Jammu & Kashmir High Court
Sunaina vs Union Teritory Of Jammu And Kashmir … on 11 November, 2024
Author: Vinod Chatterji Koul
Bench: Vinod Chatterji Koul
Sr. No.
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on : 09.10.2024
Pronounced on: 11.11.2024
Crl R 44/2022
CrlM 1830/2022
CrlM 1831/2022
c/w
CRM(M) 56/2021
SUNAINA .... Petitioner/Appellant(s)
Wd/o Late Shankar Lat R/o
Vill. Chinchora, Tehsil
Bhaderwah, Distt. Doda
Through:- Mr. Vikram Sharma, Sr. Advocate with
Mr. Sachin Dev Singh, Advocate
Mr. S.Sanpreet Singh
Mr. Vijayanka Slathia, Advocate
V/s
1.UNION TERITORY OF JAMMU AND KASHMIR through
the Station House Officer, Police Station Bhaderwah.
2. SUNNY SHARMA
S/o Yash Pal Sharma
3. LOK RAI SHARMA
S/o Tara Chand
4. AJEET SHARMA
S/o Bodh Raj Sharma
5. AMIT SHARMA
S/o Bodh Raj Sharma
6. AMRISH SHARMA
S/o Raj Dev Sharma
7. SANJAY SHARMA
S/o Yash Pat Sharma
8. GANESH SHARMA
S/o Amar Chand Sharma
9. ARUN SHARMA
S/o Kuldeep Sharma
2 Crl R 44 of 2022
10. BITTU SHARMA
S/o Fulait Sharma
All residents of Village Chinchora Chinta Tehsil Bhaderwah and
District Bhaderwah.
CRM(M) 56/2021
1.Sunny Sharma ........Petitioners
S/o Sh. Yash, Paul Sharma,
R/o Chinchora Chinta,
Tehsil Bhaderwah,
Distt. Doda, A/p C/o 9 A Tawi
Vihar Sidhra, Jammu.
2. Bodh Raj Sharma
S/o Late Sh. Prem Nath
R/o Chinchora Chinta,
Tehsil Bhaderwah, Distt. Doda.
3. Lok Raj Sharma
S/o Late Sh. Tara Chand,
R/oChinchora Chinta,
Tehsil Bhaderwah, Distt. Doda.
4. Amit Kumar
S/o Sh. Bodh Raj Sharma,
R/o Chinchora Chinta,
Tehsil Bhaderwah, Distt. Doda.
5. Ajit Sharma
S/o Sh. Bodh Raj Sharma,
R/o Chinchora Chinta,
Tehsil Bhaderwah, Distt. Doda.
6. Amresh Kumar
S/o Sh. Raj Dev Sharma
R/o Chinchora Chinta,
Tehsil Bhaderwah, Distt. Doda.
7. Ganesh Sharma
S/o Sh. Amar Chand
R/o Chinchora Chinta,
Tehsil Bhaderwah, Distt. Doda.
8. Arun Sharma
S/o Sh. Kuldeep Sharma,
R/o Chinchora Chinta
Tehsil Bhaderwah, Distt. Doda.
3 Crl R 44 of 2022
9. Bibbat Sharma
S/o Sh. Phylial Chand
R/o Chinchora Chinta,
Tehsil Bhaderwah, Distt. Doda.
Vs.
1.UT of J&K through S.H.O
Police Station, Bhaderwah
2. Sunaina Devi
Wd/o Late Shankar Lai
R/o Chinchora, Bhaderwah ...Respondents
Through:- Mr. Amit Gupta, AAG vice
Mr. Adarsh Bhagat, GA for R-1
Mr. Rohit Verma, Advocate for R-2
CORAM : HON'BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE
JUDGMENT
1. Since both these petitions one bearing Crl R 44/2022 filed by
Sunaina Devi under Section 397 Cr.P.C seeking revision of the
order dated 20th April, 2022 ( for short ‘impugned order’) passed
in File No.1/2021 titled ‘ UT Versus Lok RajSharma & Ors.’
passed by learned Principal Sessions Judge, Bhaderwah ( for
short ‘trial Court’) whereby charges under Sections 109 IPC and
Section 3 (i) (x) (xi) SC/ST P.O.A. Act stand dropped against
the accused/private respondents who now stand charged only for
the commission of offences under Sections 447/427,
147/148/504/506 IPC and the second petition bearing CRM(M)
56/2021 filed by Sunny Sharma and others seeking quashing of
FIR No. 153/2020 under Sections 447/427/147/148/504/506/109
IPG read with Section 3(1)(x)(xi) SC/ST Prevention of Atrocity
Act registered with Police Station, Bhaderwah arise from
4 Crl R 44 of 2022
the same FIR, I dispose both the matters by a common
judgment.
2. The brief facts of the case are that the inhabitants of village
Chinchora (Chinta) Bhaderwah have been using a Bandobasti
Public pathway that existed in Shamlat Deh land of the said
village, which exists on spot for the past approx. 50-60 years.
This road connects the main Bhaderwah-Jaie road to the houses
of inhabitants of the village. In the year 2016, the Rural
Development Department repaired the said public pathway for
facility of the villagers and spent funds (under head
MGNREGA) and repaired the public pathway by fixing tiles
thereon. One Sanjay Kumar S/o Shankar Lai, resident of
Chinchora village, son of Sunaina Devi (respondent No.2 in
CRM(M) 56/2021) has been creating bottle-necks in the usage
of the public path by the villagers contending the public path to
be his personal pathway. The authorities have verified and
certified that the path is a public pathway and is an access route
for the villagers. A report in this regard was prepared by the
Revenue Department dated 03.02.2018. The said Sanjay Kumar
filed a civil suit on 12.10.2017 titled ‘Sanjay Kumar vs. Manjit
Kumar & Ors.’ before the court of Ld. Sub-Judge Bhadewah, for
declaration and permanent prohibitory injunction against Lok
Raj, Amit Sharma, Bodh Raj (dead) (petitioners nos.2, 3 & 5 in
CRM(M) 56/2021), and one Manjit Kumar, seeking therein a
decree to restrain the aforesaid persons from carving out a
pathway. After perusing the record, the application for stay
5 Crl R 44 of 2022
under Order 39 Rule 1 & 2 CPC came to be dismissed by the
Court below vide order dated 11.04.2018.
3. The petitioner-Sunaina Devi and one Sanjay Kumar lodged a
complaint against the petitioners ( in CRM(M) No. 56/2021) by
moving an application dated 16.08.2020 before respondent no. l-
SHO Police Station, Bhaderwah alleging commission of
offences under Sections 307, 326, 504, 506, 425, 336, 436 IPC.
Thereafter, petitioner-Sunaina Devi after a gap of 03 months
moved an application under Section 156(3) CrPC before learned
Sub-Judge, Bhaderwah seeking direction to the respondent no. l-
SHO to take action. The respondent no. l thus, registered FIR
No. 153/2020 against the petitioners (in CRM(M) 56/2021)
under Sections 109, 504, 506, 147, 148, 447, 427 of IPC and
3(1)(x)(xi) of SC/ST POA Act. On 11.02.2021 Charge sheet was
filed by the investigating agency. On 20.04.2022 an order was
passed by the trial Court, whereby charges under Section 109
IPC and Section 3(i)(x)(xi) SC/ST P.O.A. Act stand dropped
against the private respondents who now stand charged only for
the commission of offences under Sections
447/427/147/148/504/506 IPC.
Crl R 44/2022
4. The petitioner seeks revision of the order dated 20.04.2022
passed by the trial Court on the following grounds:-
(i) that the Trial Court while passing the order
impugned, omitted to peruse the statements of the
petitioner and other prosecution witnesses which
affirmatively demonstrate the involvement of the
private respondents in commission of offences;
6 Crl R 44 of 2022
(ii) that the stage of charge/discharge is not such where
the statements of the witnesses vis a vis the
complaint is required to be appreciated;
(iii) that the investigation agency has effectively proved
case under Sections 109 IPC and Section 3(i)(x)(xi)
SC/ST P.O.A. Act against the private
respondents and the trial Court has overlooked the
investigation to that extent thereby
resulting in perversity in the order impugned;
CRM(M) 56/2021
5. In this petition, petitioners seek quashing of the FIR No.
153/2020, precisely on the following grounds:-
(i) that the order dated 11.04.2018 passed by the
trial Court in suit titled Sanjay Kumar vs.
Manjit Kumar and ors dismissing the interim
application of Sanjay kumar (son of
respondent no.2) w.r.t the public pathway,
entitled the villagers/petitioners to an
unhindered usage of the public pathway. The
respondent no.2, at the behest of and in
collusion with her son Sanjay Kumar, cannot
allege trespass with regard to said subject
matter;
(ii) that the complaint does not disclose the
ingredients for imposing Sections as mentioned
in the FIR impugned;
(iii) that a complaint in writing cannot be
added/modified in its contents while moving
application under Section 156(3) CrPC. The
original complaint nowhere contained any fact
that could invite SC&ST Prevention of
Atrocities Act, 1989. By referring to application
u/s 156(3) CrPC, wherein the complainant
herself admitted that she has not alleged
anything w.r.t SC & ST Prevention of
Atrocities Act, 1989, the respondent no. l, could
not invoke Sections from SC & ST Prevention
of Atrocities Act, 1989 and that the averments
as to the offence was committed at a place with
public view has not been made in the complaint
7 Crl R 44 of 2022which was filed after 3 months of the
complaint.;
(iv) The main offence of under Section 307 IPC
was found by respondent no. l/I.O to be not
made out even after the statements under
Section 161 CrPC were claimed to be recorded.
6. Heard learned counsel for the parties and perused the material
on record.
7. A perusal of the impugned order dated 20.04.2021, shows that
the trial Court after perusing the material on record and while
relying upon the judgments of the Supreme Court was of the
opinion that complaints filed on 16.08.2020 and 13.11.2020 are
self contradictory, because in the complaint dated 16.08.2020
there are only allegations of assault committed by the accused in
the house of the complainant and not within public view and
there is no whisper of abusing the complainant party with their
caste name nor there is absolutely any allegation that the
accused persons with a view to intentionally insult or intimidate
or humiliate the complainant party. Further the trial Court has
observed that there is three month discrepancy between the
initial complaint and the registration of the FIR in question. The
addition of commission of the offence under 3(1)(x)(xi) of SC
ST POA Act was added after 3 months when the complaint was
filed before JMIC, Bhaderwah on 13.11.2020. Further, the trial
Court has rightly held that no prima facie case is made out for
the commission of the offence under 3(1)(x)(xi) of SC/ST POA
Act. It was also held that there is no explanation as to the delay
8 Crl R 44 of 2022
of filing complaint against the accused persons alleging
commission of offences under Section 3(1)(x)(xi) of SC/ST
POA Act, 1989 along with the other offences.
8. Perusal of the record further shows that there is delay of more
than three months from the date of alleged incident and
complaint filed thereto on 16.08.2020 and lodging of complaint
before learned JMIC on13.11.2020. It is not the case of the
prosecution that there was any member of public at the time of
incident in the premises or its vicinity and even the statement of
all the prosecution witnesses recorded under Section 161 Cr.P.C
do not depict regarding assault or use of force to outrage the
modesty of any women.
9. It may also 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.p.c or under Article 226 of the Constitution of India, to
quash the FIR/order, 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 in high Court to act according to whim or
caprice. Such power has to be exercise sparingly, with
circumspection and in the rarest of rare cases. Inherent powers
matter of quashing FIR/order 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
9 Crl R 44 of 2022
Section 482 Cr.P.C, 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.
10. In Monica Kumar (Dr) Vs. State of U.P, (2008(8) SCC 78l, the
Supreme Court held that the inherent jurisdiction under Section
482 Cr.P.C has to be exercise sparingly, carefully and with
caution and only when such exercise is justified by the tests
specifically laid down in the Section itself. However, in
exceptional cases, to prevent abuse of the process of Court, the
High Court might in exercise of its inherent powers under
Section 482 Cr.P.C quash the proceedings.
11. In the instant case investigation by the police has been
completed and challan has been filed before the learned
Principal Session Judge, Bhaderwah. The charges framed in the
challan regarding the commission of the alleged offence are
required to be proved during the trial by adducing the evidence
and the grounds taken by the petitioners in the instant petition
can be taken in defence before the trail Court.
12. For the reasons stated hereinabove, I do not find any merit in
either of the petition, therefore, it is held that both the petitions
are without any merit and are dismissed, accordingly. Trial
Court to proceed with the trial of the case expeditiously.
VINOD CHATTERJI KOUL)
JUDGE
JAMMU
11.11.2024
BIR
10 Crl R 44 of 2022