Jammu & Kashmir High Court
Crlm(1218/2020) vs Union Territory Of J&K on 27 January, 2021 1
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Through v.c
S.No.107
CRM(M) 332/2020
CrlM(1218/2020)
Ranjit Singh.
…….Petitioner(s)
Through: None.
vs
Union Territory of J&K
……Respondent(s)
Through: Mr. Vishal Bharti, Dy. AG
CORAM:
HON’BLE MR JUSTICE ALI MOHAMMAD MAGREY, JUDGE
ORDER
1. This petition under Section 482 Cr. P. C, has been filed by the
petitioners seeking quashment of the FIR No.459/2020 dated 26.08.2020
under sections 454, 380, 504 and 506 IPC at P/S Udhampur.
2. Briefly stated the case of petitioner is that the petitioner is running
the business of transport under the name and style of M/s S. Tarlok Singh &
Sons GTB Nagar, Omara, Udhampur and also transport cement from
Northern Railway Station Udhampur to Z Tunnel Sonamarg from last four
years and the said firm has also been allotted contract of transportation of
cement for Zozila Tunnel, Sonamarg. That the in the month of January
2019 petitioner had meeting with the representatives of M/s Manoj Ji and
company in which the representatives of the M/s Manoj Ji & Co requested
the petitioner for permission to keep the company goods in his store for
approximately 15 days. The petitioner on the condition that the company
will evacuate the stores within 15 days permitted the company to store their
goods. It is submitted that the respondent No.2 has registered the aforesaid
FIR on false and frivolous complaint of respondent No.3 and feeling
aggrieved of the action of the respondent No.3, petitioner challenges the
same interalia on the grounds detailed out in the petition.
3. Since the quashment of FIR registered against the petitioners in the
Police Station Udhampur is concerned, it is profitable that before going to
merits of the case, the question is as to whether the FIR containing
allegations which set the police in motion, can be quashed at the threshold
stage? The answer has to be in the negative, for, the remedy under Section
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561-A 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.PC
(ii) to prevent abuse of process of Court
(iii) to secure the ends of justice: and
(iv) to prevent mis-carriage of justice”.
4. In the instant case, keeping in view the allegations contained in the
FIR, it can by no stretch of imagination be said that the case of petitioner
falls within the ambit/contours of section 561-A Cr.PC as enumerated above.
5. The Apex Court in the cases reported AIR 1960 SC 866, AIR 1964
SC 01, AIR 1972 SC 484, AIR 1974 SC 1146, AIR 1977 SC 1489, AIR
1977 SC 2229, AIR 1980 SC 326, AIR 1989 SC 01, AIR 1990 SC 494, AIR
1991 SC 1260, AIR 1992 SC 064, AIR 1992 SC 892, AIR 1996 SC 309,
AIR 1996 SC 2983, AIR 1999 SC 3596, AIR 1999 SC 1044, AIR 1999 SC
1216, AIR 2002 SC 671, AIR 2004 SC 3967, AIR 2005 SC 3212, SLJ 2005
VOL-I 118, 2008 AIR SCW 1003, 2008 AIR SCW 1993, 2008 AIR SCW
1998, 2008 AIR SCW 4614, 2008 AIR SCW 7680, 2008 AIR SCW 2778,
AIR 2010 SC 201 has discussed the scope of Section 561-A Cr.PC
corresponding to Section 482 Cr.PC of Central Code and has laid down the
following tests:
” a. Where the allegations made in the first information report or
the complaint even if 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.
b. 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.
c. 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.
d. 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 Magistrate as
contemplated under Section 155(2) of the Code.
e. 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.
f. 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
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concerned Act, providing efficacious redress for the grievance of the
aggrieved party:
g. Where a criminal proceeding is manifestly attended with
malafide and/or where the proceedings 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.”
6. Applying the tests laid down, it can be safely said that the entire matter is at
its infancy stage and does not fall within the four corners of the tests laid down .
7. Apex Court also held that power is to be exercised cautiously, carefully and
sparingly and Court has not to function as a Court of appeal or revision. It has also
laid down the parameters and guidelines in cases titled as “K.L.E Society & ors v.
Siddalingesh reported in 2008 AIR SCW 1993; A.P Vs Bojjoori Kanthaiah
reported as 2008 AIR SCW 7860 and Reshma Bano Vs State of Uttar Pradesh
reported in 2008 AIR SCW 1998”.
8. This Court has only to ascertain whether the allegations made in the FIR do
disclose or do not disclose the commission of offences, if it does, then it cannot be
quashed at its thresh-hold stage. It is not proper to scuttle away the investigation at
its thresh-hold stage, if FIR discloses the commission of offences, High Court
should not interfere with the investigation which would amount to stalling the
investigation and jurisdiction of statutory authorities to exercise powers in
accordance with the provisions of criminal Code.
9. Apex Court in AIR 2004 SC 3967, AIR 1972 SC 484, AIR 1974 SC 1446,
AIR 1977 SC 2229, AIR 1989 SC 01, has laid down the same principle. It is apt to
reproduce para 10, 13, 14, 15, 17 & 19 out of the judgment titled as Som Mittal Vs
Govt. of Karnataka reported in 2008 AIR SCW 1003 herein:
“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.
13. 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.
14. In Hazari Lal Gupta v Rameshwar Prasad (1972) 1 SCC 452 this Court at
SCC P. 455 pointed out:
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In exercising jurisdiction under section 561-A 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.
15. 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.
17. 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.
19. 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.”
10. While keeping in view the scope of section 561-A Cr.PC the Court should
refrain from making 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 perspective.
11. Prima facie it appears that the allegations contained in the FIR relate to the
offences which are cognizable and non-cognizable, warrant investigation.
12. In view of the facts and circumstances and law quoted herein above, this
petition has no merit, therefore, dismissed along with connected IAs, if any.
(Ali Mohammad Magrey)
Judge
Jammu,
27.01.2021
G.N.Malik, Secy
GH NABI MALIK
2021.01.29 11:56
I attest to the accuracy and
integrity of this document
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