Aijaz Ahmad Bhat Vs Senior Superintendent of Police Kupwara and Ors.

In the instant petition, the petitioner herein has invoked the inherent power of this Court enshrined in section 528 of BNSS for quashing the challan/charge sheet No. 05/2025 titled as “UT through Police Station Women Cell Kupwara Vs. Aijaz Ahmad Bhat AndAnr.” arising out of FIR No. 14/2023 for commission of offence under section 376, 417, 506 and 109 IPC pending trail before the Court of Principal Sessions Judge, Kupwara (for short “Trial Court”).

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Facts necessary for disposal of the instant petition emerging from the record of the petition would reveal that the petitioner herein working in the Indian Army for the last more than 12 years and presently posted in Delhi claims that his parents intended to have the petitioner married and in this regard the

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Nuzhat Shafi I attest to the accuracy and authenticity of this document

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complainant/respondent 2 herein through some middleman was chosen for the said marriage, where upon consequently an engagement ceremony thereto was performed by the families whereafter the said engagement, the complainant/respondent 2 desired to meet the petitioner herein at Drangyari Chowkibal a tourist spot upon his return from Delhi, and in this regard made a request to his brother namely Parvez Ahmad and that over the years the complainant/respondent 2 herein and her family however avoided the performance of Nikah ceremony formal marriage despite repeated request made by the petitioner and in the month of November 2022, however, categorically informed the petitioner and his family that he may contract marriage with any other girl whereafter the petitioner entered into a marital knot with one Mst Rafia of Dever Lolab in the month of February 2023 and soon after the said marriage of the petitioner the complainant respondent 2 herein and her relatives started harassing the petitioner demanding ransom from him and finally filed a false and frivolous complaint before respondent 1 herein for registration of FIR against the petitioner for commission of offence of rape and other offences whereupon the impugned FIR came to be registered aggrieved whereof of the said FIR, the petitioner called in question the same before this Court in CRM(M) No.284/2023, wherein on 26.06.2023, the Court allowed the investigation to proceed, however, prohibited the filing of the charge sheet without the permission of the Court, and that upon completion of the investigation, the investigating agency

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sought permission of this Court in the petition supra to file the charge sheet in the matter, which permission came to be accorded by the Court as a consequence whereof, the petitioner herein withdrew the said CRM(M) No.284/2023 with liberty to challenge the charge sheet, filed consequent thereto in the instant petition.

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The petitioner has challenged the impugned challan/charge sheet arising out of the FIR No. 14/2023 supra inter alia on the grounds that the same is manifestly an abuse of process of law and misuse of criminal machinery to settle personal score and that neither the complaint nor the FIR or else the statements of the complainant/respondent 2 herein disclose the commission of offence of rape alleged to have been committed by the petitioner and his brother, moreso, in absence of the essential ingredients of the offence of rape contained in section 376 IPC and that the case set up by the prosecution against the petitioner is a classic example of criminalization of a broken relationship, a promise to marry without any intention to deceive at the inception thus not constituting an offence under section 376 IPC, and that the registration of the case against the petitioner is grave misuse of process for settling personal vendetta and even if the complaint filed by the complainant and the consequent challan arising thereof are taken at the face value and accepted in the entirety same do not prima facie disclose the commission of any offence alleged against the petitioner.

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Nuzhat Shafi I attest to the accuracy and authenticity of this document

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Heard learned counsel for the petitioner and perused the charge sheet produced by the counsel for the petitioner in the open court pursuant to order dated 01.08.2025 passed by this Court.

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Mr. Sheikh Manzoor, learned counsel appearing for the petitioner while making his submission in line with the case set up in the instant petition would insist that the contents of the complaint, FIR and the charge sheet even if taken to be true would reveal that no offence under section 376 is made out against the petitioner and that even if it is assumed that the petitioner have had a sexual relationship with the complainant/respondent 2 herein, the same has been between two adult persons with their consent and does not fall within the purview of section 376 IPC and that the facts emanating from the case clearly demonstrate that there has been relationship of engagement between the petitioner and the complainant/respondent 2 herein which, however, did not culminate into marriage, thus no attracting the alleged offences.

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Mr. Manzoor, in support of his submissions referred to judgment passed by the Coordinate Bench of this Court in CRM(M) No. 284/2023 and would submit that the said judgment securely covers the case of the petitioner being a case of broken promise to marry the complainant/respondent 2 herein.

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Nuzhat Shafi I attest to the accuracy and authenticity of this document

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Before adverting to the submissions of the counsel for the petitioner, it would be significant and relevant to refer hereunder to the FIR whereunder the impugned charge sheet has arisen and also Final report drawn by the prosecution.

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FIR

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THE CONTENT OF THE COMPLAINT IS AS FOLLOWS:

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The complainant appeared in person at the police station and submitted a written report, the summary of which is presented below for the kind consideration of the Hon'ble SSP, District Kupwara:

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COMPLAINANT:

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Nasreena Bano D/o Dr. Liyakat Ali Khan, R/o Munigah (victim)

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Accused No.1: Ajaz Ahmad Bhat

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Accused No.2: Parvaiz Ahmad Bhat

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Both sons of Saif-ud-Din Bhat, residents of Darpora-Kralpora (the accused)

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RESPECTED SIR,

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The humble submission is as follows: I (the complainant) am the daughter of a poor father. About two years ago, my engagement was fixed with Accused No.1, Ajaz Ahmad Bhat. The engagement ceremony took place at my residence in the presence of relatives from both sides. During this ceremony, I was given clothes and a gold ring. A written document was also prepared and handed over, stating that after marriage, all marital rights would be fulfilled sincerely. Following the engagement, the accused took me to Kralpora and from there to various places like Chowkibal and Darnadi, where he took me around and during that time, he sexually assaulted me. When I objected, he threatened to break off the engagement.

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Nuzhat Shafi I attest to the accuracy and authenticity of this document 13.08.25

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Due to this fear, I remained silent. I repeatedly requested him to proceed with the marriage, but Accused No.1, who works in the Army, and Accused No.2, who is also in the Army, kept delaying it with the excuse of not having leave. After two years, they outright refused the marriage. By misleading and deceiving me under the guise of engagement, I wassubjected to sexual exploitation. I humbly request that legal action be taken against the accused and justice be given to a poor girl like me. Your kind support in this matter will be a great favor.

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APPLICANT:

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NASREENA BANO

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(SIGNATURE IN ENGLISH)

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PHONE NUMBER -

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Enclosures:

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1. Photocopy of written agreement - 3 pages

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2. Receipt-1 page

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The complainant, Nasreena Bano, confirms her earlier written complaint word for word and further pleads for justice. Ajaz Ahmad Bhat S/o Saif-ud-Din Bhat, R/o Sata Bonun, DardporaKralpora, had been engaged to the complainant since 2021. He misled her and forcibly committed sexual acts, continually threatening to break off the engagement if she told anyone. This pattern of abuse continued repeatedly.

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LEGAL ACTION:

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Based on the written and oral report by the complainant, this matter has been registered under Sections 506 and 376 IPC at this police station, which establishes a cognizable offence. As the matter pertains to the year 2023 and involves a special case, a separate special report has been prepared and submitted accordingly.

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WRITTEN AND SIGNED BY:

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STATION HOUSE OFFICER (SHO)

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Final Police Report

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RESPECTED SIR,

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The brief facts of the present case are submitted through this charge sheet as follows:

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On 07.06.2023, the complainant (Nasreena Bano) along with her father (witness No. 2) appeared at Police Station Women Kupwara and submitted a written report in Urdu, stating: "I am the daughter of a poor father. My engagement with the accused Aijaz Ahmad Bhat, son of Saifuddin Bhat, resident of DardporaKralpora, was finalized about two years ago. The engagement ceremony took place at my house, attended by relatives from both sides. Clothes and a gold ring were presented to me, and a written declaration was also executed stating that after marriage, marital relations would be established harmoniously. However, after the engagement, the accused (Aijaz) manipulated and persuaded me to visit Kralpora. He took me around various places like Chowkibal, Dar, Nadi, etc., and during these outings, he repeatedly subjected me to forcible sexual intercourse. When I resisted, he threatened to break off the engagement, due to which I remained silent. I repeatedly requested him to marry me, but accused No. 1 (Aijaz), who serves in the Army, and accused No. 2 (Parvaiz), who is a porter in the Army, kept delaying under the pretext of being busy with their duties. After two years, they finally refused to marry me. They deceived and exploited me, and using the engagement as a trap, the accused fulfilled his lustful intentions."

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"RESPECTED SIR,

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This complaint is submitted through written application to the SSP Kupwara by Nasreena Bano, daughter of Liyakat Ali Khan, resident of Munigam (Complainant) against:

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1. Aijaz Ahmad Bhat

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2. Parvaiz Ahmad Bhat, sons of Saifuddin Bhat, residents of Darpora, Kralpora (Accused)

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As earlier stated, I am a poor man's daughter. My engagement with accused No. 1 was finalized two years ago, and the ceremony was held at my house, where both parties' relatives were present. Clothes and a gold ring were gifted to me, and a written document was executed assuring me that I would be treated well after marriage. However, after the engagement, I was lured to Kralpora and taken around various places like Chowkibal and Dar. During this time, I was sexually exploited by the accused. Whenever I refused, I was threatened with break-up of the engagement. Despite repeatedly asking him to marry me, accused No. 1 (who is in the Army) and accused No. 2 (also in the Army) made excuses and avoided marriage. After two years had passed, they refused to marry me, thus committing betrayal, deception, and using the engagement as a trap to exploit me sexually. I humbly request that legal action be taken against the accused to deliver justice to a poor girl."

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Documents Attached: 1. Photocopy of the written declaration 3 pages, 2. Receipt-1 page

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ADDITIONAL NOTES:

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The complainant reaffirmed her written statement in her verbal deposition and requested justice. It is revealed that the engagement between Nasreena Bano and Aijaz Ahmad Bhat (son of Saifuddin, resident of Dardpora, Kralpora) took place in 2021. During this period, Aijaz Bhat manipulated and forcibly had sexual relations with her, threatening to end the relationship if she told anyone. Based on her written and verbal complaint, case FIR No. 14/2023 was registered at Women Police Station Kupwara under Sections 376, 506 IPC, and investigation was initiated. A site plan was prepared, and the victim was referred to District Hospital for medical examination. The medical report and physical condition certificate were collected. Witness statements were recorded. Statement under Section 164 CrPC was also recorded. Based on the investigation and facts, charges under Sections 376, 417, 506 IPC were framed against accused No. 1 (Aijaz

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Ahmad Bhat) and under Section 109 IPC against accused No. 2 (Parvaiz Ahmad Bhat). Accused No. 2 was arrested during investigation and remanded to judicial custody. Repeated efforts were made to serve notice and summon accused No. 1 (Aijaz Ahmad Bhat), who is in the army, but he willfully evaded appearance. Correspondence was made for his production, but he remained absent deliberately.

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7. Having regard to the aforesaid submissions of the counsel for the petitioner as also the FIR and the final report the moot question to be addressed to by this Court would be as to whether the exercise of inherent power in the matter is warranted or not .

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8. Before proceeding to address the said question, it would be appropriate and significant to refer to the provision of section 375 IPC, Section 90 of IPC and section 114-A of the

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Evidence Act, being relevant and germane to the controversy

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herein;

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[Section 375. Rape. —

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A man is said to commit "rape" if he--

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(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or

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(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or

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(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or

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any part of body of such woman or makes her to do so with him or any other person; or

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(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person,under the circumstances falling under any of the following seven descriptions:

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First. Against her will.

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Secondly. Without her consent.

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Thirdly. With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.

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Fourthly. With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

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Fifthly. With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

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Sixthly. With or without her consent, when she is under eighteen years of age.

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Seventhly. When she is unable to communicate consent. Explanation 1.For the purposes of this section, "vagina" shall also include labia majora.

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Explanation 2.Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:

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Section 90:

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Consent known to be given under fear or misconception.— A consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or

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Consent of insane person.— if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or Consent of child.— unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age.

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[114- A. Presumption as to absence of consent in certain prosecution for rape. ––In a prosecution for rape under clause (a), clause (b), clause (c), clause (d), clause (e), clause (f), clause (g), clause (h), clause (i), clause (j), clause (k), clause (l), clause (m) or clause (n) of sub-section (2) of section 376 of the Indian Penal Code (45 of 1860), where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and such woman states in her evidence before the court that she did not consent, the court shall presume that she did not consent. Explanation.––In this section, “sexual intercourse” shall mean any of the acts mentioned in clauses (a) to (d) of section 375 of the Indian Penal Code (45 of 1860).]

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9. A further reference to the judgments of the Apex Court passed in case titled as “Kaini Rajan Vs. State of Kerala reported in 2013 (9) SCC 113” relating to section 375 IPC would also be relevant herein,wherein at para 12 following has been observed:-

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Section 375 IPC defines the expression “rape”, which indicates that the first clause operates, where the woman is in possession of her senses, and therefore, capable of consenting but the act is done against her will; and second, where it is done without her consent; the third, fourth and fifth, when there is consent, but it is not such a consent as excuses the offender, because it is obtained by putting her on any person in whom she

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is interested in fear of death or of hurt. The expression “against her will” means that the act must have been done in spite of the opposition of the woman. An inference as to consent can be drawn if only based on evidence or probabilities of the case. “Consent” is also stated to be an act of reason coupled with deliberation. It denotes an active will in the mind of a person to permit the doing of an act complained of.

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Section 90 IPC refers to the expression “consent”. Section 90, though, does not define “consent”, but describes what is not consent. “Consent”, for the purpose of Section 375, requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances.

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10. A reference as well to the judgment of the Apex Court passed in case titled as “Deepk Gulati Vs. State of Haryana reported in 2013 (7) SCC 675” pertaining to section 90 IPC would also be relevant herein, wherein at para21 following has been observed:-

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21. Consent may be expressed or implied, coerced or misguided, obtained willingly or through deceit. Consent is an act of reason, accompanied by deliberation, the mind weighting, as in a balance, the good and evil on each side. There is a clear distinction between rape and consensual sex and in a case like this, the court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide motives, and had made a false promise to this

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effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused; and whether the consent involved was given after wholly understanding the nature and consequences of sexual indulgence”.

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A further reference to the judgment of the Apex Court passed in case titled as “Dhruvaram Murlidhar Sonar Vs. State of Maharashtra reported in 2019 (18) SCC 191” would also be relevant herein, wherein at para 23, following has been held:-

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23. T hus, there is a clear distinction between rape and consensual sex. The court, in such cases, must very carefully examine whether the complainant had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the later falls within the ambit of cheating or deception. There is also a distinction between mere breach of a promise and not fulfilling a false promise. If the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused and not solely on account of the misconception created by accused, or where an accused, on account of circumstances which he could not have foreseen or which were beyond his control, was unable to marry her despite having every intention to do. Such cases must be treated differently. If the complainant had any mala fide intention and if he had clandestine motives,

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it is a clear case of rape. The acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 of the IPC.

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The sum and substance of the aforesaid judgments/decisions of the Apex Court in regard to the offence of rape and consequential sexual relationship would be that if it is established and proved that from the inception the accused who gave promise to prosecutrix to marry did not have any intention to marry and the prosecutrix gave the consent for sexual relationship on such an assurance by the accused that he would marry her, such a consent can be said to be a consent obtained by misconception of fact as per section 90 of the IPC, and, such a consent would not excuse the offender and such an offender can be said to have committed the rape as defined under section 375 IPC and can be convicted for the said offence under section 376 IPC.

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It also emanates from the aforesaid decisions is that whether a consent given by the prosecutrix for sexual relationship is voluntary or is given under misconception of fact depends on the facts of each case and in considering the said question of consent, the Court would be bound to consider the evidence before it and the surrounding circumstances before reaching to a conclusion.

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Keeping in mind the aforesaid position of law and reverting back to the case in hand, perusal of the record of the charge sheet would reveal that the complainant/respondent 2 herein have had specifically alleged that after the performance of the engagement ceremony and on the return of the petitioner from Delhi on leave, the petitioner and took the complainant to Drangyari

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Chowkibal a famous tourist spot and had sexual intercourse with her, and not only the petitioner but his brother as well have had sexual intercourse with the complainant/respondent 2 and had also allegedly threatened her of dire consequences if the complainant/respondent 2 discloses the said incident to anyone. Further perusal of the charge sheet in general, the medical opinion in particular as well as the statements made by various witnesses including those made by the respondent 2 herein would manifestly show that the investigating agency has gathered evidence pointing the involvement of the petitioner and his brother in the commission of offence of the rape covered in the charge sheet. A closer examination of the complaint as well as the FIR registered thereupon where under the impugned charge sheet has arisen would also disclose the commission of offence in question.

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12.Before proceeding further in the matter, it would be profitable to refer to the following judgment of the Apex Court wherein the ambit and scope of inherent power vested in this Court under Section 528 BNSS parimateria with Section 482 Cr.P.C. has been dealt with "Neeharika Infrastructure Pvt. Ltd. vs. State of Maharastra& Ors" reported in AIR 2021 SC 1918 wherein at Para 7 following has been laid down:-

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7. While considering the aforesaid issue, law on the exercise of powers by the High Court under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India to quash the FIR/complaint and the parameters for exercise of such powers and scope and ambit of the power by the High Court under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India are required to be referred to as the very parameters which are required to be applied

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while quashing the FIR will also be applicable while granting interim stay/protection.

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7.1 The first case on the point which is required to be noticed is the decision of this Court in the case of R. P.Kapur (supra). While dealing with the inherent powers of the High Court under Section 561-A of the earlier Code (which is parimateria with Section 482 of the Code), it is observed and held that the inherent powers of the High Court under Section 561 of the earlier Code cannot be exercised in regard to the matters specifically covered by the other provisions of the Code; the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any court or otherwise to secure the ends of justice; ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. After observing this, thereafter this Court then carved out some exceptions to the above-stated rule, which are as under:

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"(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.

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(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 entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the first information report to decide whether the offence alleged is disclosed or not.

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(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 legal evidence which on its appreciation may or may not support the accusation in question.

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In exercising its jurisdiction under Section 561- A the High Court would not embark upon an 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."

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7.2 In the case of Kurukshetra University (supra) , this Court observed and held that inherent powers under Section482 Cr.P.C. do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice; that statutory power has to be exercised sparingly with

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circumspection and in the rarest of rare cases. In the case before this Court, the High Court quashed the first information report filed by the Kurukshetra University through Warden and that too without issuing notice to the University, in exercise of inherent powers under Section

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482 Cr.P.C. This Court noticed and observed that the High Court was not justified in quashing the FIR when the police had not even commenced investigation into the complaint filed by the Warden of the University and no proceedings were at all pending before any Court in pursuance of the FIR.

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7.3 Then comes the celebrated decision of this Court in the case of Bhajan Lal (supra). In the said decision, this Court considered in detail the scope of the High Court powers under Section 482 Cr.P.C. and/or Article 226 of the Constitution of India to quash the FIR and referred to several judicial precedents and held that the High Court should not embark upon an inquiry into the merits and demerits of the allegations and quash the proceedings without allowing the investigating agency to complete its task. At the same time, this Court identified the following cases in which FIR/complaint can be quashed:

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" 102.(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

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(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section

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156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

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(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

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(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

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(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

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(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned(under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party.

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(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

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7.4 In the case of Golconda Linga Swamy (supra), after considering the decisions of this Court in the cases of R. P.Kapur (supra) and Bhajan Lal (supra) and other decisions on the exercise of inherent powers by the High Court under Section 482 Cr.P.C., in paragraphs 5, 7 and 8, it is observed and held as under:

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" 5 . Exercise of power under Section 482 of the Code in a

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case of this nature is the exception and not the rule. The section does not confer any new powers on the 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:

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(i) to give effect to an order under the Code,

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(ii) to prevent abuse of the process of court, and

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(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.

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No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have

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inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them bylaw. That is the doctrine which finds expression in the section which merely recognises and preserves inherent powers of the High Courts.

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All courts, whether civil or criminal, possess in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle quando lex aliquidaliqueconcedit, conceder evideturid sine quo res ipsaesse non potest (when the law gives a person anything, it gives him that without which it cannot exist). While exercising powers under the section, the Court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent such abuse. It would be an abuse of the process of the court to allow any action which would result in injustice and prevent promotion of justice.

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In exercise of the powers court would be justified to quash any proceeding if it finds that initiation or continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.

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7. In dealing with the last category, 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 clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process, no doubt should not be

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an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death.....

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8. As noted above, 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. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution.

¶179

High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are 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 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 cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. [See Janata Dal v. H. S. Chowdhary [(1992)4 SCC 305: 1993 SCC (Cri) 36:AIR 1993 SC 892] and Raghubir Saran (Dr.) v. State of Bihar [AIR 1964 SC 1: (1964) 1 Cri LJ 1] .]

¶180

It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises, arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In a proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section482 of the Code. It is not, however, necessary that

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there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal.

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The complaint/FIR has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant or disclosed in the FIR that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint/FIR is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceeding."

¶185

7.5 In the case of Zandu Pharmaceutical Works Ltd. (supra), in paragraph 11, this Court has observed and held as under:

¶186

" 11. ... the powers possessed by the High Court underSection482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are 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 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 cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage.

¶187

It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premise arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be

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proceeded with. In a proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section482 of the Code.

¶191

It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the malafides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceedings."

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7.6 In the case of Sanapareddy Maheedhar Seshagiri(supra), in paragraph 31, it is observed and held as under:

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" 31. A careful reading of the above noted judgments makes it clear that the High Court should be extremely cautious and slow to interfere with the investigation and/or trial of criminal cases and should not stall the investigation and/or prosecution except when it is convinced beyond any manner of doubt that FIR doe snot disclose commission of any offence or that the allegations contained in FIR do not constitute any cognizable offence or that the prosecution is barred bylaw or the High Court is convinced that it is necessary to interfere to prevent abuse of the process of the Court.

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In dealing with such cases, the High Court has to bear in mind that judicial intervention at the threshold of the legal process initiated against a person accused of committing offence is highly detrimental to the larger public and societal interest. The people and the society have a legitimate expectation that those committing offences either against an individual or the society are expeditiously brought to trial and, if found guilty, adequately punished. Therefore, while deciding a petition filed for quashing FIR or complaint or restraining the competent authority from investigating the allegations contained in FIR or complaint or for stalling the trial of the case, the High Court should be extremely careful and circumspect.

¶198

If the allegations contained in FIR or complaint disclose commission of some crime, then the High Court must keep its hands off and allow the investigating agency to complete the investigation without any fetter and also refrain from passing order which may impede the trial. The High Court should not go into the merits and demerits of the allegations simply because the petitioner alleges malus animus against the author of FIR or the complainant. The High Court must also refrain from making imaginary journey in the realm of possible harassment which may be caused to the petitioner on account of investigation of FIR or complaint. Such a course will result in miscarriage of justice and would encourage those accused of committing crimes to repeat the same. However, if the High Court is satisfied that the complaint does not disclose commission of any offence or prosecution is barred by limitation or that the proceedings of criminal case would result in failure of justice, then it may exercise inherent power under Section 482 Cr.P.C."

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7.7 In the case of Arun Gulab Gawali (supra), this Court set aside the order passed by the High Court quashing the criminal complaint/FIR which was even filed by the complainant. In the case before this Court, prayer for quashing the FIR before the High Court was by the complainant himself and the High Court quashed the FIR/complaint in exercise of the powers under Section482 Cr.P.C. Quashing and setting aside the judgment and order passed by the High Court quashing the FIR, this Court in paragraphs 13 and 27 to 29 has observed as under:

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" 13. The power of quashing criminal proceedings has to be exercised very sparingly and with circumspection and that too in the rarest of rare cases and the Court cannot be justified in embarking upon an

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enquiry as to there liability or genuineness or otherwise of allegations made in the FIR/complaint, unless the allegations are so patently absurd and inherently improbable so that no prudent person can ever reach such a conclusion. The extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice. However, the Court, under its inherent powers, can neither intervene at an uncalled for stage nor can it "soft- pedal the course of justice" at a crucial stage of investigation/proceedings. The provisions of Articles 226, 227 of the Constitution of India and Section 482 of the Code of Criminal Procedure, 1973 (hereinafter called as "Cr.P.C") are a device to advance justice and not to frustrate it. The power of judicial review is discretionary, however, it must be exercised to prevent the miscarriage of justice and for correcting some grave errors and to ensure that stream of administration of justice remains clean and pure.

¶204

However, there are no limits of power of the Court, but the more the power, the more due care and caution is to be exercised in invoking these powers. (Vide State of W.B. v. Swapan Kumar Guha [(1982) 1 SCC 561 : 1982SCC (Cri) 283 : AIR 1982 SC 949] , Pepsi Foods Ltd. v.Special Judicial Magistrate [(1998) 5 SCC 749 : 1998SCC (Cri) 1400] , G. Sagar Suri v. State of U. P.[(2000) 2 SCC 636 : 2000 SCC (Cri) 513 : AIR 2000 SC754] and Ajay Mitra v. State of M. P. [(2003) 3 SCC 11: 2003 SCC (Cri) 703] )

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xxx xxxxxx

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27. The High Court proceeded on the perception that as the complainant himself was not supporting the complaint, he would not support the case of the prosecution and there would be no chance of conviction, thus the trial itself would be a futile exercise. Quashing of FIR/complaint on such a ground cannot be held to be justified in law. Ordinarily, the Court of Session is empowered to discharge an accused under Section227 Cr.P.C even before initiating the trial.

¶207

The accused can, therefore, move the trial court itself for such a relief and the trial court would be in a better position to analyze and pass an order as it is possessed of all the powers and the material to do so. It is, therefore, not necessary to invoke the jurisdiction under Section 482 Cr.P.C for the quashing of a prosecution in such a case. The reliance on affidavits by the High Court would be a weak, hazy and unreliable source for adjudication on the fate of a trial. The

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presumption that an accused would never be convicted on the material available is too risky a proposition to be accepted readily, particularly in heinous offences like extortion.

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28. A claim founded on a denial by the complainant even before the trial commences coupled with an allegation that the police had compelled the lodging of a false FIR, is a matter which requires further investigation as the charge is levelled against the police. If the prosecution is quashed, then neither the trial court nor the investigating agency has any opportunity to go into this question, which may require consideration. The State is the prosecutor and all prosecution is the social and legal responsibility of the State. An offence committed is a crime against society and not against the victim alone. The victim under undue pressure or influence of the accused or under any threat or compulsion may resile back but that would not absolve the State from bringing the accused to book, who has committed an offence and has violated the law of the land.

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29. Thus, while exercising such power the Court has to act cautiously before proceeding to quash a prosecution in respect of an offence which hits and affects the society at large. It should be a case where no other view impossible nor any investigation or inquiry is further required. There cannot be a general proposition of law, so as to fit in as a straitjacket formula for the exercise of such power. Each case will have to be judged on its own merit and the facts warranting exercise of such power. More so, it was not a case of civil nature where there could be a possibility of compromise or involving an offence which may be compoundable under Section320 Cr.P.C, where the Court could apply the ratio of Madhavrao Jiwaji Rao Scindia [(1988) 1 SCC 692 :1988 SCC (Cri) 234 : AIR 1988 SC 709] ."

¶213

13.On a cumulative consideration of the facts of the case, material available in the shape of charge sheet as well as the law referred in the preceding paras, the only inescapable conclusion that could be drawn would be that at this stage the guilt or innocence of the petitioner in the case pending before the trial court cannot be determined in exercise of inherent powers as the same can

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well be decided by the trail court once the case is put to trial and parties would bring respective evidence on record thereof.

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14.In short the issues and questions raised by the petitioner in the instant petition having regard to the facts and circumstances of the case are not the threshold issues or questions, which could be decided by this Court in exercise of inherent powers at this stage and the judgments relied upon by the counsel for the petitioner having regard to the aforesaid analysis do not lend any support to the case of the petitioner.

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15. Viewed thus what has been observed, analysed and considered herein above the instant petition fails and is accordingly dismissed.

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(JAVED IQBAL WANI) JUDGE

SRINAGAR:

06.08.2025

“S.Nuzhat”

Whether approved for reporting? Yes