Jammu & Kashmir High Court – Srinagar Bench
Musadiq Wani vs Union Territory Through Police on 6 June, 2025
S. No. 23
Regular Cause List
IN THE HIGH COURT 0F JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CRM(M) 464/2021
c/w CRM(M) 124/2023
MUSADIQ WANI ...Appellant(s)/Petitioner(s)
Through: Mr. Bhat Fayaz, Advocate with Ms. Nighat Amin, Advocate
Vs.
UNION TERRITORY THROUGH POLICE
STATION BATAMALOO AND ANR. ...Respondent(s)
Through: Mr. Jahingeer A Dar, GA
CORAM:
HON'BLE MR. JUSTICE VINOD CHATTERJI KOUL-JUDGE
ORDER
06.06.2025
CRM(M) 464/2021
1. This petition challenges the FIR registered with Police Station
Batamaloo as FIR no. 170/2021 under Section 506, 354-D of IPC. The
ground on which the FIR is sought to be quashed by the petitioner is
that he and private respondent were married in the year 2017, out of
which one child has born, but because of their differences, they parted
the ways and ultimately, they divorced with mutual consent and their
relation as husband and wife ceased.
2. It is the submission of petitioner that his mother suffering from various
ailments was on Hemodialysis. He was wondering to see his son,
besides his mother was also looking for ways and means to see her son.
Respondent was reluctantly giving the visiting rights to him despite the
fact that visiting rights had been taken care of while formulating the
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divorce deed. To satisfy the last desire of his mother to show him the
minor son, petitioner approached the court of Principal District Judge,
Family Court, Srinagar, with a motion under and in terms of Section 25
of Guardian and Wards Act, for the purposes of seeking custody of the
minor, however, after putting private respondent to notice, application
was disposed of on account of the fact that the court at Srinagar lacks
in the jurisdiction to adjudicate upon the matter and petitioner was,
therefore, given liberty to approach District Court, Pulwama. He
accordingly, approached for the custody of the minor child.
3. Filing of an application, according to petitioner, created panic and
private respondent to counterblast and suppress petitioner’s voice filed
a baseless and fabricated complaint to settle scores. They said that
because of his approaching the Trial court for custody under Section 25
of Guardian and Wards Act, respondent filed a false and previous case.
4. What is to be seen is as to whether the complaint discloses the
commission of cognizable offence so that an FIR could be registered
and investigated. What is stated by the petitioner is that because the
petitioner has sought custody of the child, private respondent has filed
a complaint and that is the ground on which FIR is sought to be
quashed.
5. Section 482 Cr.P.C. provides that nothing in the Code of Criminal
Procedure limits or affects inherent powers of the high Court to make
such orders as may be necessary to give effect to any order under the
Code of Criminal Procedure, or to prevent abuse of the process of any
Court or otherwise to secure ends of justice.
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6. 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 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.
7. 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.
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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:
…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.
8. 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
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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.
In the light of settled legal position, it requires to be underscored
that the inherent jurisdiction under Section 482 Cr.P.C. has to be
exercised sparingly, carefully and with caution.
9. 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 482 of the Code in a case of this
nature is the exception and not the rule. The Section does not confer any
new powers on the High Court. It only saves the inherent power which
the Court possessed before the enactment of the Code. It envisages three
circumstances under which the inherent jurisdiction may be exercised,
namely, (i) to give effect to an order under the Code, (ii) to prevent
abuse of the process of court, and (iii) to otherwise secure the ends of
justice. It is neither possible nor desirable to lay down any inflexible
rule which would govern the exercise of inherent jurisdiction. No
legislative enactment dealing with procedure can provide for all 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 aliquid alique concedit, conceditur et id sine quo res ipsa
esse non potest (when the law gives a person anything it gives him that
without which it cannot exist). While exercising powers under the
Section, the Court does not function as a court of appeal or revision.
Inherent jurisdiction under the Section though wide has to be exercised
sparingly, carefully and with caution and only when such exercise is
justified by the tests specifically laid down in the Section itself. It is to
be exercised ex debito justitiae to do real and substantial justice for the
administration of which alone courts exist. Authority of the court exists
for advancement of justice and if any attempt is made to abuse that
authority so as to produce injustice, the court has power to prevent 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 serve5
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.
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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)……
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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 the6
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
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.”
10.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 xxxx xxxx
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 2277
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 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 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 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].”
11.The Supreme Court in Arun Gulab Gawali (supra) 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
8
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 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.
12.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
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inherently improbable so that no prudent person can ever reach such a
conclusion.
13.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:
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. 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?”
14.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, are 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
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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.
15. It cannot be said that a complaint does not disclose commission of
offence. Whether or not allegations in a 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/FIR would result in grave
miscarriage of justice. After saying this, the Supreme Court in Nagpur
Steel & Alloys (P) Ltd v. P. Radhakrishna, 1997 SCC (Cri) 1073 ,
restored the complaint and directed the Magistrate to proceed with the
complaint.
16. 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.
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17.The Supreme Court in State of M.P. v. Laxmi Narayan, (2019) 5 SCC
588, has held that whether an FIR is quashable or not would depend
upon the facts and circumstances of each case and while considering
that question, the Court has to apply its mind to (i) whether the crime is
one against the society or against an individual alone, nature of the
dispute, (ii) seriousness and how the crime was committed (iii) whether
offence(s) is one under a special statute (iv) stage of proceedings and
how the accused managed to compromise with the complainant.
18.In the above backdrop, it is pertinent to mention here that in order to
find as to whether FIR ought to have been registered by the police and
investigation carried on, it is to be seen whether the offence which is
being alleged was a cognizable offence and FIR could have been
registered and investigation initiated. The allegations contained in the
complaint do constitute offence punishable under Section 506, 354-D
of IPC, which are cognizable and regarding which offence made and
FIR is to be registered, though the respondent submitted that it was
because of his filing an application before the court seeking custody of
child under Section 25 of Guardians and Wards Act, cannot be a
ground, at this stage, to see the allegations are false or true. The
allegations contained in FIR are relating to the offences of cognizable
in nature. It is stated that CD file has been produced which shows that
offences have been established and chargesheet has been filed which is
pending disposal, however, proceedings stayed.
19. Having regard to the fact that in the investigation the offences are said
to have been established, therefore, it would be a case for trial.
Therefore, there is no ground to interfere. So far as the registration of
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FIR and final report before the Trial court are concerned, it is for the
Trial court to see whether accused may produce the evidence in support
of the contentions in defence. The Trial court shall consider the defence
as well while deciding the challan. Disposed of.
20.Needless to say that observations made in this case will not
influence/affect the trial of the case.
CRM(M) 124/2023
21.Respondents to file fresh status report on the next date of hearing.
22.List on 12.08.2025.
(VINOD CHATTERJI KOUL)
JUDGE
SRINAGAR
06.06.2025
“Imtiyaz”
Imtiyaz Ul Gani
I attest to the accuracy and
authenticity of this document
30.06.2025 09:40
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