Rajiv Luthra and Others vs Neena Luthra and Others

Y.P. Nargotra, J.—Respondent, Neena Luthra, is the wife of petitioner No. 1. Marriage between petitioner No. 1 and respondent was

solemnized on 18.12.1987 but the same appears to have broken down. The parties have filed civil/criminal litigations in different courts against

each other at Delhi as well as at Jammu. The wife-respondent also filed a complaint against the petitioner and his mother at Jammu. Petitioner No.

1 filed a petition u/s 561A Cr.P.C. in this Court seeking quashment thereof in which the proceedings in the complaint have already been stayed.

She has also filed a petition u/s 9 & 30 H.M. Act against petitioner No. 1 whereas petitioner No. 1 has filed a petition u/s 13 H. M. Act against

respondent No. 1 at Delhi. Respondent has also filed a petition u/s 488 Cr.P.C. which is pending disposal in the court of City Judge, JMIC

Jammu. Petitioner No. 1 has filed 2 civil suits against his wife-respondent in Delhi for challenging the sale deeds regarding sale of two flats situate in

Delhi. Respondent-wife has now filed a complaint against the petitioners for commission of offences Under Sections 323, 341, 355, 504 & 506

RPC.

The allegations made in the complaint stated briefly are that the petition of respondent-complaint filed u/s 9 HMA was fixed on 10.11.2003. On

that date parties appeared before the court for the purpose of reconciliation. The case was taken up in the chambers by the learned District Judge

(Matrimonial cases) Jammu. It is alleged that in presence of the Presiding Officer petitioner No. 1 used unparliamentary language against the

complaint and thereafter left the chamber of the Presiding Officer also. When the complainant came out of the court alongwith her counsel namely

Shri Jagdish Parihar, petitioner-accused accompanied by petitioner No. 2 (accused No. 2) wrongfully restrained her in the corridor of the court

and assaulted and abused her and threatened her that in case she does not withdraw her petition u/s 488 as well as petition u/s 498-IPC he would

do away with her life. Learned 2nd Addl. Munsiff, JMIC by his order dated 12.11.2003 has taken cognizance and issued the process against the

petitioners, hence the petitioners have filed this petition for invoking the inherent jurisdiction of this Court.

The contention of learned Counsel for the petitioners, Mr. Gupta, is that the complaint and the order of the learned Magistrate deserve to be

quashed for securing the ends of justice in the circumstances of the case. He has argued that the complaint has been filed with ulterior motive of

harassing the petitioners as the petitioners reside in Delhi and shall have to come to Jammu for attending the hearing of the case. Learned Counsel

for the petitioners however has conceded at the Bar that the facts alleged in the complaint do prima facie constitute the offences in respect of which

cognizance has been taken by the trial court. The case thus put in short is that because the petitioners are residents of Delhi and number of cases

have been filed by the parties against each other in different courts, ends of justice require that misery of the petitioners should not be further

compounded by allowing the continuation of proceedings on the complaint of the respondent.

The petitioner is seeking to invoke the jurisdiction of this Court vested u/s 561A Cr.P.C. What is the scope of the section?

Section 561A of the J&JK sic (J&K) Code of Criminal Procedure corresponds to Section 482 of the Central Cr.P.C. 1983. The Supreme Court

while examining the scope of the section in case titled Zandu Pharmaceuticals Works v. Md. Sharaful Haque reported in AIR 2004 6185 held as

follows:

Exercise of power u/s 482 of the Code in a case of this nature is the exception and not the rule. The section does not confer any new powers on

the High Court. It only saves the inherent power, which the Court possessed before the enactment of the Code. It envisages three circumstances

under which the 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. 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 recognizes and preserves inherent powers of the High

Courts. 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

videture et id sine quo res ipsae esse 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 complaint has

alleged and whether any offence is made out even if the allegations are accepted in toto.

In R.P. Kapur Vs. The State of Punjab, the Supreme Court summarized some categories of cases wherein inherent powers can and should be

exercised to quash the proceedings as follows:

(i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction;

(ii) where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the

offence alleged;

(iii) where the allegations constitute an offence but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove

the charge.

Their lordships of the Supreme court also sounded a note of caution in the case titled State of Haryana v. Bhajan Lal 1992 (1) SCC 35 by

observing that these powers should be exercised sparingly and that too in the rarest of rare cases. Their lordships indicated some of the illustrative

categories in which it can be exercised as under:

(1) Where the allegations 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 the materials if any accompanying the FIR do not disclose cognizable offence, justifying

an investigation by the 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 uncontroversial 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 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;

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (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 Act concerned,

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 spit him due to private and personal grudge.

Present case does not fall in any of the categories in Bhajanlal's judgment (supra). Even the learned Counsel for the petitioners has fairly

conceded that the facts alleged in the complaint prima facie do constitute offences for which cognizance has been taken by the learned Magistrate.

He is seeking indulgence of this Court on the third category of circumstances envisaged by Section 561-A Cr.P.C. i.e. to otherwise secure the

ends of justice.

The contention of Mr. Gupta is that ends of justice demand that in the circumstances of the case the complaint should be quashed. I am not in

agreement with Mr. Gupta. Ends of justice shall be better met if the complaint of the respondent proceeds against the petitioners because the law

permits the trial of an accused on the allegations, which prima facie constitute a criminal offence. Ends of justice require the observance of the law

and not its breach. The power given to the High Court of passing orders for securing ends of justice is not an unrestricted and undefined power to

make any order it might please to consider was in the interest of justice. It is as much controlled by principle and precedent as are its express

powers by statute. It is always exercised for advancing justice. Justice lies in the enforcement of law. Inherent powers cannot operate in an area

covered expressly by the provisions of a statute. That the accused would face hardship by undergoing the trial is no ground to close the

proceedings at the threshold. In every criminal case an accused has to suffer hardship but still has to face the trial of the case, the facts of which

constitute an offence because he is to be tried for providing justice to the victim of his acts.

Since undisputedly the allegations made in the complaint taken at their face value do constitute the criminal offences alleged to have been

committed by them, I do not find any good ground to interfere with the order of the learned Magistrate which he has taken cognizance against the

accused.

There being no merit in the petition of the petitioners, it is accordingly dismissed, alongwith connected C.M.Ps.