MOHAMMAD MAQBOOL HAKIM Vs. STATE OF JAMMU AND KASHMIR
HIGH COURT OF JAMMU AND KASHMIR
MOHAMMAD MAQBOOL HAKIM
STATE OF JAMMU AND KASHMIR
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BHAWANI SINGH, C. J. -
(1.) This Letters Patent Appeal is directed against Judgment of single Judge dated June 3, 1999, whereby petition for quashing Government Order Nos. 11-GR-Home (Vig)/90 and 12-GR-HOME (Vig)/90, dated May 05, 1990, sanctioning prosecution of petitioners has been dismissed.
(2.) Briefly stated, Mohammad Muzaffer Hamdani was General Manager, Ghulam Mohammad Sofi, Manager and Mohammad Maqbool Hakim, Industrial Promotion Officer, DIC, Srinagar. They processed claims for refund of Central Sales Tax, ultimately sanctioned by District Development Commissioner, Srinagar. Petitioners submit that they did so in the discharge of their normal duties honestly and diligently, a fact substantiated by Committee appointed by District Development Commissioner to examine whether the claims for refund were justified. With this background, no offence has been committed by them, therefore, initiation of criminal case is vexatious and without evidence. This apart, before sanction is accorded, matter is required to be sent to the Chief Minister. This having not been done, the sanction is bad. Even otherwise, it is result of non-application of mind by the Competent Authority. Before answering these submissions, it would be appropriate to mention certain decisions of Apex Court with reference to the jurisdiction of this Court with respect to quashing of criminal proceedings, particularly at the initial stages.
(3.) In R. P. Kapur v. State of Punjab, AIR 1960 SC 866 : (1960 Cri LJ 1239), the Apex Court said in para 6 that : "6. Before dealing with the merits of the appeal it is necessary to consider the nature and scope of the inherent power of the High Court under S. 561-A of the Code. The said section saves the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. There is no doubt that this inherent power cannot be exercised in regard to matters specifically covered by the other provisions of the Code. In the present case the magistrate before whom police report has been filed under S. 173 of the Code has yet not applied his mind to the merits of the said report and it may be assumed in favour of the appellant that his request for the quashing of the proceedings is not at the present stage covered by any specific provision of the Code. It is well established that 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. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. However, we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. There may be cases where it may be possible for the High Court to take the view that the institution or continuance of criminal proceedings against an accused person may amount to the abuse of the process of the Court or that the quashing of the impugned proceedings would secure the ends of justice. If the criminal proceedings in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that
there is a legal bar against the institution or continuance of the said proceeding the High Court would be justified in quashing the proceeding on that ground. Absence of the requisite sanction may, for instance, furnish cases under this category. Cases may also arise 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. In such cases it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal Court to be issued against the accused person. A third category of cases in which the inherent jurisdiction of the High Court can be successfully invoked may also arise. In cases falling under this category 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 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. In exercising its jurisdiction under S. 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. Broadly stated that is the nature and scope of the inherent jurisdiction of the High Court under S. 561-A in the matter of quashing criminal proceedings, and that is the effect of the judicial decisions on the point (Vide : In Re : Shripad G. Chandavarkar, AIR 1928 Bom 184 : (1928 (29) Cri LJ 317), Jagat Chandra Mozumdar v. Queen Empress, (1899) ILR 26 Cal 786, Dr. Shankar Singh v. State of Punjab, 56 Pun LR 54 : AIR 1954 Punj 193 : (1954 Cri LJ 1393), Nripendra Bhusan Roy v. Gobinda Bandhu Majumdar, AIR 1924 Cal 1018 : (1924 (25) Cri LJ 1258) and Ramanathan Chettiyar v. Sivarama Subramania, ILR 47 Mad 722 : AIR 1925 Mad 39 : (1924 (25) Cri LJ 1009)."
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