CRMC/146/2014 of RAJ KUMARI AND ANR. Vs STATE TH.SHO.P/S.VIJAYPUR on 29 December 2017

1. Petitioners invoke inherent jurisdiction of this Court under Section 561-A Cr.P.C. seeking quashment of FIR No.117/2013 registered at Police Station Samba under Sections 323/324/354/341/504/506/447 RPC. Cr.P.C. seeking quashment of FIR No.117/2013 registered at Police Station Samba under Sections 323/324/354/341/504/506/447 RPC.

2. It is stated in the petition that the defacto complainant by conniving with the sleuths of the Police Station, Vijaypur by creating and concocting a fictitious story of an alleged occurrence, which never took place at all on ground, on 19.01.2013, which whereas on one hand never occurred on the other hand at no point of time immediately after the alleged occurrence was reported to Police. It is further stated that it was only on 08.08.2013 i.e after about 8 months of the alleged fiction action an application came to be filed in the Court of learned Chief Judicial Magistrate, Samba where an occurrence of dated 28.01.2013 was reported and the learned Magistrate without application of mind in hot haste in a casual and routine manner endorsed the said application to Police for investigation under rules. The Police also without seeing the contents of the application, without even bothering to find out whether the FIR discloses the sleuths of the Police Station, Vijaypur by creating and concocting a fictitious story of an alleged occurrence, which never took place at all on ground, on 19.01.2013, which whereas on one hand never occurred on the other hand at no point of time immediately after the alleged occurrence was reported to Police. It is further stated that it was only on 08.08.2013 i.e after about 8 months of the alleged fiction action an application came to be filed in the Court of learned Chief Judicial Magistrate, Samba where an occurrence of dated 28.01.2013 was reported and the learned Magistrate without application of mind in hot haste in a casual and routine manner endorsed the said application to Police for investigation under rules. The Police also without seeing the contents of the application, without even bothering to find out whether the FIR discloses

3. commission of any offence or not at once registered the case by slapping all the sections mentioned in the title of the said application. It is further stated that the learned Chief Judicial Magistrate endorsed and forwarded the application said to be under Section 156(3) Cr.P.C. on 08.08.2013 and it was only on 24.08.2013 that the said application with Magistrate’s endorsement was presented in Police Station Vijaypur i.e after more than 16 days. Where this application with learned Magistrate’s endorsement and orders remained for 16 days and with whom and under what circumstances there is no mention of that, which whereas on one hand is a serious lapse on other hand is an ample proof of blackmailing and harassment of the petitioners an performa respondents at the hands of police and also the complainants.

The petitioners are aggrieved of the registration of FIR impugned and the further steps taken during investigation by the investigator and pray for the quashment of the same on the following grounds:- a)That the FIR impugned does not disclose the commission of any offence, therefore, the same is liable to be quashed.

b)That offence under Section 354 RPC has been alleged to have been committed, but from the perusal of the whole of the contents of the FIR, the Hon’ble Court will very graciously find that there not even an allegation in the report that offence under Section 354 RPC has been committed, by whom and against whom and hw an in what manner. Yet the offence under Section 354 RPC stands slapped which shows the absurdity of allegations on one hand and unmindful and casual approach of concerned on the other hand.

That offence under Section 354 RPC has been

c)That offence under Sections 447 & 341 RPC too have been slapped, but it is nowhere stated that where and when the free movement of anybody was curtailed and if there was an alleged trespass, where and in which land No.Khasra it took place. In absence of all such essential ingredients all such averments are baseless and absurd, but all this has been ignored by all the concerned, aggravating the plight of the petitioners and the proforma respondents.

d)That similarly the offences under Section 323/324 RPC also cannot be believed to have been committed when those are alleged to have been committed somewhere in January 2013 and reported in August 2013 after 8 months and that too without any medical certificate.

e)That the offence alleged has been stated to be of 21.01.2013 whereas the same was reported in the Court of CJM Samba on 08.08.2013, when the Court below in most unusual and casual manner referred the matter to the Police for investigation. That such an endorsement by the learned Magistrate below amounts to taking cognizance of the case. As per the verdict of Hon’ble Apex Court it has been held that from the language of the order of the Magistrate, it should transpire that the court below has applied its mind and after the application of mind has come to the conclusion that such an offence has taken place for which investigation is required, but there is no such reflection of application of mind in the order of learned Magistrate below, which makes the whole order of investigation illegal and without jurisdiction.

f)That not only this, the learned Magistrate below made the endorsement on 08.08.2013 as is evident from the record, but it was only on 24.08.2013 when the said order was produced in the police Station. What prevented the complainants to keep this official paper of the Court below with them in a matter of concern. The fact is that under the garb of the order, the complainants and their associates have been harassing the petitioners and demanding money from them saying that in case the petitioners will not settle the matter and terms with the complainants on the terms of the complainants, they will get the petitioners arrested and vandalize by the police.

g)That the petitioner No.1 is more than 85 years of age and is ailing and weak, bed ridden, unable to even take care of her day to day needs, yet the complainants out of hatred and vengeance having been tamed in their minds against the petitioners and the proforma respondents falsely implicated the petitioners.

h)

h)That the proforma respondent No.2 Sanjeev Kumar is serving as Havaldar in Indian Army and is posted in a far flung area. On the day of the alleged occurrence on 19.01.2013 he was very much on duty in his Army Unit performing his duties, yet the complainants have implicated him as accused in the FIR impugned, which shows the mal- intentions of the complainants and blatant abuse of process of law at their hands.

i)That the Hon’ble Apex Court as well as this Court has in

its various judgments categorically laid down the law that where the FIR does not disclose the commission of any offence and the allegations are patently absurd and not solid, the Hon’ble Courts should show indulgence.

4. It is further contended that the Hon’ble Supreme Court in the most celebrated judgment titled State of Haryana Vs Bhajan Lal reported as AIR 1994 SC 604, in the concluding paragraph No.108 of the judgment, has laid down the guidelines where and under what circumstances, the Hon’ble Courts should invoke the jurisdiction vested under Section 482 Cr.P.C. (Central) (i.e.561-A CrPC State Code). It is further contended that the case of the petitioners fairly and squarely falls under clauses (1), (5) & (7), which for the convenience of this Court are reproduced as under:- celebrated judgment titled State of Haryana Vs Bhajan Lal reported as AIR 1994 SC 604, in the concluding paragraph No.108 of the judgment, has laid down the guidelines where and under what circumstances, the Hon’ble Courts should invoke the jurisdiction vested under Section 482 Cr.P.C. (Central) (i.e.561-A CrPC State Code). It is further contended that the case of the petitioners fairly and squarely falls under clauses (1), (5) & (7), which for the convenience of this Court are reproduced as under:-

(1) “Where the allegations made in the FIR or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence.......... entirety do not prima facie constitute any offence..........

(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. 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.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceedings in maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private or personal grudge.”

5. This Court vide order dated 20.05.2014, issued notice and stayed the proceedings. proceedings.

6. In response to the petition, learned State counsel has filed Status Report/Objections on behalf of respondent No.1 wherein it is stated that the above titled petition is pending disposal before this Court in which the Report/Objections on behalf of respondent No.1 wherein it is stated that the above titled petition is pending disposal before this Court in which the

petitioners have sought issuance of an order from the Court for quashing FIR No.117/2013. It is further stated that Kailasho Devi W/o Sh. Bodh Raj came in injured condition and lodged an oral complaint. On this -injury, report was entered in daily diary vide DD17 dated 19.01.2013 and injury form was prepared for medical treatment at Primary Health Centre Vijaypur; on the application of Sushil Kumar S/o Smt. Kailasho Devi, who approached the Court of learned Chief Judicial Magistrate, Samba, which was forwarded to the answering respondent under Section 156(3) Cr.P.C. and case FIR No.117/2013 under Sections 323/ 324/ 354/ 341/ 504/ 506/447 RPC was registered and investigation was started by PSI Parshotam Kumar. I.O. prepared site plan and recorded the statements of the witnesses. Accused Sanjeev Kumar is an employee of Army and is wanted in that case. Investigating Officer wrote a letter to the concerned authorities of Army i.e Commanding Officer to make the presence of said accused Sanjeev Kumar, but according to the concerned authorities, the said accused was on duty on the date of occurrence. At present the accused person has been deputed on special duty to other State. The Investigating Officer has collected the call details and as per the call details, the accused was very much present on the date of occurrence. On the report of the Patwari halqa, Section 447 was deleted. Section 354 RPC was also deleted. The investigating Officer also collected the medical report; however, presentation of the challan is pending for want of accused person Sanjeev Kumar. It is further reported that the investigation in the present case is at its final stage, however, challan in the matter is yet to be presented and is being delayed for want of the presence of accused Sanjeev Kumar. Further, in view of the interim directions passed by this Court, the answering respondents are not in a position to act upon the FIR impugned.

7. Complainant-Kailasho Devi has also been impleaded as party in this petition, who has stated that petitioners and Performa respondent No.2 &

3 are the members of the same family; on 19[th] Jan. 2013 at 2 pm accused persons, all armed with Lathies and stones, with criminal intention trespassed into landed property and started abusing her; meanwhile her son arrived there and requested accused Romesh Lal not to abuse; but all accused attacked her and son with lathies and stones and also outraged her modesty. She and her son received grievous injuries; they informed the police and MLC no.18004 and 18005 was prepared; that on same day the report was given to police; but accused being influential, police did not lodge FIR; police delayed the matter so a criminal complaint was filed before Court on 8.8.2013 before Court and then police was constrained to lodge FIR.

8. I have heard appearing counsel and gone through the law on the subject.

9. Law with regard to inherent power of High court has now been well settled. In AIR 2017 SUPREME COURT 37 in case titled State of Telangana v Habib Abdullah Jeelani & ors., it is held as under:- settled. In AIR 2017 SUPREME COURT 37 in case titled State of Telangana v Habib Abdullah Jeelani & ors., it is held as under:-

“11. Once an FIR is registered, the accused persons can always approach the High Court under Section 482 CrPC or under Article 226 of the Constitution for quashing of the FIR. In Bhajan Lal (supra) the two-Judge Bench after referring to Hazari Lal Gupta v. Rameshwar Prasad[7], Jehan Singh v. Delhi Administration[8], Amar Nath v. State of Haryana[9], Kurukshetra University v. State of Haryana[10], State of Bihar v. J.A.C. Saldanha[11], State of West Bengal v. Swapan Kumar Guha[12], Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi[13], Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre[14], State of Bihar v. Murad Ali Khan[15] and some other authorities that had dealt with the contours of exercise of inherent powers of the High Court, thought it appropriate to mention certain category of cases by way of illustration wherein the extraordinary power under Article 226 of the Constitution or inherent power under Section 482 CrPC could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice. The Court also observed that it may not be possible to lay down any precise, approach the High Court under Section 482 CrPC or under Article 226 of the Constitution for quashing of the FIR. In Bhajan Lal (supra) the two-Judge Bench after referring to Hazari Lal Gupta v. Rameshwar Prasad[7], Jehan Singh v. Delhi Administration[8], Amar Nath v. State of Haryana[9], Kurukshetra University v. State of Haryana[10], State of Bihar v. J.A.C. Saldanha[11], State of West Bengal v. Swapan Kumar Guha[12], Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi[13], Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre[14], State of Bihar v. Murad Ali Khan[15] and some other authorities that had dealt with the contours of exercise of inherent powers of the High Court, thought it appropriate to mention certain category of cases by way of illustration wherein the extraordinary power under Article 226 of the Constitution or inherent power under Section 482 CrPC could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice. The Court also observed that 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 cases wherein such power should be exercised. The illustrations given by the Court need to be recapitulated:- “(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 a case against the accused.

(4) 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 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 theconcerned 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.”

10. As per above law, a complaint/FIR is liable to be quashed,if it does not disclose any offence or is frivolous, vexatious or oppressive; if the allegations set out in complaint do not constitute offence of which cognizance has been taken by Magistrate, then it can be quashed. disclose any offence or is frivolous, vexatious or oppressive; if the allegations set out in complaint do not constitute offence of which cognizance has been taken by Magistrate, then it can be quashed.

11. In the instant case, from the perusal of status report and allegation leveled by complainant cognizable offences are made out. Although there is delay, but delay itself is not fatal in present case, because injuries reports -by complainant cognizable offences are made out. Although there is delay, but delay itself is not fatal in present case, because injuries reports -were lodged in daily diary vide DD17 dated 19.01.2013 on same day and injuries forms were prepared for medical treatment at Primary Health Centre Vijaypur; there is no fault on part of injured persons /victims. It is the police, who delayed the lodging of FIR , that too on the direction of JMIC. and injuries forms were prepared for medical treatment at Primary Health Centre Vijaypur; there is no fault on part of injured persons /victims. It is the police, who delayed the lodging of FIR , that too on the direction of JMIC.

12. The argument of learned counsel for petitioner that Sanjeev Kumar- accused was not present on spot on the day of occurrence as he was on duty being army personal in his Unit, is not tenable at this stage. Because he has not come to file this petition; secondly I/O obtained his CDR (call details record) during investigation, from which, it was found that on that day of occurrence, Sanjeev was in the area where offence took place. accused was not present on spot on the day of occurrence as he was on duty being army personal in his Unit, is not tenable at this stage. Because he has not come to file this petition; secondly I/O obtained his CDR (call details record) during investigation, from which, it was found that on that day of occurrence, Sanjeev was in the area where offence took place.

13. This court cannot go in detail of evidence as to whether offence were made out or not; even offences u/s section 447/354 RPC have not been found proved as per status report. made out or not; even offences u/s section 447/354 RPC have not been found proved as per status report.

14. There is no dispute with regard to law (in Bhajan Singh’ case supra) cited by counsel for petitioner, but is not applicable in present set of case on the ground that FIR in question shows commission of cognizable offences which requires full investigation. Petitioners have full right to cited by counsel for petitioner, but is not applicable in present set of case on the ground that FIR in question shows commission of cognizable offences which requires full investigation. Petitioners have full right to participate in investigation and produce all evidence before I/O. It is duty of I/O to see truthfulness of allegations leveled in FIR by collecting all evidence from Complainant or accused person(s). Investigation does not mean to collect evidence against accused only. The duty of Investigating Officer is also to hear the accused in order to see truthfulness of allegations leveled in the FIR.

15. Hence, this petition is dismissed. Stay, if any, is vacated. Copy of this order be sent to concerned police.

(Sanjay Kumar Gupta)

Judge

Jammu 29.12.2017 Narinder

This judgment is pronounced by me in terms of Rule 138(3) of the Jammu & Kashmir High Court Rules, 1999.

( Tashi Rabstan ) Judge

Jammu 29.12.2017 Narinder