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Judgment
Vinod Chatterji Koul, J
Petitioner through the medium of this petition filed under Section 482 of the Code of Criminal Procedure is seeking quashing of FIR No.21/2012 dated 01.09.2022 registered with P/S Crime branch, Kashmir, for offences punishable u/s 420, 467,468, 471 and 120-B RPC read with section 5 (2) of P.C. Act 2006, on the grounds stated in the petition. His case is that he has been falsely implicated and he has not committed any such offence.
Briefly put, the facts of the case, as is coming to fore from perusal of the reply having been filed by respondents, are that Sh. Faquir Ullah S/o Assadulah and others were having ownership rights over 201 kanals 04 marlas of land falling under Khewat No.143 in Estate Batmaloo, who had migrated to Pakistan and are presently residing at Tehsil Kotli Pakistan. The aforementioned land, which was left by said evacuees, was found to have been illegally transferred in the name of different individuals after resorting to falsification of revenue records by taking recourse either to Section 4 & 8 of Agrarian Reforms Act or to the sale deeds after making fraudulent entries by the then Revenue Officials in league with accused beneficiaries. The matter was referred to the Crime Branch by Government vide Govt. Order No.REV(EP) 2007 of 2005 dated 18.05.2005. The crime branch conducted the PV into the matter and ultimately in preliminary verification, the allegations were verified and found correct and accordingly registered FIR No. 21/2012 dated 01.09.2022 of P.S. Crime Branch Kashmir for offences punishable u/s 420 ,467,468, 471 and 120-B RPC read with section 5 (2) of PC Act 2006. The FIR so registered is reproduced as under:
“FIR No. 21/2012
Crime Branch Kashmir received a Govt. order no. Rev(RP) of 2005 dated 18.05.2005 wherein 201 Kanals and 04 Marlas falling under Khewat no. 143 in estate Batamaloo has been illegally transferred by officers/officials of revenue department in favour of different individuals. Consequently, an enquiry into the allegations was conducted, which has revealed that Shri Faquir-Ullah S/o Assadullah and others were having ownership rights over the above said property. The evacuees was found to have been illegally transferred by the then revenue officials in the name of different individuals after resorting to falsification of revenue records. It was further found that out of total land measuring 201 Kanals and 04 Marlas, land measuring 98 Kanals, 06 marlas and 189 sqft has been illegally treansfeerd in the name of different individuals by fraudulently taking recourse of Section 4 and 8 of Agrarian Reforms Act, 1976. Besides the co-sharers of the property, namely Mohammad Razak and Mohammad Aslam sons of Naseebullah were found to have disposed of 44.8 kanals of land disproportionately to their actual share of 17.7 Kanals by virtue of sale and gift deeds. This apart land measuring 24 kanals 04 marlas were found to have been acquired for construction of National Highway, Bye Pass, Srinagar after making fraudulent entries. In the aforesaid manner, the accused revenue officials in league with accused beneficiaries had by abuse of their official position, illegally and fraudulently transferred the evacuee property to confer undue benefit upon themselves and accused beneficiaries acts omitted and committed prima-facie disclose commission of offences punishable under section 5(2) P.C. Act, 2006 read with 420, 467, 467, 471, 120-B RPC. Accordingly, the case is registered and investigation entrusted to Dy.S.P. (Computer).”
After registration of aforesaid FIR, it is stated, a detailed investigation was conducted in the matter and the respondent submitted a detailed report which is as under:
“During the course of investigation records having bearing on the subject matter have been seized and statement of witnesses acquainted with the facts and circumstances have been recorded. The scrutiny of records and evidence recorded in the case reveals vide Govt. order No Rev(EP) 207 of 2005 dated 11-08-2005, among other things Govt. of J&K ordered crime Branch probe which led to encroachment of Custodian property situated at Tangpora, Batamaloo. The operative portion of order is as under:
“Sanction is also accorded to reference of this case to the State Crime Branch for detailed investigation and determination of criminal liability against serving as well as retired delinquent officers/officials”.
It is also stated by respondents that it surfaced from the perusal of records, that PV No. 133/2005 has been registered into the matter. The enquiry officer after conducting P.V has recommended registration of case for in-depth investigation into the matter, and accordingly case FIR no.21/2012 u/s 420,467,468, 120-B RPC read with section 5(2) P.C. Act came to be registered in P/S Crime Branch Kashmir Srinagar. Since the case has been registered u/s 5(2) P.C. Act and the I.O. obtained permission under section 3 of J&K P.C. Act Samvat-2006 from the court of JMIC (Judge Small Causes) Srinagar vide order dated 20-09-2016 to carry out the investigation of said case. It is important to mention that the original PV file has gutted in fire incident which occurred on 11-09-2010 at Crime Branch Kashmir. The PV file was re-constructed and thereafter the probe was closed as proved by Crime Branch Kashmir.
It is being also averred that during investigation it surfaced that Custodian Evacuee Department Kashmir, Srinagar, vide notification dated 10-09-2002 issued under endorsement No.CEP-S-JS/2002/ 1771-73 dated 17-09-2002 notified land measuring 160 Kanal 19 marlas under Khewat No 143 situated at Tangpora Batamaloo Srinagar, as evacuee property in terms of subsection (1) of the Jammu and Kashmir State Evacuee (Administration of Property Act, 2006). Since the notified land was already under the occupation of different individuals, therefore, aggrieved by issuance of above notification, writ petitions, bearing OWP No.283/03 titled Haji Abdul Khaliq Dar v. State and others, and OWP No.571/2005 titled Ghulam Ahmad v. State and others, were filed, wherein they challenged the notification dated 10-09-2002 issued by the Custodian Evacuee Property Kashmir, Srinagar, which were vide order dated 16-09-2008 dismissed.
Apart from above, it also surfaced during investigation that in the year 2004, Government of J&K appointed Shri G. N. Mir, the then Settlement Commissioner, Srinagar, now retired, as enquiry officer to conduct enquiry vis-à-vis land measuring 201 Kanals 4 marlas comprising Khewat No.143 situated at Estate Batamaloo, belonging to Faqir-ullah and others. The enquiry officer, after conducting detailed enquiry vide No SC/PS/05/2004 dated 28-07-2004, submitted enquiry report to Commissioner/ Secretary to Govt. Revenue Department J&K Govt. Srinagar. The crux of enquiry report would reveal that the land in terms of section 4 & 8 of the Agrarian Reforms Act was under the possession of tenants of Faqir-ullah and others. However, major portion of land was transferred by various instruments, like sale deed, gift deeds etc. Moreover, land measuring 23 kanals 16 marlas 116 Sfts stands acquired by Govt. for construction of “National Highway Bypass Bemina Srinagar”. The enquiry officer has recommended action against revenue officers/officials who had attested mutations.
The investigation conducted further reveals that land measuring 201 kanals 4 marlas under Khewat No 143 situated in Estate Batamaloo is recorded as per Jamabandi for the year 1968-69 in the ownership of:
S.No.
Name of landlord
Shares
1
Faqir-ullah S/o Assadullah
44K, 14M, 02 Sirsali
2
Mohammad Iqbal, Mohammad Ishaq, Mohammad Aslam
44K, 14M, 02 Sirsaie In equal share
3
Niyaz Mohammad, Ghulam-ullah, Hamidullah and Lal Khan
89K, 08M, 04 Sirsaie In equal shares
4
Ghulam Hassan All residents of Bal Tehsil Kotli
22K, 07M, 01 Sirsaie
Total 201K, 04 M, 00 Sirsaie
The land in question is recorded under tenancy of different individuals as protected tenants, except Khasra No 189 and 190 measuring 07 kanals 05 marlas, which is recorded under occupancy/tenancy of Asger Ali, Asgar Mohammad, Nazir Mohammad, Atta-ullah, Mohammad Afzal, All Bahad S's/o Sahab Dad Khan one half and colonel sher Ali khan S/O Sarder Sarfaraz Khan one half as inherited. During further investigation it reveals that out of total land 201 kanals 04 marias land measuring 96 kanals 06 marlas 198 Sft has been transferred to tenants under section 4 & 8 of ARA Act, 1970. Out of rest, Mohammad Razak and Mohd Aslam co-sharers have sold land measuring 44 kanals 08 marlas 39 Sft to different individuals through sale deeds and gift deeds when they are entitled to only 17 kanals 17 marlas as their share including the land already transferred to tenants.
So, they have sold 32 kanals in excess to their actual share. In addition to above land measuring 24 kanals 13 marlas stands acquired for construction of National By-Pass. Besides, land measuring 58 kanals 09 marlas 35 Sfts still recorded in the name of evacuees but on spot the major portion of the same has come under residential houses. During investigation it came to fore that land in question was hidden property for custodian department till 10-09-2002 and in the said year custodian department issued a notification declared the land under Khewat No 143 as Evacuee property and to this effect entry was effected in revenue records. However, it may not out of place to mention here that under section 3 (a) of the Agrarian Reform Act the provisions of the Agrarian Reforms Act, 1976 have not been made applicable to the Evacuee land and under section 4 (A) of the said Act mutations attested in favour of the tenants are void ab initio, as such tenants/occupants neither can claim any right nor the said mutations can confer any right or interest or title on the occupants in respect of the notified land in question.
During thorough investigation, it surfaced that one Mirza Fathultah, Assadullah Qudratullah, Azizuliah and Allahdad residents of village Bal Tehsil Kotle owned and possessed land at Tangpora Batamaloo Srinagar. In this regard record of rights prepared for the area during second settlement in the year 1966 Samvat all the said four persons where shown as Owners of 44 kanals of agriculture land total measuring 201 kanals and 4 marlas covered by Khewat No. 129, the entire land kept falling under survey No.’s 516 (04 kanals), 522 (02 kanals and 04 marlas) and 392 (04 kanals 10 marlas) was in possession of tenants as entered in the record of rights dated 1976 Samvat. The same possession was reflected in “Jamabandi” prepared in the year 1990-1991 and continued as such, with the exception that Khewat No.129 was changed as Khewat No.131/134, out of these persons. Assadullah died leaving behind two sons namely Faqirullah and Naseebullah. Faqirullah died issueless while as Naseebullah left 04 sons, namely, Mohammad Sadiq, Mohammad Iqbal, Mohammad Razaq and Mohammad Asiam. However, Qudratullah had one son namely Mohammad Lateef who died issueless. Azizullah too had 04 sons namety Niyaz Mohammad Khan, Gulamullah Khan, Hamidutiah Khan and Lal Khan. While as Allahdad left only one Son, namely, Ghulam Hassan Khan. Two sons of Naseebullah, namely, Mohammad Razagand, Mohammad Aslam reportedly residing at Baghe-Mehtab, Srinagar, whileas Ghulam Hassan Khan son of Alladad resides at Shaheed Gunj Srinagar. It is evident that major portion of the property belonging to Assadullah, Qudratullah, Azizullah and Alladad who had sold/gifted away by Ghulam Hassan Khan, Mohammad Razaq and Mohammad Aslam to the predecessors. The Assadullah, Azizullah and Alladad have been shown in the revenue records as residents of Kotli an area which now falls within the POK (Pakistan Occupied Kashmir) they actually live in Kashmir did not left this place in year 1947. Therefore, they have alienated land in favour of different individuals by way of sale deeds and gift deeds, itself shown that they were residing in Srinagar. It is further submitted that evacuee land in question belonged to Faqeer ullah Khan and others (evacuee) in estates Tangpora Batamaloo and was re-notified in the year 2002. This land stands already recorded in the records of the Evacuee Property Department, Kashmir. The notifications issued earlier in respect of the land could not be traced during investigation of the case. It is also a fact that that the said evacuees also owned landed property in villages Baghe Mehtab and Shankerpora Tehsil Chadoora Raithan Budgam. In order to find out that if Faqir-ullah has been shown as resident of Kotli (POK) on the basis of record before 1947, it is submitted that Custodian Department has been established in the year 1949. The notification issued by Custodian Department regarding land in question situated at Tengpora, Batamaloo, is neither traced out from the records of Custodian Department nor has entry to this effect been find in revenue records of said area. However, it has been shown in Jamabandi, Girdawari of Halqa Batamaloo in owner column/tiller Faqirulah S/o Asadullah, Mohammad Sadiq, Mohammad Rafiq, Mohammad Razaq and Mohammed Ishaq S/O Naseeb-ullah Rio Moza-Bal Tehsil Kotli Muzafarabad (POK).
It is born out from records that some land owners (possessors) filed OWP No.571/2005 for quashment of Government Order No.Rev(EP) 207 of 2005 dated 11-08-2005. This Court, after hearing the parties dismissed the petition and upheld the notification dated 10-09-2002 read with corrigendum No.CEPK-JS/2002/2293-96 dated 29-09-2002 issued by Custodian Kashmir, whereunder the Evacuee Department notified land measuring 161 kanals and 09 Marlas comprising Khewat No.143 located at Tangpora Batamaloo Srinagar as Evacuee property under the provisions of Section 6 of J&K State Evacuee (Administration of Property) Act 2006. Tehsildar Srinagar vide letter No.1259-60/OQ dated 17-01-2003 intimated Custodian Evacuee Property Kashmir that amaldaramad of the notification has been made in the revenue records. During the course of further investigation, it surfaced that no doubt land under report has been shown in the name of Faqirullah and others resident of Kotli but neither notification nor entry has been found effected in records till date. However, under section 3(A) of the Agrarian Act the provisions of the Agrarian Reforms Act, 1976 have not been made applicable to the Evacuee land and under Section 4(A) of the said Act mutations attested in favour of the tenants of land in question are void ab initio, as such, present tenants/occupants neither can claim any rights nor the said mutations can confer any right or interest or title on the occupants in respect of the notified land in question after issuance of notification by Evacuee Property Department in the year 2002. In this regard it is submitted that in unambiguous terms that after issuance of notification, instruments like sale deed/gift deed/Habbi-Zahani etc. the occupants acquired prior or after issuance of notification has become invalid and ineffective. It has been found during investigation that land has been occupied by various individuals almost 70 years before and in this way title of said land has been changed from one person to another person during these 70 years and process is going on till date. During investigation it surfaced that the court did not find any legal infirmity so far as the issuance of notification issued by custodian department is concerned.
During further investigation it surfaced that its foundation has been laid down on Govt. order No RVE(EP) 2007 of 2005 dated 11.06.2005 where under Director Land records Kashmir has been directed to prepare inventories of the evacuee property belonging to Shri Faqueer-ullah and simultaneously Additional Commissioner Kashmir shall ascertain quantum of compensation paid for the E.P land measuring 24 Kanal 13 Maria at Batamaloo acquired for the bypass and identify the recipients of the compensation that Custodian General shall identify the officer/officials of organization involved in this case and take step to get the stay orders vacated and mutations cancelled. In this context Additional commissioner Kashmir and custodian General vide this office various communications (lying on the case file) have been requested to provide compensation file and enquiry file. However, till date they have not responded these communications, which has proved fatal to carry out smooth investigation of the instant case.
It has been stated that during the course of further investigation mutations seized from the Tehsildar South office Srinagar reveals that mutations effected in the records by the officials of revenue department had been effected after execution of sale deeds, gift deeds etc. duly registered by the competent courts. On perusal of these mutations, most of these mutations have been initiated by accused No. 01 and attested by accused No. 02. The 1.0 has made hectic efforts to trace out the notification issued by the custodian department after partition between India and Pakistan i.e., 1947 onwards. Nevertheless, vide letter No.45/Rds. R/17/949 dated 16.10.2017 received from the Regional Director Survey and Land Records Srinagar Jamabandi, Girdawarl of years 1935 Bikrami, has been brought on record wherein owner column names of Assadullah S/o Qudratullah, Azizullah S/O Mirza Fatehultah R/o Kotli has been shown.
The above land, as has been maintained by respondents, is recorded under the tenancy of different Individuals as protected tenants mutated in favour of different persons under Section 4 and 8 of Agrarian Act 1976, sold measure portion of land to different individuals by way of different modes of transfer like sale deeds and gift deeds etc. During investigation & reveals that no doubt ownership column of Jamabandi the owners are evacuee because their residence is shown as Tehsil Kotli which is under the occupation of Pakistan armed forces but it is also fact that in absence of notification of custodian department, the evacuee property Is also excluded from the operation of Agrarian Reforms Forms Act 1976. Therefore, while scrutinizing the seized records in the instant case and keeping in view judgment of Hon’ble High court the officer/officials who have facilitated the Illegal transfer of the Evacuee Property after 2002 are accused in the case.
The accused No.1, namely Mohammad Ishaq Pampori Rtd. Girdwar S/O Haji Abdul Gani R/O Lal Bazar Umer Colony Srinagar has initiated mutations prior to issuance of notification of Custodian department Srinagar. The accused as patwari Halqa Batamloo Srinagar have initiated mutation No.’s 5535 dated 04.09.1996 5761 dated 23.12.1997, 5762 dated 23.12.1997, 5980 dated 04.06.1998, 6052 dated 02.07.1998, 6053 dated 02.07.1998, 6058 dated 02.07.1998, 6081 dated 02.07.1998, 6228 dated 22.01.2000, 7005 dated 07.11.2000, 7154 dated 12.05 2001, 7190 dated 19.06.2001, 7191 dated 19.06.2001, 7196 dated 19.06.2001, 7197 dated 19.06.2001, 7201 dated 20.06.2001, 7250 dated 30.09.2001, 7260 dated 30.09.2001, 7299 dated 12.11.2001, 7310 dated 01.12.2000, 7346 dated 15.01.2002, 7378 dated 02.02.2002, 7538 dated 22.06.2002, 7549 dated 22.06.2002, 7553 dated 02.10.2002, 7599 dated 09.08.2003, 7617 dated 28.08.2002, 7630 dated 28.08.2002. However, after Issuance of notification by Custodian Deptt. abused his official position and has initiated mutation No 7691 dated 21.11.2002 in favour of accused beneficiary Mst. Sara W/O Abdul Fateh Mallah R/O Tangpora Batamalo Srinagar. The accused hatched criminal conspiracy with the accused No. 02 and 03 and in furtherance of criminal conspiracy and thus has initiated the false mutation No. 7691 dated 21.11.2002 in spite of the knowledge that the land was notified as evacuee property. However, Sheikh Muneer Akther, Rtd. Tehsildar S/o Sheikh Abdul Ahad R/O Khayam Colony Nowpora Srinagar as Tehsildar south Srinagar has attested mutation No 2568 dated 05.09.1957, 5761 dated 23.12.1997, 5762 dated 23 12.1997, 5932 dated 02.05.1998, 5934 dated 02.05.1998, 5935 dated 02 05.1998, 5936 dated 02.05.1998, 5938 dated 02.05.1998, 5946 dated
02.05.1998, 5947 dated 02.05.1998, 6052 dated 02.07.1998, 6053 dated 02.07.1998, 6058 dated 02. 07.1998, 6105 dated 06.04.1998, 6430 dated 17.06.1999, 6480 dated 22.07.1999, 6555 dated 19.08.1999, 6589 dated 08.10.1999, 6590 dated 08.10.1999, 6648 dated 06.12.1999, 6665 dated 05.02.2000, 6929 dated 14.06.2000, 6917 dated 12.07.1999, 6918 dated 12.07.1999, 6919 dated 12.07.1999, 7005 dated 07.11.2000, 7154 dated 12.05.2001, 7190 dated 19.06.2001, 7191 dated 19.06.2001, 7196 dated 19.06.2001, 7197 dated 19.06.2001, 7346 dated 15.01.2002, 7378 dated 02.02.2002, 7538 dated 22.06.2002, 7549 dated 22.06.2002, after issuance of notification by Custodian Deptt. abused his official position and has attested mutation No 7691 dated 21.11.2002 in favour of accused benefidary No. 03 Mst. Sara W/O Abdul Fateh Mallah R/O Tangpora Batamaioo Srinagar. The accused hatched criminal conspiracy with the accused No. 01 and 03 and in furtherance of criminal conspiracy and thus has attested the false mutation No. 7691 dated 21.11.2002 In spite of the knowledge that the land was notified as evacuee property.
The accused No.03, namely, Ms. Sara W/O Abdul Fateh Mallah R/O Tangpora Batamaloo Srinagar on the basis of notarized documents initiated by Suspect S-2 (Mohammad Ishaq Pamporal S/O Haji Abdul Gani R/O Umer Colony (B) Lalbazar Srinagar) and attested by Suspect S-2 (Sheikh Muneer Akther S/O Sheikh Abdul Ahad R/O Khayam Colony Nowpora Srinagar mentioned in the accused column of final report. The mutation No 7691 dated 21.11.2002 was put to PSL for examination vide this office letter No CBK/MSD/19/21/12/ 10136 dated 26-08-2019. The opinions received vide report FSL-160-DOC dated 28-09-2019 reveals that writings/signatures on the above said mutation ere of accused persons. The statement of unauthorized possessors of evacuee property furnished by Custodian Evacuee Property department also substantiates the fact that land under mutation No 7691 dated 21.11.2002 is evacuee land. The Custodian Department has also issued notice to owner of land falling under mutation No.7691 through one of leading newspapers in 2018. Since, accused persons have already superannuated from active services, as such, no prosecution sanction is required. The investigation with regard to allotment of land by Custodian and Revenue Department prior to notification No.CEPS-3S/2002/1771-73 dated 17.09.2002 is going on and records in this regard are awaited for which the custodian department.
Besides, the matter regarding the available quantum of Evacuee land with Custodian Department/Revenue Department under Khewat No.143 Tangpore, Batamaloo and what action has been taken against Regal occupants has been taken up with Revenue and Custodian departments, where from the report is awaited. The investigation to this part, will be carried out further and & any legality is surfaced, during that course of further investigation the factual position and liability of the accused person found if any veil be looked into and supplementary Charge Sheet will be Produced before the Hon'ble court of law accordingly.
On the basis of evidence collected and facts which enumerated during the Course of investigation, the investigation of the case has been concluded 8% proved against the accused namely, 1.Mohammad Ishaq Pempori Rtd. Gardawer S/O Haji Abdul Gani R/O Umer. Colony (8) Lalbazar Srinagar 2. Sheikh Muneer Akther Rtd Tehsidar S/O Sheikh Abdul Ahed R/O Khayaam Colony Nowpora Srinager 3. Sara Begum W/O Abdul Fateh Malian R/O Tengpora Batmaloo Srinagar under section 420, 467, 468, 471, 120-8 RPC r/w 5 (2) PC Act.
The accused petitioner was called to Crime Branch Kashmir for presentation of charge report in the instant case relisted to allegations of abuse of official position by the above named accused persons including petitioner. Instead, the petitioner/accused approached this Hon'ble High Court for quashment of FIR No. 2./2012 9/S Came Branch Kashmir, The Hon’ble High Court J&K vide its order Gated 03.06.2022 has directed respondents not to fie charge report against accused persons including accused petitioner prior to seeking permission from the Hon'ble High Court of J&K at Srinagar.”
The status report filed by the respondent would reveal that investigation in the case has been completed and on the basis of evidence collected during the course of investigation, offences under section 420, 467,468, 471 and 120-B RPC read with section 5 (2) of PC Act 2006, hav been established against the petitioner and two others, status report further reveals that the petitioner was asked to attend the Crime Branch Kashmir for presentation of challan, who instead of making himself available in crime branch for presenting of challan in the trial court, approached this Court and has filed this petition. Since there is an order directing the crime branch not to present the challan, challan could not be presented.
On the basis of aforesaid Govt. order, allegations were verified and it was found that there had been illegal transfer of Evacuee land with the help of Revenue Officials of that time by illegally fabricating the revenue documents on the basis of which FIR in question was registered way back in 2012. The Crime branch after the registering the FIR, took number of years for the completion of investigation and ultimately on completion of investigation have found offences established against the petitioner and two others. It is only after the completion of investigation when the petitioner was asked to make himself available for presentation of challan that he filed this petition challenging the FIR in question, without disclosing the fact that the investigation has been completed and crime branch is contemplating to file challan.
Now, the question arises, as to whether in these circumstances as enumerated above, the FIR in question can be quashed under section 482 Cr.P.C.
Section 482 of the Code of Criminal Procedures provides that nothing in the Code shall be deemed to limit or affect inherent powers of the High Court to make such order as may be necessary to give effect to any orders under the Code, or to prevent abuse of the process of any Court or otherwise to secure ends of justice. While exercising powers under Section 482 Cr. P.C., the Court, however, has to keep in mind that it should not ordinarily embark upon an enquiry whether evidence in question is reliable or not or whether on a reasonable appreciation of it, accusation would not be sustained. This is the function of Trial Court. Though judicial process should not be an instrument of oppression or needless harassment but the Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances in consideration before issuing process under Section 482 Cr.P.C., lest the Section becomes an instrument in the hands of accused persons to claim the differential treatment only because the accused persons can spend money to approach higher forums. This Section is not an instrument handed over to an accused to short circuit a prosecution and bring about its sudden death.
It is pertinent to mention here that it has been emphasized times without number through authoritative judicial pronouncements that inherent powers under Section 482 Cr.P.C. are to be exercised rarely, sparingly and with due circumspection. The power cannot be used to stifle investigation or even prosecution as the law is to be allowed to have its own course and the investigation or prosecution to be taken to its logical end. A very limited scope is available to find out as to whether the case falls within broader parameters as provided and envisaged under Section 482 Cr. P.C. The Hon’ble Supreme Court in M. Krishnan v. Vijay Singh and another, 2001 (8) SCC 645, said that it could not be said that a complaint filed by complainant did not disclose commission of an offence or there existed any other circumstance which could be made basis for quashing proceedings and in fact allegations made in the complaint required adjudication and complaint could not have been aborted in the manner it had been done by the High Court and accordingly held judgment of the High Court contrary to settled position of law and set aside the same, by upholding the order of the Trial Magistrate.
It may not be out of place to mention here that the Supreme Court in State of Telangana v. Habib Abdullah Jeelani, reported in 2017 (2) SCC 779, has held that the powers under Section 482 Cr.PC or under Article 226 of the Constitution of India, to quash the FIR, is to be exercised in a very sparing manner as is not to be used to choke or smother the prosecution that is legitimate. Inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice. Such power has to be exercised sparingly, with circumspection and in the rarest of rare cases. Inherent powers in a matter of quashing FIR have to be exercised sparingly and with caution and only when such exercise is justifying by the test specifically laid down in provision itself. Power under Section 482 Cr.PC, is a very wide, but conferment of wide power requires the Court to be more conscious. It casts an onerous and more diligent duty on the Court.
The Supreme Court in the case of State of Haryana & ors v. Bhajan Lal and others 1992 Suppl (1) SCC 335, has elaborately considered scope and ambit of Section 482 Cr.P.C. and Article 226 of the Constitution of India in the background 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 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.”
In another case State of Andhra Pradesh v. Golconda Linga Swamy, reported in (2004) 6 SCC 522, while dealing with the inherent powers of the High Court under Section 482 Cr. P.C. in paragraphs 5, 7 and 8 are observed and held as under:
“5. Exercise of power under Section 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 recognises 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 alique concedit, conceditur et id sine quo res ipsa 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 such abuse. It would be an abuse of the 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 or 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.
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In dealing with the last category, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process, no doubt 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 cognisable 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 [1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426].
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As noted above, the powers 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. 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. [See Janata Dal v. H.S. Chowdhary [(1992) 4 SCC 305 : 1993 SCC (Cri) 36 : AIR 1993 SC 892] and Raghubir Saran (Dr.) v. State of Bihar [AIR 1964 SC 1 : (1964) 1 Cri LJ 1] .] It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and, on such premises, arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In a proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognisance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. 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 mala fide, 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 mala fides 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 mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceeding. [See Dhanalakshmi v. R. Prasanna Kumar [1990 Supp SCC 686 : 1991 SCC (Cri) 142 : AIR 1990 SC 494] , State of Bihar v. P.P. Sharma [1992 Supp (1) SCC 222 : 1992 SCC (Cri) 192] , Rupan Deol Bajaj v. Kanwar Pal Singh Gill [(1995) 6 SCC 194 : 1995 SCC (Cri) 1059] , State of Kerala v. O.C. Kuttan [(1999) 2 SCC 651 : 1999 SCC (Cri) 304] , State of U.P. v. O.P. Sharma [(1996) 7 SCC 705 : 1996 SCC (Cri) 497] , Rashmi Kumar v. Mahesh Kumar Bhada [(1997) 2 SCC 397 : 1997 SCC (Cri) 415] , Satvinder Kaur v. State (Govt. of NCT of Delhi) [(1999) 8 SCC 728 : 1999 SCC (Cri) 1503] , Rajesh Bajaj v. State NCT of Delhi [(1999) 3 SCC 259 : 1999 SCC (Cri) 401 : AIR 1999 SC 1216] and State of Karnataka v. M. Devendrappa [(2002) 3 SCC 89 : 2002 SCC (Cri) 539].”
The above settled position of law has also been reiterated by the Supreme Court in Priti Saraf & anr v. State of NCT of Delhi & anr, 2021 SCC Online SC 206, wherein it has been said that inherent power of the High Court is an extraordinary power which has to be exercised with great care and circumspection before embarking to scrutinize a complaint/FIR/ charge-sheet in deciding whether the case is the rarest of rare cases, to scuttle the prosecution at its inception. It is settled that whether the allegations in the complaint were true, is to be decided on the basis of evidence to be at the trial. In the matter of exercise of inherent power by the High Court, the only requirement is to see whether continuance of the proceedings would be a total abuse of the process of the Court. [See: R.P. Kapur v. State of Punjab, 1960 (3) SCR 388; State of Haryana & ors v. Bhajan Lal and others 1992 Suppl (1) SCC 335; Trisuns Chemical Industry v. Rajesh Agarwal & ors, 1999 (8) SCC 686; Joseph Salvaraj A v. State of Gujarat and ors, 2011 (7) SCC 59; Arun Bhandari v. State of Uttar Pradesh and ors, 2013 (2) SCC 801; Anand Kumar Mohatta and anr v. State (NCT of Delhi) Department of Home and anr., 2019(11) SCC 706].
In the above backdrop, it may be reiterated here that Section 482 Cr.P.C., preserves the inherent powers of the High Court to prevent an abuse of process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognizes and preserves powers which inhere in the High Court. The power of the High Court has a wide ambit and plenitude, it has to be exercised to secure ends of justice or to prevent an abuse of the process of any court. Petition on hand, when looked from all angles, requires and demands meticulous analyzation of facts by this Court as if it is in appeal and acting as an appellate court and to draw its own conclusion vis-à-vis impugned FIR, complaint and proceedings emanating therefrom. This is not the aim and objective of provisions of Section 482 Cr.P.C. more particularly when petition on hand does not make out any case that inherent powers are to be exercised to prevent abuse of process of law and to secure ends of justice. In that view of matter, petition on hand is liable to be dismissed.
For all that been discussed above, the instant petition, bearing CRM(M) no.198/2022 is without any merit and is, accordingly, dismissed along with connected CM(s).