Jammu & Kashmir High Court – Srinagar Bench
Tariq Ahmad Khan vs Ut Of J&K And Another on 30 October, 2024
Author: Javed Iqbal Wani
Bench: Javed Iqbal Wani
Regular List
Serial 15
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CRM(M) 471/2021 CrlM(1505/2021)
Tariq Ahmad Khan
... Petitioner/Appellant(s)
Through: Mr. Altaf Haqani, Sr. Adv. with Mr. Asif Wani, Adv.
V/s
UT of J&K and another
... Respondent(s)
Through: Mr. Zahid Qais Noor, GA
CORAM: HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
ORDER
30.10.2024
ORAL
1. The petitioner herein has invoked the inherent power of this court
enshrined in section 482 Cr.P.C. for quashing of FIR No. 79 of 2021
registered with Police Station, Kulgam, for commission of offences
under Sections 341 and 354 IPC.
2. The facts giving rise to the filing of the instant petition would reveal
that respondent 2 herein had filed an application under Section 156(3)
Cr.P.C. before the Chief Judicial Magistrate, Kulgam, on 4th December
2021, stating therein that on 31st October 2021 at 9 a.m., when she was
going towards her apple orchard situated at village Manchawa,
Yaripora, on her way the accused petitioner herein started abusing her,
to which she objected, whereupon the accused petitioner herein started
beating her and dragged her and tore her clothes due to which she got
naked, and in the process her modesty got outraged and upon her hue
and cry the accused petitioner herein managed to escape from the spot,
and though the incident came to be reported by her to the SHO Police
CRM(M) 471/2021 Page 2 of 14
Station Bijbehara for registration of an FIR, same, however, was
refused, whereupon she submitted an application before the Sr.
Superintendent of Police, Kulgam, which application came to be
marked to the SHO of the Police Station concerned, for taking
necessary action under rules, yet, despite that no action was taken by
the SHO concerned compelling her to file application supported by an
affidavit praying therein that the SHO Police Station be directed to
register an FIR in the matter. Pursuant to the directions passed on the
said application dated 4th December 2021, the SHO Police Station,
concerned came to be directed to take necessary action under rules, in
light of the contents of the application, whereupon the impugned FIR
came to be registered by the SHO Police Station concerned, being
respondent 1 herein against the accused petitioner herein for
commission of offence under Sections 354 and 341 IPC.
3. The petitioner has challenged the impugned FIR in the instant petition
on the grounds urged in the petition.
4. Objections to the petition stand filed wherein it is being admitted that
the FIR in question came to be registered pursuant to the directions
passed by the Chief Judicial Magistrate, Kulgam upon an application
filed by the respondent 2 herein, whereupon the matter was entrusted to
the investigating officer for investigation, and during the course of
investigation it came to light that the occurrence had taken place on 31 st
October 2021, and it also got revealed that a piece of land measuring
six kanals in Manchwa, Waddar, was in dispute between two parties
namely (1) Ashraf Ali Malik son of Habibullah Malik r/o Yaripora and
CRM(M) 471/2021 Page 3 of 14
(2) Ghulam Mohiud Din son of Mohammad Ramzan Bhat & Abdul
Rashid Bhat son of Assadullah Bhat resident of Manchuwn and the
court of Executive Magistrate had issued an order in regard to the said
disputed land on 24th September 2021 appointing the petitioner herein,
being an advocate by profession, as a receiver, and on 24th September
2021 the said receiver petitioner herein had arrived on the disputed land
for plucking and harvesting of apples of the season, and had brought
and kept empty apple boxes for the purpose and in the meantime had
returned to his home for some domestic work, and on reaching back to
the orchard after some time found some of the empty apple boxes
missing, which consequently resulted into registration of an FIR by the
receiver petitioner herein in the matter, being FIR no. 60 of 2021 with
police station concerned against the son of the complainant respondent
2 herein namely Umar Gulzar son of Gulzar Ahmad Bhat besides one
more person namely Ubaid Rashid son of Abdul Rashid for
commission of offence under section 379 and 506 IPC, wherein after
investigation a chargesheet came to be laid before the competent court
on 31st October 2021, and that it also got revealed during the course of
investigation that the complainant respondent 2 herein had gone to the
apple orchard in question and had an argument with the receiver
petitioner herein who abused and dragged her whereupon an
application came to be filed by the complainant respondent 2 herein
before the SHO for registration of FIR, and that during the course of
further investigation, it also got revealed that the apples of the disputed
land were plucked and harvested by the accused petitioner herein and
CRM(M) 471/2021 Page 4 of 14
stored in a cold storage at Pulwama, in respect of which an auction was
conducted by the Tehsildar Yaripora and an amount of Rs.1,13,850/-
came to be received thereof, out of which an amount of Rs.44,785/-
was given to the receiver petitioner herein, and the remaining amount
was retained by the Tehsildar Yaripora, stating further in the reply that
during the course of investigation the complainant respondent 2 herein,
was produced before the Judicial Magistrate, 1st Class, Kulgam, for
recording her statement under Section 164A Cr.P.C. wherein she
narrated the incident alleging commission of offences in question by
the accused petitioner herein and from the other witnesses recorded
during the course of the investigation in the FIR in question it had got
revealed that the accused petitioner herein has committed the offence
alleged against him by the complainant respondent 2 herein but despite
the conclusion of the investigation in the matter, the charge sheet could
not be laid before the competent court on account of an interim order
passed by this court in the instant petition
Heard learned counsel for the parties and perused the record.
5. Before proceeding to advert to the grounds of challenge urged by the
petitioner in the instant petition against the impugned FIR, it would be
advantageous and appropriate to refer hereunder to the provisions of
section 341 IPC and section 354 IPC for the sake of convenience.
Insofar as Section 341 IPC is concerned, the same provides for
punishment for wrongful restraint, whereas wrongful restraint has been
defined in section 339 and the said sections read as under:
CRM(M) 471/2021 Page 5 of 14
339. Wrongful restraint.–
Whoever voluntarily obstructs any person so as to prevent that person
from proceeding in any direction in which that person has a right to
proceed, is said wrongfully to restrain that person. (Exception)– The
obstruction of a private way over land or water which a person in good
faith believes himself to have a lawful right to obstruct, is not an offence
within the meaning of this section.
Illustration: A obstructs a path along which Z has a right to pass. A not
believing in good faith that he has a right to stop the path. Z is thereby
prevented from passing. A wrongfully restrains Z.
341. Punishment for wrongful restraint.–
Whoever wrongfully restrains any person shall be punished with simple
imprisonment for a term which may extend to one month, or with fine
which may extend to five hundred rupees, or with both.
What emanates from the above, the essential ingredients of
wrongful restraint are as follows:
• That there was some voluntary obstruction caused.
• That the obstruction was such as to prevent any person from
proceeding in any direction and that the person obstructed had a right
to proceed in that direction.
354. Assault or criminal force to woman with intent to outrage her
modesty.–
Whoever assaults or uses criminal force to any woman, intending to
outrage or knowing it to be likely that he will thereby outrage her
modesty, shall be punished with imprisonment of either description for a
term which shall not be less than one year but which may extend to five
years, and shall also be liable to fine.
What emanates from the aforesaid provision is that for
constituting an offence under section 354, the following essential
ingredients must exist:
i) That there was an assault or use of criminal force to any woman;
ii) That such an assault or insult was intended to outrage the modesty of said
woman.
6. Before proceeding further in the matter, it would be advantageous and
appropriate to refer to the ambit and scope of the inherent power vested
in this Court enshrined under section 482 Cr.P.C. and the parameters
CRM(M) 471/2021 Page 6 of 14
for its exercise laid down by the Apex Court in series of judgments
including in case titled as “Neeharika Infrastructure Private Limited
Vs. State of Maharashtra and Ors”., reported in AIR 2021 SC 1918
wherein at paragraph 7 following has been provided:
“7. While considering the aforesaid issue, law on the exercise of powers by the High Court
under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India to
quash the FIR/complaint and the parameters for exercise of such powers and scope and
ambitof the power by the High Court under Section 482 Cr.P.C. and/or under Article 226 of
the Constitution of India are required to be referred to as the very parameters which are
required to be applied while quashing the FIR will also be applicable while granting interim
stay/protection.
7.1 The first case on the point which is required to be noticed is the decision of this
Court in the case of R.P. Kapur (supra). While dealing with the inherent powers of the
High Court under Section 561-A of the earlier Code (which is pari materia with Section
482 of the Code), it is observed and held that the inherent powers of the High Court
under Section 561 of the earlier Code cannot be exercised in regard to the matters
specifically covered by the other provisions of the Code; the inherent jurisdiction of the
High Court can be exercised to quash proceedings in a proper case either to prevent
the abuse of the process of any court or otherwise to secure the ends of justice;
ordinarily criminal proceedings instituted against an accused person must be tried
under the provisions of the Code, and the High Court would be reluctant to interfere
with the said proceedings at an interlocutory stage. After observing this, thereafter this
Court then carved out some exceptions to the above-stated rule, which are as under:
“(i) Where it manifestly appears that there is a legal bar against the institution or
continuance of the criminal proceeding in respect of the offence alleged.
Absence of the requisite sanction may, for instance, furnish cases under this
category.
(ii) Where the allegations in the first information report or the complaint, even if they
are taken at their face value and accepted in their entirety, do not constitute the
offence alleged; in such cases no question of appreciating evidence arises; it is
a matter merely of looking at the complaint or the first information report to
decide whether the offence alleged isdisclosed or not.
(iii) Where the allegations made against the accused person do constitute an
offence alleged but there is either no legal evidence adduced in support of the
case or the evidence adduced clearly or manifestly fails to prove the charge. In
dealing with this class of cases 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 manifestly and clearly inconsistent with the accusation made and
cases where there is legal evidence which on its appreciation may or may not
support the accusation in question.
In exercising its jurisdiction under Section 561- A the High Court would not
embark upon an enquiry as to whether the evidence in question is reliable or not.
That is the function of the trial Magistrate, and ordinarily it would not be open to
any party to invoke the High Court’s inherent jurisdiction and contend that on a
reasonable appreciation of the evidence the accusation made against the
accused would not be sustained.”
CRM(M) 471/2021 Page 7 of 14
7.2. In the case of Kurukshetra University (supra), this Court observed and held that
inherent powers under Section 482 Cr.P.C. do not confer an arbitrary jurisdiction on the
High Court to act according to whim or caprice; that statutory power has to be exercised
sparingly with circumspection and in the rarest of rare cases. In the casebefore
this Court, the High Court quashed the first information report filed by the Kurukshetra
University through Warden and that too without issuing notice to the University, in
exercise of inherent powers under Section 482 Cr.P.C. This Court noticed and
observed that the High Court was not justified in quashing the FIR when the police had
not even commenced investigation into the complaint filed by the Warden of the
University and no proceedings were at all pending before any Court in pursuance of the
FIR.
7.3 Then comes the celebrated decision of this Court in the case of Bhajan Lal
(supra). In the said decision, this Court considered in detail the scope of the High
Court powers under Section 482 Cr.P.C. and/or Article 226 of the Constitution of India
to quash the FIR and referred to several judicial precedents and held that the High
Court should not embark upon an inquiry into the merits and demerits of theallegations
and quash the proceedings without allowing the investigating agency to complete its
task. At the same time, this Court identified the following cases in which FIR/complaint
can be quashed:
“102.(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 acase 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 Act concerned (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 Act concerned, 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
CRM(M) 471/2021 Page 8 of 14wreaking vengeance on the accusedand with a view to spite him due to private
and personalgrudge.”
7.4 In the case of Golconda Lingaswamy (supra), after considering the decisions of
this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra) and other
decisions on the exercise of inherent powers by the High Court under Section 482
Cr.P.C., in paragraphs 5, 7 and 8, it is 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 onlywhen 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 amountsto 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.
7. 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.
CRM(M) 471/2021 Page 9 of 14
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…..
8. 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 Courtto 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 thecase 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.”
7.5. In the case of Zandu Pharmaceutical Works Ltd. (supra), in paragraph 11, this
Court has observed and held as under:
CRM(M) 471/2021 Page 10 of 14
“11…..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. The 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.
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 premise 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 cognizance has been taken
by the Magistrate, it is open to the High Court to quash the same in exercise
of the inherentpowers 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 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 that the ingredients of the offence or offences are disclosed and
there is no material to show that the complaintis 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
proceedings.”
7.6. In the case of Sanapareddy Maheedhar Seshagiri (supra), in paragraph 31, it is
observed and held as under:
“31. A careful reading of the abovenoted judgments makes it clear that the High
Court should be extremely cautious and slow to interfere with the investigation
and/or trial of criminal cases and should not stall the investigation and/or
prosecution except when it is convinced beyond any manner of doubt that FIR
does not disclose commission of any offence or that the allegations contained in
FIR do not constitute any cognizable offence or that the prosecution is barred by
law or the High Court is convinced that it is necessary to interfere to prevent
abuse of the process of the Court.
In dealing with such cases, the High Court has to bear in mind that judicial
intervention at the threshold of the legal process initiated against a person
accused of committing offence is highly detrimental to the larger public and
societal interest. The people and the society have a legitimate expectation that
those committing offences either against an individual or the society are
expeditiously brought to trial and, if found guilty, adequately punished. Therefore,
CRM(M) 471/2021 Page 11 of 14while deciding a petition filed for quashing FIR or complaint or restraining the
competent authority from investigating the allegations contained in FIR or
complaint or for stalling the trial of the case, the High Court should be extremely
careful and circumspect.
If the allegations contained in FIR or complaint disclose commission of some
crime, then the High Court must keep its hands off and allow the investigating
agency to complete the investigation without any fetter and also refrain from
passing order which may impede the trial. The High Court should not go into the
merits and demerits of the allegations simply because the petitioner alleges malus
animus against the author of FIR or the complainant. The High Court must also
refrain from making imaginary journey in the realm of possible harassment which
may be caused to the petitioner on account of investigation of FIR or complaint.
Such a course will result in miscarriage of justice and would encourage those
accused of committing crimes to repeat the same. However, if the High Court is
satisfied that the complaint does not disclose commission of any offence or
prosecution is barred by limitation or that the proceedings of criminal case would
result in failure of justice, then it may exercise inherent power under Section 482
CrPC.”
7.7. In the case of Arun Gulab Gawali (supra), this Court set aside the order passed by
the High Court quashing the criminal complaint/FIR which was even filed by the
complainant. In the case before this Court, prayer for quashing the FIR before the High
Court was by the complainant himself and the High Court quashed the FIR/complaint
in exercise of the powers under Section 482 Cr.P.C. Quashing and setting aside the
judgment and order passed by the High Courtquashing the FIR, this Court in paragraphs
13 and 27 to 29 has observed as under:
“13. The power of quashing criminal proceedings has to be exercised very
sparingly and with circumspection and that too in the rarest of rare cases and the
Court cannot be justified in embarking upon an enquiry as to the reliability or
genuineness or otherwise of allegations made in the FIR/complaint, unless the
allegations are so patently absurd and inherently improbable so that no prudent
person can ever reach such a conclusion. The extraordinary and inherent powers
of the Court do not confer an arbitrary jurisdiction on the Court to act according
to its whims or caprice. However, the Court, under its inherent powers, can
neither intervene at an uncalled for stage nor can it “soft-pedal the course of
justice” at a crucial stage of investigation/proceedings.
The provisions of Articles 226, 227 of the Constitution of India and Section 482 of
the Code of Criminal Procedure, 1973 (hereinafter called as “CrPC”) are a device
to advance justice and not to frustrate it. The power of judicial review is
discretionary, however, it must be exercised to prevent the miscarriage of
justice and for correcting some grave errors and to ensure that stream of
administration of justice remains clean and pure.
However, there are no limits of power of the Court, but the more the power, the
more due care and caution is to be exercised in invoking these powers. (Vide
State of W.B. v. Swapan Kumar Guha [(1982) 1 SCC 561 : 1982 SCC (Cri) 283 :
AIR 1982 SC 949] , Pepsi Foods Ltd. v. Special Judicial Magistrate [(1998) 5
SCC 749 : 1998 SCC (Cri) 1400] , G.Sagar Suri v. State of U.P. [(2000) 2
SCC 636 : 2000 SCC (Cri) 513 : AIR 2000 SC 754] and Ajay Mitra v. State of
M.P. [(2003) 3 SCC 11 : 2003 SCC (Cri) 703] )xxx xxx xxx
CRM(M) 471/2021 Page 12 of 14
27. The High Court proceeded on the perception that as the complainant himself
was not supporting the complaint, he would not support the case of the
prosecution and there would be no chance of conviction, thus the trial itself would
be a futileexercise. Quashing of FIR/complaint on such a ground cannot be held to
be justified in law. Ordinarily, the Court of Session is empowered to discharge an
accused under Section 227 CrPC even before initiating the trial.
The accused can, therefore, move the trial court itself for such a relief and the
trial court would be in a better position to analyse and pass an order as it is
possessed of all the powers and the material to do so. It is, therefore, not
necessary to invoke the jurisdiction under Section 482 CrPC for the quashing of a
prosecution in such a case. The reliance on affidavits by the High Court would be
a weak, hazy and unreliable source for adjudication on the fate of a trial. The
presumption that an accused would never be convicted on the material available is
too risky a proposition to be accepted readily, particularly in heinous offences like
extortion.
28. A claim founded on a denial by the complainant even before the trial
commences coupled with an allegation that the police had compelled the lodging
of a false FIR, is a matter which requires further investigation as the charge is
levelled against the police. If the prosecution is quashed, then neither the trial
court nor the investigating agency has any opportunity to go into this question,
which may require consideration. The State is the prosecutor and all prosecution
is the social and legal responsibility of the State. An offence committed is a crime
against society and not against the victim alone. The victim under undue
pressure or influence of the accused or under any threat or compulsion may
resile back but that would not absolve the State from bringing the accused to
book, who has committed an offence and has violated the law of the land.
29. Thus, while exercising such power the Court has to act cautiously before
proceeding to quash a prosecution in respect of an offence which hits and affects
the society at large. It should be a case where no other view is possible nor any
investigation or inquiry is further required. There cannot be a general proposition
of law, so as to fit in as a straitjacket formula for the exercise of such power. Each
case will have to be judged on its own merit and the facts warranting exercise of
such power. More so, it was not a case of civil nature where there could be a
possibility of compromise or involving an offence which may be compoundable
under Section 320 CrPC, where the Court could apply the ratio of Madhavrao
Jiwajirao Scindia [(1988) 1 SCC 692 : 1988 SCC (Cri) 234 : AIR 1988 SC 709] .”
7. Keeping in mind the aforesaid provisions of law and the parameters
laid down by the Apex Court qua the exercise of inherent powers
vested in this court under Section 482 Cr.P.C., and reverting back to the
case in hand, indisputably the impugned FIR has been got registered by
the complainant-responder 2 herein against the accused petitioner
herein pursuant to the orders passed by the Magistrate. A bare perusal
of the said complaint filed by the complainant responder 2 herein as
also the statement of the complainant responder 2 herein recorded
CRM(M) 471/2021 Page 13 of 14
under Section 164A Cr.P.C. during the course of the investigation of
the FIR in question, coupled with the statements of the witnesses
recorded by the investigation agency during the course of the
investigation of the FIR, in particular of witnesses namely Muhammad
Yusuf Bhat, Ghulam Hassan Bhat, Gulzar Ahmad Bhat and Assadullah
Bhat, as also the husband of the complainant responder 2 herein would
manifestly tend to show that all the witnesses have endorsed the
contents of the complaint lodged by complainant responder 2 herein, as
also the statements made by her under Section 164A Cr.P.C. qua the
allegations levelled by her against the accused petitioner herein for
commission of offence under Section 354 IPC above. In view of the
allegation of dragging of the complainant by the accused petitioner and
also in the process tore her clothes in that the test of outrage of modesty
of a woman is whether a reasonable man will think that the act of
offender intended to or was known to be likely to outrage the modesty
of the woman.
8. Having regard to the aforesaid position obtaining in the matter, in
particular the contents of the complaint, the statement of the
complainant respondent 2 herein recorded under Section 164A, as well
as the statement of other witnesses recorded during the course of the
investigation of the FIR in question, it cannot be at this stage concluded
by this court in that the statements are invented or lack veracity or
credibility having been made to falsely implicate the accused petitioner
herein, in that, any such conclusion could be drawn only in the course
or after trial of the case.
CRM(M) 471/2021 Page 14 of 14
9. In view of the aforesaid position obtaining in the matter and having
regard to the parameters set out by the Apex Court in the judgement
supra in regard to the exercise of inherent power under Section 482
Cr.P.C., it can safely be concluded that the grounds urged by the
petitioner in the instant petition against the impugned FIR are
misconceived both on facts as well as law and the judgments relied
upon by the counsel for the petitioner including the judgment of the
Apex Court passed in case titled as “Salib alias Shalu alias Salim vs.
State of UP and others” reported in 2023 SCC Online SC 947 pale
into insignificance and do not lend any support to the case of the
petitioner.
10. Viewed thus, for what has been observed, considered, and analysed
hereinabove, the instant petition fails and is accordingly dismissed and
interim direction, if any, shall stand vacated.
11. The CD file produced by the counsel for the respondent 1 is returned
back in the open court.
12. It is made clear that nothing hereinabove shall be construed to be
expression of an opinion as to the guilt or innocence of the petitioner
herein which ultimately shall be decided by the trial court upon
conclusion of the trial and if any observations made hereinabove, shall
be deemed to have been made only for the purposes of the disposal of
the instant petition.
(JAVED IQBAL WANI)
JUDGE
Srinagar
30.10.2024
N Ahmad
Whether the order is speaking: Yes
Whether the order is reportable: Yes
Nissar Ahmad Bhat
I attest to the accuracy and
authenticity of this document
06.11.2024 11:31