Reyaz Ahmad Khan vs Director, Anti-Corruption Bureau And Ors

By medium of this petition, filed under Section 482 of the Code of Criminal Procedure (Cr. P.C.), the petitioner is seeking quashing of FIR

No.01/2021, registered by Police Station, Anti-Corruption Bureau, Srinagar, for the commission of offences punishable under Section 5(1)(d) read with

Section 5(2) of the J&K Prevention of Corruption Act, Samvat, 2006 and Section 120-B of the Ranbir Penal Code (RPC).

The brief facts leading to the filing of the instant petition, as stated by the petitioner in his petition, are that in pursuance of a written complaint filed

by one Jaswant Singh relating to the allotment of evacuee property, a preliminary enquiry was conducted, which enquiry, after due consideration, is

claimed to have been closed with the observation that no favour was extended by the Custodian Department. It is contended by the petitioner that

despite the closure of the enquiry, the respondents have proceeded to register the impugned FIR on the same facts which excludes the culpability of

the public servants or the petitioner in the matter of allotment of shops.

Mr Syed Faisal Qadri, the learned Senior counsel, representing the petitioner, has invited the attention of the Court to the contents of the impugned

FIR to state that the same do not disclose the offences commission of which has been attributed to the petitioner under Section 5(1)(d) read with

Section 5(2) of the J&K Prevention of Corruption Act, Samvat, 2006. It is pleaded that the contents of the FIR do not make out a case against the

petitioner, who is a beneficiary of a legal transaction purely of civil nature. The learned Senior Counsel contends that a preliminary enquiry stands

already conducted in the matter by the respondents which was, subsequently, closed on the ground that nothing adverse was found against the

petitioner, therefore, the respondents cannot, now, turn around and register another FIR on the same set of facts. It is also submitted by the learned

Senior counsel that the Senior Superintendent of Police, while registering the impugned FIR against the petitioner, has assigned the investigation of the

case to Inspector, Shakeel Ahmad, No.4459/NGO, who is not a designated investigating authority for the offences in question.

Mr B. A. Dar, the learned Senior Additional Advocate General, available in the Court, while appearing on behalf of the respondents, has

vehemently resisted the claim of the petitioner for quashing the FIR by stating that the matter is at the very infancy stage and, thus, does not warrant

any interference from this Court at this stage.

I have heard the learned counsel for the parties, perused the pleadings on record and considered the matter.

The moot question that arises for consideration of the Court, in the instant petition, is whether an FIR can be quashed in proceedings filed under

Section 482 of the Code of Criminal Procedure (Cr. P.C.) by this Court. The answer has to be in the negative, for, the remedy under Section 482 Cr.

P. C can be invoked/pressed into service only in the following circumstances:

i. to pass orders in order to give effect to an order passed under Cr. P.C;

ii. to prevent abuse of process of Court;

iii. to secure the ends of justice; and

iv. to prevent mis-carriage of justice.

The case of the petitioner does not fall in any of the aforesaid circumstances as would warrant interference from this Court while exercising power

under Section 482 of the Code of Criminal Procedure (Cr. P. C.). The FIR in question has been lodged against the petitioner on some complaint

relating to illegal allotment of evacuee property and in case the petitioner is satisfied that he is not involved in any offence, commission of which has

been attributed to him, there shall be no difficulty for him to cooperate with the investigating authorities so that truth prevails. The investigation of the

FIR aforesaid is in its infancy stage and all the material facts may not have come forth as yet so as to come to a definite conclusion in the matter.

The Apex Court of the country, while dealing with the scope of Section 482 of the Code of Criminal Procedure (Cr. P.C.), has repeatedly held

that the power under this Section is to be exercised cautiously, carefully and sparingly and that Court concerned has not to function as a Court of

appeal or revision. In this behalf, it has laid down certain parameters and guidelines in cases titled as “K.L.E Society & Ors. v. Siddalingesh (2008

AIR SCW 1993); A.P Vs Bojjoori Kanthaiah (2008 AIR SCW 7860) and Reshma Bano V. State of Uttar Pradesh (2008 AIR SCW 1998)â€​.

In case titled “Som Mittal V. Govt. of Karnataka (2008 AIR SCW 1003)â€, Hon’ble the Supreme Court, at Paragraph Nos. 10, 13, 14, 15,

17 & 19, has observed as under:

“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.

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.

In Hazari Lal Gupta v Rameshwar Prasad (1972) 1 SCC 452 this Court at SCC P. 455 pointed out:

In exercising jurisdiction under section 482 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€​

In the light of the above position of law, it is clear that the Court, while dealing with a petition filed under Section 482 of the Code of Criminal

Procedure (Cr. P.C.), should refrain from making any 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 and correct perspective.

The judgments referred to and relied upon by the learned counsel for the petitioner, being distinguishable and passed in cases involving different

facts and circumstances, are not applicable to the case of the petitioner herein.

In the premise and having regard to the law quoted hereinabove, I find no merit in this petition at all. It, accordingly, entails dismissal and is hereby

dismissed, alongwith the connected CrlM.