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Judgment
The petitioner herein seeks indulgence of this Court for quashing the order dated 11.11.2018 (for short impugned order) passed by the learned Judicial Magistrate (Munsiff) Baramulla (for short learned Judicial Magistrate) along with the proceedings emanating therefrom.
The case as projected by the respondent No. 2-applicant in the application before the learned Judicial Magistrate (Munsiff), Baramulla on 30.05.2018 in terms of Section 156 (3) Cr. PC is as under:
"The applicant herein states that recently she came to know that the land belonging to the applicant's mother situated at Baghat Sopore, has been sold by Shahzada Begum. Upon inquiring the same, it surfaced that Shahzada Begum had filed a suit against her husband Abdul Rehman Sofi, in collusion with each other in the Court of Munsiff (DMM) Sopore, titled "Shahzada Begum v. Abdul Rehman Sofi" on 29.09.98 and they managed a collusive decree by way of compromise on 09.11.98. When the applicant, applied for the certified copies of the same, the glaring facts of fraud that was played on the Court surfaced. The survey numbers were changed in the suit as well as in the compromise also by overwriting and making illegal insertions. The insertions have resulted in fraud mutation in favour of Shahzada Begum and to the exclusion of the mother of the applicant Rahet Begum, who is also legal heir to the property. The applicant, is sure that fraud on Court was managed by some advocates also and many other people including revenue officials could be involved. The applicant had approached the SHO concerned, but to no use and all in vain. The applicant thereafter approached the Superintendent Police Sopore, but again to no use. The police officials are neglecting registration of the case by saying that it is a civil transaction and no FIR can be lodged.
The learned Judicial Magistrate, on perusal of the application, annexures and the statement of the applicant passed an order on 30.05.18, in the same application as under:
"SHO P/s Sopore to submit detailed report after conducting preliminary inquiry before final registration of FIR. The report be submitted within seven days by or before 07.06.18. SHO P/s concerned shall himself conduct the enquiry and file final report positively."
Since the SHO P/s failed to submit report, the learned Magistrate passed, therefore, an order on 11.06.18, as:
"The concerned SHO seems to have taken the direction lightly and is unmoved by the direction of this Court as till date no report has been filed nor any reason non-compliance has been shown. As such, SHO P/s, Sopore, is directed to conduct enquiry and submit report by or before next date of hearing, failing which, necessary proceeding under law shall be initiated against him."
The Investigating Agency submitted a report on 18.06.2018, wherein it is stated that it had compared copies of the documents produced by parties and did not find any tampering on the copies so produced by the parties. Dissatisfied with the same, an application was filed by the applicant before the Magistrate on 29.06.2018, stating therein that the Investigating Agency was not properly verifying the facts. SHO P/s concerned was accordingly directed by the learned Judicial Magistrate to look into this aspect of the case and take necessary steps to get the record from record room and compares the same with the copies so furnished.
Finally in terms of order dated 11.11.2018, learned Magistrate after giving reference in detail of facts and the law on subject directed to register FIR and investigate the matter thoroughly, which is assailed herein.
In terms of the petition filed by the petitioner that the order passed by the learned Magistrate on 11.11.2018 is said to be bad on the following counts:
(i) That the impugned order is bad in law, as the same has been passed in violation of the mandate of law governing the subject.
(ii) That the Trial Court has not appreciated the controversy in between the parties and has arrived to the conclusion on some extraneous material, which has neither been supplied by the applicant/respondent No. 2 nor has been disclosed by the respondent No. 1.
(iii) That the respondent SHO in his final report dated 11.11.2018, has stated that there is no apparent insertions which will attract the commission of alleged offences and it is because of the settlement done in the year 2012 for Revenue Estate Bhagat Sopore that previous survey Nos. have been replaced by the new survey No. 797, this legal aspect of the matter has been ignored by the Trial Court while passing the impugned order. If it would have been taken into consideration, the impugned order would not have been passed.
(iv) That the Trial Court during the pendency of the application has by virtue of its interim orders directed the respondent SHO to conduct the enquiry and has gone to the extent of directing him in the manner to conduct the aid enquiry, which as per law is beyond the scope of Trial Court.
(v) That the respondent No. 2 has misconstrued the facts of the case and because of her mala fide intention under a pre-conceived conspiracy, during the life time of her other Mst. Rahti, who is still alive, has approached to criminal Court under Section 156 (3) of Cr. PC, which she was not legally entitled to do, nor should have been allowed by the Trial Court to agitate because of the reason that without challenging the alleged fraudulent decree before the competent Civil Court and without the conclusive finding of the Civil Court regarding the alleged fraud one cannot on mere surmise and conjectures pre-supposed fraud, that too in the judicial proceedings which are open to everyone particularly to the parties before the Court. This aspect of the matter has not been looked into by the Trial Court while passing the impugned order.
(vi) That the matter pertains to a Civil Transaction in between the parties and the police has not power to investigate a Civil matter which is beyond their scope and jurisdiction. This aspect of the matter has also been overlooked by the Trial Court while passing the order impugned.
(vii) That the offences mentioned in the impugned order which in the opinion of Trial Magistrate viz offences under Section 466, 468, 471 are cognizable and the respondent SHO was duty bound to take cognizance under Section 154 of Cr. PC are not cognizable offences under the schedule appended to the J&K Code of Criminal Procedure Svt. 1989 (1993 AD). This aspect and legal position has also been ignored by the Trial Court while passing the impugned order.
(viii) That in terms of Section 4 (g) of Cr. PC, an enquiry includes enquiry conducted under this code by a every Magistrate or other than a Trial Court, the impugned order viewed in terms of the definition of enquiry contained in the Code of Criminal Procedure seems to be confounded to worst confusion regarding the concept of enquiry, because the Trial Court has directed SHO P/s Sopore to conduct the enquiry which in terms of the above mentioned Section cannot be done and in case the same is done, the said order is prima facie illegal and without jurisdiction.
(ix) That the Trial Court has passed the impugned order which has occasioned not only the grave miscarriage of justice, but also has prejudice the statutory and natural rights of the petitioner which need to be protected in terms of Section 561-A Cr. PC, so that the abuse of the process of Trial Court will be prevented and the ends of justice will be secured.
(x) That the Trial Court has gone to the extent of issuing non-bailable warrants against the innocent petitioner as well as his wife which the Trial Court was not required to do while adjudicating an application under Section 156 (3) of Cr. PC.
Heard learned counsel for the petitioner and perused the material on record.
In Eastern Spinning Mills v. Raju Poddar, reported in AIR 1985 SC 1668, their lordships commenting upon exercise of inherent powers at the stage of investigation observed:
"We consider it absolutely unnecessary to make reference to the decisions of this Court and they are legion which have laid down that save in exceptional case where noninterference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offence. And frankly such is not the case here."
The Apex Court in the case of Janta Dal v. H. S. Chowdhary, reported in AIR 1993 SC 892, 1993 CriLJ 600, while making reference of various judgments regarding exercise of inherent powers made following observations:
The criminal Courts are clothed with inherent power to make such orders as may be necessary for the ends of justice. Such power though unrestricted and undefined should not be capriciously or arbitrarily exercised, but should be exercised in appropriate cases, ex debito justitiae to do real and substantial justice for the administration of which alone the Courts exist. 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. Courts must be careful to see that its decision in exercise of this power is based on sound principles.
The Judicial Committee in (1) Emperor v. Nazir Ahmad and (2) Lala Jai Ram Das v. Emperor has taken the view that Section 561-A of the old Code gave no new powers but only provided that those which the Court already inherently possessed should be preserved. This view holds the field till date.
This Court in Dr. Raghubir Sharon v. The State of Bihar had an occasion to examine the extent of inherent power of the High Court and its jurisdiction when to be exercised. Mudholkar, J speaking for himself and Raghubar Dayal, J after referring a series of decisions of the Privy Council and of the various High Courts held thus:
...every High Court as the highest court exercising criminal jurisdiction in a State has inherent power to make any order for the purpose of securing the ends of justice.... Being an extraordinary power it will, however, not b pressed in aid except for remedying a flagrant abuse by a subordinate Court to is powers....
See Talab Hazi Hussain v. Madhukar Purshottam Mondkar and Anr. [1958] SCR 1226 and Pampapathy v. State of Mysore [1966] (Supp.) SCR= 477.
Thus, the inherent power under this Section can be exercised by the High Court (1) to give effect to any order passed under the Code; or (2) to prevent abuse of the process of any Court; or (3) otherwise to secure the ends of justice. In relation to exercise of inherent powers of the High Court, it has been observed in Madhu Limaye v. State of Maharashtra that the power in not to be resorted to if there is a specific provision in the Code for the redress of grievance of the aggrieved party and that it should be exercised very sparingly to prevent abuse of process of any Court or otherwise to secure the ends of justice and that it should not be exercised as against the express bar of law engrafted in any other provision of the Code. Vide (1) Talab Hazi Hussain v. Madhukar Purshottam ; (2) Khushi Ram v. Hashim and Ors. AIR 1959 SC 542; and (3) State of Orissa v. Ram Chander Agarwala .
This inherent power conferred by Section 482 of the Code should not be exercised to stifle a legitimate prosecution. The High Court being the highest Court of a State should normally retrain from giving a premature decision in a case wherein the entire facts are extremely 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 great 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 the cases in which the High Court will exercise its extraordinary jurisdiction to quashing the proceedings at any stage. This Court in State of Haryana and Ors. v. Ch. Bhajan Lal and Ors. [1990] 3 Supp. SCR 256 to which both of us were parties have dealt with this question at length and enunciated the law listing out the circumstances under which the High Court can exercise its jurisdiction in quashing proceedings. We do not, therefore, think it necessary in the present case to extensively deal with the import and intendment of the powers under Sections 397, 401 and 482 of the Code.
There is nothing on record produced by the petitioner from which it could be inferred that cognizance in the matter has been taken either after the police had proceeded with the investigation in compliance to said order and submitted its report before the Court or otherwise the process was issued for appearance of other side. An entirely illegible copy 'annexure L' has been annexed with the petition which according to the petitioner is a summon and suggests that he having been asked to appear before the Court of Sub Judge, Baramulla. It does not give reference of any file in which such a direction was passed thought it furnishes base to infer that some proceedings under Section 138 N. I. Act pending before the Court which had issued the order.
It may need a mention herein that power under Section 561_A Cr. PC is to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid in the Section itself. By its very nature, exercise of powers under said section is the exception and not a rule.
In the instant case, the Investigating Agency is yet to come out with the truth of the factual matrix referred here in above. This Court has to refrain from giving any prima facie decision when the entire facts are incomplete and hazy and the evidence has not been collected. This Court is not supposed to act in exercise of its inherent powers as if it was a trial or the appellate Court and return its findings on the factual aspects of a case or to opine whether material produced before the learned Magistrate for directing to proceed with investigation is sufficient or not.
In State of Karnatka & Another v. Paster P. Raju, reported in AIR 2006 SC 2825, their lordships have enunciated that the power under Section 482 cannot be exercised to interfere with the statutory power of the police to conduct investigation in cognizable offence.
The instant matter too, is covered by the principle of law and no exception is carved for to stall the investigation. The plea taken in memo about the inappropriateness of use of word "enquiry" by the Magistrate has also to melt into insignificance being a hyper technical argument coupled with the fact that word used in Cr. PC is "inquiry". It has been used by the Magistrate in common parlance and is not to be confused with the powers to be exercised by Magistrate under Cr. PC.
Having regard to what has been stated above, I am of the opinion that no case is made out for exercise of power under Section 561_A Cr. PC. Accordingly, there appears to be no merit and substance in the petition of the petitioner. The petition entails dismissal and is, accordingly, dismissed.
A copy of this order be furnished to learned Judicial Magistrate, Baramulla for information.