Back
2019 Supreme(J&K) 530
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Sanjay Kumar Gupta, J.
Suresh Gautam – Petitioner
Versus
Kartar Singh – Respondent
CRMC No. 21 of 2015 & IA No. 22 of 2015
Decided On : 26-04-2019
Advocate Appeared:
For the Petitioner: Narinder Kumar Attri
For the Respondent: Sachin Sharma
The inherent power under Section 561-A of the Cr.P.C. should be exercised sparingly and only in specific circumstances.
Headnote:
Section 561-A - Quashment of Complaint - 342, 344, 504, 506, 323 RPC - 348, 506 RPC - Summary
Fact of the Case:
The petitioner seeks quashment of a complaint and summoning order issued against him for offenses under various sections of the RPC. The petitioner argues that the process is vitiated by non-application of mind and amounts to abuse of the court's process. The complaint is alleged to be oblique and related to an ongoing inquest proceeding initiated at a police post.
Finding of the Court:
The court found that prima facie case has been made out based on the inquiry conducted by the subordinate JMIC. The court also emphasized that police cannot keep any person in illegal confinement and that the inherent power under Section 561-A of the Cr.P.C. should be exercised sparingly and in rare cases.
Issues: The issues revolve around the alleged abuse of court process, the legality of the inquiry, and the motive behind the complaint.
Ratio Decidendi: The court emphasized that the inherent power under Section 561-A of the Cr.P.C. should be exercised sparingly and only in specific circumstances. It also highlighted the need for legal bar engrafted in any law for interference with the orders impugned.
Final Decision: The petition for quashment of the complaint and summoning order was dismissed by the court.
JUDGMENT :
1. In the present petition filed under Section 561-A of Cr.P.C., petitioner seeks quashment of the complaint together with summoning order dated 11.06.2014 issued in complaint titled Kartar Singh vs. Suresh Gautam, pending before the Chief Judicial Magistrate, Udhampur.
2. The case of the petitioner is that the respondent has filed the complaint before Chief Judicial Magistrate, Udhampur against the petitioner for the commission of offence under Section 342, 344, 504, 506, 323 RPC. It is stated that upon filing of the complaint, learned Chief Judicial Magistrate, Udhampur referred the complaint under Section 202 Cr.P.C. to the learned Mobile Magistrate Traffic, Udhampur for conducting an inquiry. The learned inquiry Magistrate was pleased enough to conduct the inquiry and during the course of inquiry, recorded the statement of complainant as well as his son Surinder Singh and on the strength of the statements made therein, was pleased enough to conclude the commission of offence under Section 348 along with 506 RPC, completely ignoring the facts that neither the complaint nor the statement recorded in support thereof, despite being drafted and filed by learned Advocate, does not disclose the commission of offence under Sections 348 & 506 and in the name of the inquiry, the inquiry Magistrate has merely recorded the statement of the complainant and that of his son only, on the basis whereof furnished the report contrary to the complaint. It is stated that the learned Chief Judicial Magistrate, Udhampur on the basis of inquiry report, issued the process against the petitioner for the commission of the offence under Sections 342, 348 & 506 RPC vide order dated 11.06.2014. It is further submitted that vide order dated 11.06.2014 while issuing the process, the learned Chief Judicial Magistrate, Udhampur simultaneously appointed the Commissioner to visit the police station, Rehambal as well as Police Post, Tikri so as to find out whether or not the son of complainant is being detained by the police or not, which prima-facie discloses the fact that the learned court did not believe the version of the complainant and on the other hand issued the process without waiting for the report of the Commissioner. It is stated that in pursuant to the order, the Commissioner submitted the report in negative.
3. The report of the Commissioner reads as under:-
“That the Ld. Court in the above titled complaint appointed me as a commissioner and vide Order No. 107/CJMU, dated 11.06.2014, I was directed to visit the premises of both Police Station, Rehambal as well as Police Post, Tikri and to submit a report as to, whether or not the son of the complainant namely, Rakesh Singh is being detained by the authorities of the police or not.
That I along with the complainant on 11.06.2014 itself visited the Police Post, Tikri at 2:30 P.M. and after informing the police personal on duty searched the lockup and other rooms located on first floor of the Police post but the son of the complainant was not found there. That we even searched/looked into the surrounding premises and vehicles parked in the police post but no one is found there. That after 45 min. of search we left the place for Police Station, Rehambal.
That we reached the Police Station, Rehambal at about 3:30 and there too the search was made/conducted in whole building but the son of the complainant could not be found.
Accordingly the commissioner report is submitted to the Ld. Court. Sahil Raina
Dated: 12.06.2014 Advocate
(Commissioner).”
4. Learned counsel for the petitioner states that the issuance of the summoning order, from the point of the view of appointment of commissioner specifically shows that either the process stands issued mechanically as the learned Magistrate still doubted the complaint as well as the inquiry report, as such, the process is vitiated by non-application of mind and result of failure to exercise the jurisdiction, as such, amounts to abuse of the process of the co
