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Judgment
(1) The application under section 561A Cr. P. C. arises out of a litigation pending between the parties in the courts below. The fact briefly stated
are : the respondents field a complaint under section 392 RPC in the court of Judicial Magistrate 1st Class (City Magistrate) Srinagar with the
allegation that a Mini Bus No. 5499 JKB alongwith route permit No. 577 MB was forcibly taken out of their possession from Bus stand
Bachhpora on 2671979. ft was claimed that the Bus belonged to the respondents and that it was in their possession and it was forcibly taken out
of their possession Bachhpora Bus stand when it was in the control of their driver Bashir Ahmad. On receipt of the complaint the learned
Magistrate took the cognizance of the matter and recorded statements of two witnesses of the respondents. Thereafter the learned Magistrate vide
his order dt: 2771979 forwarded the complaint for finding the truth or falsehood of the same to the police for investigation and enquiry u/s 202 Cr.
P C. On the receipt of the complaint u/s 202 Cr. P. C. the police concerned began to make enquiries and investigate the matter, during the course
of which it has seized the Bus.
(2) An application for quashing the order of the learned Magistrate forwarding the complaint for enquiry and investigation to the police under sec :
202 Cr. P. C. came to be presented in this court on 3171979. The respondents in their objections stated that they were the owners of the bus in
question and that the permit issued by the authorities under Motor Vehicles Act was also in their name. Some time ago they executed an agreement
in favour of the petitioner and on payment of money handed over the possession of the bus to the petitioner but owner ship of the bus continued to
remain with them The petitioner, however transferred the possession of the Bus to Sidiq Nath and another vide an agreement entered into between
the petitioner and Sidiq Nath. A dispute arose between the petitioner and Sidiq Nath and another and the petitioner filed a com plaint against Sidiq
Nath in the court of Judicial Magistrate at Srinagar. The Magistrate forwarded the complaint u/s 292 Cr. P. C. to the Police for investigation and
report. The bus came to be seized by the police during the investigation. On submission of the report after enquiry and investigation by the police it
was found by the learned Magistrate (2nd Addl : Munsiff) Siinagar that no offence was made out and that if at all any dispute was there between
the parties, it was of the civil nature, and in consequence the Magistrate dismissed the complaint. The Bus therefore, remained in possession of
Sidiq Nath and another. After some time Sidiq Nath and another executed an agreement in favour of the respondents in accordance with which the
possession of bus was transferred to the respondents who through their driver Bashir Ahmed than to ply the same. In this manner the Bus again
came to be possessed by the rasped in whose name the permit of the Bus also stands. It is alleged by the respondents in their objections as well as
in their complaint under sec : 397 RPC that on 26779, the petitioner along with his son and a number of his supporters took forcible possession of
the bus at Bachhpora at 10 PM when the bus was on regular service at giving a beating to the driver and the conductor of the respondents. It has
been alleged that the bus is owned by the respondents and was in their possession at the lime when it was forcibly taken out of their possession at
Bachhpora. The respondents alleged that the agreement which had been executed in favour of the petitioner was only with regard to the possession
of the bus and no ownership was transferred to the petitioner as the same could not have been done under the provisions of Motor Vehicles Act,
and as such even if there was a stipulated in the agreement to the effect that the ownership of the bus has also been transferred to the petitioner that
stipulation being illegal and unwarranted under the provisions of Motor Vehicle Act, was not valid in the eye of law and could not be enforced. It
has been further stated in the objections that the petitioner as well as the person in whose favour he had transferred the possession of the bus was
liable to pay the instalments to the financiers but the petitioner and other having failed to do so have violated the terms of the agreement and as a
consequence the respondents had to pay the instalments to the financiers from their own pocket. The bus is hypothecated to the J&K Band Ltd.
Srinagar and the respondents under the Hirepurchase Agreement are required to any the hirepurchase money in instalments.
(3) Bashir Ahmad son of the petitioner was holding a power of attorney on behalf of the respondents with regard to the aforesaid bus. This power
of attorney appears to have been executed in his favour alongwith the agreement referred to above executed by the respondent in favour of his
father, the petitioner, presumably to secure the payment made to the respondents and also to deal with the Bus in authorised position. When the
Judicial Magistrate (2nd Addl. Munsiff) Srinagar on 143.979 dismissed the complaint of the petitioner and released the bus in favour of Mohd
Sidiq Nath and another from whom it was seized by the police Bashir Admed as attorney of the respondents filed a suit in this court for declaration
and for the recovery of the bus The respondents came up and on application were permitted to be substituted as plaintiffs for Bashir Ahmad as the
power of attorney executed by the respondent in his favour had been cancelled. The respondents thus came to be substituted as plaintiffs in the
civil suit No. 37 of 1979. Mohd Sidiq Nath and another were the defendants in that suit. The newly substituted plaintiffs and the defendants arrived
at a compromise and the possession of the bus handed over to the respondents and the suit came to be dismissed on compromise. The possession
of the Bus changed hands and it come to be possessed by the respondents under the terms of the compromise between the respondents and Sidiq
Nath and other. There was respite for sometime but some time thereafter the complaint u/s 392 RPC was filed by the respdts while a civil suit was
lodged by the petitioner on the same day in a court of Munsiff at Srinagar, which is also pending between the parties and in which an order
directing the maintenance of status quo with regard to the BUS has been issued.
(4) The contention of Mr. ST Hussain appearing for the petitioner was that the petitioner was the owner of the bus as the agreement executed by
respondents in favour states so, It was contended by him that even if there was some dispute between the parties with regard to the possession of
the bus the same could be dealt with and decided in a civil action. According to him, the complaint lodged by the respondents u/s 392 RPC
disclosed no offence even prima facie and therefore, action of the learned City Magistrate in forwarding the same for enquiry and investigation to
the police u/s 202 Cr. P. C. was illegal and was not warranted under any provision of law and therefore, it was a fit case in which to prevent abuse
pf the process of court, the High Court? In exercise of its inherent powers u/s 561A Cr PC must order the quashing of the order of the city
Magistrate as well as the proceedings now taken place u/s 202 Cr. P.C.
(5) Mr. ML Bhat, appearing for the respondents has on the other hand contended that the bus in question was owned by the Respondents was in
on their possession at the appropriate time when it was forcibly seized by the petitioner and his party and taken away by force after giving a
beating to the bus who was in charge of the same on behalf of the respondents. He submitted that the facts as narrated in the complaint clearly
show C the petitioner had committed an offence u/s 392 RPC and all the ingredients that the required to constitute at offence under that section are
present and have been mentioned in the complaint He contended that the petitioner under those circum stances should not and could not be
permitted to invoke the inherent powers of the High Court u/s 561A Cr. PC and get the proceedings going on against him quashed.
(6) Inherent powers of the High Court under section 561A Cr. P. C. could be invoked success fully only in a limited number of cases where for
instance on the facts given in the complaint or in the it would be apparent that no offence whatsoever could be said to have been committed by the
accusedperson or where there is a legal bar for institution or continuance of the criminal proceedings or where on offence could be made out on
evidence led by the ordinarily criminal proceedings must b3 allowed to the tried under the provisions of the criminal procedure code and the High
Court should be reluctant to interfere with the proceedings at the very beginning of such proceedings or even at an introductory stage There are
however, exceptions to the general rule to which reference has been made above and which has been enumerated elaborately in a judgment of the
Supreme Court reported in A I.R. : I960 SC : 866. It has been therein laid down as follows :
''Some of the categories of cases where the inherent jurisdiction to quash proceedings can and should be exercised are :
(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 entirely,
do not constitute their offence alleged ; in such cases no question of appreciating evidence arisesd it is a matter of merely of looking at the
complaint of the F. I. R. to decide whether the offence alleged is disclosed 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 leg 1 evidence which on its appreciation may or may not support the accusation in question. In
exercising its jurisdiction under S 561 A the High Court would not embark upon the 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.
Broadly stated that is the nature and scope of the inherent jurisdiction of the High Court under S. 561A in the matter of quashing criminal
proceedings, and that is the effect of the judicial decisions on the point.
(7) The question came up for consideration again before the Supreme Court in its revisional jurisdiction and the judgment is reported in AIR 1976
SC: 1947. It has been laid down therein that.
At the stage of issuing process the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the
same and he is only to be prima facie satisfied whether there are sufficient grounds for proceeding against the accused. It is not the province of the
magistrate to enter into a detailed discussion of the merits or demerits of the cases nor can the High Court go into this matter in its revisional
jurisdiction which is a very limited one.
(8) The ambit and nature of the power under sec: 561A Cr. P. C. has been considered in a catena of other cases by the Supreme Court. In AIR
1972 SC 484 it has been laid down as follows:
The inherent power of the High Court u/s 561A Cr. P. C. has been considered by this court in (1960) DV 860 and (1963) SC 447. In exercising
jurisdiction u/s 571A Cr. P. C. 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 enquire as to whether the evidence is 'reliable or not' where again, investigation
into circumstances of an alleged cognizable offence is carried on under the provisions of Cr. P. C , and the High Court does not interfere with such
investigation because it would then be impeding investigation and jurisdiction of statutory authorities to exercise power in accordance with the Cr.
P. C.
(9) In another case reported in AIR 1975 SC 495 it has been laid down as follows :
In an appropriate cases it may, rather is permissible to protect a person from illegal and vexatious prosecution by grant of an appropriate writ or in
exercise of the inherent or revisional powers of the High Court."".
(10) In this case it was further held that the High Court of Delhi should not have quashed the proceedings against the accused during the pendency
of the prosecution under the Delhi Development Act as the question involved therein were questions of fact and the High Court should have left
such questions to be determined by the Criminal court in that it was unjustifiable and legal on the part of the High Court of Delhi to have quashed
the proceedings against the accused person therein. It was held that it was primarily and essentially within the dominion of criminal court where the
prosecution cases were pending to arrive at its conclusion on appreciation of the entire evidence placed before it.
(1) Unless it is shown by the petitioner invoking inherent powers of the High Court under sec : 561A Cr. P. C. that on facts given in the complaint
no prima facie case could be said to have been made out or that no plain reading of the complaint no reasonable person would come to the
conclusion that there was no illegality in the complaint or that it did not contain improbabilities or that the allegations do not constitute an offence
alleged or do not disclose the necessary ingredients for a particular offence, the complaint could not be rejected out right and the proceedings
could not be quashed even by the High Court. It was not required to go deep into the case at the preliminary stage and try to find out and make an
enquiry as to whether on facts given in the complaint there was any likelihood of the accused being convicted for the offence alleged or for any
other offence. That was a matter for the trial court to consider. But there appears to be no bar for the High Court to find out prima facie whether
on facts of the case as disclosed in the complaint and in evidence, if any lead by the complainant, and also on taking into consideration documents
and other materials, if any, submitted by the accused, a case against the accused is made out or not. There is nothing in the Code that limits the
inherent powers of the High Court to pass such orders as are necessary to give effect to any orders under this Code or to prevent abuse of the
process if any court or otherwise to secure the ends of justice. It is meaningless to assert that the inherent powers of the High Court could be
exercised only while taking into consideration a part of the record only and not whole of it While considering a petition U/s 561A Cr P. C., the
court, could, and should, look into the material produced both by the complainant and the accused and arrive at a decision applying the well
known principles of law laid down in catena of cases decided by the Supreme Court such as 1960 SC 866 The decision reported in 1976 SC :
1947 is distinguishable as the Supreme Court in that case was seized of a matter in exercise of its revisional jurisdiction and was not considering the
nature and ambit of the powers of the High court in so far its inherent powers were concerned. The Supreme Court has specially referred to the
fact that it was considering a matter in revision and that the scope for such consideration was necessarily limited. It was settled law that the scope
for consideration in a petition invoking inherent powers were much wider than that permissible in a revision. The material that has to be kept out of
consideration while considering a matter in revision may not necessarily be so left out in a petition u/s 561A. It was however obvious that the High
Court would exercise its inherent powers only with regard to such proceedings which are not specially covered by the other provisions of the
Code. If the proceedings is covered, it would refuse to exercise its powers u/s 561A. In this context an interesting point arises so far as the instant
matter is concerned and that was whether the impugned order was revisable and as no revision has been preferred whether the petition invoking
the inherent powers of the High Court was not maintainable. By a recent amendment in the State Criminal Procedure Code the powers of the
sessions Court as well as that of the High court to entertain a revision against an interlocutory order of a subordinate court have been taken away.
Revisions against interlocutory orders only however have been barred. The revisional powers of the High Court with regard to orders that may not
fall within the category of interlocutory orders remain in tact. The question therefore, arises is whether the order u/s 202 Cr. PC forwarding a
complaint for enquiry or investigation to the police is an interlocutory order or not. If it is an interlocutory order then no revision would lie and a
petition u/s 561A Cr. P. C. may be maintainable but if the order is not one which may be termed as interlocutory, then a revision was maintainable
and the petition u/s 561A Cr P. C. could not be held to be maintainable I have given my anxious thought to this aspect of the case and have arrived
at the conclusion that the order referring the complaint u/s 202 Cr. P. C. for enquiry and investigation was in fact an interlocutory order and no
revision was maintainable against such an order, as the matter is only referred to the police for further enquiry and as such no Process has be in
issued. The question a to whether process should or should not issue depends on the report of the police and the discretion of the Magistrate in
accepting or not accepting the report. The order of the Magistrate issuing or refusing to issue a process on the receipt of the report u/s 202 Cr. P
C may be one not falling within the category of interlocutory orders but the order directing further enquiry u/s 202 Cr P. C. was an interlocutory
order and as such no revision would lie against it. The present petition is therefore, held to be maintainable.
(12) To go back to the point as to what material could be taken into consideration by the High Court in a petition u/s 561A, a recent judgment of
the High Court of Calcutta throws ample light and I am privileged to hold the same view. In a case u/s 482 Cr. P. C. (it corresponds to Sec :
561A of our Code) the following has been held in 1979 : Cr. L. J. : 998 :
while setting a side an order of a Magistrate issuing process in exercise of the revisional jurisdiction High Court has to confine itself to the materials
from which he obtained satisfaction that there were sufficient grounds to issue process against the accused and those materials necessarily will be
the statement of the complainant and the witnesses recorded u/s 202, The High Court exercises revisional powers only to ascertain whether the
impugned order of the inferior criminal court is correct, legal or proper and the fact that the record can be and is called for from the concerned
court is only indicative of the fact that the materials from which the inferior court obtained satisfaction to pass the order were required to be looked
into such ascertainment. But in exercising the inherent power, the scope is much more expensive in that High Court can quash a proceeding for
ends of justice or to prevent an abuse of the process of the court. The necessarily means that while exercising inherent powers the court need not
confine itself to the property, legality or correctness of the order, of the Magistrate and for that matter the materials on which such order was
passed White exercising its inherent power for quashing a proceeding in which process has only been issued High Court can look into and rely
upon material's, besides those on which process was issued, which can be translated into admissible and relevant evidence, but in so doing it
should not embark upon an enquiry in which an appreciation of the materials may be necessary to support or dislodge the accusation.
(13) Applying these principles of law to the facts and circumstances of the case at hand the insistence exhibited by the learned counsel for the
respondents in assessing that the material produced by the complainant alone in a proceedings of this nature could be looked into appears to be
irrelevant and misplaced as the documents submitted by the accusedpetitioner either in the court below or in the High Court would in no way alter
the circumstances that were allegedly in existence at the relevant time of alleged robbery, copy of agreement filed by the petitioner accused shows
that the possession of the bus in question was once transferred by the respondents to him. That position is even admitted by the respondents also.
This document alone would not establish, however that the bus continued to remain in the possession of the petitioner thereafter also and was in
fact in his possession even at the relevant time. The factors intervened between the time the possession of the bus was transferred to the petitioner
be respondents and its seizure by the Police have to be taken into consideration The bus appears to have changed hands several times. It was once
even in possession of a third party, Sidiq Nath and another and to spite of the efforts nude by the petitioner to recover the possession from them,
the bus continued to remain in their possession. Whether therefore, the documents produced by the petitioner accused arc gone into or not at this
stage makes hardly any
(14)The complaint having been forwarded to the police for enquiry and investigation does not automatically being in the accused He will come into
picture only when a process is directed to be issued to him.
(15) In 1953 SC 1430 it has been laid down that the accused person does not come into picture at all in enquires under Chapter XVI till the
process issued to him. In the same judgment it has been held that at the stage of preliminary enquiry into a complaint U/s 202 Cr. P. C whether the
complaint is frivolous or not, the accused he is no locus standi. The accused may be having defence but whatever defence he has can only be
required into at the trial. The enquiry u/s 202 can in no sense be characterised as a trial for the simple reason that in law there can be but one trial
for an offence
(16) The learned counsel for the petitioner has referred to 1979 : SC : 850 in which it was held that a dispute between the parties with regard to a
truck obtained under HirePurchaseagreement was purely of a civil nature and criminal proceedings initiated were an abuse of process of the court
and therefore deserved to be quashed. I hid the privilege of going through this judgment. In that case the facts show that a hirepurchaseagreement
was entered into between the respondent therein and the Finance Corporation accused. The loan was payable in monthly instalments. There was a
stipulation in the agreement that 01 default of any one instalment, the financiers had the right to terminate the hire purchaseagreement even without
notice and seize the truck. The condition w is of considerable importance and when on failure to pay the instalments the truck was seized by the
financiers it was held by the Supreme Court that the proceedings were of civil nature and that the process should not have been issued. But the
same was not the position in the instant case where there is no stipulation to the effect as mentioned in the Supreme Court judgment That was
undoubtedly a fit case in which the Supreme Court had an occasion to observe that the facts of the case were such which would bring the matter
between the parties necessarily in the civil court at rest.
(17) He next cited AIR 1977 SC; 1489 in which the Supreme Court had unheld an order of the High Court in revision quashing proceedings
against the accused. In the judgment the Supreme Court amongst other observations laid down the following principles of law also :
For the purpose of determining whether there is sufficient ground for proceeding against an accused the court possesses comparatively wider
discretion in the exercise of which it can determine the question whether the material on the record, it unrebutted is such on the basis on to the
possible.
(18) It is evident that in the case decided in 1677 SC 1489 no such facts were brought on record that would lead a reasonable person to conclude
that the accused were connected with the incident leading to their prosecution. The facts and circumstances appearing in their instant case in
general and the facts narrated in the complaint in particular show that there were grounds to conclude prima facie that the accused has been
connected with the seizure of the bus from the possession of the respondents.
(19) I have been taken through a judgment of this court in case Cr. Application No. 25 of 1979 delivered by my Lord the Chief Justice. The brief
facts given in that judgment reveal that the case concerned a truck and also that the complaint had been in that case also sent to police u/s 202 Cr.
P. C. His Lordship the Chief Justice was pleased to hold that the matter was a civil nature and need not have been referred to police u/s 202 Cr.
Procedure Code. The case was however, distinguishable on two grounds ; the first being that the facts in that case and those appearing herein are
different and secondly, it appears that the attention of my Lord the Chief Justice has not been drawn to various judgments referred to above during
the course of arguments.
(20) In a case decided by this court and reported in AIR 1969: J&K 134 it has been laid down that powers u/s 561A Cr. P. C. have to be
exercised with great care and circumspection and that the High Court does not ordinarily interfere at interlocutory stage of criminal proceedings
pending in a subordinate court.
(21) From the above discourse I am of the view that the complaint, as lodged by the respondents in trial court which has been forwarded for
further enquiry and investigation u/s 202 Cr. P. C. to the Police does prima facie reveal the required grounds and discloses material to come to the
prima facie conclusion that an offence u/s 392 RPC may have been committed. On receipt of the report from the police the Magistrate could
necessarily go through the same and on being satisfied with the contents thereof my either in his discretion direct issue of process to the petitioner
or dismiss the complaint. There was nothing to bar the accused from showing to the Magistrate that he was innocent. I, therefore, dismiss the
petition u/s 561A Cr. P. C.
(22) If in the passing I have something with regard to innocence or culpabity of accused or any one else that may not be taken as the view
expressed by this court on the merits of the case.
(23) Under the orders of this court the bus in dispute has been temporarily kept in the possession of the petitioner. That order will remain in force
till the police submits its report to the learned Magistrate and the Mag: has an occasion to go through the same and pass orders with regard to the
issuance of process or otherwise. He will consider the question of the possession of the bus in the light of the submissions made to him by the
learned counsel for the parties till then the bus shall remain in the custody of the petitioner herein but he is forbidden to ply the same or make use of
it in any manner whatsoever.
(24) Before I part with this case T would like to bring to the notice of the learned Magistrate in this State the habit of making too much undesirable
use of the provisions of Sec : 202 Cr P. C. It has been my experience that a large number of the complaints lodged in the courts of various
Magistrate are being sent to the police for enquiry and investigation. I do not want to say that the Magistrate should as a general rule desist from
this practice but I would like to say that only such complaints be forwarded to the police in exercise of the powers under sec : 202 which the
Magistrate considers to be genuinely of this nature that require the exercise of such powers by him. The order should not be mechanical one but it
should appear from the record that the Magistrate has applied his mind to the facts of the case. He is required to give reasons for taking recourse
to this provision of law in the Code.
(25) The various files sent for from different courts be returned immediately.