in
error in giving the direction virtually amounting to a mandamus to close the case before the investigation is complete. We say no more.â€
“ 14. In Hazari Lal Gupta v Rameshwar Prasad (1972) 1 SCC 452 this Court at SCC P. 455 pointed out:
In exercising jurisdiction under section 561-A of the Criminal Procedure Code, the High Court can quash proceedings if there is no legal evidence or if
there is any impediment to the institution or continuance of proceedings but the High Court does not ordinarily inquire as to whether the evidence is
reliable or not. Where again, investigation into the circumstances of an alleged cognizable offence is carried on under the provisions of the Criminal
Procedure Code, the High Court does not interfere with such investigation because it would then be the impeding investigation and jurisdiction of
statutory authorities to exercise power in accordance with the provisions of the Criminal Procedure Code.
In Jehan Singh vs Delhi Administration (1974) 4 SCC 522 the application filed by the accused under section 561-A of the old Code for quashing
the investigation was dismissed as being premature and incompetent on the finding that prima facie the allegations in the FIR if assumed to be correct,
constitute a cognizable offence.
In State of Bihar vs Murad Ali Khan (1988) 4 SCC 655 this Court held that the jurisdiction under Section 482 of the Code has to be exercised
sparingly and with circumspection and has given the working that in exercising that jurisdiction, the High Court should not embark upon an enquiry
whether the allegations in the complaint are likely to be established by evidence or not.
We may observe here that despite this Court consistently held in catena of decisions that inherent power of the High Court should not be exercised
according to whims and caprice and it has to be exercised sparingly with circumspection and in the rarest of rare cases, we often come across the
High Court exercising the inherent power under Section 482 of the Code of Criminal Procedure in a routine manner at its whims and caprice setting at
naught the cognizance taken and the FIR lodged at the threshold committing grave miscarriage of justice. While it is true that so long as the inherent
power of Section 482 is in the Statute Book, exercise of such power is not impressible but it must be noted that such power has to be exercised
sparingly with circumspection and in the rarest of rare cases, the sole aim of which is to secure the ends of justice. The power under Section 482 is
not intended to scuttle justice at the threshold.â€
While keeping in view the scope of section 561-A Cr.PC the court should refrain from making prima facie decision at interlocutory stage when entire
facts of the case are incomplete, hazy and more so, when material evidence is yet to be collected and issues involved could not be seen in their true
perspective.
Apex Court in case titled as R.P Kapur v. State of Punjab reported in AIR 1960 SC 866 and case titled State of Andhra Pradesh v. Golconda Linga
Swamy reported in AIR 2004 SC 3967 has laid down the same principle. It is apt to reproduce para 8 of the judgment reported in AIR 2004 SC 3967
herein:
“ 8….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 malfide, 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 malafides 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 malafides against the
informant are of no consequence and cannot by itself be the basis for quashing the proceeding.â€
Prima facie it appears that the allegations contained in the FIR relate to the offences which are cognizable and non-cognizable, warrant investigation.
Keeping in view the status of the petitioners, it is impressed upon the Investigating Officer not to harass the petitioners. The petitioners are also at
liberty to seek order to their protection from the competent Court of law. The Investigating Officer shall investigate the matter by adopting fair
approach and if it is found that the claim is covered by civil proceedings, he shall proceed further accordingly.
The present petition is disposed of accordingly.