Andre Pothuon and Another vs Shri Roshan Lal

S.K. Gupta, J.—Through the currency of this petition, the petitioners namely Andre Pothuon, Site General Manager, Complex, Dulhasti

Hydro Electric Project, Kishtwar and R.K. Khazanchi, Site Manager, Complex, Dulhasti Hydro Electric Project, Kishtwar, seek the quashment of

the proceedings pending before the Court of Judicial Magistrate, 1st Class, Kishtwar, on a complaint dated 05.06.2003 entitled 'Roshan Lal v.

Andre Pothuon and Anr.' for offences under Sections 500B, 199 and 211 RPC, in invoking the inherent jurisdiction of this Court u/s 561-A

Cr.P.C.

Facts relevant for the disposal of this petition, put tersely, are that respondent, Roshan Lal, was employed as Driver for the vehicle in M/S

Complex. The respondent preferred a complaint in the Court of Judicial Magistrate, Ist Class, Kishtwar, alleging therein that on 15.06.2002, a

baseless & concocted complaint/F.I.R., was lodged by the petitioners with the Police Station, Kishtwar, with a purpose and intent to involve him in

the malicious criminal case. That the respondent, being a driver of vehicle bearing registration No. JK06-0134, has committed a theft of audio

music system fitted in the vehicle No. JK02H-6823 during the intervening period of 08.06.2002 and 10.06.2002 by operating the keys in his

possession. Respondent further stated that on the F.I.R. lodged by the petitioners, police of Police Station, Kishtwar had taken in custody the

respondent/complainant alongwith other persons on 24.06.2002 and were subjected to mental torture and harassment. The complaint further

revealed that the respondent/complainant was kept in custody by the police till late in the evening of 25.06.2002. It was further alleged in the

complaint that the complainant was an employee in the Company for the last 10 years and was restrained from parking his car in the base camp on

the pretext of security reasons. That the respondent/complainant having been taken into custody by the police in a theft case had also debarred him

from parking his car in the base camp. When the news spread amongst other employees and his relations, the engagement of his elder daughter

was cancelled and the reputation seriously and substantially injured. The respondent in his complaint also claimed Rs. 5 lacs as damages for the

injuries caused to him and his reputation, and also for affecting his personal life.

The learned Magistrate after recording preliminary evidence, issued process against the petitioners vide order dated 05.06.2003 for offences

under Sections 500-B, 199 & 211 R.P.C. It is against this order that the petitioners felt aggrieved and sought its quashment on the ground that the

accusations being false, vexatious and frivolous, has resulted in the abuse of the process of the Court.

It is stated in the petition that the respondent, right from the date of his employment as driver, was not discharging his duties in an upright

manner. He was most irresponsible. His attitude is obtuse towards his seniors. His persistent misbehavior has resulted in the issuance of various

warning letters from time to time by the petitioners who are carrying out the work of Dulhasti Hydro Electric Project, Kishtwar. It is further stated

that the private complaint has been commenced against them in order to prevent the employer from further taking any action against him despite

warnings issued to the respondent. The petitioners also denied that the respondent/complainant was ever taken in custody by the police from 3

P.M. of 24.06.2002-to 7 P.M. of 25.06.2002, for which respondent/complainant has claimed to have been defamed. It is also recited in the

petition that an application was made by the petitioners to the Police Station, Kishtwar in respect to the verification about the

respondent/complainant taken into custody on 24.06.2002 and released on 25.06.2002. A report dated 07.06.2003 was returned by the police

station to the effect that neither any case was registered in the month of June, 2002, with regard to the loss of any music audio system nor any

person had been arrested by the Police Station, Kishtwar and the said report is annexed with the petition. According to the petitioners, no prima

facie offence is disclosed against the petitioners in view of the aforesaid report by the concerned police station.

I have heard learned counsel appearing for the respective parties at length and also gone through the relevant provisions of law touching the

matter in controversy, meticulously.

It may be pointed out at the first flush that exercise of power u/s 561-A Cr.P.C. (hereinafter for short referred to as 'the Act') in a case of this

nature, is the exception and not the rule. The section does not confer any new powers on 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 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.

The litmus test to be applied by this court where the allegations made in the F.I.R. or complaint if they are taken at their face value and accepted

in their entirety do not prima facie constitute the offence alleged.

Adverting to the facts of the case, it is pertinent to point out that the main allegation of the complainant gatherable from the recitals in the

complaint is that he was taken into custody by the police on 24.06.2002 and detained till 7 P.M. of 25.06.2002. It is on account of his detention

that he has been defamed and his reputation is claimed to have been damaged and further alleged that the engagement of his elder daughter has

broken. In support of these allegations, the complainant has also placed on record an unattested photo-copy of the report of concerned police

station, Kishtwar dated 10.07.2002. This report reveals that Roshan Lal son of Munshi Ram was questioned in a theft case lodged by M/S

Complex but nothing was recovered from his possession. The report of the police station, on its plain reading, does not reveal as to on which date

the complainant was summoned to the police station in a theft case and whether he was taken in custody and if taken in custody when he was

released so as to support the recitals in the complaint in order to disclose the commission of the offence alleged by the complainant against the

petitioners.

As against this, the petitioners have annexed a report of the concerned police station dated 07.06.2003, which clearly discloses that in the

month of June, 2002, no case was registered in the Police Station on a complaint of M/S Complex with regard to the theft of an audio music

system nor any person was arrested in the said case.

This report is specific and categoric in ruling out the detention of the accused by the police in theft case of music system, alleged at the instance

of M/S Complex, This renders the allegations in the complaint, initiated by the respondent against the petitioners false, frivolous and mala fides,

particularly, in view of the documents with regard to the warnings given to the respondent/complainant on four occasions by M/S Complex for his

misconduct. This makes it pellucid that the allegations set out in the complaint do not constitute the offence, cognizance of which has been taken by

the Magistrate and necessitates the exercise of inherent powers of the Court to quash the complaint and further proceedings pending in the Court

of Judicial Magistrate, Ist Class, Kishtwar, in order to prevent the abuse of the process of the Court and to secure the ends of justice. The record

further shows that the respondent/complainant had based the complaint against the petitioners on a certificate issued by the Station House Officer,

P/S Kishtwar dated 10.07.2002, whereas complaint has been preferred on 05.06.2003 after about a year, when the petitioners addressed another

communication viz., warning letter dated 22.05.2003 for his misconduct to the complainant. The unexplained delay of one year in filing the

complaint and that too after the warning letter dated 22.05.2003, further strengthens the case of the petitioners that the complaint is actuated with

mala fide intention, false and vexatious with a view to prevent them from taking further action against the respondent based on the repeated

warnings given to the respondent/complainant.

Mr. D.K. Khajuria, learned counsel appearing for the respondent, however, when taken through the record could not dispel the contentions of

the petitioners that no offence is, prima facie, disclosed against the petitioners from the recitals in the complaint.

Taking stock of all the facts and circumstances discussed above, in its cumulative, the exercise of inherent jurisdiction has become imperative

to prevent the abuse of the process of the Court. Accordingly, the petition is accepted and the criminal proceedings initiated in the complaint titled

'Roshan Lal v. Andre Pothuon and Anr.' pending in the Court of learned Judicial Magistrate, Ist Class, Kishtwar for the commission of offences

under Sections 500-B, 199 & 211 R.P.C., are hereby quashed.

Record shall be remitted back to the Trial Court forthwith.