Sr. No. 54 v. Owais Mushtaq

Judgment

1. Through the medium of this petition under Section 482 Cr PC, petitioner is seeking quashing of the complaint and the order dated

10.11.2021 passed by the Judicial Magistrate, Chadoora (for short “Trial Court”) on a criminal complaint titled “Owais Mushtaq vs. Farooq Jan and

anr.”, whereby the trial court has issued process against the petitioner herein while taking cognizance of the complaint under Section 420, 341, 352, 500 and 506 (II) IPC.

2. The quashment of the complaint and order dated 10.11.2021 is sought by the petitioner, amongst others, on the grounds that the complaint is based on false and fictitious allegations and the trial court while taking cognizance CRM(M) No. 447/2021 2 has failed to apply its mind to the facts and circumstances of the case and issuance of process has resulted in miscarriage of justice; that order impugned is contrary to the law and against the Code of Criminal Procedure inasmuch as the Trial Court has taken a view contrary to the settled legal position with reference to the occurrence; that complainant (respondent herein) has not mentioned any date and month in the complaint nor in the statements recorded by him and his witness; that complainant has chosen to mention the present place of residence as Chadoora in order to create the jurisdiction of Tehsil Chadoora, otherwise the bill submitted by complainant clearly shows the residence as Charari Sharief; that the proceedings carried by Trial Court are in contravention to mandate of procedural requirements; that cognizance taken and process issued by the Trial Court is contrary to Subsection (1) of Section 202 Cr.P.C.; that Trial Court was required to postpone the issue of process against the petitioner/accused till the enquiry was conducted by the Magistrate or directed investigation of the case as the petitioners are residents of Naira (Tahab) Pulwama which is at a distance of 45 kilometers from Chadoora; that Trial Court has failed to appreciate the facts that in case Section 420 IPC is be considered then such commission was shown to have taken place at Pulwama, particularly when showroom of petitioners is adjacent to District Court Complex; that the weeder has been purchased by the complainant/respondents on 30.09.2020 and the complaint has been filed on 10.11.2021, i.e. after more than one year, from the date of purchase of weeder as is clear from the allegations made in the complaint.

3. Notice has been sent to the respondents but he has chosen not to appear.

4. I have heard the learned counsel for the petitioners and pursued the CRM(M) No. 447/2021 3 record on file.

5. Perusal of the record on the file would reveal that respondent herein filed a complaint before the Trial Court stating therein that he purchased a Weeder from petitioners with engine capacity of 5.5. horse power. According to respondent, the Weeder does not have 5.5. hp capacity but has

4.6 hp capacity, so he requested petitioners/accused to take back the said Weeder and provide a new one having capacity of 5.5. hp but they refused to take back the said Weeder. It is alleged by complainant/respondent that petitioner/accused all along came from District Pulwama to his workshop at Chadoora so as to beat him in his workshop situated at Chadoora.

6. Perusal of complaint as also statement made by complainant thereon on, even if taken on its face value, does not make out a case to suggest it to commission of offences punishable under Indian Penal Code, but contrary to that it reflects and shows as a commercial transaction between complainant/ respondent and accused/petitioners. Besides, the complaint a also statement given by complainant does not give specific dates and particulars of the date on which accused are alleged to have come to his workshop at Chadoora and beat him.

7. In the above backdrop, it would be appropriate to say that provisions of Section 482 of Cr.P.C. provide for inherent powers to the High Court, which is noticed as under : “482. Saving of inherent powers of High Court. — Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.” CRM(M) No. 447/2021 4

8. Exercise of power under Section 482 Cr.P.C., thus, envisages three circumstances in which 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. Inherent jurisdiction under Section 482 Cr.P.C. though wide has to be exercised sparingly, carefully and with caution.

9. It is well settled that the inherent jurisdiction under Section 482 Cr.P.C. is designed to achieve a salutary purpose and that the criminal proceedings ought not to be permitted to degenerate into a weapon of harassment. When the Court is satisfied that the criminal proceedings amount to an abuse of process of law or that it amounts to bringing pressure upon the accused, in exercise of the inherent powers, such proceedings can be quashed. In Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi and Others (1976) 3 SCC 736, the Supreme Court reviewed the earlier decisions and summarised the principles as to when the issue of process can be quashed and held as under: - “5. Once the Magistrate has exercised his discretion it is not for the High Court, or even this Court, to substitute its own discretion for that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end the accused. These in conviction of considerations, in our opinion, are totally foreign to the scope and ambit of an inquiry under Section 202 of the Code of Criminal Procedure which culminates into an order under Section 204 of the Code. Thus it may be safely held that in the following cases an order of the Magistrate issuing process against the accused can be quashed or set aside: (1) where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused; (2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a CRM(M) No. 447/2021 5 conclusion that there is sufficient ground for proceeding against the accused; (3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no irrelevant or evidence or on materials which are wholly inadmissible; and (4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like. The cases mentioned by us are purely illustrative indicate contingencies where the High Court can quash proceedings.” sufficient guidelines and provide

10. In State of Haryana and others v. Bhajan Lal and others 1992 Supp (1) SCC 335, the Supreme Court considered the scope of inherent powers of the Court and after referring to earlier decisions, the Supreme Court enumerated the following categories of cases by way of illustration where the extraordinary jurisdiction under Article 226 of the Constitution of India or the inherent powers under Section 482 of the Code of Criminal Procedure can be exercised by the High Court to prevent abuse of process of Court or otherwise to secure ends of justice:- “(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 CRM(M) No. 447/2021 6 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.”

11. A three-Judge Bench of the Apex Court in State of Karnataka v. M. Devenderappa and another, 2002 (3) SCC 89, had an occasion to consider the ambit of Section 482 Cr.P.C. By analysing the scope of Section 482 Cr.P.C., the Apex Court has laid down that the 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 abuse. It has further held that the Court would be justified to quash any proceeding if it finds that the initiation/ continuance thereof amounts to the abuse of the process of the Court or quashing of these proceedings would otherwise serve the ends of justice. Following was laid down in paragraph 06: “6......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 alicui concedit, concedere videtur et id sine quo res ipsae 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 only when 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 advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of 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 initiation/continuance of it amounts to 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 to quash any proceeding the court exists CRM(M) No. 447/2021 7 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.”

12. It would also be worthwhile to reproduce paragraph 8 infra: instrument of “8.....Judicial process should not be an 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. The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal (AIR 1992 SC 604).”

13. In Indian Oil Corpn. v. NEPC India Ltd. and others (2006) 6 SCC 736, the Supreme Court after observing that there is a growing tendency in business circles to convert powerful civil disputes in criminal cases held as under: - “14. While no one with a legitimate cause or grievance should be prevented from seeking remedies available in criminal law, a complainant who initiates or persists with a prosecution, being fully aware that the criminal proceedings are unwarranted and his remedy lies only in civil law, should himself be made accountable, at the end of such misconceived criminal proceedings, in accordance with law. One positive step that can be taken by the courts, to curb unnecessary prosecutions and harassment of innocent parties, is to exercise their power under Section 250 CrPC more frequently, where they discern malice or frivolousness or ulterior motives on the part of the complainant. Be that as it may.”

14. The Apex Court in another case titled as Priya Vrat Singh and others v. Shyam Ji Sahai reported in 2008 (8) SCC 232, relied on Category 07 as laid down in Bhajan Lal’s case (supra). In the said case the Allahabad High Court had dismissed an Application filed under Section 482 Cr.P.C. to quash the proceedings under Section 494, 120-B, and 109 IPC and Section 3 and 4 CRM(M) No. 447/2021 8 of the Dowry Prohibition Act. After noticing the background facts and parameters for exercise of powers under Section 482 Cr. P.C., the Apex Court has held that Section 482 Cr. P.C. does not confer any new power on the High Court as it only saves the inherent power which the Court possessed before enactment of the Code. It envisages three circumstances under which 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. The 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 the 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 the course of the administration of justice on the principle quando lex aliquid alicui concedit, concedere videtur 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 section 482 Cr.P.C., the Court does not function as a court of appeal or revision. Inherent jurisdiction under Section 482 Cr.P.C. though wide has to be exercised sparingly, carefully and with caution and only when 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 CRM(M) No. 447/2021 9 substantial justice for the administration of which alone the courts exist. Authority of the court exists for advancement of the justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers, the court would be justified to quash any proceeding if it finds that the initiation / continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice.

15. Time and again attention has been drawn to the growing tendency of complainants attempting to give the cloak of a criminal offence to the matters which are essentially and purely civil in nature, obviously to apply pressure on the accused, or out of enmity towards the accused, or to subject the accused to harassment. The Criminal Courts should ensure that the proceedings before it, are not used for settling scores or to pressurise the parties to settle civil dispute. [See: Mohd. Ibrahim v. State of Bihar, (2009) 8 SCC 751; G. Sagar Suri v. State of U.P. (2000) 2 SCC 636; Indian Oil Corporation v. NEPC India Ltd. (2006) 6 SCC 736].

16. In the present case, it is a civil dispute, viz. commercial transaction dispute or at the most dispute under the Consumer Protection Act and the respondent had to approach the appropriate forum for the grievance and seek replacement of the weeder. It is not the case that the petitioners had any grievance for which they could have come to Chadoora from Pulwama. In support of the complaint filed before the Trial Court at Chadoora, though the Trial Court, while passing the order, has recorded that he has perused the statement of the complainant and one of the witnesses, namely, Jan CRM(M) No. 447/2021 10 Mohammad, who had only identified the accused. The Trial Court has not taken note of the other facts that complaint is missing and lacking in particulars vis-à-vis date of alleged scuffle etcetera.

17. Based on the all-inclusive consideration of facts and circumstances summed up in the foregoing paragraphs, the present case appears to be the one where Categories 01, 03 and 05 of the illustrations given in the case of Bhajan Lal (supra) are clearly applicable to the case.

18. Having regard to what has been observed, considered and analysed herein above, the exercise of jurisdiction under Section 482 Cr.P.C. seemingly is warranted. Hence, the instant petition is allowed and the complaint bearing File no. Cr.CaseComp/28/2021 dated 10.11.2021 titled as Owais Mushtaq vs. Farooq Jan and another, as also order dated 10.11.2021, passed by the court of Munsiff/Judicial Magistrate 1st Class, Chadoora, are quashed.

19. Disposed of. Srinagar 20.03.2024 (Qazi Amjad Secy.) (Vinod Chatterji Koul) Judge