1 Serial No. 99 Suppl. List HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR CRM (M) 727/2023 CrlM 1657/2023 Harpreet Rana … Petitioner(s) Through: Ms. Rahila Khan, Advocate with Mr. Arshid Bashir, Advocate. VERSUS Sameer Koul …Respondent(s) Through: Mr. Usman Gani, Advocate. CORAM: HON’BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE JUDGMENT (ORAL) 11-09-2025 1. The petitioner herein has invoked the inherent power of this Court enshrined in Section 482 Cr.P.C (now Section 528 BNSS) for quashing complaint titled as <Dr. Sameer Koul v. Harpreet Rana” pending before the Court of Additional Mobile Magistrate, Pahalgam (For short the Magistrate) including the order dated 15.11.2023 passed therein and also warrant dated 18.11.2023 issued thereof. 2. Facts emerging from the record available on the file would reveal that the respondent herein filed a complaint against the petitioner herein before the Magistrate alleging therein, that he, the complainant, is a well reputed doctor/personality having gained glorious honour in the society within and outside the India and that his wife namely Anita G. Koul purchased a chunk of land measuring 19.5 marlas along with a residential hut existing thereon falling under Khewat No. 111 and Khata 2 No. 167 Survey No. 349/45 situated at Mamal Pahalgam from one namely Hansraj Singh S/o Santok Singh R/o 18 Magarmal Bagh, Near Jahangir Chowk, Srinagar, pursuant to a registered sale deed dated 19.08.2023, after scrutinizing relevant revenue extracts properly and that subsequently a mutation sale as well deed came to be attested qua the said property pursuant to the said sale deed in favour of his wife and that the accused/petitioner herein left no stone unturned in tarnishing, outraging and defaming the reputation of the complainant without any reason, justification or cause and that on 14th November, 2023, when the complainant was at Pahalgam along with like-minded people, he, the complainant/respondent herein came to be followed by the accused/petitioner herein and in the main market of the Pahalgam and the accused/petitioner herein stopped his car and hurled defamatory words such as <tout, scalper and salesman= etc upon the complainant/respondent herein and thus tarnished the image and reputation of the complainant/respondent herein before the said like- minded people and also the general public and that the complainant/ respondent herein repeatedly requested the accused/petitioner to desist from doing such inimical activities inasmuch as also persuaded him to resolve the issue amicably, but the accused/petitioner herein turns down the said requests of the complainant/respondent herein and even filed an application full of imputations against the complainant/respondent herein before the Sub-Divisional Magistrate, Pahalgam, discrediting the reputation of the complainant/respondent herein in the society and that the accused/petitioner herein also threatened the complainant/respondent herein with serious and alarming consequences, in case the 3 complainant/respondent herein would report the matter to police or any Court of law and that on account of the said acts of the accused/petitioner herein, the complainant/respondent herein suffered miserable affliction and mental agony, besides loss of reputation and goodwill, and that the said acts of the accused/petitioner herein constitute the commission of offence under Section 499 IPC punishable under Section 500 IPC. 3. The Magistrate upon entertaining the impugned complaint on 15.11.2023, got the same diarized and consequently had the statements of the complainant and also one of his witnesses recorded and proceeding to take cognizance of the offence under Section 499 to have been committed by the accused/petitioner herein and consequently directed issuance of notice/summon to the accused/petitioner herein fixing the complaint for further consideration on 20.12.2023 while providing specifically therein the said order that the summons in the matter be sent only in the first instance to procure the attendance of the accused/petitioner before the Court. Record also reveals that on 20.12.2023, the Magistrate recorded in the minutes of the proceedings that the complainant/respondent herein along with counsel is present and the accused/petitioner herein is absent, however, an application seeking his exemption from appearance has been filed however, dismissed the same and directed the issuance of bailable warrant against the accused/petitioner to the tune of Rs. 20,000/- and fixed the complaint for further proceedings on 10.02.2024, on which date the complainant did not appear, however, his counsel moved an application for his exemption, which exemption came to be granted and 4 the accused/petitioner herein on the said date yet again did not appear and issuance of bailable warrants against him in terms of previous order dated 20.12.2023 were directed by the Magistrate. 4. The accused/petitioner herein while maintaining the instant petition and challenging the impugned complaint and also the orders dated 15-11- 2023 and 18-11-2023 has stated that on the date of alleged occurrence dated 14.11.2023, the accused/petitioner herein was in Delhi even as per his Google Location having been placed on record to the petition and that the accused/petitioner was never present in Pahalgam on the said date and that since the property in question having vested unto the petitioner through inheritance from his father upon the death of his father on 13.11.2008 had been illegally sold by the uncle of the petitioner herein while forging the revenue documents and without the consent of the petitioner herein and other legal heirs of his deceased father and that the petitioner even cautioned the concerned authorities about the said fraudulent sale and that the Magistrate, failed to follow the mandate of law contained in Section 202 CrPC while entertaining the impugned complaint. taking cognizance of the offence in question thereof as also issuing process against the petitioner herein besides observing various judgments referred in the petition passed by the Apex Court including in case titled as <Pepsi Food Ltd vs. Judicial Magistrate=, reported in 1998 Volume 5 SCC 749”, in breach and that although the Magistrate while issuing summons to the accused/petitioner on 15.11.2023, had qualified in the said order dated 15.11.2023 that in the first instance summons alone be issued for procuring the attendance of the accused/petitioner herein and having fixed the next date in the matter 20-12-2023, yet on 5 18th December, 2023 before the said date fixed in the case issued bailable warrants against the accused/petitioner for unknown reasons. 5. The petitioner herein thus, seeks the quashing of the impugned complaint along with the impugned orders. Fundamentally on the premise that the impugned complaint is but abuse of process of law aimed at to pressurise and harass the petitioner herein to give up his claim over the property in question claimed to have been purchased by the wife of the complainant/respondent herein. 6. The respondent herein has not filed any reply to the instant petition. Heard counsel for the parties and perused the record. 7. Before proceedings further in the matter it would be significant to refer where under to the offence of defamation contained in Section 499 of IPC. Section 499:- Defamation Whoever by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person. Explanations 1. It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the fellings of his family or other near relatives. 2. It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such. 3. An imputation in the form of an alternative or expressed ironically, may amount to defamation. 4. No imputation is said to harm a person’s reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loath some state, or in a state generally considered as disgraceful. 6 What emanates from above in order to constitute an offence of defamation there has to be an imputation concerning any person with intention to harm or with knowledge or reason that such imputation will harm the reputation of the said person. Thus, an imputation without an intention to harm or without knowledge a reason to believe that it will harm the reputation of such person will not constitute the offence of defamation. 8. Reverting back to the case in hand record reveals that the complainant/respondent herein has specifically alleged in the impugned complaint that on 14.11.2023, at Pahalgam the accused/petitioner herein in presence of like-minded people called him the complainant as, <tout, scalper, salesman= etc. which tarnished seriously his image and reputation before the said like-minded people as well as general public. Besides, it is also been stated in the impugned complaint that the similar kind of imputation was also made by the accused/petitioner herein against him in an application filed before Sub-Divisional Magistrate, Pahalgam in order to dishonest his reputation. 9. As has been noticed in the proceeding paras, the accused/petitioner herein has specifically averred in the petition that on the alleged date of occurrence i.e. 14.11.2023, he, the accused/petitioner herein was never ever at Pahalgam, but was in Delhi and has substantiated his said plea by placing on record his Google Location and has also placed on record the receipt of the articles claimed to have been purchased by him on the said date from a Shop namely <Brighu Sound Repair= in Delhi and has even pleaded that his presence there at the said shop on 14.11.2023, can also authenticated by the CCTV footages installed in the said shop. The 7 complainant/respondent herein however, has not denied or disputed the said specific plea of the accused/petitioner herein either by filing any response to the petition or by producing any material/documents in rebuttal thereto. Thus, under these circumstances an adverse inference in this regard is drawn against the complainant/respondent herein, and therefore, the allegations of the complainant/respondent herein that the accused/petitioner herein, on 14.11.2023, used defamatory words against him at Pahalgam market in presence of like-minded people into in significance. 10. Record also tends to show that the complainant/respondent herein in the impugned complaint also alleging that the accused petitioner addressed an affidavit to the Sub-Divisional Magistrate Pahalgam and used defamatory imputations therein. The complainant respondent herein has stated in the impugned complaint that a copy of the application is annexed as an annexure with the complaint. However, it gets revealed from the record of the impugned complaint summoned from the Magistrate that there is no such annexure appended thereto. However, the petitioner herein has placed on record the said application with the instant petition and a bare perusal of the same tends to show that the same does not anywhere reflect the name of the complainant/respondent herein but alleging the illegal transfer of half share in the property at Pahalgam belonging to the father of the accused/petitioner herein and his cousins namely Dilbagh Singh and Daljit Singh claimed to have been illegally transferred by one Hansraj Singh, the uncle of the accused/petitioner herein. No defamatory imputation worth the name is 8 appearing in the said letter either against the said Hansraj Singh or else the complainant/respondent herein. 11. It is pertinent to mention here that the Magistrate has been oblivious to said fact of non-attachment of the annexures referred in the impugned complaint and seemingly has mechanically and casually not only entertained the impugned complaint but also takes cognizance thereof and issued process consequently against the accused/petitioner herein more so in disregard to the provisions of Section 202 Cr.P.C. overlooking the fact that the accused/petitioner has been in the complaint shown to be the resident of New Delhi at the time of filing of the impugned complaint. A deeper examination of the impugned complaint as also the order and the statements of the complainant/respondent herein and one of his witnesses also reveals that the Magistrate has failed to have the said statements recorded on oath for the purposes of taking cognizance and issuing process instead of taking recourse to holding of an inquiry under Section 202 Cr.P.C. in the matter. Here a reference to the judgment of the Apex Court passed in case titled <Pepsi Food Limited and Anr vs. Special Judicial Magistrate and Ors”., (1998) 5 SCC 749, would be relevant herein wherein para 28 following has been held; Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the 9 complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused. 12. In view of the aforesaid position obtaining in the matter, the neat question for consideration of this Court would be as to whether the exercise of inherent power is warranted in the matter, however, before proceeding to advert to the said question, a reference to the following judgements of the Apex Court would be appropriate and advantageous. The Apex Court in case titled State of Haryana and others vs. Bhajan Lal and others reported in 1992 Supp (1) SCC 335 has at para 102 held as under; "102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. 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. 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 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155 (2) of the Code. 10 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. 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. 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. 6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (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 concerned Act, providing efficacious redress for the grievance of the aggrieved party. 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." The Apex Court further in case titled as State of Karnataka v. M. Devenderappa and another reported in 2002 (3) SCC 89, at paragraph 6 has held as under: "6....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 quande lex aliquid aliqui concedit, concedere videtur in sine que ipsa, esse 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 abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance 11 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." The Apex Court also in case titled as Mohammad Wajid and another vs State of UP and others reported in 2023 SCC Online SC 951 has at paragraph 34 observed as under; "34. At this stage, we would like to observe something important. Whenever an accused comes before the Court invoking either the inherent powers under Section 482 of the Code of Criminal Procedure (Cr.P.C.) or extraordinary jurisdiction under Article 226 of the Constitution to get the FIR or the criminal proceedings quashed essentially on the ground that such proceedings are manifestly frivolous or vexatious or instituted with the ulterior motive for wreaking vengeance, then in such circumstances the Court owes a duty to look into the FIR with care and a little more closely. We say so because once the complainant decides to proceed against the accused with an ulterior motive for wreaking personal vengeance, etc., then he would ensure that the FIR/complaint is very well drafted with all the necessary pleadings. The complainant would ensure that the averments made in the FIR/complaint are such that they disclose the necessary ingredients to constitute the alleged offence. Therefore, it will not be just enough for the Court to look into the averments made in the FIR/complaint alone for the purpose of ascertaining whether the necessary ingredients to constitute the alleged offence are disclosed or not. In frivolous or vexatious proceedings, the Court owes a duty to look into many other attending circumstances emerging from the record of the case over and above the averments and, if need be, with due care and circumspection try to read in between the lines. The Court while exercising its jurisdiction under Section 482 of the Cr.P.C. or Article 226 of the Constitution need not restrict itself only to the stage of a case but is empowered to take into account the overall circumstances leading to the initiation/registration of the case as well as the materials collected in the course of investigation." 13. Thus, what emanates from the reading of Section 48 CrPC (Now Section 528 BNSS) and the above principles of law is that the inherent power of 12 this Court saved under Section 482 Cr.P.C. does not confer any new power on the High Court, in that, it only saves the inherent power of this Court, which the Court possessed before enactment of the Code of Criminal Procedure and envisages three circumstances under which the inherent power may be exercised, namely- a) To give effect to an order under the Code, b) To prevent abuse of process of court, and c) To otherwise secure the ends of justice. It is also significant to mention here that it has been the consistent view of the Constitutional Courts that it is neither possible not desirable to lay down any inflexible rule which would govern the exercise of inherent power and no legislative enactment dealing with procedure can provide for all cases that may possibly arise, thus suggesting that the High Courts have inherent powers to do the right and to undo the wrong in the course of administration of justice on the principle "that when the law gives a person anything, it gives him that without which it cannot exist" and that the inherent power is exercised <ex debito justitiae= <to do real and substantial justice= for the administration of which alone the Courts exist and that the authority of court exists for advancement of justice and if any attempt is made to abuse the authority so as to produce injustice, the Court has power to prevent abuse and that it would be an abuse of process of court to allow any action which would result in injustice and prevent promotion of justice and that in exercise of powers, the Court would be justified to quash any proceeding, if it finds that the initiation/continuance of it amounts to abuse of process of court or quashing of these proceedings would otherwise serve the ends of justice. 13 14. Having regard to what has been observed, considered and analysed hereinabove the impugned complaint seemingly has been filed by the complainant/respondent herein with an ulterior motive and with a personal grudge by observing the process of law. Besides, it also emanates from the impugned complaint that the allegations made therein are so absurd on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused/petitioner herein 15. Viewed thus, the instant petition succeeds, as a consequence, whereof the impugned complaint, proceedings initiated thereon, including the impugned orders 15.11.2023 and 18.11.2023 passed therein are quashed. (JAVED IQBAL WANI) JUDGE SRINAGAR 11-09-2025 Sarvar Whether the order is speaking Yes/No Whether the order is reportable Yes/No