Tehmina Akhtar vs Syed Shamim Ahmad

Both these petitions are being taken up together as they can be disposed of by a common Judgement and the same have been filed under Section

561A of the Code of Criminal Procedure for quashing the criminal complaint titled Alhaj Engineer Syed Shamim Ahmad Vs. Tehmina Akhtar and

others pending in the Court of Chief Judicial Magistrate, Jammu and the order of that Court dated November 02,1998 with all other proceedings

passed therein. First petition was filed by Dr. Tehmina Akhtar and other, who is accused1 in the complaint and another petition is filed by State of

Jammu and Kashmir through Mohd. Amin Bhat, who is accused No.8. In both the petitions, petitioners have urged that the complaint lodged by

Respondent No.1 does not disclose the commission of offence even if the complaint is believed at its face value.

In petition No. 130/98, petitioners have urged that the respondent has filed the complaint with malafide intention to pressurise her not to contest

matrimonial cases pending in the court of Addl. Sessions Judge (Matrimonial Cases), Jammu, where the respondent has filed applications for the

custody of minor daughter u/s 25 of the Guardian and Wards Act. The complaint has been filed by the respondent just to harass her and her

relatives, who have been roped in, as accused persons in the frivolous complaint, so the petitioners have submitted that the Chief Judicial

Magistrate, Jammu while issuing process has abused his judicial power, which they want to be quashed.

In the second petition also, petitioner Mohd Amin Bhat S. P. (CID) Foreign Registration Officer too has prayed for quashing the complaint against

him on the ground that the commission of no offence is disclosed from the complaint against him and moreover whatever he did that was in the

official capacity in the discharge of his official duties; without prior sanction, he could not be prosecuted. He has submitted that respondent1 is a

Pak national, he stayed beyond the period shown in the Visa, so as per rules and law, he had to take steps for the deportation of respondent1,

which pained him and he (respondent1) without obtaining sanction under section 197 of the Code of Criminal Procedure lodged complaint against

him, which is liable to be quashed on the ground of lack of sanction.

Before proceeding further to appreciate the merits of the case, it is feasible to adumbrate the facts, from which the present two petitions under

disposal emanate. Respondent1 is admittedly a Pak national settled in Dubai. He has contracted marriage with petitioner Dr. Tehmina Akhtar at

Delhi on 19th December 1984. Petitioner No.1 is thus alleged to be wedded wife of the respondent complainant. Out of the said wedlock, a

female child Miss Atiya Shamim was born on 17.8.1985 at Sheikh Rashid Hospital of Dubai. Photocopy of birth notification No.2634 issued by

Ministry of Health Department of preventive medicines, District Dubai on 17.8.1985 is enclosed. Birth Certificate of the Hospital and of the

Ministry of Health, Govt. of U.A.E. is along with the complaint. So according to the complainant, Atiya Shamim, who is of 13 years of age is the

nonresident Pak national was studying in Dubai and was promoted to Class Junior IV to join academic year 1994. I n the year 1994 during the

School Vacations of the said minor daughter, petitioner, who is accused1 in the complaint in a dramatic manner managed to pay a visit to Delhi to

meet his relations with the consent of respondent1 in July, 1994 on Pakistani Passport. She along with her daughter reached Delhi took all the gold

ornaments and cash worth Rupees 3,50,000 from the respondentcomplainant. Visa was only for thirty days and the place of visit was only Delhi.

Respondent also came to Delhi and he returned to Dubai to resume his normal duties, but during the visit, petitioner along with the daughter

succeeded in flying to Jammu clandestinely without any proper permission. She had malafide intentions to escape from the complainant along with

her daughter. Complainantrespondent no.1 wrote many a times to the petitioner to come to join him in Dubai and send him Rs.20,0007 more and

Air Tickets for her minor daughter, on one pretext or the other she avoided to come, but was clandestinely manipulating the documents with the aid

of other accusedpersons during this period, creating false evidence to show that the daughter was an Indian National. Ultimately, she refused to

come. She played fraud. The complainantrespondent himself came to pick up his wife and daughter, but they refused to come. Here, he came to

know that the petitioner had prepared fake backdated Birth Certificate from Jammu Municipality under her preplanned scheme for the minor

daughter of complainant and who was falsely declared as born in Jammu on 17.8.1984, which is obviously prior to the date of actual marriage of

petitioner with respondent No. 1. It is further alleged that petitioner1 also procured even an Indian Passport in the fake name of Noor Fatima for

the said minor daughter of the complainant. Again by way of playing fraud by misrepresenting the material facts before the Passport Issuing

Authority. He has annexed copy of the fake passport and copy of fake birth certificate issued by Municipality, Jammu. Accused also filed

application to the Supreme Court of India forgetting the custody of the child. Supreme Court directed to proceed before the proper forum for such

relief. According to the complainant, accused8 Mohd Amin Bhat, who is a police officer harassed the complainant and threatened him of dire

consequences, if the complainant proceeded against his wife and daughter. Accused No.8 had developed relations with his wife, so at every stage,

he aided the petitioner and tried his best for the complainant's deportation, so that petitioner1 could not be proceeded against.

In para27 of the complaint, respondent No.1 has given the details of the documents and affidavits allegedly forged and wrongly submitted

before Public Servants by the petitioner. According to the respondent No.1complainant, petitioner sworn an affidavit on 27.7.1984 in support of

fake Nikhanama allegedly contracted on 20.7.84 to show the fake date of birth as 17.4.84 of minor daughter in Jammu. While the fact is that

actual Nikhanama is 19.12.84 and the date of birth of daughter is 17.8.1985, but the fake date of birth was shown as 17.8.84, i.e. before the

marriage was contracted. The daughter was born in Dubai and not in Jammu. Marriage was contracted in Delhi and not in Jammu. Similarly false

affidavit was sworn in deliberately and submitted by the petitioneraccused to the public servant (Health Officer), Municipality Jammu in the month

of August 1987 and made him to believe declaring the original certificate is bogus and false and the Health Officer Issued fresh Certificate on the

false affidavit. Document A22 is a photocopy and filed with the passport, wherein the passport has been obtained in the name of Noor Fatima

showing date of birth as 17.8.84. Both these have been done before the Public Officer, that the daughter was born in Jammu and the nationality of

respondent father of the daughter Indian and resident of Mohalla Dalpatian, while the actual fact is that respondent1 is Pak national,

Paknonresident settled in Dubai. This all was done to obtain wrong date of birth certificate of the daughter showing her Indian born from Indian

couple. Thus she made the public officer to believe that the daughter is Indian, his father is Indian, residing in Mohalla Dalpatian, date of birth and

marriage certificate were obtained to get the Indian Passport for the daughter. Not only this, Atiya Shamim was shown as Noor Fatima.

Heard the learned counsel for the parties at length. Learned counsel for the petitioners has vehemently argued that no offence whatsoever is

disclosed from the complaint. According to him, offences shown in the complaint are mostly covered by sec. 195 Cr. P. C. and the

complainantrespondent No. 1 has no locusstandi to lodge a complaint, because he is not public servant. It is the public officer, who can lodge

complaint. Secondly, he has urged that even if the petitioners have committed any offence for obtaining false passport, complaint without obtaining

sanction under section 15 of the Passport Act cannot be lodged. Lastly, it was argued that there is no material on record to justify the issue of

process when the intention of complainant is to achieve an alien objective of repatriation of his daughter. Regarding Mohammad Amin S. P. it was

argued that complaint against him, in the absence of sanction u/s 197 Cr. P. C cannot be lodged.

Learned counsel for the other side has contended that sections 191and 192 RPC are not covered by section 195 Cr. P. C. and complaint can

very much lie, if a false evidence is created or false affidavit sworn in before public servant to make him to believe a document valid which

otherwise is fake.

Before entering upon the issues involved in this petition, first it is to be seen and settled as to what is the scope of this court in dealing with the

petitions under section 561 A Cr. P. C. of the State. Inherent power under this section, we have to exercise only when there is abuse of process of

law. Ordinarily courts do not interfere in the exercise of power of the Magistrates, but wherever it is apparently found that the Magistrate proceed

in a criminal case not in accordance with law, but there is abuse of the process of law, inherent power with the High Court is to be invoked. This

power is to be exercised with great care and caution and in rare of rarest cases when the offence itself is not disclosed. Apex court has time and

again settled the legal position, especially in State of Haryana and ors. Vs. Bhajan Lai & Ors. (AIR 1992 SC 604). Reliance on this judgement

was laid again by the Apex' Court in Mrs. Rupan Deol Bajaj & Anr. Vs. Kanwar Pal Singh Gill and Anr. (AIR 1996 SC 309). The court has

detailed the circumstances wherein the High Court can exercise the inherent power under section 482, which is paramateria to sec. 561A of the

State Criminal Procedure Code. Some categories of cases have been illustrated, wherein such power could be exercised to check the abuse of the

process of law in court or otherwise to secure the ends of justice. Though exhaustive list has not been given, but some guidelines have been laid

down as follows:

(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 primafacie 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 no! Disclose a cognizable offence,

justifying an investigation by 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.

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.

Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a noncognizable offence, no investigation is permitted

by a police officer without an order of a Magistrate as contemplated u/s 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 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.

(8) We also give a note of a caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with

circumstantial and that too in the rarest of rare cases; that the Court will not be justified id ~. • iDarking upon an enquiry as to the reliability or

genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an

arbitrary jurisdiction on the Court to act according to its whim or caprice.

Not only this, in Manager, Liberty Shoes vs. State of J&K and Ors. (1998 KLJ at page 227) Single Bench of this court also has in a detailed

manner discussed the scope of this provision and has discussed the latest law held by the apex court in this behalf, from which it is manifestly clear

that this power under this section is to be exercised very sparingly and in rare of rarest cases just to check the abuse of power and to exercise this

power in the ends of justice.

Applying the said law in the present case, one can comfortably at the first reading of the complaint come to the conclusion that the complaint

discloses some offences. It is not necessary that the complaint should disclose only those offences, which have been mentioned in the complaint,

but process can be issued when any offence is made out from the complaint. Word ""any offence"" does not confine only to the offences mentioned

in the complaint. I am very much constrained to discuss in detail about the offences, which the complaint discloses lest it may touch the merits of

the case itself and may prejudice the parties in the trial court. Here we are concerned only whether any offence is disclosed from the complaint. To

appreciate the point involved, it is feasible to quote clauses 1 (a) and (b) of Section 195 of the Cr. P. C. as under:

(a) Prosecution for contempt of lawful authority of public servants > Of any offence publishable under sections 172 to 188 of the Ranbir Penal

Code, except on a complaint in writing of public servant concerned, or of some other public servant to whom he is subordinate;

(b) Prosecution for certain offences against public justice :Of any offence punishable under any of the following sections of the same Code, namely,

sections 193,194, 195,196, 199,200,205,206,207,208,209,210, 211 and 228 when such offence is alleged to have been committed in, or in

relation to, any proceeding in any Court, except on the complaint in writing of such Court or of some other Court to which such Court is

subordinate;

It is a fact that every body is not allowed to lodge a complaint mentioned in clauses (a) and (b) of section 195 of the Cr. P. C., but it does not

mean that no offence at all is disclosed from the present complaint. At the cost of repetition, it is clear from the facts that application form has been

submitted by respondent1 before the Municipality, Health Officer, Jammu showing him date of birth of the minor daughter Miss Atiya Shamim

false. Her birthplace was shown falsely to be Mohalla Dalpatian, Jammu and not Dubai. Whereas complaint disclosed that she is Pak national R/o

Dubai. Marriage date was falsely shown to obtain date of Birth Certificate from the Public Officer, Municipality, Jammu. Her name was shown as

Noor Fatima instead of Miss Atiya Shamim, complainant, who is the father of the daughter, was shown as a resident Indian National R/o. Mohalla

Dalpatian, Jammu instead of Pak National R/o. Dubai and the respondent1 succeeded in obtaining the false date of birth certificate in the fake

name of Noor Fatima. All these documents, she produced before the Passport Authority and obtained Indian Passport for the minor daughter

Miss Atiya Shamim. Even the Health Officer, Municipality was made to believe that earlier valid Certificate issued was bogus. From all this

according to the complainant, the intention of the respondent1 was to restrain fraudulently the father from taking his daughter back to Dubai. A

statement, which the man believes to be false, when he is bound to give a true statement, gives a false statement. This discloses offence under

Section 191 of the RPC. Similarly, Section 192 RPC also when a false entry is being made in a document, which may appear in evidence in a

judicial proceeding, or in a proceeding taken by law before a public servant and such public servant form an opinion of such false evidence that is

also an offence. However, as I have stated that apparently from the face of the record, complaint though does not seem to have been written by a

professional man, but at the same time, it does disclose some offences. What are those offences that we leave to the Magistrate to see at the stage

of framing of the charge, if any, after fully scrutinizing the same. Here at this time, we are only concerned whether the allegations disclose any

offence. From the complaint itself, allegations does not appear so absurd, inherently improbable on the basis of which no prudent man ever reach a

just conclusion that there is a sufficient ground for proceedings against the accused. This gets support from the police report also. When the

complaint was lodged before the Senior Superintendent of Police, who sent it to some Inspector for enquiry. S. P. report is clear to show that the

CBI has seized all the material and CBI is enquiring the matter. It is not proper for the State Police to look into the matter. From this report also, it

is clear that the complaint is not bogus, but some offences are disclosed from such complaint. It is true that the complaint against Mohd Amin does

not lie without obtaining sanction u/s 197 RPC for being a public officer. It is also true that offences under Passport Act cannot betake cognizance

without sanction u/s 15 of the Act, but it does not mean no offence at all is disclosed from the complaint.

Lastly, learned counsel for the petitioners stated that respondent1 had no locusstandi to lodge a complaint, because no harm is caused to him. I am

not convinced by his argument; complaint can be lodged by anybody. Once the offence is committed, the offence is always committed against

public in general. This is in consonance with the views expressed in a case cited in 1984 (2) SCC 580 (A. R. Antulay vs. Ramdas Sriniwas Nayak

& Anr.) in which the apex court has held that once offence is committed, it is always against the general public. So the complainant has locusstandi

to lodge the complaint. Secondly, in the present case, process has been issued by the Chief Judicial Magistrate, Jammu, which is fully covered u/s

190 of Cr. P.C. to take cognizance of an offence upon receiving a complaint of facts which constitute offence and upon a report in writing of such

facts made by any police officer.

For these reasons, I am, therefore, convinced that visà vis the respondent No.1 no abuse of process of law has been committed, which invokes

the inherent power under Sec. 581A of the Cr. P. C.

I have gone through the complaint and the whole material, it is manifestly clear that no offence is disclosed against the respondents No.2 to 7. In

the complaint also, no clear allegations have been made against these respondents. I think that they have been roped in just to mount pressure on

respondent

Similarly, with regard to respondent No.8, petition u/s 561C Cr. P. C. has separately been filed which is connected with it. I have gone through

this petition, it is a fact that Mohd Amin has filed this petition on behalf of the State. No permission has been sought by him to file the same.

However, court is not armless to treat it as an application by Mohd Amin himself. I have gone through this application, it appears that respondent

No. 1/complainant, who •s a Pak national, entered India and registered himself in the office of F.R.O. he was seen shuttling between Jammu

and Srinagar and had overstayed unauthorized in the State and his passport was cancelled and the respondent8 who was working as Foreign

Registration Officer acted for the deportation of respondent No.1 in accordance with law, when the passport of the respondent No.1 was

cancelled. There are no personal allegations against him, so he could have been proceeded against only after obtaining the sanction under section

197 Cr. P. C. No offence is disclosed against him also.

15 It is held that complaint if accepted as it is, discloses some offence against the petitioner Tehmina Akhtar and disclosure of offence does not

mean that the offence is made out. It means that the complaint itself if accepted discloses the offence to which the Magistrate after scrutiny at the

proper stage will look into as to which of the offences, if any, are made out and the petition is allowed to the extent that no offence is disclosed

against respondents No.2 to 8. The second petition is allowed to the effect that no offence is disclosed against respondentMohd. Amin Bhat, so

the process issued against respondents No.2 to 8 is quashed. The case be sent to Chief Judicial Magistrate, Jammu for proceeding further in

accordance with law against the petitioner only, who is accused No.1. Petitioner and Respondent No.1 will present themselves before Chief

Judicial Magistrate, Jammu on 15th of March 1999.

Comment, if any, made in this Judgement will not prejudice the merits of the case and Magistrate shall proceed only in accordance with law.