Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(J&K) 77

IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU
SANJAY DHAR, J.
Ram Dass & Ors. – Petitioners
Versus
Union Territory of J&K & Anr. – Respondents
CRM(M) No. 475 Of 2021
Decided On : 10-03-2023

Advocates Appeared:
For the Petitioners: Ankur Sharma.
For the Respondents: Sumeet Bhatia, Vishal Gupta.

The power to quash criminal proceedings should be exercised sparingly and only in deserving cases, and allegations of mala fides against the informant are not a ground for quashing the criminal proceedings.

Headnote:
FIR Challenge - Trespass and Caste-based Offences - Section 3 of SC and ST Act, 1969 - 447, 427, 504, 506, 147 IPC - [447, 427, 504, 506, 147 IPC, 3(s), 3(za) of SC and ST Act, 1969] - The court discussed the scope of power under section 482 of the Cr.P.C and laid down principles for quashing criminal proceedings. The court emphasized that the power to quash should be exercised sparingly and only in deserving cases. It highlighted that allegations of mala fides against the informant are not a ground for quashing the criminal proceedings. The court also emphasized that the investigating agency has the statutory right to undertake investigation and the court should not scuttle a genuine prosecution and quash the FIR when the facts appear to be hazy.
Fact of the Case:

The petitioners challenged an FIR alleging trespass and caste-based offenses. The complainant accused the petitioners of forcibly trespassing into their land, using derogatory words based on caste, and threatening to dispossess them from the land.
Finding of the Court:

The court found that the allegations in the FIR disclosed cognizable offenses under sections 3(s) and (za) of the SC and ST Act, and emphasized that the power to quash should be exercised sparingly and only in deserving cases. The court dismissed the petition as it lacked merit and vacated any interim direction.
Issues: The issues revolved around the challenge to the impugned FIR, the allegations of mala fides, and the contention that no independent witness supported the allegations.
Ratio Decidendi: The court emphasized that the power to quash should be exercised sparingly and only in deserving cases. It highlighted that allegations of mala fides against the informant are not a ground for quashing the criminal proceedings. The court also emphasized that the investigating agency has the statutory right to undertake investigation and the court should not scuttle a genuine prosecution and quash the FIR when the facts appear to be hazy.
Final Decision: The court dismissed the petition challenging the FIR and vacated any interim direction.

JUDGMENT :

1. The petitioners have challenged FIR bearing No. 262/2021 for offences under sections 447, 427, 504, 506 and 147 IPC and Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1969 (hereinafter to be referred as the SC and ST Act) registered with Police Station, Udhampur.

2. It appears that Respondent No. 2/complainant filed an application under section 156(3) Cr.P.C. before the Special Mobile Magistrate (Sub Judge), Udhampur, alleging therein that on 18.05.2021 at around 8:00 A.M. when the complainant along with her son, husband and cousins was erecting fencing on the land measuring 1 kanal and 14 marlas falling under khasra No. 54, khewat No. 94/95 at village Badali, Tehsil and District, Udhampur, the petitioners, who belong to Brahmin community, forcibly trespassed into the said land and started shouting and abusing the complainant and her family members. It was alleged in the application that the petitioners extended threats to the complainant and her family members and petitioner-Ram Dass declared that he would not allow Chamar community to occupy his land. It has been alleged that the said petitioner uttered the following words:

"beshak ye Zameen Chameron ki haiv lekin hum inko lene nahi denge. Inko pole kade karne do, Raat ko hum ukhar fenken ge and he was also shouting that in chamaron ne kal panni ki tanki bhi bharashat kr di thi ab hum Brahmin iska paani kaise peeyin gye ya istemaal karenge ja tanki toh todni he padegi. Chamaron ne isko shu liya hai agar in chamero ne zyada kuch kiya to into khatam he karna padega."

3. It was further alleged in the application that on 19.05.2021 at about 8.00 A.M. when the complainant and her family members visited the land in question, they found that the poles and barbed wire erected by them had been taken away.

4. The learned Magistrate endorsed the application to the Police and on the basis of direction of the Magistrate, the impugned FIR came to be registered.

5. The petitioners have challenged the impugned FIR on the grounds that allegations made therein are false and frivolous. It has been submitted that the complainant has filed a civil suit against the petitioners in respect of the land in question and in the said suit, an interim order of status quo has been passed by the civil court. It is averred that when the petitioners obtained an order for implementation of status quo order through Police, the complainant in order to teach a lesson to the petitioners lodged the impugned FIR, which is nothing but an act of vengeance. It has been further contended that as per investigation conducted so far, no independent witness has supported the allegations made in the impugned FIR as such, offence under section 3 of the SC and ST Act is not made out against the petitioners.

6. I have heard learned counsel for the parties and perused the material on record.

7. Before testing the merits of the contentions raised in the petition, it would be apt to understand the scope of power of this Court under section 482 of the Cr.P.C. The scope of inherent power of the High Court under section 482 of Cr.P.C has been discussed by the Supreme Court in State of Andhra Pradesh v. Golconds Linga Swamy, 2004 (6) SCC 522. In paras 5, 7 and 8 it has been observed as under:-

"5. Exercise of power under section 482 of the Code in a 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, (i) to give effect to an order under the Code, (ii) to prevent abuse of the 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. No legislative enactment dealing with procedure can provide for all case