Dismissed

Chain Singh v. the Union Territory of J and K Th SHO Police Station Bari Brahmana Samba and Anr.

J&K HC10 Nov 2020CRM(M)/373/2020

Case brief

AI extract

What is this about?

The High Court dismissed a petition under Section 482 Cr.P.C. filed by Chain Singh to quash an FIR under Section 447 IPC. Relying on Supreme Court precedents, the court held that inherent powers should be exercised sparingly and refused to intervene in a fact-intensive civil property dispute where the FIR prima facie constituted a cognizable offence.

What did the court decide?

The petition for quashment of FIR No. 0147/2020 was dismissed along with all connected criminal memoranda.

Chain Singh Vs the Union Territory of J and K Th SHO Police… — Quashing and FIR | J&K HC (2020)

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Serial No. 105 ADMISSION CAUSELIST (Through Virtual Mode)

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HIGH COURT OF JAMMU AND KASHMIR AT JAMMU

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CRM (M) No. 373/2020 CrlM No. 1387/2020

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Chain Singh.

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…….Petitioner(s)

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Through: Mr S.M. Choudhary, Advocate.

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Union Territory of JK & Anr.

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…….Respondent(s)

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Through: Mr Aseem Sawhney, AAG.

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CORAM :

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Hon’ble Mr Justice Ali Mohammad Magrey, Judge.

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ORDER

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10.11.2020

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This petition under Section 482 Cr. P. C, has been filed by the petitioner seeking quashment of FIR No. 0147/2020 dated 12.07.2020 registered at Police Station Bari Brahmana against the petitioner under section u/s 447 IPC.

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Briefly stated the case of the petitioner is that petitioner was owners in possession of a big chunk of land falling under various khewats and khasra numbers including khasra Nos. 826 (15kanal – 18marlas), 826 (06kanal - 00marlas), 836 (12kanal – 00marlas) total measuring 33KI-18MI situated at village Birpur, Tehsil Bari Brahmana District Samba and neither the petitioner nor his fore-fathers were evicted nor possession was taken by the revenue authorities. In the year 2017, the petitioner filed a suit for permanent prohibitory injunction against the erstwhile State and vide order dated 18.08.2017, the CJM (Sub-Judge), Samba has directed maintenance of statusquo on spot and vide order dated 10.08.2019, the order dated 18.08.2017 has been made absolute. The land falling under khasra No. 826 and 836 was escheated to State vide mutation Nos. 680, 877 & 507 of village Birpur and the Tehsildar has further reported that the ex-proprietary landlords Rajinder Singh & Ors preferred a petition in the Court of Financial Commissioner

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CRM (M) No. 373/2020 CrlM No. 1387/2020

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Revenue J&K against the said mutations. The Financial Commissioner Revenue J&K vide judgment dated 10.03.1995 set aside the mutations and remanded the case to the Additional Deputy Commissioner Jammu for enquiry and orders. It is further submitted that land was recorded in the name of erstwhile state and entry of order of Financial Commissioner dated 10.03.1995 was not reflected in the revenue record. It is further pleaded that the petitioner was in possession of the land subject matter of the FIR till 11.07.2020 when the respondent No. 2 with the help of police demolished the structures/construction raised in the said khasra numbers illegally and unlawfully and also directed the respondent No. 1 to lodge FIR against the encroachers. The petitioner is aggrieved of the impugned FIR and challenges the same on the grounds detailed out in the petition.

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Learned counsel for the petitioner submits that lodging of FIR, in the present case, is nothing but an abuse process of law and that the FIR has been lodged with the oblique motive. It is further submitted that the registration of FIR is wholly unwarranted, aimed at victimizing the petitioner. It is further pleaded that by registering the FIR in question, the civil nature dispute between the parties has been given the shape of a Criminal complaint, which has been depreciated by the Hon’ble Supreme Court from time to time.

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Since the quashment of FIR pending before the competent court is concerned, it is profitable that before going to merits of the case, the question is as to whether the FIR pending before the Court can be quashed in 482 Cr.P.C proceedings filed in this Court. The answer has to be in the negative, for, the remedy under Section 482 Cr. P. C can be invoked/pressed into service only in the following circumstances:

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“(i) to pass orders in order to give effect to an order passed under Cr.P.C

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CRM (M) No. 373/2020 CrlM No. 1387/2020

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(ii) to prevent abuse of process of Court

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(iii) to secure the ends of justice: and

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(iv) to prevent mis-carriage of justice.”

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Apex Court also held that power is to be exercised cautiously, carefully and sparingly and Court has not to function as a Court of appeal or revision. It has also laid down the parameters and guidelines in cases titled as “K.L.E

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Society & ors v. Siddalingesh reported in 2008 AIR SCW 1993; A.P Vs Bojjoori Kanthaiah reported as 2008 AIR SCW 7860 and Reshma Bano Vs State of Uttar Pradesh reported in 2008 AIR SCW 1998”.

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Apex Court in AIR 2004 SC 3967, AIR 1972 SC 484, AIR 1974 SC 1446, AIR 1977 SC 2229, AIR 1989 SC 01, has laid down the same principle. It is apt to reproduce para 10, 13, 14, 15, 17 & 19 out of the judgment titled as Som Mittal Vs Govt. of Karnataka reported in 2008 AIR SCW 1003 herein:

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“10. In a catena of decisions this Court has deprecated the interference by the High Court in exercise of its inherent powers under Section 482 of the Code in a routine manner. It has been consistently held that the power under Section 482 must be exercised sparingly with circumspection and in rarest of rare cases. Exercise of inherent power under section 482 of the Code of Criminal Procedure is not the rule but it is an exception. The exception is applied only when it is brought to the notice of the Court that grave miscarriage of justice would be committed if the trial is allowed to proceed where the accused would be harassed unnecessarily if the trial is allowed to linger when prima facie it appears to Court that the trial would likely to be ended in acquittal. In other words, the inherent power of the Court under section 482 of the Code of Criminal Procedure can be invoked by the High Court either to prevent abuse of process of any Court or otherwise to secure the ends of justice.

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In State of Bihar v. J.A.C Saldanha (1980) 1 SCC 554 this Court pointed out at SCC P. 574:

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The High Court in exercise of the extraordinary jurisdiction committed a grave error by making observations on seriously disputed questions of facts taking its cue from affidavits which in such a situation would hardly provide any reliable material. In our opinion the High Court was clearly in error in giving the direction virtually amounting to a mandamus to close the case before the investigation is complete. We say no more.

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In Hazari Lal Gupta v Rameshwar Prasad (1972) 1 SCC 452 this Court at SCC P. 455 pointed out:

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In exercising jurisdiction under section 482 of the Criminal Procedure Code, the 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 inquire as to whether the evidence is reliable or not. Where again, investigation into the circumstances of an alleged cognizable offence is carried on under the provisions of the Criminal

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CRM (M) No. 373/2020 CrlM No. 1387/2020

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Procedure Code, the High Court does not interfere with such investigation because it would then be the impeding investigation and jurisdiction of statutory authorities to exercise power in accordance with the provisions of the Criminal Procedure Code.

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In Jehan Singh vs Delhi Administration (1974) 4 SCC 522 the application filed by the accused under section 561-A of the old Code for quashing the investigation was dismissed as being premature and incompetent on the finding that prima facie the allegations in the FIR if assumed to be correct, constitute a cognizable offence.

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In State of Bihar vs Murad Ali Khan (1988) 4 SCC 655 this Court held that the jurisdiction under Section 482 of the Code has to be exercised sparingly and with circumspection and has given the working that in exercising that jurisdiction, the High Court should not embark upon an enquiry whether the allegations in the complaint are likely to be established by evidence or not.

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We may observe here that despite this Court consistently held in catena of decisions that inherent power of the High Court should not be exercised according to whims and caprice and it has to be exercised sparingly with circumspection and in the rarest of rare cases, we often come across the High Court exercising the inherent power under Section 482 of the Code of Criminal Procedure in a routine manner at its whims and caprice setting at naught the cognizance taken and the FIR lodged at the threshold committing grave miscarriage of justice. While it is true that so long as the inherent power of Section 482 is in the Statute Book, exercise of such power is not impressible but it must be noted that such power has to be exercised sparingly with circumspection and in the rarest of rare cases, the sole aim of which is to secure the ends of justice. The power under Section 482 is not intended to scuttle justice at the threshold.”

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While keeping in view the scope of section 482 Cr.PC the Court should refrain from making prima facie decision at interlocutory stage when entire facts of the case are incomplete, hazy and more so, when material evidence is yet to be collected and issues involved could not be seen in their true perspective.

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In view of the facts and circumstances and law quoted herein above, this petition has no merit, therefore, same shall stand dismissed alongwith all

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connected CrlM(s).

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		(Ali M	ohammad Magrey) Judge
JAMMU:
10.11.2020
“Hamid”
	i.	Whether the order is speaking?	Yes/No.
	ii.	Whether the order is reportable?	Yes/No.

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ABDUL HAMID BHAT 2020.11.10 12:06 I attest to the accuracy and integrity of this document

Chain Singh v. the Union Territory of J and K Th SHO Police Station Bari Brahmana Samba and Anr.

Case brief

What is this about?

What did the court decide?

Chain Singh v. the Union Territory of J and K Th SHO Police Station Bari Brahmana Samba and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Cases cited

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