J&K and Ladakh HC | Can FIR containing allegations which set police in motion, be quashed at threshold stage? HC answers

Jammu & Kashmir and Ladakh High Court: Ali Mohammad Magrey, J., held that FIR under Section 482 of CrPC cannot be quashed at the threshold stage. The Bench stated,

“It is not proper to scuttle away the investigation at its thresh-hold stage, if FIR discloses the commission of offences; High Court should not interfere with the investigation which would amount to stalling the investigation and jurisdiction of statutory authorities to exercise powers in accordance with the provisions of criminal Code.”

 The instant petition was filed assail the impugned FIR under Section 5(1)(e) read with 5(2) of J&K Prevention of Corruption Act 2006 read with Section 168 Ranbir Penal Code and to seek directions commanding the respondents not to cause any kind of interference into the business activities as well as the properties of the petitioner in any manner.

The Petitioner claimed to have resigned from the post of Junior Assistant in the Rural Development Department in 2017, which stated to have been accepted by the respondents on 15-01-2018 and thereafter he was doing his business and trading, paying his regular income taxes, but while doing so, he was stated to be implicated in corrupt activities stating that he had indulged in business activities while in active Government Service and, had, therefore, accumulate disproportionate assets beyond his known source of income in the shape of moveable/immoveable properties on his own name.

The petitioner challenged the FIR and subsequent investigation on the grounds that the very context/reading of the FIR did not disclose the commission of offence under Section 5 (1) (e) read with 5 (2) of J&K Prevention of Corruption Act 2006 read with Section 168 RPC as the language used in the FIR did not meet the ingredients for commission of aforesa0id offences. The petitioner submitted that the property mentioned in the FIR did not belong to him and was owned by different entities. Calling the FIR a misconduct on the first count, the petitioner contended that he was not a public servant and had retired three years ago from the Government employment and was not indulged in any business activities during his service.

Whether the FIR containing allegations which set the police in motion, can be quashed at the threshold stage?

Answering the question in negative, the Bench stated that the remedy under Section 482 CrPC can be invoked into service only in the following circumstances:

1. to pass orders in order to give effect to an order passed under CrPC
2. to prevent abuse of process of Court
3. to secure the ends of justice: and
4. to prevent mis-carriage of justice

Keeping in view the allegations contained in the FIR, the Bench opined that it could by no stretch of imagination be said that the case of petitioner fell within the ambit/contours of section 482 CrPC. The Supreme Court in catena of decisions had discussed the scope of Section 561-A CrPC corresponding to Section 482 CrPC of Central Code and had laid down the following tests:

1. “Where the allegations made in the first information report or the complaint even if 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 Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
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 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 malafide and/or where the proceedings 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.”

 Applying the tests laid down above, the Bench stated that the entire matter was at its infancy stage and did not fall within the four corners of the tests laid down. The Bench stated,

 “This Court has only to ascertain whether the allegations made in the FIR do disclose or do not disclose the commission of offences, if it does, then it cannot be quashed at its thresh-hold stage.”

 In Som Mittal v. State of Karnataka, 2008 AIR SCW 1003, the Supreme Court had held that,

“It has been consistently held that the power under Section 482 must be exercised sparingly with circumspection and in rarest of rare cases. Exercise of inherent power under section 482 of the CrPC is not the rule but it is an exception. The exception is applied only when it is brought to the notice of the Court that grave miscarriage of justice would be committed if the trial is allowed to proceed where the accused would be harassed unnecessarily if the trial is allowed to linger when prima facie it appears to Court that the trial would likely to be ended in acquittal.” 

While keeping in view the scope of section 482 CrPC the Court should refrain from making prima facie decision at interlocutory stage when entire facts of the case are incomplete, hazy and more so, when material evidence is yet to be collected and issues involved could not be seen in their true perspective.

In the backdrop of above, the Bench held that prima facie it appeared that the allegations contained in the FIR relate to the offences which were cognizable and non-cognizable and hence, warrant investigation. Accordingly, the petition was dismissed. [Mohabat Ali Khan v. UT of JK, 2021 SCC OnLine J&K 595, decided on 20-08-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

For the Petitioner: Sr. Advocate Mohsin Qadri with Advocate Mohammad Tahseen

For UT of J&K: Sr. D.A.G. B. A. Dar and Inspector Irfan Ul Hassan (IO) Anti-Corruption Bureau (in person)