The High Court dismissed petitions to quash an FIR registered against family members in a property dispute. The court held that disputed questions of fact regarding the timing of events precluded adjudication at this stage and restricted itself from passing findings on merits to avoid prejudice.
The petitions for quashing of the FIR were dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Sr. No. 47
HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT JAMMU
CRMC No. 445/2015 (O&M) c/w CRMC No. 450/2015(O&M)
…..Appellant(s)/Petitioner(s)
Through: Mr. G. S. Thakur, Advocate
Vs
.…. Respondent(s)
Through: Mr. Aseem Sawhney, AAG for Nos. 1 to 3 Mr. Koshal Parihar, Advocate for No. 4
Coram: HON’BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
ORDER
In the instant petitions, the petitioners have impugned FIR bearing No. 289/2015 dated 17.09.2015 for commission of offences under sections 457, 380, 147 and 506 RPC registered with Police Station, Domana at the instance of respondent No. 4.
In CRMC No. 445/2015, the petitioner, Parshotam Kumar is the son of respondent No. 4 whereas in CRMC No. 450/2015, the petitioners, Pushpa Devi, is daughter in law of respondent No. 4 and Kamal Kumar and Vijay Kumar are the grandsons of respondent No. 4.
The facts necessary for the disposal of the present petitions have been extracted from the CRMC No. 445/2015. It is stated that the petitioner had filed a suit for partition of land measuring 1kanal comprising khasra No. 106 min along with house and six shops constructed over the said land at Village Chak Changerwan and consequential relief of prohibitory injunction
2 CRMC Nos. 445/2015 & 450/2015
against the defendants including his brothers and father, i.e. respondent No. 4 herein. The mother of the petitioner, namely, Shanti Devi died about 17 years back and names of the petitioners and his brothers were entered in the revenue record and on this land earlier 8 shops were constructed along with the house but later on the brothers of the petitioner for their personal gains demolished two shops leaving only six shops behind. It was further stated that the property was still un-partitioned. In the said suit, on 04.09.2015, the 3rd Additional Munsiff, Jammu issued the notice and directed the parties to maintain status quo with regard to the possession of the suit property and the petitioner was in possession of two shops where he was running a provision store and fast food under the banner of M/s. Kamal Provision Store and Fast Food. Despite there being an order of status quo by the civil court, the defendants in the said suit including the respondent No. 4 violated the order of status quo and wanted to forcibly grab the property and in this connection, the petitioner filed an application before the court to implement the order in its letter and spirit and the learned trial court vide order dated 18.09.2015 directed the respondent No. 3 to implement the same in its letter and spirit.
In pursuance to the conspiracy hatched by the respondent No. 4 and his other sons, they gathered outside the shops of the petitioner to dispossess the petitioner and his family from the said shops and in this connection, the petitioner filed a complaint before the Forest Magistrate, Jammu and the learned Magistrate directed the Incharge Police Post, Chinore to investigate the matter under law. Despite the direction of the learned Magistrate, the FIR was not registered and no action was taken that compelled
3 CRMC Nos. 445/2015 & 450/2015
the petitioner to approach the senior officers of the Police who directed the Senior Superintendent of Police, Jammu to look into the matter and take necessary action under law.
As the petitioner was pressing hard against the respondent No. 4, therefore, respondent No. 4 in connivance with the police officials who were supporting him for extraneous consideration, filed a complaint before the Magistrate against the petitioners under sections 457, 427, 379, 147, 149 and 506 RPC and in the said complaint date of occurrence was shown as in the night intervening 3/4.09.2015 and pursuant to the direction of the court, FIR impugned was registered.
The petitioners in both the petitions have impugned the said FIR on the grounds that the same has been lodged as a counter blast to the civil case filed by the petitioner and is in fact lodged by the respondent No. 4 with malice in connivance with the police officials who did not take any action with regard to the complaint filed by the petitioner..
The response stands filed by the official respondents in which it is stated that FIR impugned was registered pursuant to the direction of the Magistrate and during the course of investigation, the site plan was prepared and statement of the witnesses and complainant under section 161 Cr.P.C. were recorded and two broken locks were also seized from the site of occurrence and the only offences under sections 448, 147 and 506 RPC were made out and offence under sections 457 and 380 RPC were not made out. It was further submitted that the final report was presented before the learned Chief Judicial Magistrate, Jammu on 29.09.2015 but the same was transferred to the
4 CRMC Nos. 445/2015 & 450/2015
Passenger Tax Magistrate. On 30.09.2015, the counsel for the petitioners produced a certified copy of the order passed by this Court and the learned Passenger Tax Magistrate returned the charge sheet to the Investigating Officer/Police. The official respondents have filed the status report along with the proposed challan.
Mr. G. S. Thakur, learned counsel for the petitioners has vehemently argued that the said FIR has been lodged with ulterior motive as a counter blast to the civil suit as well as complaint lodged by the petitioner, as such, the same is required to be quashed.
Mr. Aseem Sawhney, learned AAG submits that disputed question of facts are involved and the offences under sections 448, 147 and 506 RPC stand established against the petitioners and as per the proposed challan, at this stage, FIR cannot be quashed. Mr. Koushal Parihar, learned counsel appearing for respondent No. 4 has also argued on the similar lines.
Heard and perused the record.
No doubt, a civil suit has been filed by the petitioners on
04.09.2015 but in the impugned FIR, date of occurrence has been mentioned as in the night intervening 3/4.09.2015. The contesting parties are the family members and unfortunately, the petitioner who is the son of the respondent No. 4 is in litigation with his father. The petitioner has raised the disputed question of facts as in the FIR, date of occurrence has been mentioned as night of 03.09.2015 whereas the suit was filed on 04.09.2015. Whether the FIR is false or not can be ascertained only during the course of trial and cannot be adjudicated upon which considering the petition under section 561-A (now 482
5 CRMC Nos. 445/2015 & 450/2015
Cr.P.C.). This Court has restrained itself from returning any finding qua the merits of the case as the same shall prejudice either of the parties.
Viewed thus, both the petitions are found to be without merit and
as such, are dismissed.
(RAJNESH OSWAL) JUDGE
Jammu 10.11.2021 Rakesh
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
2 issues framed by the court
Whether an FIR registered in a family dispute over property rights can be quashed under Section 482 Cr.P.C. despite allegations of malice.
Whether the disparity in dates between a civil suit and the FIR makes the criminal proceeding frivolous.
1 provisions across 1 enactments
Parshotam Kumar
Pushpa Devi
State of J&K
Rajneesh Oswal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
