Zaheer Kamlak & Ors vs State Of J&K & Anrm

M A Chowdhary, J

Petitioners have invoked the inherent jurisdiction of this Court in terms of Section 561-A of since repealed J&K CrPC (akin to section 482 of Central CrPC) seeking quashment of FIR No. 420/2013 dated 11.08.2013 registered at Police Station Rajouri, wherein the petitioners were accused to be involved in the commission of offences punishable under Sections 353, 336, 188, 147 RPC.

Petitioners/accused pleaded following facts:-

a) That the petitioner No.l is an Advocate by profession, petitioner no.2 is father of petitioner Nos. l, 3 and 4, petitioner No. 5 is brother-in-law of the petitioner No.l and is son-in-law of the petitioner no.2, petitioner no.2 is a retired Assistant Sub Inspector of J&K Police, petitioner no.3 is serving as Library Assistant in the Education Department of J&K Government, whereas the petitioner no.4 is a student undergoing B. Pharmacy and petitioner No.5 is also a Government employee serving as Guard in the Forest Protection Force at Thanamandi, District Rajouri. All thepetitioners are reputed persons of District Rajouri and throughout their lives have not committed any offence.

b) That all the petitioners are awful victims of hostility, bias, grudge, enmity which Mr. Ayaz Sheikh, who is presently serving as Dy. Superintendent of Police, (Operations] in District Rajouri for the last around 4 years. What has led to entertainment of hostility by the said DySP as against the petitioners was that on 23rd of January, 2012, petitioner No.2 while performing his police duties at a Naka near Abdullah Bridge, Rajouri which is a sensitive District, to avoid any untoward incident in view of 26th January 2012 being approaching, intercepted a motor cycle which was driven by one Shiv Raj and one Jai Pal and another person whose name is not known to the petitioner No.2 were riding, petitioner No.2 thereafter subjected the said motorcycle to fine under rules; that all the three persons instead of cooperating with the petitioner started shouting. One of the persons in between informed the afore-named DySP about the incident, who called petitioner No.2 and by scolding him directed him to leave the three persons as also the motor cycle without fine immediately otherwise he has to pay the price for the same; that petitioner no.2 informed the DySP that challan has already been entered, therefore, the same cannot be undone. On hearing this reply, the DySP lost his temper and started abusing the petitioner No.2 and threatened him that one day he will surely teach him the lesson for his disobedience.

c) That again on 6th of March, 2012 the DySP along with two persons namely Shiv Raj and Jai Pal came to the residence of the petitioners and enquired about the petitioner No.2, he was informed that the petitioner No.2 has gone on duty, thereafter the DySP along with some police personnel came near Tehsil office, Rajouri, where the petitioner No.2 was performing his duties. The said DySP not only misbehaved with the petitioner No.2 but also abused him in full public view without caring for the fact that the petitioner No.2 was on active police duty.

d) That the entire nightmare erupted when on 11.8.2013 the petitioner No.l was at his house along with other family members, two policepersonnel namely Shiv Raj and Jai Pal came and they started abusing the petitioner No.l as also his father and asked petitioner No.l that DySP has called him and his father to his office to teach him as to how challan is to be prepared. After conveying this message, the DySP along with his PSOs and (Nafrey) including police personnel which were around 60 in number came to the house of the petitioners and the DySP enquired from the petitioner No.l as to who is the owner of the house. As soon as the petitioner No.l came out of his house, the said DySP without listening to the reply of the petitioner No.l, attacked on petitioner No.l by striking a glass bottle on his head thereby causing grievous hurt to him and the blood started oozing out. Upon this, the other family members came out to save the petitioner from the brutal clutches of Dy SP, but they fell prey at the hands of the Dy SP. Thereafter, the Dy SP forcibly and in a totally inhumane manner dragged the petitioner No.1 in the injured condition into his vehicle and took him to nearby hospital and got the stitching done on his head and dropped back him at his house.

e) That on 11.08.2013 a written complaint with the Police Station, Rajouri for registration of a criminal case against the DySP was also filed by the petitioners. Since the DySP was serving in Operations Wing, at Rajouri, so the SHO Police Station, Rajouri despite receipt of the written complaint from the petitioners did not register any FIR nor any enquiry into the allegations, as contained in the said complaint was done by him.

f) That the petitioners thereafter filed an application under section 156(3) CrPC before the learned Chief Judicial Magistrate, Rajouri on 19.8.2013 seeking directions to the SHO Police Station, Rajouri to register an FIR against the DySP but no action upon the said application was taken, the petitioners were left with no other alternative but to approach this Court by filing writ petition OWP No. 1185/2013 titled Zaheer Kamlak and others vs. State of J&K and others, seeking directions to respondents to provide adequate security to the petitioners to secure their lives and properties from the afore-named DySP, who by abusing his official position was harassing, physically torturing, manhandling, beating and assaulting the petitioners in view of his having entertained hostility against the petitioners. The petitioners in the aforesaid writ petition had also sought directions to the respondents to initiate departmental proceedings against the DySP for violating the human rights of the petitioners and subjecting the petitioners particularly the petitioner No.l to harassment both physically as well as mentally. The petitioners also sought directions to the learned Chief Judicial Magistrate, Rajouri to dispose of the application filed by the petitioners under section 156(3) CrPC which is pending before him or to direct the learned Principal Sessions Judge, Rajouri to transfer the said application u/s 156(3) CrPC to some other court so that the same can be disposed of under law.

g) That the aforesaid writ petition was disposed of vide order dated 02.09.2013 read with order dated 09.09.2013 by withdrawing the petition u/s 156(3) CrPC from the Chief Judicial Magistrate, Rajouri and learned Munsiff, Rajouri with the direction to dispose of the same with utmost expedition and also provide adequate security to the petitioners. The action in the matter was also directed to be reported to Registry of this Court within one month.

h) That under the garb of the impugned FIR, the petitioners are being subjected to harassment and victimization by the police notwithstanding the fact that the petitioners are educated persons and cannot even think of violation any orders passed by any authority or to cause harm or to deter the public servants from discharge of their duties. The entire story as alleged in the impugned FIR, if taken on its face value, prima facie, proves to be wrong, incorrect and far away from truth and cannot be believed under any stretch of imagination, thus the impugned FIR be quashed.

Official respondents in their counter have stated that on 11.08.2013, Head Constable Jai Paul No. 32 IR 5th Bn produced a written application at Police Station Rajouri against accused persons namely Mohd Maqbool retired ASI from police department, (2) lmran Khan, (3) Amjid Khan, (4) Zaheer Kamlak sons of Mohd Maqbool, (5) Shazad Ahmed S/O Jamaldin all R/O Ward No. 04 Malyar Mollah Rajouri, wherein the complainant has stated that he is serving in JKAP 5th Bn and presently posted at DPL Rajouri. On 11.08.2013, the complainant along with other nafri of Armed Police was deputed on law and order duty in ward No. 04 Rajouri to implement the restrictions imposed for curfew in Rajouri town and when they reached Malayar Mollah near Masjid Sharief in W.No.04 Rajouri, and saw that a karyana shop of Mohd Maqbool was found open. He was asked to close the shop, however, he instead of closing the shop, started insulting and creating hurdle in performing the official duty. Later on, the complainant informed to the then DySP (Operations) about the matter, who rushed to the spot and he tried to convince the accused persons, but the accused after closing the shutter of shop climbed to the roof of the house and started throwing stones upon the complainant and other nafri of police party. The situation became serious on spot and tear gas were used to control the situation. The accused deliberately violated the order of DM Rajouri and kept the store open despite of the curfew imposed etc. Therefore, on this information, a case FIR No. 420/2013 U/Ss 353,147,336,188 RPC was registered and the investigation was commenced. The I.O visited the spot, prepared site plan and recorded the statements of witnesses u/s 161 CrPC. I.O also seized stones and pieces of bricks from the spot as evidence and prepared seizure memo of same. During investigation, it was found that on 11.08.2013 the curfew was imposed in Rajouri town and the police persons were doing the law and order duty to implement the restrictions imposed due to curfew. The deputed official asked the accused persons to close the shop but they totally refused and all the accused persons mentioned above with common and criminal intention climbed on the roof of their house and started pelting stones upon the police party and also mishandled the DySP (Operations) and other nafri of Armed Police. In view the above facts and circumstances of the case, the offences punishable under sections 353, 147, 336, 188 RPC have been proved against all the above mentioned accused persons. All the accused persons are released on interim bail. Thereafter the accused party approached before this Court for the grant of stay in this case and this Court vide order dated 04.11.2013 stayed the investigation. The case is under investigation, as such, the present petition deserves to be dismissed.

Heard learned counsel for the parties and considered the matter. I have also perused the material available on record.

According to learned counsel for petitioners, the allegations leveled are totally baseless, malicious and do not disclose any offence. It is averred that allegations made in the FIR, even if are taken on their face value and accepted in their entirety, do not prima facie constitute any offence or make out a case against the petitioners and despite such facts, petitioners are being harassed by respondent No.2 by lodging the impugned FIR. It is averred that respondent No.2 is abusing the process of law, solely to wreck vengeance upon the petitioners and to victimize them, the same deserves to be quashed.

The power under Section 482 of CrPC can be exercised by the High Court to prevent the abuse of process of the Court and otherwise to secure the ends of justice. The authority of the Court exists for advancement of justice and if any attempt is made to abuse the said authority, the Court has the power to prevent that abuse. These inherent powers of the High Court are wide in their scope. Wider the power, higher the degree of responsibility upon the authority vested with such power to exercise it with circumspection. These powers are generally exercised to secure the ends of justice.

The Supreme Court in the case of State of Haryana & Ors. vs. Ch. Bhajan Lal & Ors reported as 1992 Suppl (1) SCC 335, has dealt with the scope of power of High Court under Section 482 CrPC 1973 in an elaborate manner. Paragraphs 102 and 103, which enumerates seven categories of cases, where power can be exercised under Section 482 CrPC, 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 channelized 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 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.

We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking 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.”

In Pepsi Foods Ltd. & Anr vs. Special Judicial Magistrate & Ors reported as (1998) 5 SCC 749, the Supreme Court relying upon the ratio laid down by it in Bhajan Lal’s case (supra), observed as under:

“22. It is settled that High Court can exercise its power of judicial review in criminal matters. In State of Haryana and others vs. Bhajan Lal and others 1992 Supp (1) SCC 335, this court examined the extraordinary power under article 226 of the Constitution and also the inherent powers under Section 482 of the Code which it said could be exercised by the High Court either to prevent abuse of the process of any court or otherwise to secure the ends of justice. While laying down certain guidelines where the court will exercise jurisdiction under these provisions, it was also stated that these guidelines could not be inflexible or laying rigid formulae to the followed by the facts and circumstances of each case but with the sole purpose to prevent abuse of the process of any court or otherwise to secure the ends of justice. One of such guidelines is 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. Under Article 227 the power of superintendence by the High Court is not only of administrative nature but is also of judicial nature. This article confers vast powers on the High Court to prevent the abuse of the process of law by the inferior courts and to see that the stream of administration of justice remains clean and pure, The power conferred on the High Court under Articles 226 and 227 of the constitution and under Section 482 of the Code have no limits but more the power more due care and caution is to be exercised invoking these powers.”

Hon’ble Apex Court in a case titled State of Andhra Pradesh Vs. Gourishetty Mahesh & Ors. reported as (2010) 11 SCC 226 has held that though the powers possessed by the High Court under Section 482 CrPC are wide, however, such powers require care/caution in its exercise. The interference must be on sound principles and the inherent power should not be exercised to stifle a legitimate prosecution. It was clarified that if the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it was open to the High Court to quash the same in exercise of inherent powers under Section 482 CrPC.

From the foregoing survey of law on the subject, it is clear that in a case where allegations made in the complaint and evidence collected in support of the same do not disclose commission of any offence or make out a case against the accused, the High Court can exercise its powers under Section 482 of CrPC to quash the proceedings against an accused. The inherent powers cannot be, however, exercised to stifle or impinge upon the proceedings.

The FIR sought to be quashed had its genesis to an incident of 13.08.2013, when in a Rajouri Mohalla, petitioners’ shop was found open during imposition of curfew, by the Police. It is Police’s version that the shop owner who is also a retired ASI from Police, despite orders of the DM imposing curfew and police direction, did not close his shop and when a police contingent led by DySP (operations) tried to enforce, they were attacked by all the petitioners by resorting to stone pelting from the roof of their house.

Petitioners, on the other hand have narrated that they have been made victims by respondent Dy SP, due to the grudge against one of the petitioners who after retiring as ASI from Police had opened shop, attacked them under the garb of enforcing curfew and assaulted his son petitioner No.1-a legal practitioner causing injuries on his head which had to stitched; that on reporting this crime at the Police Station Rajouri, not only their grievance was refused but they were falsely implicated accusing whole of the family to have attacked the police party. Petitioners have also placed on record some photographs of petitioner No.1 in his injured condition which shows that he had received injuries on his head. Petitioner No.1 has claimed to have lodged a report at local Police Station, however, it was alleged that under the influence of the aforesaid DySP (operations) posted in Rajouri who had inimical relation with the father of petitioner No.1, who too was retired police official, had not registered the case and petitioner No.1 had then to approach the local court which also did not pass any order on his application seeking registration of the case, as such, petitioner No.1 was constrained to file a petition in this court and this Court was pleased to transfer the application from the court of learned Chief Judicial Magistrate Rajouri, to another Magistrate for disposal.

The case registered against the petitioners and sought to be quashed seems to be manifestly attended with mala fide having been maliciously instituted with an ulterior motive for wreaking vengeance on the petitioners to settle private and personal grudge by one of the police officers. This Court refrains itself from making further comments with regard to merits of the case. It appears from the allegations made in FIR 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 petitioners. A small family to have attacked or restrained a big contingent of police from performing official duties while enforcing curfew in the area where the petitioners reside is highly improbable. Given to the facts and circumstances of the case and applying the principles laid down by the Hon’ble Apex Court with regard to invoking the inherent jurisdiction vested in this Court under Section 482 CrPC, the case registered against the petitioners is liable to quashed.

For the reasons discussed hereinabove, the instant petition is allowed and the impugned FIR No. 420/2013 registered at Police Station Rajouri, for the commission of offences punishable under Sections 353, 336, 188, 147 RPC against the petitioners, is hereby quashed.

Petition along with application(s) is thus disposed of, accordingly.