Jammu & Kashmir High Court – Srinagar Bench
Aijaz Ahmad Bhat vs Senior Superintendent Of Police on 6 August, 2025
Author: Javed Iqbal Wani
Bench: Javed Iqbal Wani
1
Serial No. 2
Regular Cause List
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CRM(M) 451/2025
AIJAZ AHMAD BHAT ... Petitioner(s)
Through: Mr. Sheikh Manzoor, Advocate
Vs.
SENIOR SUPERINTENDENT OF POLICE ...Respondent(s)
KUPWARA AND ORS.
Through:
CORAM:
HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
ORDER
06.08.2025
ORAL
1. In the instant petition, the petitioner herein has invoked the
inherent power of this Court enshrined in section 528 of BNSS
for quashing the challan/charge sheet No. 05/2025 titled as
“UT through Police Station Women Cell Kupwara Vs.
Aijaz Ahmad Bhat AndAnr.” arising out of FIR No.
14/2023 for commission of offence under section 376, 417, 506
and 109 IPC pending trail before the Court of Principal
Sessions Judge, Kupwara (for short “Trial Court”).
2. Facts necessary for disposal of the instant petition emerging
from the record of the petition would reveal that the petitioner
herein working in the Indian Army for the last more than 12
years and presently posted in Delhi claims that his parents
intended to have the petitioner married and in this regard the
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complainant/respondent 2 herein through some middleman
was chosen for the said marriage, where upon consequently an
engagement ceremony thereto was performed by the families
whereafter the said engagement, the complainant/respondent
2 desired to meet the petitioner herein at Drangyari Chowkibal
a tourist spot upon his return from Delhi, and in this regard
made a request to his brother namely Parvez Ahmad and that
over the years the complainant/respondent 2 herein and her
family however avoided the performance of Nikah ceremony
formal marriage despite repeated request made by the
petitioner and in the month of November 2022, however,
categorically informed the petitioner and his family that he
may contract marriage with any other girl whereafter the
petitioner entered into a marital knot with one Mst Rafia of
Dever Lolab in the month of February 2023 and soon after the
said marriage of the petitioner the complainant respondent 2
herein and her relatives started harassing the petitioner
demanding ransom from him and finally filed a false and
frivolous complaint before respondent 1 herein for registration
of FIR against the petitioner for commission of offence of rape
and other offences whereupon the impugned FIR came to be
registered aggrieved whereof of the said FIR, the petitioner
called in question the same before this Court in CRM(M)
No.284/2023, wherein on 26.06.2023, the Court allowed the
investigation to proceed, however, prohibited the filing of the
charge sheet without the permission of the Court, and that
upon completion of the investigation, the investigating agency
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sought permission of this Court in the petition supra to file the
charge sheet in the matter, which permission came to be
accorded by the Court as a consequence whereof, the petitioner
herein withdrew the said CRM(M) No.284/2023 with liberty to
challenge the charge sheet, filed consequent thereto in the
instant petition.
3. The petitioner has challenged the impugned challan/charge
sheet arising out of the FIR No. 14/2023 supra inter alia on the
grounds that the same is manifestly an abuse of process of law
and misuse of criminal machinery to settle personal score and
that neither the complaint nor the FIR or else the statements of
the complainant/respondent 2 herein disclose the commission
of offence of rape alleged to have been committed by the
petitioner and his brother, moreso, in absence of the essential
ingredients of the offence of rape contained in section 376 IPC
and that the case set up by the prosecution against the
petitioner is a classic example of criminalization of a broken
relationship, a promise to marry without any intention to
deceive at the inception thus not constituting an offence under
section 376 IPC, and that the registration of the case against
the petitioner is grave misuse of process for settling personal
vendetta and even if the complaint filed by the complainant
and the consequent challan arising thereof are taken at the face
value and accepted in the entirety same do not prima facie
disclose the commission of any offence alleged against the
petitioner.
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4
Heard learned counsel for the petitioner and perused
the charge sheet produced by the counsel for the
petitioner in the open court pursuant to order dated
01.08.2025 passed by this Court.
4. Mr. Sheikh Manzoor, learned counsel appearing for the
petitioner while making his submission in line with the case set
up in the instant petition would insist that the contents of the
complaint, FIR and the charge sheet even if taken to be true
would reveal that no offence under section 376 is made out
against the petitioner and that even if it is assumed that the
petitioner have had a sexual relationship with the
complainant/respondent 2 herein, the same has been between
two adult persons with their consent and does not fall within
the purview of section 376 IPC and that the facts emanating
from the case clearly demonstrate that there has been
relationship of engagement between the petitioner and the
complainant/respondent 2 herein which, however, did not
culminate into marriage, thus no attracting the alleged
offences.
5. Mr. Manzoor, in support of his submissions referred to
judgment passed by the Coordinate Bench of this Court in
CRM(M) No. 284/2023 and would submit that the said
judgment securely covers the case of the petitioner being a case
of broken promise to marry the complainant/respondent 2
herein.
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6. Before adverting to the submissions of the counsel for the
petitioner, it would be significant and relevant to refer
hereunder to the FIR whereunder the impugned charge sheet
has arisen and also Final report drawn by the prosecution.
FIR
THE CONTENT OF THE COMPLAINT IS AS FOLLOWS:
The complainant appeared in person at the police station and
submitted a written report, the summary of which is
presented below for the kind consideration of the Hon’ble SSP,
District Kupwara:
COMPLAINANT:
Nasreena Bano D/o Dr. Liyakat Ali Khan, R/o Munigah
(victim)Accused No.1: Ajaz Ahmad Bhat
Accused No.2: Parvaiz Ahmad Bhat
Both sons of Saif-ud-Din Bhat, residents of Darpora-Kralpora
(the accused)RESPECTED SIR,
The humble submission is as follows: I (the complainant) am
the daughter of a poor father. About two years ago, my
engagement was fixed with Accused No.1, Ajaz Ahmad Bhat.
The engagement ceremony took place at my residence in the
presence of relatives from both sides. During this ceremony, I
was given clothes and a gold ring. A written document was
also prepared and handed over, stating that after marriage,
all marital rights would be fulfilled sincerely. Following the
engagement, the accused took me to Kralpora and from there
to various places like Chowkibal and Darnadi, where he took
me around and during that time, he sexually assaulted me.
When I objected, he threatened to break off the engagement.
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Due to this fear, I remained silent. I repeatedly requested him
to proceed with the marriage, but Accused No.1, who works in
the Army, and Accused No.2, who is also in the Army, kept
delaying it with the excuse of not having leave. After two
years, they outright refused the marriage. By misleading and
deceiving me under the guise of engagement, I wassubjected
to sexual exploitation. I humbly request that legal action be
taken against the accused and justice be given to a poor girl
like me. Your kind support in this matter will be a great favor.
APPLICANT:
NASREENA BANO
(SIGNATURE IN ENGLISH)
PHONE NUMBER –
Enclosures:
1. Photocopy of written agreement – 3 pages
2. Receipt-1 page
The complainant, Nasreena Bano, confirms her earlier
written complaint word for word and further pleads for
justice. Ajaz Ahmad Bhat S/o Saif-ud-Din Bhat, R/o Sata
Bonun, DardporaKralpora, had been engaged to the
complainant since 2021. He misled her and forcibly
committed sexual acts, continually threatening to break off
the engagement if she told anyone. This pattern of abuse
continued repeatedly.
LEGAL ACTION:
Based on the written and oral report by the complainant, this
matter has been registered under Sections 506 and 376 IPC at
this police station, which establishes a cognizable offence. As
the matter pertains to the year 2023 and involves a special
case, a separate special report has been prepared and
submitted accordingly.
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WRITTEN AND SIGNED BY:
STATION HOUSE OFFICER (SHO)
Final Police Report
RESPECTED SIR,The brief facts of the present case are submitted through this
charge sheet as follows:
On 07.06.2023, the complainant (Nasreena Bano) along with
her father (witness No. 2) appeared at Police Station Women
Kupwara and submitted a written report in Urdu, stating: “I
am the daughter of a poor father. My engagement with the
accused Aijaz Ahmad Bhat, son of Saifuddin Bhat, resident of
DardporaKralpora, was finalized about two years ago. The
engagement ceremony took place at my house, attended by
relatives from both sides. Clothes and a gold ring were
presented to me, and a written declaration was also executed
stating that after marriage, marital relations would be
established harmoniously. However, after the engagement,
the accused (Aijaz) manipulated and persuaded me to visit
Kralpora. He took me around various places like Chowkibal,
Dar, Nadi, etc., and during these outings, he repeatedly
subjected me to forcible sexual intercourse. When I resisted,
he threatened to break off the engagement, due to which I
remained silent. I repeatedly requested him to marry me, but
accused No. 1 (Aijaz), who serves in the Army, and accused
No. 2 (Parvaiz), who is a porter in the Army, kept delaying
under the pretext of being busy with their duties. After two
years, they finally refused to marry me. They deceived and
exploited me, and using the engagement as a trap, the
accused fulfilled his lustful intentions.”
“RESPECTED SIR,
This complaint is submitted through written application to
the SSP Kupwara by Nasreena Bano, daughter of Liyakat Ali
Khan, resident of Munigam (Complainant) against:
1. Aijaz Ahmad Bhat
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2. Parvaiz Ahmad Bhat, sons of Saifuddin Bhat, residents of
Darpora, Kralpora (Accused)As earlier stated, I am a poor man’s daughter. My
engagement with accused No. 1 was finalized two years ago,
and the ceremony was held at my house, where both parties’
relatives were present. Clothes and a gold ring were gifted to
me, and a written document was executed assuring me that I
would be treated well after marriage. However, after the
engagement, I was lured to Kralpora and taken around
various places like Chowkibal and Dar. During this time, I
was sexually exploited by the accused. Whenever I refused, I
was threatened with break-up of the engagement. Despite
repeatedly asking him to marry me, accused No. 1 (who is in
the Army) and accused No. 2 (also in the Army) made excuses
and avoided marriage. After two years had passed, they
refused to marry me, thus committing betrayal, deception,
and using the engagement as a trap to exploit me sexually. I
humbly request that legal action be taken against the accused
to deliver justice to a poor girl.”
Documents Attached: 1. Photocopy of the written declaration
3 pages, 2. Receipt-1 pageADDITIONAL NOTES:
The complainant reaffirmed her written statement in her
verbal deposition and requested justice. It is revealed that the
engagement between Nasreena Bano and Aijaz Ahmad Bhat
(son of Saifuddin, resident of Dardpora, Kralpora) took place
in 2021. During this period, Aijaz Bhat manipulated and
forcibly had sexual relations with her, threatening to end the
relationship if she told anyone. Based on her written and
verbal complaint, case FIR No. 14/2023 was registered at
Women Police Station Kupwara under Sections 376, 506 IPC,
and investigation was initiated. A site plan was prepared,
and the victim was referred to District Hospital for medical
examination. The medical report and physical condition
certificate were collected. Witness statements were recorded.
Statement under Section 164 CrPC was also recorded. Based
on the investigation and facts, charges under Sections 376,
417, 506 IPC were framed against accused No. 1 (Aijaz
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9Ahmad Bhat) and under Section 109 IPC against accused No.
2 (Parvaiz Ahmad Bhat). Accused No. 2 was arrested during
investigation and remanded to judicial custody. Repeated
efforts were made to serve notice and summon accused No. 1
(Aijaz Ahmad Bhat), who is in the army, but he willfully
evaded appearance. Correspondence was made for his
production, but he remained absent deliberately.
7. Having regard to the aforesaid submissions of the counsel for
the petitioner as also the FIR and the final report the moot
question to be addressed to by this Court would be as to whether
the exercise of inherent power in the matter is warranted or not .
8. Before proceeding to address the said question, it would be
appropriate and significant to refer to the provision of section
375 IPC, Section 90 of IPC and section 114-A of the
Evidence Act, being relevant and germane to the controversy
herein;
[Section 375. Rape.–
A man is said to commit “rape” if he–
(a) penetrates his penis, to any extent, into the vagina,
mouth, urethra or anus of a woman or makes her to do
so with him or any other person; or
(b) inserts, to any extent, any object or a part of the
body, not being the penis, into the vagina, the urethra
or anus of a woman or makes her to do so with him or
any other person; or
(c) manipulates any part of the body of a woman so as
to cause penetration into the vagina, urethra, anus orNuzhat Shafi
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10any part of body of such woman or makes her to do so
with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra of a
woman or makes her to do so with him or any other
person,under the circumstances falling under any of
the following seven descriptions:
First. Against her will.
Secondly. Without her consent.
Thirdly. With her consent, when her consent has been
obtained by putting her or any person in whom she is
interested, in fear of death or of hurt.
Fourthly. With her consent, when the man knows that
he is not her husband and that her consent is given
because she believes that he is another man to whom
she is or believes herself to be lawfully married.
Fifthly. With her consent when, at the time of giving
such consent, by reason of unsoundness of mind or
intoxication or the administration by him personally
or through another of any stupefying or unwholesome
substance, she is unable to understand the nature and
consequences of that to which she gives consent.
Sixthly. With or without her consent, when she is under
eighteen years of age.
Seventhly. When she is unable to communicate consent.
Explanation 1.For the purposes of this section, “vagina”
shall also include labia majora.
Explanation 2.Consent means an unequivocal
voluntary agreement when the woman by words,
gestures or any form of verbal or non-verbal
communication, communicates willingness to
participate in the specific sexual act:
Consent known to be given under fear or
misconception.–A consent is not such a consent as it
intended by any section of this Code, if the consent is
given by a person under fear of injury, or under a
misconception of fact, and if the person doing the act
knows, or has reason to believe, that the consent was
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11Consent of insane person.– if the consent is given by a
person who, from unsoundness of mind, or
intoxication, is unable to understand the nature and
consequence of that to which he gives his consent; orConsent of child.– unless the contrary appears from
the context, if the consent is given by a person who is
under twelve years of age.
[114- A. Presumption as to absence of consent in
certain prosecution for rape. –In a prosecution for
rape under clause (a), clause (b), clause (c), clause
(d), clause (e), clause (f), clause (g), clause (h),
clause (i), clause (j), clause (k), clause (l), clause
(m) or clause (n) of sub-section (2) of section 376 of
the Indian Penal Code (45 of 1860), where sexual
intercourse by the accused is proved and the
question is whether it was without the consent of the
woman alleged to have been raped and such woman
states in her evidence before the court that she did
not consent, the court shall presume that she did not
consent. Explanation.–In this section, “sexual
intercourse” shall mean any of the acts mentioned
in clauses (a) to (d) of section 375 of the Indian
Penal Code (45 of 1860).]
9. A further reference to the judgments of the Apex Court passed in
case titled as “Kaini Rajan Vs. State of Kerala reported in
2013 (9) SCC 113″ relating to section 375 IPC would also be
relevant herein,wherein at para 12 following has been observed:-
Section 375 IPC defines the expression “rape”, which
indicates that the first clause operates, where the
woman is in possession of her senses, and therefore,
capable of consenting but the act is done against her
will; and second, where it is done without her consent;
the third, fourth and fifth, when there is consent, but it
is not such a consent as excuses the offender, because it
is obtained by putting her on any person in whom she
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12is interested in fear of death or of hurt. The expression
“against her will” means that the act must have been
done in spite of the opposition of the woman. An
inference as to consent can be drawn if only based on
evidence or probabilities of the case. “Consent” is also
stated to be an act of reason coupled with deliberation.
It denotes an active will in the mind of a person to
permit the doing of an act complained of.
Section 90 IPC refers to the expression "consent". Section 90, though, does not define
“consent”, but describes what is not consent. “Consent”,
for the purpose of Section 375, requires voluntary
participation not only after the exercise of intelligence
based on the knowledge of the significance and moral
quality of the act but after having fully exercised the
choice between resistance and assent. Whether there
was consent or not, is to be ascertained only on a
careful study of all relevant circumstances.
10. A reference as well to the judgment of the Apex Court
passed in case titled as “Deepk Gulati Vs. State of Haryana
reported in 2013 (7) SCC 675″ pertaining to section 90 IPC
would also be relevant herein, wherein at para21 following has
been observed:-
21. Consent may be expressed or implied,
coerced or misguided, obtained willingly or
through deceit. Consent is an act of reason,
accompanied by deliberation, the mind
weighting, as in a balance, the good and evil
on each side. There is a clear distinction
between rape and consensual sex and in a
case like this, the court must very carefully
examine whether the accused had actually
wanted to marry the victim, or had mala fideNuzhat Shafi
motives, and had made a false promise to this
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13effect only to satisfy his lust, as the latter falls
within the ambit of cheating or deception.
There is a distinction between the mere
breach of a promise, and not fulfilling a false
promise. Thus, the court must examine
whether there was made, at an early stage a
false promise of marriage by the accused; and
whether the consent involved was given after
wholly understanding the nature and
consequences of sexual indulgence”.
A further reference to the judgment of the Apex Court passed in
case titled as “Dhruvaram Murlidhar Sonar Vs. State of
Maharashtra reported in 2019 (18) SCC 191″ would also
be relevant herein, wherein at para 23, following has been held:-
23. Thus, there is a clear distinction between rape
and consensual sex. The court, in such cases, must
very carefully examine whether the complainant had
actually wanted to marry the victim or had mala fide
motives and had made a false promise to this effect
only to satisfy his lust, as the later falls within the
ambit of cheating or deception. There is also a
distinction between mere breach of a promise and not
fulfilling a false promise. If the accused has not made
the promise with the sole intention to seduce the
prosecutrix to indulge in sexual acts, such an act
would not amount to rape. There may be a case where
the prosecutrix agrees to have sexual intercourse on
account of her love and passion for the accused and
not solely on account of the misconception created by
accused, or where an accused, on account of
circumstances which he could not have foreseen or
which were beyond his control, was unable to marry
her despite having every intention to do. Such cases
must be treated differently. If the complainant had any
mala fide intention and if he had clandestine motives,
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14it is a clear case of rape. The acknowledged
consensual physical relationship between the
parties would not constitute an offence under Section
376 of the IPC.
The sum and substance of the aforesaid judgments/decisions of
the Apex Court in regard to the offence of rape and consequential
sexual relationship would be that if it is established and proved
that from the inception the accused who gave promise to
prosecutrix to marry did not have any intention to marry and the
prosecutrix gave the consent for sexual relationship on such an
assurance by the accused that he would marry her, such a consent
can be said to be a consent obtained by misconception of fact as
per section 90 of the IPC, and, such a consent would not excuse
the offender and such an offender can be said to have committed
the rape as defined under section 375 IPC and can be convicted
for the said offence under section 376 IPC.
It also emanates from the aforesaid decisions is that whether a
consent given by the prosecutrix for sexual relationship is
voluntary or is given under misconception of fact depends on the
facts of each case and in considering the said question of consent,
the Court would be bound to consider the evidence before it and
the surrounding circumstances before reaching to a conclusion.
11. Keeping in mind the aforesaid position of law and reverting back
to the case in hand, perusal of the record of the charge sheet
would reveal that the complainant/respondent 2 herein have had
specifically alleged that after the performance of the engagement
ceremony and on the return of the petitioner from Delhi on
leave, the petitioner and took the complainant to Drangyari
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Chowkibal a famous tourist spot and had sexual intercourse with
her, and not only the petitioner but his brother as well have had
sexual intercourse with the complainant/respondent 2 and had
also allegedly threatened her of dire consequences if the
complainant/respondent 2 discloses the said incident to anyone.
Further perusal of the charge sheet in general, the medical
opinion in particular as well as the statements made by various
witnesses including those made by the respondent 2 herein
would manifestly show that the investigating agency has
gathered evidence pointing the involvement of the petitioner and
his brother in the commission of offence of the rape covered in
the charge sheet. A closer examination of the complaint as well
as the FIR registered thereupon where under the impugned
charge sheet has arisen would also disclose the commission of
offence in question.
12.Before proceeding further in the matter, it would be profitable to
refer to the following judgment of the Apex Court wherein the
ambit and scope of inherent power vested in this Court under
Section 528 BNSS parimateria with Section 482 Cr.P.C. has
been dealt with “Neeharika Infrastructure Pvt. Ltd. vs.
State of Maharastra& Ors” reported in AIR 2021 SC 1918
wherein at Para 7 following has been laid down:-
7. While considering the aforesaid issue, law on the exercise of
powers by the High Court under Section 482 Cr.P.C. and/or under
Article 226 of the Constitution of India to quash the FIR/complaint
and the parameters for exercise of such powers and scope and ambit
of the power by the High Court under Section 482 Cr.P.C. and/or
under Article 226 of the Constitution of India are required to be
referred to as the very parameters which are required to be appliedNuzhat Shafi
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16while quashing the FIR will also be applicable while granting
interim stay/protection.
7.1 The first case on the point which is required to be noticed is the
decision of this Court in the case of R. P.Kapur (supra). While
dealing with the inherent powers of the High Court under Section
561-A of the earlier Code (which is parimateria with Section 482 of
the Code), it is observed and held that the inherent powers of the
High Court under Section 561 of the earlier Code cannot be
exercised in regard to the matters specifically covered by the other
provisions of the Code; the inherent jurisdiction of the High Court
can be exercised to quash proceedings in a proper case either to
prevent the abuse of the process of any court or otherwise to secure
the ends of justice; ordinarily criminal proceedings instituted against
an accused person must be tried under the provisions of the Code,
and the High Court would be reluctant to interfere with the said
proceedings at an interlocutory stage. After observing this, thereafter
this Court then carved out some exceptions to the above-stated rule,
which are as under:
“(i) Where it manifestly appears that there is a legal bar against the
institution or continuance of the criminal proceeding in respect of
the offence alleged. Absence of the requisite sanction may, for
instance, furnish cases under this category.
(ii) Where the allegations in the first information report or the
complaint, even if they are taken at their face value and accepted in
their entirety, do not constitute the offence alleged; in such cases no
question of appreciating evidence arises; it is a matter merely of
looking at the complaint or the first information report to decide
whether the offence alleged is disclosed or not.
(iii) Where the allegations made against the accused person do
constitute an offence alleged but there is either no legal evidence
adduced in support of the case or the evidence adduced clearly or
manifestly fails to prove the charge. In dealing with this class of
cases 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
manifestly and clearly inconsistent with the accusation made and
cases where there is legal evidence which on its appreciation may or
may not support the accusation in question.
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In exercising its jurisdiction under Section 561- A the High Court
would not embark upon an enquiry as to whether the evidence in
question is reliable or not. That is the function of the trial
Magistrate, and ordinarily it would not be open to any party to
invoke the High Court’s inherent jurisdiction and contend that on a
reasonable appreciation of the evidence the accusation made against
the accused would not be sustained.”
7.2 In the case of Kurukshetra University (supra), this Court
observed and held that inherent powers under Section482 Cr.P.C. do
not confer an arbitrary jurisdiction on the High Court to act
according to whim or caprice; that statutory power has to be
exercised sparingly with
circumspection and in the rarest of rare cases. In the case before this
Court, the High Court quashed the first information report filed by
the Kurukshetra University through Warden and that too without
issuing notice to the University, in exercise of inherent powers under
Section
482 Cr.P.C. This Court noticed and observed that the High Court
was not justified in quashing the FIR when the police had not even
commenced investigation into the complaint filed by the Warden of
the University and no proceedings were at all pending before any
Court in pursuance of the FIR.
7.3 Then comes the celebrated decision of this Court in the case of
Bhajan Lal (supra). In the said decision, this Court considered in
detail the scope of the High Court powers under Section 482 Cr.P.C.
and/or Article 226 of the Constitution of India to quash the FIR and
referred to several judicial precedents and held that the High Court
should not embark upon an inquiry into the merits and demerits of
the allegations and quash the proceedings without allowing the
investigating agency to complete its task. At the same time, this
Court identified the following cases in which FIR/complaint can be
quashed:
“102.(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
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18156(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 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 Act concerned(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 Act concerned, 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.”
7.4 In the case of Golconda Linga Swamy (supra), after considering
the decisions of this Court in the cases of R. P.Kapur (supra) and
Bhajan Lal (supra) and other decisions on the exercise of inherent
powers by the High Court under Section 482 Cr.P.C., in paragraphs
5, 7 and 8, it is observed and held 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
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inherent powers apart from express provisions of law which
are necessary for proper discharge of functions and duties
imposed upon them bylaw. That is the doctrine which finds
expression in the section which merely recognises 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, conceder evideturid 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
the 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 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.
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
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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…..
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 Janata Dal v. H. S.
Chowdhary [(1992)4 SCC 305: 1993 SCC (Cri) 36:AIR 1993 SC
892] and Raghubir Saran (Dr.) v. State of Bihar [AIR 1964 SC 1:
(1964) 1 Cri LJ 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 a 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 Section482 of the Code. It is not, however, necessary that
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21there should be meticulous analysis of the case before the trial to
find out whether the case would end in conviction or acquittal.
The complaint/FIR 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 FIR that the ingredients
of the offence or offences are disclosed and there is no material to
show that the complaint/FIR 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
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 themselves be the basis for
quashing the proceeding.”
7.5 In the case of Zandu Pharmaceutical Works Ltd. (supra),in
paragraph 11, this Court has observed and held as under:
“11. … the powers possessed by the High Court
underSection482 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. 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, 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.
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 premise arrive at a conclusion that the proceedings are
to be quashed. It would be erroneous to assess the material
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22proceeded with. In a 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 Section482 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 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 that the ingredients of the offence or offences
are disclosed and there is no material to show that the
complaint 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 malafides of the
informant would be of secondary importance. It is the
material collected during the 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 themselves be the basis for
quashing the proceedings.”
7.6 In the case of Sanapareddy Maheedhar Seshagiri(supra), in
paragraph 31, it is observed and held as under:
“31. A careful reading of the above noted judgments makes it
clear that the High Court should be extremely cautious and slow to
interfere with the investigation and/or trial of criminal cases and
should not stall the investigation and/or prosecution except when it is
convinced beyond any manner of doubt that FIR doe snot disclose
commission of any offence or that the allegations contained in FIR
do not constitute any cognizable offence or that the prosecution is
barred bylaw or the High Court is convinced that it is necessary to
interfere to prevent abuse of the process of the Court.
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In dealing with such cases, the High Court has to bear in mind that
judicial intervention at the threshold of the legal process initiated
against a person accused of committing offence is highly detrimental
to the larger public and societal interest. The people and the society
have a legitimate expectation that those committing offences either
against an individual or the society are expeditiously brought to trial
and, if found guilty, adequately punished. Therefore, while deciding
a petition filed for quashing FIR or complaint or restraining the
competent authority from investigating the allegations contained in
FIR or complaint or for stalling the trial of the case, the High Court
should be extremely careful and circumspect.
If the allegations contained in FIR or complaint disclose commission
of some crime, then the High Court must keep its hands off and allow
the investigating agency to complete the investigation without any
fetter and also refrain from passing order which may impede the
trial. The High Court should not go into the merits and demerits of
the allegations simply because the petitioner alleges malus animus
against the author of FIR or the complainant. The High Court must
also refrain from making imaginary journey in the realm of possible
harassment which may be caused to the petitioner on account of
investigation of FIR or complaint. Such a course will result in
miscarriage of justice and would encourage those accused of
committing crimes to repeat the same. However, if the High Court is
satisfied that the complaint does not disclose commission of any
offence or prosecution is barred by limitation or that the proceedings
of criminal case would result in failure of justice, then it may
exercise inherent power under Section 482 Cr.P.C.”
7.7 In the case of Arun Gulab Gawali (supra), this Court set aside
the order passed by the High Court quashing the criminal
complaint/FIR which was even filed by the complainant. In the case
before this Court, prayer for quashing the FIR before the High Court
was by the complainant himself and the High Court quashed the
FIR/complaint in exercise of the powers under Section482 Cr.P.C.
Quashing and setting aside the judgment and order passed by the
High Court quashing the FIR, this Court in paragraphs 13 and 27 to
29 has observed 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
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24enquiry as to there liability or genuineness or otherwise of
allegations made in the FIR/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 can it “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 482 of 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 stream 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 : 1982SCC (Cri) 283 : AIR 1982 SC 949] , Pepsi Foods
Ltd. v.Special Judicial Magistrate [(1998) 5 SCC 749 : 1998SCC
(Cri) 1400] , G. Sagar Suri v. State of U. P.[(2000) 2 SCC 636 :
2000 SCC (Cri) 513 : AIR 2000 SC754] and Ajay Mitra v. State of
M. P. [(2003) 3 SCC 11: 2003 SCC (Cri) 703] )
xxx xxxxxx
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 Session is empowered to discharge an
accused under Section227 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 analyze and
pass an order as it is 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
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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 levelled 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 society and not against the
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 impossible 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 Section320 Cr.P.C,
where the Court could apply the ratio of Madhavrao Jiwaji Rao
Scindia [(1988) 1 SCC 692 :1988 SCC (Cri) 234 : AIR 1988 SC
709] .”
13.On a cumulative consideration of the facts of the case, material
available in the shape of charge sheet as well as the law referred
in the preceding paras, the only inescapable conclusion that
could be drawn would be that at this stage the guilt or innocence
of the petitioner in the case pending before the trial court cannot
be determined in exercise of inherent powers as the same can
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well be decided by the trail court once the case is put to trial and
parties would bring respective evidence on record thereof.
14.In short the issues and questions raised by the petitioner in the
instant petition having regard to the facts and circumstances of
the case are not the threshold issues or questions, which could be
decided by this Court in exercise of inherent powers at this stage
and the judgments relied upon by the counsel for the petitioner
having regard to the aforesaid analysis do not lend any support
to the case of the petitioner.
15. Viewed thus what has been observed, analysed and
considered herein above the instant petition fails and is
accordingly dismissed.
(JAVED IQBAL WANI)
JUDGE
SRINAGAR:
06.08.2025
“S.Nuzhat”
Whether approved for reporting? Yes
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