1 CRMC No. 405/2018 S. No. 6 Regular Cause List IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR CRMC No. 405/2018 Mushtaq Ahmad Bajard …Appellant/Petitioner(s) Through: Mr. Mujeeb Andrabi, Advocate Vs. State of J&K and Ors. ...Respondent(s) Through: Ms. Nadiya Abdullah, Assisting Counsel CORAM: HON’BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE O R D E R 21.02.2025 1. Quashing of FIR No. 13/2012, registered with Police Station, Vigilance Organization Kashmir, for the offences under Section 5(1)(c),(d) read with 5(2) JK PC Act Svt. 2006 and Sections 467, 468, 471, 120-B RPC, insofar as the name of petitioner figures therein; sanction granted for prosecution of petitioner; and also, police report filed under Section 173 Cr.P.C, insofar as involvement of petitioner is concerned, is sought for in this petition. 2. Before appreciating and looking into the merits of the case, it will be profitable to give a brief account of the facts as noted in petition along with grounds taken for quashment of FIR in question, Sanction and police report filed under Section 173 Cr.P.C:- (i) That for purposes of widening of National Highway-IA, the land was required for acquisition which included a huge chunk of land situate within the limits of Tehsil Awantipora. It is necessary to state that land falling under Survey No. 426 and a non-existent survey No. 1298/1 was not included in the Notification issued under Section 4 of the Acquisition Act. After passing of award (tentative), the file was placed before the Collector, Land Acquisition National Highway-IA, Shri Mohammad Rajab Bhat, byname. It seems that at that stage, Ghulam Mohammad and Mst. Taja pretending to be the 2 CRMC No. 405/2018 landowners whose land has been acquired, approached the Collector in league with Patwari Halqa for ascertaining the authenticity and verification of their ownership about the aforesaid land covered by two Survey Nos. and to find out whether compensation has been awarded. The office of the Collector may have referred the matter for re-verification of the facts and authenticity of the claims made together with verification about the Shajra and Khasra of the land. This is borne from the orders and endorsements made in the record pertaining to the acquisition of the land relating to Khasra Paimaish. The matter went to Assistant Commissioner, Revenue, who on 15-06-2009 submitted further to Collector for perusal and orders in the light of observations made earlier when the matter was referred by the Collector for verification. The Collector called the Patwari with records. Nothing is known of the orders which were to be passed by the Collector, but fact of the matter is that amount has been paid for land falling under Khasra No. 426 measuring 6 kanals-09 marlas and for land falling under non-existent survey No. 1289/1 measuring 2 kanals & 06 marlas by the Collector, Land Acquisition, with which the petitioner has no concern. No report seems to have been made about the aforesaid payments made for the land in question. During the investigation of case FIR No. 37/2010 investigated by the Vigilance Organization, Kashmir, it transpired that Shri Mohammad Rajab Bhat, the then Assistant Commissioner (Revenue) and Collector, Land Acquisition National Highway Four Lanning, Pulwama (now retired), Shri Rafiq Ahmad Wani S/o Sonaullah Wani Rio Dadsara, Tral, the then Patwari Haiqa Awantipora, Shri Farukh Jahanzeb S/o Ghulam Mohi-ud-din Bhat R/o Awantipora (private person) and Shri Mohammad Abdullah Pandith S/o Rehman Pandith R/o Awantipora (private person) and others entered into a criminal conspiracy among themselves during the year 2007-08 and in pursuance thereof the accused public servants fraudulently, dishonestly and by abusing their respective official position, processed, prepared and paid 3 CRMC No. 405/2018 compensation in lieu of acquisition of land to the tune of Rs. 18,30,340/- in favour of the private persons which was actually not due to them thereby causing wrongful loss to the state exchequer and corresponding wrongful gain to the accused persons. The FIR further reveals that the accused Patwari submitted Khasra Paimaish showing the land for acquisition in respect of construction of Four Lane National Highway in village Awantipora and fraudulently included 6 kanals land to the actual existingland measuring 9 marlas only in survey No. 426 in estate Awantipora, in the name of Ghulam Mohammad Bhat & Mst. Taja R/o Awantipora, thereby wrongly making the total land as 06 kanal and 09 marlas even though this existing land measuring 09 marlas only falling under survey No. 426 was also not coming under the alignment of the National Highway Four Lanning Programme. In the FIR, it is further stated that Shri. Mohammad Rajab Bhat, the then Assistant Commissioner (Revenue) and Collector Land Acquisition National Highway Four Lanning Pulwama (now retired) prepared apportionment statement and Acquittance Roll in respect of village Awantipora, and fraudulently included non- existent 06 kanal of land to the actual existing 09 marlas of land falling under survey No. 426 and an amount of Rs. 13,64,820/- was released by Shri Mohammad Rajab Bhat illegally and fraudulently (towards 80% of land compensation amount) in favour of Shri Ghulam Mohammad Bhat and Mst. R/o Awantipora vide Cheque No. 22566547 dated 09-07-2008 and theafore said cheque was handed over to Shri Farukh Jahanzeb, nephew of Ghulam Mohammad Bhat and son of Mst. Taja Begum. The amount was withdrawn by Shri Farukh Jahanzeb by depositing the cheque in a fake bank account No. SB-9902 at J&K Bank Branch Awantipora, opened in the name of Shri Ghulam Mohammad Bhat & Mst. Taja, by forging their signatures. The further revelation made in the FIR is that accused Patwari Halqa Awantipora, included land measuring 02 kanals and 04 marlas against a non-existent survey No. 1289/1 countersigned by the then Girdawar Circle E Awantipora, and 4 CRMC No. 405/2018 Naib Tehsildar and, subsequently authenticated by then Tehsildar Awantipora, against the actual 03 kanals 16 marlas belonging to Shri Mohammad Abdullah Pandith and facilitated excess drawl of land compensation amount in favour of the above said beneficiary to the tune of Rs. 4,65,520/- towards 80% of total compensation. Shri Bhat the then Collector wrongly authenticated/approved the details prepared by aforementioned officers/officials of revenue department and facilitated illegal payments in favour of Shri Mohammad Abdullah Pandith. The total amount of Rs. 13.00 lacs was released by Shri Mohammad Rajab Bhat vide cheque No. 369914 dated 11-01-2008 (Rs. 8.00 lacs) and cheque No. 165835 dated 14-03-2008 (Rs. 5.00 lacs) including excess payment of Rs. 4,65,520/- in favour of the beneficiary in respect of non-existent land measuring 02 kanals 04 marlas showing falling under non-existent survey No. 1289/1. On the basis of the report, a case FIR No. 13/2012 was registered for investigation by the Vigilance Organization, Kashmir. During the course of investigation, petitioner was given a questionnaire by the Organization. The petitioner replied the questionnaire and submitted details about insertions made in the record and about the payments fraudulently obtained by the land holders. It was, however, specifically brought to the notice of the Investigating Officer that Girdawar of the Land Acquisition posted in Collectorate has pointed out in his additional report that survey Nos. 426 and 1289/1 does not figure or fall in Khasra Paimaish for which payments have been made fraudulently at the level of Collectorate. The petitioner further informed the Investigating Officer that he was not connected with any part of the exercise illegally conducted, but has only put his signature on the report of Office Qanoongoh, Girdawar Qanoongoh and concerned Naib Tehsildar who had recorded that entries are correct according to the original record. No criminal liability can be fastened upon the petitioner as mere endorsement made on the report of Office Qanoongoh or Girdawar Qanoongoh, cannot bring him within the mischief of 5 CRMC No. 405/2018 offences punishable under section 5(1 )(c), (d) read with 5(2) of J.K. P.C. ACT SVT. 2006 or within the mischief of offences punishable under sections 467, 468, 471, 120 B RPC. It was also brought to the notice of the Investigating Officer that tentative award, does not show the existence of survey No. 426 and 1289/1 and, therefore, there was no question of preparation of false and fabricated record by any of the officers before the tentative award was passed. It seems that whole game has started at the level of the Collectorate to whom the reports marked Annexure-"B" were sent, but despite the report submitted, he ordered Patwari to come to his office along with record and there was, thus, an end game executed at that level regarding payments of the amount embezzled in the case by fraudulent means. (ii) That the petitioner only countersigned the signature of the Naib Tehsildar, who in turn had played the same role of countersigning the report prepared by the Patwari and Girdawar. A close look upon the report of Patwari and Girdawar does not give any indication that Khasra Paimaish has been changed and there is no mention of survey nos. They have reported that Khasra Paimaish and the site position of record tally with each other. (iii) That during the investigation of the case despite replying the questionnaire petitioner got suspicion that he may be falsely implicated in the case. The petitioner, therefore, filed a representation before the Senior Superintendent of Police, Vigilance Organization (ABP), Srinagar, bringing it to his notice that he joined as Tehsildar, Awantipora on 08-12-2007. The notice was issued on 11-06-2007, which does not include survey No. 426 or 1289/1. Patwari seems to have committed forgery and manipulation by preparing a second Khasra Paimaish fraudulently and intentionally to insert two survey Nos. 426 and 1289/1 in order to defraud the State Exchequer. It was also submitted in the representation that petitioner as Tehsildar has only to put his signatures on the record of Office Qanoongoh, Girdawar Qanoongoh and Niab Tehsildar, who had 6 CRMC No. 405/2018 recorded that entries are correct according to the original record. The representation was endorsed to Inspector Hilal (IO) with the remarks to go through the contents of the representation and come up with the conclusion of this file. The Investigating Officer does not seem to have taken any cognizance of the representation, ignoring the rightful claim of the petitioner that he is not involved in the case and mere endorsement on a report submitted to him by Naib Tehsildar and Girdawar does not attribute any mens rea and nor can this endorsement bring him within the mischief of commission of offences as indicated in the FIR. (iv) That to the utter chagrin and surprise, the petitioner came to know that Vigilance Organization has submitted an application to the State Government to the address of Commissioner/Secretary to Government, General Administration Department, with a request that sanction in the case may be granted for prosecuting the accused in which name of petitioner also figures. The sanction to the knowledge of petitioner has been granted, but despite efforts copy of sanction was not provided by General Administration Department as it was reported through his emissary that record cannot be provided as it is a secret record. The petitioner is, therefore, unable to produce the sanction order for which quashment is also sought. (v) That the petitioner also came to know that Naib Tehsildar and Girdawar, whose reports petitioner has signed, are not arrayed as accused in the case. The investigation of the case is, thus, discriminatory and selective liable to be quashed in so far as it relates to the petitioner. It is further submitted that in so far as the payments made to Mohammad Abdullah Pandith are concerned, it has surfaced later about which petitioner has no knowledge and has never endorsed their claim. As a matter of fact, the questionnaire does not ask anything with regard to the land and the alleged manipulation or forgery. The questionnaire is vague and uncertain, but despite that full reply was given by the petitioner about the entire gamete of facts which have 7 CRMC No. 405/2018 resulted in the embezzlement of the amount and registration of the case of which no liability can be fastened upon the petitioner. (vi) That sanction obtained against the petitioner has been issued without application of mind. The arbitrariness and hostile discrimination meted out to the petitioner is writ large. The Naib Tehsildar and Girdawar, who have signed and endorsed the statement of Patwari and Girdawar, have been left out, but petitioner has been made scape goat for none of his faults. (vii) That a report under section 173 Cr.P.C. has been prepared, but the challan is yet to be presented before the Court. The presentation of the case against the petitioner will be an abuse of process of law and abuse of process of court. The petitioner in the circumstances of the case in which his name has been shown in the case requires re-investigation to pinpoint the culprits in the case. (viii) That the case registered and the challan presented in the circumstances of the case in which name of the petitioner seems to have been virtually inserted, will remain hanging upon the petitioner's head. The cherished constitutional right of liberty is thereby deprived. To save the ends of justice from being defeated the Court may order re-investigation of the case by quashing the report prepared under Section 173 Cr.P.C. as also the sanction granted by the Government. 3. Respondents have filed their status report, wherein it is stated as under:- (a) FIR was registered on the basis of outcome of investigation conducted during case FIR No.37/2010 registered at P/S Vigilance Organization, Kashmir, under section 5(1)(c)(d)r/w 5(2) J&K PC Act Samvat 2006, Sections 409,467,468, 471,120- 13 of RPC, pertaining to misappropriation of more than Rs.20.00 crores meant for compensation of land to those landowners whose land was falling under four lanning NHW Pulwama, during which it surfaced that Mohammad Rajab Bhat S/o Ghulam Ahmad Bhat R/o Salia Anantnag, at present Dangerpora Pulwama, Muhammad Rafiq Ahmad Wani S/o Sona ullah Wani R/o Dadsara Tral and others in connivance 8 CRMC No. 405/2018 with officers/officials of Revenue Department and private persons Farukh Jahanzeb alias Rinku and Muhammad Abdullah Pandith have also misappropriated compensation amount of Rs.18,30,340/- by abusing official positions and releasing of compensation in lieu of non-existent land and excess land in favour of the Private accused persons and accordingly the Vigilance Organization Kashmir (now ACB) registered case FIR No. 13/2012 u/s 5(1) (d) r/w 5(2) of J&K P.C. Act Samvat 2006, Sections 120-13,420,467,468 & 471 RPC against the accused persons for in-depth investigation. Allegations in brief:- (b) During course of investigation, it was revealed that Mohammad Rajab Bhat, then Assistant Commissioner (Revenue) and Collector, Land Acquisition National Highway, Four Lanning Pulwama, (now retired), Rafiq Ahmad Wani S/o Sona-ullah Wani R/o Dadsara Tral; then Patwari Haiqa Awantipora, Farukh Jahanzeb S/o Ghulam Mohi-ud-din Bhat R/o Awantipora (private person) and Mohammad Abdullah Pandit S/o Rahman Pandith R/o Awantipora (private person) and others, including petitioner, entered into a criminal conspiracy among themselves during the year 2007-08 and in pursuance thereof the accused public servants fraudulently, dishonestly and by abusing their respective official positions processed, prepared and paid compensation in lieu of acquisition of non- existent land to the tune of Rs.18,30,340/- in favour of private persons which was actually not due to them thereby causing wrongful loss to the state exchequer to the tune of Rs.18,30,340/- and corresponding wrongful gain to the accused persons. (c) The investigation conducted has revealed that the accused Patwari submitted Khasra Paimaish showing the land for acquisition in respect of construction of Four Lane National Highway in village Awantipora and fraudulently included 06 Kanals of land to the actual existing 09 Marla's only in survey No. 426 in estate Awantipora in the name of Ghulam Mohammad Bhat &Mst. Taja R/o Awantipora, thereby wrongly 9 CRMC No. 405/2018 making and showing the total land as 06 Kanals 09 Marla's. The said existing land measuring 09 Marlas under the aforesaid survey number was not even falling under alignment of National Highway Four Lanning Programme. It has also been revealed that Mohammed Rajab Bhat, then Assistant Commissioner (Revenue)/Collector Land Acquisition National Highway Four Lanning Pulwama (now retired), prepared Apportionment statement and Acquaintance Roll in respect of village Awantipora and fraudulently included the aforementioned 06 Kanal 09 Marla's of land falling under the. survey No. 426. An amount of Rs. 13,64,820/- was released by Mohammed Rajab Bhat illegally and fraudulently (towards 80 percent of land Compensation amount) in favour of Ghulam Mohammed Bhat & Mst. Taja R/o Awantipora vide cheque No. 22566547 dated 09-07-2008 and the aforesaid cheque was handed over to the accused Farukh Jahanzeb who is the nephew of Ghulam Mohammed Bhat and son of Mst. Taja Begum. Accused Farukh Jahanzeb withdrew the aforesaid amount by depositing the cheque in a fake bank account No. SB-9902 at Jammu and Kashmir Bank, Branch Awantipora, opened on 18.01.2007 in the name of above said Ghulam Mohammad Bhat and Mst. Taja by way of forging their signatures/thumb impressions which stand established during the course of investigation. (d) The investigation conducted has revealed that accused Patwari Halqa Awantipora, Rafiq Ahmad Wani also included land measuring 02 Kanal 04 Marlas against a non-existent survey No. 1289/1, countersigned by then Girdawar circle Awantipora, Asadullah Sheikh, Naib Tehsildar Shafiq Ahmad Wafai and subsequently authenticated by accused/petitioner Mushtaq Ahmad Bajard then Tehsildar Awantipora against the actual 03 Kanal and 16 Marlas belonging to Muhammad Abdullah Pandit and as such facilitated excess drawl of land compensation amount in favour of the aforesaid beneficiary to the tune of Rs.4,65,520/- towards 80% of total compensation. Accused, Muhammad Rajab Bhat, the then Assistant Commissioner 10 CRMC No. 405/2018 (Revenue) and Collector Land Acquisition National Highway Four Lanning Pulwama (now retired) wrongly authenticated/approved the details prepared by the officers and officials of Revenue Department and facilitated illegal payment in favour of Muhammad Abdullah Pandit. Thus the accused officers and officials of DC Office Pulwama and Tehsil office, Awantipora by way of abusing of their official positions as public servants and in conspiracy with private accused persons namely Farukh Jahanzeb and Mohammed Abdullah Pandit, defrauded the State Exchequer after obtaining undue pecuniary advantage during period 2007-08 to the tune of Rs. 18,30,340/-. (e) The investigation also revealed that the revenue authorities have also shown Survey Nos.1273 and 1274 village Awantipora land measuring 01 Kanal and 02 Maria's under survey No. 1273 and 17 Marlas of land under survey No. 1274 falling under the alignment of Four Lanning NHW, Pulwama. During spot inspection it was observed that the survey No. 1273 is not falling under the alignment of Four Lanning NHW, Pulwama, as such the whole area 01 kanal 02 Marla's shown acquired is exceeding from the acquisition. Similarly, khasra No 1274 measuring 17 Maria's has been shown coming under NHW Four lanning while as during spot inspection only 13 Marla 01 Sirsai was found coming under acquisition and thus 03 Marlas 08 Sirsai is exceeding from acquisition. (f) During the course of investigation of the case the relevant records having bearing on the case were collected from various offices, Banks, etc. and were seized under separate seizure memos in presence of the witnesses and recorded their statements accordingly. The statements of the witnesses having knowledge about the facts of the case were recorded and placed on record. The Expert opinion was also sought in respect of Revenue records from the Revenue Expert. The hand writings, Signatures, initials both admitted/specimen and thumb impressions wherever required were also obtained for comparison with original seized records in the case. The relevant records having direct bearing on the case were 11 CRMC No. 405/2018 forwarded to FSL for their expert opinion into the visible insertions in the records, identification of hand writings, signatures, initials, thumb impressions, etc. of the accused persons and the expert opinion was accordingly sought and obtained from FSL Srinagar. The records collected during the course of investigation were scrutinized in detail with the help of expert which established the commission of offences by the accused persons in connivance with each other. During course of investigation Ghulam Mohammad Bhat S/o Mohammad Sultan R/o Awantipora while recording statement u/s 164-A Cr.P.C deposed that he has not operated the account No.SB- 9902 at J&K Bank Awantipora, nor has obtained/received any type of compensation from the office of Collector Land Acquisition Pulwama, as his land is not falling under the alignment of four Lanning NHW, Pulwama. Similarly, during investigation Mst. Taja w/o Ghulam Mohi-ud-din Bhat M/o accused Farukh Jahanzeb R/o Awantipora also deposed before the Judicial Magistrate while recording statement u/s 164-A Cr.P.C. that she has not operated account No. SB-9902 at J&K Bank Awantipora. Both PW's deposed that he or she has not obtained any type of compensation from Collector Land Acquisition Office Pulwama nor has he or she made any kind of sale deeds with Collector Land Acquisition Pulwama. (g) On the strength of evidence physical, oral and documentary collected during the course of investigation it has been established that accused Mohammad Rajab Bhat, then Assistant Commissioner (Revenue) and Collector Land Acquisition National Highway Four Lanning Pulwama (now retired), accused/Petitioner Mushtaq Ahmad Bajard then Tehsildar / Girdawar, accused Rafiq Ahmad Wani S/o Sona ullah Wani R/o Dadsara Tral then Patwari Haiqa Awantipora, accused Farukh Jahanzeb S/o Ghulam Mohi-ud-din Bhat R/o Awantipora (private person) and accused Mohammad Abdullah Pandit S/o Rahman Pandit R/o Awantipora (private person) and others have prima facie committed offences punishable under sections 12 CRMC No. 405/2018 5(1) (d) r/w 5(2) of J&K P.C. Act Samvat 2006, and Sections 120-13, 420, 467, 468, & 471 RPC. (h) The case file along with the related records was placed before the competent authority for accord of sanction for launching prosecution against in service public as envisaged under section 6 of J&K, P.C Act, Svt. 2006. The competent authority vide Govt. Order No.38-GAD (Vig.) of 2018 dated 20.08.2018 has accorded sanction for launching prosecution against accused/petitioner Mushtaq Ahmad Bajard in case FIR No. 13/2012 P/S VOK. (i) Finally, after obtaining the sanction in terms of Section 6 of J&K P.C. Act Svt. 2006, the final report in terms of Section 173 Cr.P.C was produced before Hon'ble Additional Anti- Corruption Court Pulwama and the said case is presently subjudice before the said Hon'ble Court. Individual Liability: - (j) During the course of investigation, it transpired that during posting of accused/Petitioner w.e.f. 08/12/2007 to 24/06/2009 as Tehsildar Awantipora, the accused/petitioner 14 , has been found instrumental in embezzlement by way of issuing/certifying/authenticating the forged Revenue documents pertaining to non-existing land or showing excess land falling under NHW four lanning Pulwama in Estate Awantipora in furtherance of criminal conspiracy, in league with other accused persons and paved the way for illegal drawl of money meant for the legal owners of the land, whose land was falling under NHW Four lanning Pulwama, which resulted in transfer of the illegal money to the accounts of private persons not legally entitled for the same which resulted in loss of Rs.25,80,445/-. to the State Exchequer. (k) The investigation conducted has proved the accused/petitioner is signatory to the Khasra Paimaish dated 28/01/2008 forwarded to Collector Land Acquisition Pulwama, which resulted in the illegal and fraudulent payment in favour of private accused persons. 13 CRMC No. 405/2018 4. I have heard learned counsel for parties and perused the material on the file and considered the matter. 5. According to prosecution, petitioner being Tehsildar, Awantipora, misused his official position and had involved himself in the offences in respect of which impugned FIR was registered. It is stated that there is sufficient evidence collected by prosecution, which support the commission of offences committed by petitioner. 6. Record of the Trial Court would reveal that investigation of the case has resulted in presentation of challan after offences were established. Detailed investigation was conducted in the case and after conclusion of investigation, offences have been established in respect of which trial is pending before the Trial Court. 7. The Supreme Court in State of Orissa v. Suraj Kumar Sahoo, (2005) 13 SCC 540, has sounded a note of caution about the powers of High Court to be exercised in terms of Section 561-A Cr.P.C, corresponding to Section 482 of Central Code. Their lordships enunciated that 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, being of magnitude and cannot be seen in their true perspective without sufficient material before the Court. While exercising inherent jurisdiction as observed by their Lordships, it is not permissible for the Court to act as if it was a Trial Court. It would be none of the duties of the High Court to appreciate the evidence to conclude whether the material produced are sufficient or not for holding the accused guilty. 8. It would also be proper to refer to judgment of the Supreme Court in Janta Dal v. H. S. Chowdhary, AIR 1993 SC 892, while summarizing the principles in the light of which inherent powers can be exercised, has observed: “132. The criminal Courts are clothed with inherent power to make such orders as may be necessary for the ends of justice. Such power though unrestricted and undefined should not be capriciously or arbitrarily exercised, but should be exercised in appropriate cases, ex debito justitiae to do real and substantial justice for the administration of which alone the Courts exist. 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. Courts must be careful to see that its decision in exercise of this power is based on sound principles. 133. The Judicial Committee in (1) Emperor v. Nazir Ahmad and (2) Lala Jai Ram Das v. Emperor has taken the view that Section 561-A of the old Code gave no new powers but only provided that those which the Court already inherently possessed should be preserved. This view holds the field till date. 134. This Court in Dr Raghubir Sharon v. The State of Bihar had an occasion to examine the extent of inherent power of the High Court and its jurisdiction when to be exercised. Mudholkar, J speaking for himself and Raghubar Dayal, J after referring a series of decisions of the Privy Council and of the various High Courts held thus: 14 CRMC No. 405/2018 ...every High Court as the highest court exercising criminal jurisdiction in a State has inherent power to make any order for the purpose of securing the ends of justice.... Being an extraordinary power it will, however, not be pressed in aid except for remedying a flagrant abuse by a subordinate Court to is powers.... 135. See Talab Hazi Hussain v. Madhukar Purshottam Mondkar and Anr., [1958] SCR 1226 and Pampapathy v. State of Mysore[1966] (Supp.) SCR 477. 136. Thus, the inherent power under this Section can be exercised by the High Court (1) to give effect to any order passed under the Code; or (2) to prevent abuse of the process of any Court; or (3) otherwise to secure the ends of justice. In relation to exercise of inherent powers of the High Court, it has been observed in Madhu Limaye v. State of Maharashtra that the power in not to be resorted to if there is a specific provision in the Code for the redress of grievance of the aggrieved party and that it should be exercised very sparingly to prevent abuse of process of any Court or otherwise to secure the ends of justice and that it should not be exercised as against the express bar of law engrafted in any other provision of the Code. Vide (1) Talab Hazi Hussain v. Madhukar Purshotam; (2) Khushi Ram v. Hashim and Ors. AIR 1959 SC 542; and (3) State of Orissa v. Ram Chander Agarwala. 137. This inherent power conferred by Section 482 of the Code should not be exercised to stifle a legitimate prosecution. The High Court being the highest Court of a State should normally retrain from giving a premature decision in a case wherein the entire facts are extremely 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 great 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 the cases in which the High Court will exercise its extraordinary jurisdiction to quashing the proceedings at any stage. This Court in State of Haryana and Ors. v. Ch. Bhajan Lal and Ors [1990] 3 Supp. SCR 256 to which both of us were parties have dealt with this question at length and enunciated the law listing out the circumstances under which the High Court can exercise its jurisdiction in quashing proceedings. We do not, therefore, think it necessary in the present case to extensively deal with the import and intendment of the powers under Sections 397, 401 and 482 of the Code. 9. The Supreme Court in Satvinder Kaur v. State, AIR 1999, SC 3597, has held that appreciation of evidence is the function of the Court when seized of the matter. At the stage of investigation, the material collected by an investigating officer cannot be judicially scrutinized for arriving at a conclusion (in the said case about the jurisdiction of the police station). It was also observed that for the purpose of exercising its power under Section 482 Cr. PC, to quash an FIR or a complaint, the High Court would have to proceed entirely on the basis of the allegation made in the complaint or the documents accompanying the same per se, it has no jurisdiction to examine the correctness of otherwise of the allegations. 10. In the light of settled legal position, it requires to be underscored that 15 CRMC No. 405/2018 the inherent jurisdiction under Section 561-A Cr. PC has to be exercised sparingly, carefully and with caution. 11. Since there is sufficient material on record regarding prima facie involvement of petitioner in the case and police having conducted investigation concluded that the offences against accused are proved. 12. Having regard to allegations and report of investigation, it cannot be said that the petitioner is being prosecuted falsely or the investigation of trial would amount to abuse of process of law. 13. The Supreme Court in another case of State of Andhra Pradesh v. Golconda Linga Swamy, reported in (2004) 6 SCC 522, while dealing with inherent powers of the High Court under Section 482 Cr. P.C., has observed and held as under: “5. Exercise of power under Section 482of 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 cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the Section which merely recognizes and preserves inherent powers of the High Courts. 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, conceditur et id 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 process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercises 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. xxxxxx 16 CRMC No. 405/2018 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 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. The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal (1992 Supp (1) SCC 335)…… xxxxxxx 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. 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 : The Janata Dal etc. v. H.S. Chowdhary and others, etc. (AIR 1993 SC 892), Dr. Raghubir Saran v. State of Bihar and another (AIR 1964 SC 1)). 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 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 Section 482 of the Code. 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/F.I.R. 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 F.I.R. that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint/F.I.R. 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 17 CRMC No. 405/2018 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 itself be the basis for quashing the proceeding.” 14. Even the Supreme Court in the case of State of Maharashtra v. Arun Gulab Gawali, (2010) 9 SCC 701, set-aside the order passed by the High Court of Judicature at Bombay, by which criminal complaint/FIR was quashed on prayer made by complainant himself. While quashing and setting-aside the order passed by the High Court, the Supreme Court in paras 13 and 27 to 29 has observed and held as under: “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 enquiry as to the reliability or genuineness or otherwise of allegations made in the F.I.R./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 it can `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 482of 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 esteem of administration of justice remains clean and pure. 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 : 1982 SCC (Cri) 283 : AIR 1982 SC 949] , Pepsi Foods Ltd. v. Special Judicial Magistrate [(1998) 5 SCC 749 : 1998 SCC (Cri) 1400] , G. Sagar Suri v. State of U.P. [(2000) 2 SCC 636 : 2000 SCC (Cri) 513 : AIR 2000 SC 754] and Ajay Mitra v. State of M.P. [(2003) 3 SCC 11 : 2003 SCC (Cri) 703] ) xxx xxxxxxxx 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 Sessions is empowered to discharge an accused under Section 227 Cr.P.C. even before initiating the trial. The accused can, therefore, move the Trial Court itself for such a relief and the Trial Court would be in a better position to analyse and pass an order as it is 18 CRMC No. 405/2018 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 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. 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 leveled 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 a society and not against a 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. 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 is possible 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 Section 320 Cr.P.C., where the Court could apply the ratio of the case in Madhavrao Jiwaji Rao Scindia [(1988) 1 SCC 692 : 1988 SCC (Cri) 234 : AIR 1988 SC 709].” 15. As bare perusal of afore-quoted paragraphs of the ruling of the Supreme Court in Arun Gulab Gawali (supra) would show that it was observed that the High Court in the said case proceeded on the perception that since complainant therein had not supported the complaint, he would not support the case of prosecution and there would be no chance of conviction, thus the trial itself would be a futile exercise. The Supreme Court held that quashing of FIR/complaint on such a ground cannot be held to be justified in law. It was said by the Supreme Court that ordinarily, the court of Sessions was empowered to discharge an accused under Section 227 Cr.P.C. even before initiating the trial. The accused could, therefore, move the Trial Court itself for such a relief and the Trial Court would be in a better position to analyse and pass an order as it is possessed of all the powers and 19 CRMC No. 405/2018 the material to do so. It was, therefore, unnecessary to invoke jurisdiction under Section 482 Cr.P.C. to quash 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 and the presumption that an accused would never be convicted on the material available was too risky. The Supreme Court further elaborated that a claim founded on a denial by complainant even before trial commences coupled with an allegation that police had compelled lodging of a false FIR, was a matter that required further investigation. If prosecution was quashed, then neither Trial Court nor Investigating Agency had any opportunity to go into that question, which might have required consideration. The State was the prosecutor and all prosecution was social and legal responsibility of the State. The Supreme Court also went to say that an offence committed is a crime against a society and not against a 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. 16. Power of quashing criminal proceedings has to be exercised very sparingly and with circumspection and that too in the rarest of rare cases. The Court cannot be justified in embarking upon an enquiry about reliability or genuineness or otherwise of allegations made in the F.I.R./Complaint, unless the allegations are so patently absurd and inherently improbable so that no prudent person can ever reach such a conclusion. 17. The judicial conscience of the High Court should persuade it to quash such criminal proceedings in exercise of the powers vested in it under Section 482 Cr.P.C., if answer to all the steps, as enumerated herein after, is in affirmative, has been so said by the Supreme Court in Rajiv Thapar v Madan Lal Kapoor, 2013 (3) SCC 330:- “Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashing, raised by an accused by invoking the power vested in the High Court under Section 482 of the Code of Criminal Procedure: 20 CRMC No. 405/2018 i. Step one, whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality? ii. ii. Step two, whether the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused, i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false. iii. Step three, whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant? iv. Step four, whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?" 18. The Supreme Court in State of Telangana v. Habib Abdullah Jeelani, reported in 2017 (2) SCC 779, has held that the powers under Section 482 Cr.P.C. or under Article 226 of the Constitution of India, to quash the FIR, is to be exercised in a very sparing manner as is not to be used to choke or smother the prosecution that is legitimate. The inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice. Such power has to be exercised sparingly, with circumspection and in the rarest of rare cases. The inherent powers in a matter of quashing FIR have to be exercised sparingly and with caution and only when such exercise is justifying by the test specifically laid down in the provision itself. The power under Section 482 Cr.P.C, is a very wide, but conferment of the wide power requires the Court to be more conscious. It casts an onerous and more diligent duty on the Court. 19. It cannot be said that a complaint does not disclose commission of offence. Merely because offence was committed during the course of a commercial transaction, would not be sufficient to hold that the complaint does not warrant a trial. Whether or not allegations in complaint are true is to be decided on the basis of evidence to be led at the trial in the complaint case. It certainly is not a case in which criminal trial should be cut short inasmuch as quashing of complaint would result in grave miscarriage of justice. The Supreme Court in Nagpur Steel & Alloys (P) Ltd v. P. Radhakrishna, 1997 SCC (Cri) 21 CRMC No. 405/2018 1073, after saying that restored the complaint and directed the Magistrate to proceed with the complaint. 20. The above settled position of law has also been reiterated by the Supreme Court in Priti Saraf &anr v. State of NCT of Delhi &anr, (2021) 16 SCC 142, and it has been said that inherent power of the High Court is an extraordinary power which has to be exercised with great care and circumspection before embarking to scrutinize a complaint / FIR/ charge-sheet in deciding whether the case is the rarest of rare cases, to scuttle the prosecution at its inception. It has also been held by the Supreme Court whether allegations in the complaint are otherwise correct or not has to be decided on the basis of evidence to be led during the course of trial. 21. Viewing the matter in the above backdrop, I am of the opinion that this Court would not be justified in embarking upon an enquiry as sought for by the petitioner herein regarding his stand about the prosecution story or for returning any finding as to the nature of allegations levelled in the FIR. The facts as projected by the petitioner before this Court are half backed and it is not deemed apt at this stage to conclude that the allegations levelled against the petitioner are vexatious in nature and so there is abuse of process of Court. Therefore, the petition of petitioner entails dismissal and is, accordingly, dismissed. The Trial Court shall proceed with the trial expeditiously. (VINOD CHATTERJI KOUL) JUDGE SRINAGAR 21.02.2025 Manzoor Manzoor Ul Hassan Dar I attest to the accuracy and authenticity of this document Srinagar 06.03.2025 16:34