HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR

Case no.: Date of decision: 31.01.2018
561-A Cr. P.C. no.248/2017
MP no.01/2017

Dr. Asif Akbar Sofi ors. v. Dr. Mohammad Sultan Khuroo anr.
_
Coram:
Hon’ble Mr. Justice Ali Mohammad Magrey, Judge

Appearing counsel:

For Petitioners: Mr. Z. A. Qureshi, Sr. Advocate with
Mr. Musaib, Advocate;
For Respondent(s): Mr. M. A. Qayoom, Advocate for no.1;

Mr. Salih Pirzada, Advocate, for no.2 -Proforma respndnt.

Whether approved for reporting: Yes

This petition under Section 561-A Cr. P. C, filed by the
petitioners, seeks dismissal of the criminal complaint titled Dr.
Mohammad Sultan Khuroo v. Firdous Ahmad Wani ors., and
quashment of order dated 23.09.2017, whereby the learned Chief
Judicial Magistrate, Srinagar, took cognizance of the offences
under Sections 406, 417, 469, 471, 500 506 RPC and ordered
issue of bailable warrants for securing presence of the accused.

2. Heard learned counsel for the parties, perused
the record and considered the matter.

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3. Petitioner no.1 and the contesting respondent have an
in-law relationship with each other – former being the son-in-law
and the latter the father-in-law. The matrimonial relationship
between petitioner no.1 and his wife, i.e., the daughter of the
contesting respondent, has turned incongruous, strained and
landed in extreme disharmony, so much so petitioner no.1’s wife
is said to have also filed a complaint under the provisions of the
JK Protection of Women from Domestic Violence Act, 2010
before the learned Chief Judicial Magistrate which is stated to be
pending trial, and, in para 3 of this petition, the petitioners
allege that she did it at the instance of her father, i.e., the
complainant-contesting-respondent herein.

4. The case of the petitioners is that not satisfied (with
the aforesaid vengeful complaint filed by complainant’s
daughter), the complainant-respondent, with a view to wreaking
vengeance and harassing petitioner no.1, filed the instant,
impugned complaint against him, other petitioners and proforma
respondent no.2, concocting a false and fabricated story of which
the petitioners have no knowledge, nor are they related to the
functioning of the respondent’s clinic. This is the brief, backdrop
of the factual side and the case of the petitioners as delineated in
paras 2, 3 and 4 of the petition.

5. So far as the impugned order dated 23.09.2017
passed by the learned trial Magistrate is concerned, before stating
the challenge of the petitioners thereto, I deem it appropriate to
give a brief resume of the complaint filed by the complainant-
respondent no.1 before the trial court.

561-A Cr.p.c. No. 248/ 17 Page 2 of 51

6. In his complaint, the complainant, the contesting
respondent herein, stated that he is a globally renowned and
acclaimed Doctor, having specialized field of Gastroenterology,
with Degrees and achievements at local, national and
international levels specified in para 1 of the complaint. He is
presently discharging his duties as Director, Digestive Diseases
Centre, Dr. Khuroo’s Medical Clinic, Srinagar, which is a day-care
tertiary medical facility dealing with management of
gastrointestinal and liver diseases. The Centre/Medical
Facility/Clinic is stated to be a family-funded and sponsored
trust, operational since 2006. Presently, it is said to be following
over 55,000 patients.

7. Petitioner no.1 (accused no.2 in the complaint), as
already mentioned above, is the complainant’s son-in-law and
their relations are strained. He is said to be a Doctor – an ENT
Specialist – practicing at Handwara. It is alleged that petitioner
no.1 and proforma respondent no.2 (accused nos. 1 and 2 in the
complaint) are bosom friends and petitioners 2 and 3 (accused 3
and 4) are petitioner no.1’s employees; whereas petitioner no.4
(accused no.5) is said to be father of petitioner no.1 and
petitioner no.5 (accused no.6) is a Chemist, running his medical /
drug shop at Langate Market, Handwara.

8. It is alleged that petitioner no.1 is having old
matrimonial issues with the complainant’s daughter and that the
matter is being fought and litigated in courts of law, and that the

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endeavour of petitioner no.1 has been to blight the complainant’s
reputation, respect, honour and integrity and, in that connection,
he has been filing false and frivolous complaints/applications
before various authorities. It is alleged that accused no.2 had
been referring his relatives, friends, colleagues and acquaintances
to the complainant’s clinic for tertiary care, opinion and
treatment, mostly on complimentary basis. As such he had
comprehensive knowledge about the patients from Handwara
town being treated by the complainant. Mother of accused no.1,
Mst. Fatima, is said to be one of the patients of the complainant.

9. It is alleged that some three months back, accused
nos. 1 and 2 (proforma respondent and petitioner no.1 herein)
fraudulently and deceptively spread a word in the township of
Handwara that the complainant was holding consultation camp
at Handwara for the convenience and benefit of patients living in
Handwara and the adjoining localities. The concerned patients
were informed to submit their medical record relating to the
complainant’s treatment, to petitioner no.1. It is stated that the
complainant had neither authorized any person to convey any
such message to any patient, nor had he any such plan of holding
a consultation camp at Handwara. It is alleged that the accused,
in connivance with each other, approached some patients under
the treatment of the complainant, asked for, and obtained their
medical records concerning the treatment prescribed to them by
the complainant, tampered therewith and made copies thereof,
without any authorization, to use the same for unlawful and
illegal purpose by presenting the same before various authorities

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for causing damage to the reputation and honour of the
complainant. In this regard, the complaint contains the details of
how the accused approached the complainant’s patients, which
included one Ghulam Nabi Kaboo, and obtained the medical
records from them. It is alleged that the medical record of
Ghulam Nabi Kaboo was taken from his home from his wife on
the aforesaid misrepresentation and when Ghulam Nabi Kaboo
came to know about it, he approaches accused nos. 2, 3, 4 and 5
to explain the reason and that accused no.5 told him that he
wanted to teach the complainant a lesson. Another patient of the
complainant, named, Haji Mohd Maqool Lone, is said to have
placed the medical record with accused no.6 who, in connivance
with other accused, handed over it to accused nos. 1 and 2 for
facilitating them to use the same for unlawful and illegal
purposes by tampering with the same and presenting it before
various authorities.

10. It is stated that, thereafter, accused no.1, i.e., the
proforma respondent herein, acting in criminal conspiracy, and
conniving with other accused, filed a false and frivolous
application before SHO Police Station, Parimpora, accompanied
by the USG reports of his mother, Mst. Fatima, and the copies of
USG reports of Ghulam Nabi Kaboo and Haji Mohd Maqool
Lone, alleging that the USG scans were full of discrepancies, the
Sonologist did not have the requisite qualifications, and that the
patients were not satisfied. The complainant was informed by the
SHO about the complaint. It is stated that the complainant has
been maintaining the records relating to his patients treated at

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the Clinic. After retrieving and examining the relevant records, it
was found by the complainant that the USG reports
accompanying the complaint filed by accused no.1 before the
Police had been tampered with and forged, with a sinister motive
to defame and lower the reputation, respect and honour of the
complainant in the estimation of the right thinking members of
the society. It is stated in the complaint that the tampering of the
USG Reports and accusations levelled by the accused in
clandestine criminal conspiracy with each other have, in fact,
lowered the honor, esteem and respect of the complaint in the
estimation of the right thinking members of the society. It is
alleged that the news of the complaint against complainant filed
at Police Station Parimpora spread like wild fire and the
complainant became the subject of unhealthy discussions and
debates and his integrity and credibility as a world class Doctor
and of his clinic has been called in question. The defamation has
also called in question the great values to which the
complainant’s clinic ascribes. The complainant is stated to have
been put to humiliation and embarrassment. It is stated that he
has been receiving calls from shocked friends, acquaintances,
students, colleagues and associates, expressing surprise at the
allegations so made against him; hence the complaint.

11. The case of the petitioners is that the learned
Magistrate, without appreciating the essence of criminal
jurisprudence, has straightaway proceeded to issue bailable
warrants against the petitioners. The order is challenged as being
patently illegal and unlawful on the grounds: (i) that the material

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alleged in the complaint and the statements recorded are
insufficient, incoherent and seem on their face to be
cooked/fabricated to implicate the petitioners; (ii) that it suffers
from legal improprieties, illegalities and irregularities; (iii) that
the essential ingredients of the alleged offences are neither made
out from the complaint nor from the statements; (iii) that the
learned Magistrate has failed to appreciate that the complaint is
only an abuse of the process of law, aimed at making petitioner
no.1 to submit himself to the will of the contesting respondent;

(iv) that the impugned order has been passed on mere surmises
and conjectures and that the learned Magistrate ought to delay
the issuance of process and, before proceeding in the matter,
ought to have sought a Police report to find out the truthfulness
of the allegations; (v) that going by the complaint, the place of
occurrence of the offences and entire transaction falls outside the
territorial jurisdiction of the trial Magistrate; (vi) that there is not
even an allegation made in the complaint about the petitioners
having entered into any conspiracy, yet the learned Magistrate
has proceeded to issue warrants against the petitioners.

12. The acerbity of the in-law relationship, otherwise
meant to be sacred and generating serenity in life, was
conspicuous during the course of arguments in this case, and
what is most unfortunate and painful is that the main three
persons involved in the family feud are highly qualified and
belonging to, conceivably, the noblest of professions – medical
profession – all the three being well qualified Doctors. One
cannot but only exclaim: Alas!

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13. Mr. Z. A. Qureshi, learned Senior counsel for the
petitioners, reiterating the grounds taken in the petition, argued
that the complaint does not disclose commission of any of the
offences alleged against the petitioners. In this regard, he
submitted that the essential ingredient of offence punishable
under Section 406 RPC is ‘entrustment’ of property. He
submitted that medical records of a patient cannot be said to be
property within the meaning of Section 405 RPC and, even if it
can, in any sense, be said to be property, yet it cannot be said to
be the property of a Doctor, but is that of the patient. He
submitted that nothing comes forth from the contents of the
complaint or the statements recorded by the trial Magistrate that
there was an entrustment of any such property by the
complainant to any of the accused. On that count, the learned
counsel submitted that even if the allegations made in the
complaint are taken at their face value and accepted in their
entirety, they do not prima facie constitute the offence
punishable under Section 406 RPC against the accused. It was
further argued by the learned counsel that on the same ground
and analogy the offence of cheating punishable under Section 417
RPC is also not made out, since there is no allegation that the
complainant was cheated vis-à-vis his property. So far as the
offences under Sections 469, 471 500 and 506 RPC are
concerned, the learned counsel argued that these offences are
also not made out, especially so when the tampering is alleged
vis-a-vis the property of the mother of one of the accused, who is

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not a complainant herself. Learned counsel submitted that the
trial Magistrate has fallen into a grave error in taking cognizance
and issuing warrant against the petitioners; the complaint and
the proceedings, according to the learned senior counsel, thus,
tantamount to abuse of process of the court.

14. Mr. Qureshi next argued that the complaint filed by
the respondent is barred under Section 205(E) Cr. P. C. as one of
the accused, namely, the proforma respondent, has already filed a
complaint before Police Station, Parimpora with reference to
scandal of unauthorised scanning processes undertaken under the
supervision of complainant’s daughter, Dr. Naira, and that the
complaint is still under investigation.

15. The learned senior counsel further submitted that
since the offences are alleged to have been committed at
Handwara, the learned Chief Judicial Magistrate, Srinagar, did
not have the jurisdiction to try the offences. He argued that the
cognizance taken by the learned trial Magistrate is wholly without
jurisdiction and, therefore, the proceedings are liable to be
quashed.

16. At the hearing, Mr. Qureshi cited and sought to derive
support from the following decision of the Supreme Court and
this Court:

i) State of Haryana v. Ch. Bhajan Lal, AIR 1992 SC 604;

ii) S. W. Palanitkar v. State of Bihar, (2002) 1 SCC 241

iii) U. Dhar v. State of Jharkhand, (2003) 2 SCC 219;

iv) B. S. Joshi v State of Haryana, (2003) 4 SCC 675;

561-A Cr.p.c. No. 248/ 17 Page 9 of 51

v) State of Orissa v Saroj Kumar Sahoo, (2005) 13 SCC 540

vi) Reshma Bano v State of Uttar Pradesh, (2008) 5 SCC 791;

vii) Divine Retreat Centre v. State of Kerala, (2008) 3 SCC 542;

viii) Fakhruddin Ahmad v State of Uttaranchal, (2008) 17 SCC;

ix) L. Narayana Swamy v. State of Karnataka,

AIR 2016 SC 4125;

x) IRIS Computers Liited v. Askari Infotec (P) Ltd.,

(2015) 14 SCC 399;

xi) Iqbal Malhotra v Trans Asian Industries Exposition Pvt.
Ltd., 2017 (I) SLJ 150 (HC);

xii) Basant Rath v. Ch. Nagar Singh, 2012 (III) SLJ 948 (HC);

xiii) R. K. Zalpuri v. State, 2011(I) SLJ 149;

xiv) Ramesh Chander v Sonika Gupta, 2012 (I) JKJ 404[HC].

17. On the other hand, apart from reiterating the
statements and allegations made in the complaint, Mr. M. A.

Qayoom, learned counsel for the contesting respondent
submitted that it is not for the High Court to see whether the
complaint discloses the offences or not; it is a matter of trial and
that the High Court, at this stage, cannot say that no case is made
out. The learned counsel further submitted that the High Court
cannot also go into the sufficiency or otherwise of the content of
the complaint or material placed before the Magistrate and that
the complaint is always to be read as a whole. He submitted that
the High Court cannot substitute its own view for the prima facie
satisfaction arrived at by the trial Magistrate. Referring to
Sections 177 and 179 of the Code of Criminal Procedure, the
learned counsel submitted that the plea of the learned counsel for
the petitioners that the learned trial Magistrate did not have the

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territorial jurisdiction to entertain the complainant does not hold
true. He submitted that Section 205-E Cr. P.C., as referred to and
relied upon by the learned counsel for the petitioners, is not at all
applicable in the instant case. He submitted that the object of the
present petition is only to strangulate the proceedings initiated
by the respondent against the accused.

18. To buttress his arguments, the learned counsel
referred to and relied upon the following judgments of the
Supreme Court:

i) Maninder Kaur v. Rajinder Singh, 1992 Supp (2) SCC 25:

ii) State of T. N. V. Thirukkural Perumal, (1992)2 SCC 449:

iii) Rajesh Bajaj v. State NCT of Delhi, AIR 1999 SC 1216:

iv) State of Karnataka v. M. Devendrappa, (2002) 3 SCC 89:

v) State of U.P. v. Neeraj Awasthi, (2006) 1 SCC 667 [wrongly cited as
(2006) 1 SCC 672]:

vi) Iridium India Telecom Ltd. v. Motorola Incorporated, AIR 2011
SC 20:

vii) Taramani Parakh v. State of M. P., 2015 Cri. L. J. 2031 with
specific reference to paras 11 and 14: and

viii) Rakhi Mishra v State of Bihar, AIR 2017 SC 4019.

19. Though the proforma respondent impleaded by the
petitioners in this petition, who figures as accused no.1 in the
complaint filed before the learned Chief Judicial Magistrate, does
not seem to be aggrieved of the complaint, the cognizance taken
by the learned Chief Judicial Magistrate, and the issue of
warrants against him to secure his appearance before the trial
court, for, he has not chosen to file any 561-A Cr. P. C. petition,
nor has sought his impleadment as a petitioner in the present
petition, yet Mr. Salih Pirzada, learned counsel, appeared on his
behalf and argued that no cognizance could be taken on the
complainant for the alleged offences as the same is barred under

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Section 195 Cr. P. C. He also submitted that in terms of Section
239 Cr. P. C. the accused should not have been tried together for
all the offences and further, referring to exception clause VIII
under Section 499 RPC, the learned counsel submitted that the
accused is covered by the said exception.

20. Let me first attend to the point of jurisdiction of the
learned Chief Judicial Magistrate, Srinagar, to entertain the
complaint. The argument put forth on behalf of the petitioners is
that the conspiracy and various steps attributed to the accused,
cooked up and contained in the complaint, allegedly took place at
Handwara. Therefore, if at all, any offence was committed, in
relation thereto, the Magistrate at Handwara alone, within whose
territorial jurisdiction the offences are alleged to have been
committed, would have jurisdiction to entertain any complaint in
relation to such offences, enquire into and try the same. He
submitted that since no offence is alleged to have been
committed within the local limits of the Chief Judicial Magistrate,
Srinagar, he did not have the jurisdiction to entertain the
complaint, and enquiry into and try the offences. As already
mentioned above, to negate this argument, the learned counsel
for the complainant-contesting-respondent, referred to Sections
177 and 179 Cr. P. C.

21. Part ‘A’ under Chapter XV “of the jurisdiction of the
criminal courts in inquiries and trials” contained in the Code of
Criminal Procedure deals with the place of inquiry or trial.
Sections 177 and 179 fall under the said Chapter of the Code.
These Sections read as under:

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“177. Ordinary place of inquiry and trial:

Every offence shall ordinarily be inquired
into and tried by a Court within the local limits of
whose jurisdiction was committed.”

“179. Accused triable in district where act is
done or where consequence ensues:

When a person is accused of the commission
of any offence by reason of anything which has
been done, and of any consequence which has
ensued, such offence may be inquired into or tried
by a Court within the local limits of whose
jurisdiction any such thing has been done, or any
such consequence has ensued.”

The illustration (a) under Section 179 reads as under:

“(a) A is wounded within the local limits of
the jurisdiction of Court X, and dies within the
local limits of the jurisdiction of Court Z. The
offence of the culpable homicide of A may be
inquired into or tried either by X or Z.”

22. In the instant case, though the conspiracy is alleged
to have been hatched at Handwara and many fraudulent,
deceitful and illegal etc. acts and steps following such conspiracy,
as detailed in the complaint, are also alleged to have been taken
and offences committed at Handwara, in view of the Explanation

(a) appended to Section 179 Cr. P. C., it can be safely said that the
consequence of all such steps also ensued within the territorial
limits of Chief Judicial Magistrate, Srinagar, inter alia, when

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accused no.1 filed the complaint before SHO Police Station,
Parimpora, supported by such documents as are alleged to have
been obtained by cheating, deceit, and by inducement, and
dishonestly copied and forged at Handwara and, thereafter,
allegedly used as genuine for purpose of harming the reputation
and fame of the complainant which he alleges to have been, in
fact, put to, inasmuch as it is alleged that the complainant was
also called at the Police Station on such complaint and the word
about such complaint also spread widely among his friends and
patients at Srinagar which in the complaint is alleged to have
been the mens rea of the accused and, therefore, integral to the
commission of the offences. That being the position, the
submission on the point of jurisdiction of the Chief Judicial
Magistrate, Srinagar, is held to be not tenable; it is rejected.

23. The next argument put forth by the learned senior
counsel for the petitioners is that the complaint is barred under
Section 205-E Cr. P. C. Section 205-E Cr. P. C., as becomes
axiomatic from its caption, prescribes the procedure to be
followed when there is a complaint case and police investigation
in respect of the same offence. The words used are ‘same offence’.
The complaint filed by accused no.1 named in the complaint, i.e.,
proforma respondent herein, before SHO Police Station,
Parimpora, is that he had taken his mother for Ultrasound
Scanning at Dr. Khuroo’s Medical Clinic, Qamerwari, but he was
not satisfied with the scan and the report was full of
discrepancies. He sought information under RTA from Chief
Medical Officer, Srinagar, which showed that the qualified

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Sonologist for the Clinic was Dr. Mushtaq Ahmad; whereas the
USG on his mother was performed by Dr. Naira Sultan who did
not have the requisite qualification for the same and that the PDT
registration of the said clinic had expired on 29.04.2016. The
complainant further expressly stated in the complaint that, ‘to
strengthen my application, I collected USG reports of some of my
neighbours / friends done at Khuroo’s Medical Clinic and I was
found that all the USG scans from 2013-2017 has been performed
and signed by Dr. Naira Sultan’. The complainant enclosed copies
of the said report with the complaint and requested the Police for
taking cognizance of the matter and initiate proceedings against
the Centre. Obviously, the allegations contained in the two
complaints – the one filed by accused no.1 before the Police
Station, Parimpora, and the one filed by the contesting
respondent herein before the Chief Judicial Magistrate, Srinagar

– and, naturally, the two sets of offences alleged are entirely
different and distinct. Section 205-E Cr. P. C. is, therefore, not
attracted, at all. The argument is noted only to be rejected.

24. Now, coming to the submission of Mr Salih Pirzada,
representing the accused no.1 in the complaint, i.e., the proforma
respondent herein, that cognizance could not be taken on the
complaint for the offences as the same is barred under Section
195 Cr. P. C. I may at the very out-set say that this argument is
wholly in air, devoid of any merit, substance and legally-tenable
force. The bar prescribed by Section 195 Cr. P. C. is principally
contained in the three clauses [(a), (b) and (c)] of its first sub-
section. These clauses of sub-Section (1) of Section 195 Cr. P. C.

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say: that no court shall take cognizance of any offence punishable
under, first, Sections 172 to 185 RPC except on a complaint in
writing of the public servant concerned; or, second, Sections 193,
194 195, 196, 199, 200, 205, 206, 207, 208 209, 210, 211 and 228
RPC when such offences are alleged to have been committed in,
or in relation to, any proceeding in any Curt, except on the
complaint in writing of such court or of some other court to
which such court is subordinate; or, third, any offence described
in Section 463 or punishable under Sections 471, 475 or 476 RPC
when such offence is alleged to have been committed by a party
to any proceeding in any court in respect of the document
produced or given in evidence in such proceeding, except on the
complaint in writing of such court, or of some other court to
which such court is subordinate. So far as the first two clauses of
the sub-section are concerned, it become axiomatic that the same
are not attracted to the present case, for, there is neither any
allegation contained in the complaint against the accused, nor the
trial court has taken cognizance for the commission of any
offence mentioned therein. So far as the third clause is
concerned, it is true that it mentions Section 471 RPC, of which
offence the trial Magistrate has taken cognizance in the instance
case, but the bar, as per the provision of law itself, would come
into play only if such offence was alleged to have been committed
by the accused, being a party to any proceeding in any court in
respect of the document(s) produced or given in evidence in such
proceeding. The words ‘in such proceeding’ used in the clause
have reference to the proceeding in the court, not investigation by

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the Police. Admittedly, neither the accused have not produced
any such document(s) before the court in any proceeding on the
basis of which the offence is alleged to have been committed, nor
the complainant has alleged commission of the offence on the
basis of the document(s) having been produced in any such
proceeding before the court by the accused. The argument put
forth is simply fallacious.

25. Again, the argument put forth by Mr. Salih Pirzada
that the accused should not have been tried together for all the
offences in terms of Section 239 Cr. P. C., is equally erroneous,
for, inter alia, the learned counsel seems to be playing oblivious
of the fact that there is something called an offence of criminal
conspiracy alleged against the accused. It hardly needs a mention
that if there is a criminal conspiracy to commit different offences,
the persons, who are members of that conspiracy, can be charged
and tried together. Otherwise also, the provision of Section 239
Cr. P. C. is an enabling provision, not preventive or prohibitive in
its scope and application.

26. Coming to the other argument of Mr. Pirzada that the
accused-proforma-respondent is excepted of the offence of
defamation in terms of Eighth Exception to Section 499 RPC, the
learned counsel, again, seems to be exhibiting lack of knowledge
that there is an allegation that the documents were deceitfully
made to be delivered and dishonestly forged and then, with a
mens rea of defamation, put up before the Police. This all cannot
be said to be done in good faith. The Eighth Exception speaks of

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and vouchsafes a conduct in good faith, not anything else,
muchless a deceit or dishonesty.

27. Now, I come to the case law cited and relied upon by
the learned counsel for the petitioners and the contesting
respondent in support of their respective arguments concerning
the exercise of the inherent power by the High Court under
Section 561- A Cr. P. C etc. As mentioned above, the learned
senior counsel for the petitioners in all cited 14 judgments of
which 10 are of the Supreme Court and 4 are of the different
Benches of this Court. Let me refer to each of these judgments
chronologically hereunder:

28. State of Haryana v. Ch. Bhajan Lal, AIR 1992
SC 604: This is the judgment wherein the Supreme Court gave
illustration of the categories of cases in which the Courts could
exercise the inherent powers under Section 482 of the Central
Code of Criminal Procedure, corresponding to Section 561-A of
the State Code, either to prevent abuse of the process of any Court
or otherwise to secure the ends of justice. That was an appeal filed
by the State of Haryana and two others, assailing the judgment
dated 08.09.1989 of a Division Bench of the High Court of Punjab
and Haryana rendered in a writ petition, quashing the entire
criminal proceedings, inclusive of the registration of the
Information Report, and directing payment of costs. In that case,
an FIR under Sections 161, 165 IPC and 5(2) of Prevention of
Corruption Act, 1947 was registered at Police Station, Saddar,
Hissar, against Chowdhary Bhajan Lal, who had been Chief
Minister of the State of Haryana, on the complaint of one Dharam

561-A Cr.p.c. No. 248/ 17 Page 18 of 51
Pal made by him on 12.11.1987 to the Chief Minister of the time,
namely Chowdhary Devi Lal – a political rival of Chowdhary
Bhajan Lal – making certain serious allegations of corruption. The
Officer on Special Duty in the Chief Minister’s secretariat had
endorsed the complaint to the Director General of Police, who, in
turn, endorsed it to the Superintendent of Police, Hissar. The
Superintendent of Police, Hissar, recorded an endorsement
reading ‘register a case and investigate. The SHO registered the
case under Sections 161, 165 IPC and 5(2) of Prevention of
Corruption Act, 1947. While the SHO, after forwarding a copy of
the FIR to the Magistrate and other officers concerned, himself
took up the investigation, Chowdhary Bhajan Lal filed a writ
petition under Articles 226 and 227 of the Constitution of India
seeking issuance of a writ of certiorari to quash the FIR and also
of a writ of prohibition restraining the respondents therein from
proceeding with the investigation. The High Court held that the
allegations made were imaginary and fanatic, outcome of a
desperate frustrated mind, the same appeared to have been
levelled by Dharm Pal, to avenge his insult of defeat in elections
against the petitioner’s wife and that the charges were all
groundless; that mala fides, if at all attributable, could be
attributed to the SP and Inspector, not to Chaudhary Devi Lal, the
Chief Minister; that there was non-application of mind by the
SHO; that the allegations did not constitute a cognizable offence
for commencing the lawful investigation. Before the Supreme
Court, the central issue involved for scrutiny, as reflected in para
64 of the judgment, was whether the order of the Court in

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quashing the First Information Report and the proceeding of the
investigation was legally sustainable and if not, to what extent the
said order suffered from legal infirmity? The Supreme Court, on
consideration of the provisions of law on the subject, the facts of
that case and the series of its earlier, relevant judgments, in paras
107 to 111of the judgment illustrated the categories of cases where
the power could be exercised, observing and laying down as
under:

“107. Mr. Parasaran, according to whom the allegations
in the present case do not make out an offence, drew our
attention to a recent judgment of this Court in State of U.P. v.
V.R.K. Srivastava and Anr. : 1989 Cri. L. J. 2301 to which
one of us (S. Ratnavel Pandian, J.) was a party. In that case, it
has been ruled that if the allegations made in the FIR, taken
on the face value and accepted in their entirety, do not
constitute an offence, the criminal proceedings instituted on
the basis of such FIR should be quashed. The principle laid
down in this case does not depart from the proposition of law
consistently propounded in a line of decisions of this Court
and on the other hand it reiterates the principle that the Court
can exercise its inherent jurisdiction of quashing a criminal
proceeding only when the allegations made in the FIR, do not
constitute an offence and that it depends upon the facts and
circumstances of each particular case.

108. In the backdrop of the interpretation of the various
relevant provisions of the Code under Chapter XIV and of the
principles of law enunciated by this Court in a series of
decisions relating to the exercise of the extra-ordinary power
under Article 226 or the inherent powers under Section 482 of
the Code which we have extracted and reproduced above, we
give the following categories of cases by way of illustration
wherein such power could be exercised either to prevent
abuse of the process of any Court or otherwise to secure the
ends of justice, though it may not be possible to lay down any
precise, clearly defined and sufficiently channelised and
inflexible guidelines or rigid formulae and to give an

561-A Cr.p.c. No. 248/ 17 Page 20 of 51
exhaustive list of myriad kinds of cases wherein such power
should be exercised.

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
F.I.R. 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 F.I.R. 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 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 mala fide and/or where the proceeding is
maliciously instituted with an ulterior motive for

561-A Cr.p.c. No. 248/ 17 Page 21 of 51
wreaking vengeance on the accused and with a view to
spite him due to private and personal grudge.

109. We also give a note of caution to the effect that
the power of quashing a criminal proceeding should be
exercised very sparingly and with circumspection and that too
in the rarest of rare cases; that the Court will not be justified
in embarking upon an enquiry as to the reliability or
genuineness or otherwise of the allegations made in the F.I.R.
or the complaint and that the extraordinary or inherent powers
do not confer an arbitrary jurisdiction on the Court to act
according to its whim or caprice.

110. It may be true, as repeatedly pointed out by Mr.
Parasaran, that in a given situation, false and vexatious
charges of corruption and venality may be maliciously
attributed against any person holding a high office and
enjoying a respectable status thereby sullying his character,
injuring his reputation and exposing him to social ridicule
with a view to spite him on account of some personal rancour,
predilections and past prejudices of the complaint. In such a
piquant situation, the question is what would be the remedy
that would redress the grievance of the verily affected party?
The answer would be that the person who dishonestly makes
such false allegations is liable to be proceeded against under
the relevant provisions of the Indian Penal Code-namely
Under Sections 182 or 211 or 500 besides becoming liable to
be sued for damages.

111. Reverting to the present case, the allegations made
in the complaint, in our considered opinion, do clearly
constitute a cognizable offence justifying the registration of a
case and an investigation thereon and this case does not fall
under any one of the categories of cases formulated above
calling for the exercise of extraordinary or inherent powers of
the High Court to quash the F.I.R. itself.”

Then in para 114 of the aforesaid judgment, the Supreme
Court further observed and laid down as under:

561-A Cr.p.c. No. 248/ 17 Page 22 of 51

“…Even assuming that Dharam Pal has laid the
complaint only on account of his personal animosity,
that, by itself, will not be a ground to discard the
complaint containing serious allegations which have to
be tested and weighed after the evidence is collected. In
this connection, the following view expressed by
Bhagwati, CJ in Sheonandan Paswan v. State of Bihar
(1987) 1 SCC 288 at page 318 : (AIR 1987 SC 877 at p.

89) may be referred to:

‘It is well established proposition of law
that a criminal prosecution, if otherwise
justifiable and based upon adequate evidence
does not become vitiated on account of mala
fides or political vendetta of the first
informant or the complainant’.”

The learned counsel for the petitioners argued the case in an
attempt and endeavour to persuade the Court that it falls within
the first and the last (7th) categories of cases mentioned by the
Supreme Court, in as much as his case, as already mentioned
above, is that the offences are not made out and that there has
been an acrimony going on between the parties which prompted
the respondent to lodge the instant complaint with a malicious
design. I will come to the first part of the argument a bit later in
this judgment. So far as his attempt to bring it within the 7th
category of cases, that the proceeding is maliciously instituted
with an ulterior motive for wreaking vengeance on the accused
and with a view to spiting them due to private and personal
grudge, the Supreme Court in the very same judgment, has dealt
with this point in para 113 wherein the Court cited and relied
upon with approval the view expressed by the then Chief Justice

561-A Cr.p.c. No. 248/ 17 Page 23 of 51
in Sheonandan Paswan v. State of Bihar, (1987) 1 SCC 288,
quoted by me in this judgment above wherein it was expressed
that a criminal prosecution, if otherwise justifiable and based
upon adequate evidence does not become vitiated on account of
mala fides or vendetta of the first informant or the complainant.

After quoting the views of the then Chief Justice, the Hon’ble
Bench concluded para 113 of the judgment with the following
observation:

“Beyond the above, we do not wish to add
anything more.”

So, the condition illustrated in the 7th category of cases mentioned
under para 108 of the judgment has to be read with what was
observed and laid down by the Supreme Court in para 113 of the
judgment, i.e., if the criminal prosecution is otherwise justifiable
and based upon adequate evidence, it is not vitiated on account of
mala fides or vendetta of the complainant. That being so, at the
stage of taking cognizance what the Magistrate is required to see
is whether the complaint is justifiable and based upon adequate
evidence. Such justifiability and adequacy of evidence, at the stage
of taking cognizance, would have reference to the contents of the
complaint and statement of witness/witnesses recorded at that
time, which certainly would not refer to all the evidence that the
complainant would be proposing to tender and produce at the
trial for sustaining the allegations. So the judgment in that context
and regard, as relied upon by the learned senior counsel, does not
help the petitioners.

561-A Cr.p.c. No. 248/ 17 Page 24 of 51

29. S. W. Palanitkar v. State of Bihar, (2002) 1 SCC
241: In that case there had been a contract of consignment
stockist between the appellant-Company (appellant before the
Supreme Court) and respondent no.2. Respondent no.2-
complainant served a notice on the Marketing and Regional
Manager of the Company to make payment of Rs.15 lakhs to it
within 15 days or in the alternative to refer the disputes and
differences to arbitration as per clause 29 of the agreement.
Thereafter, the parties met and the Company had offered to
supply ammonium sulphate to the complainant for a certain
period on certain terms. The complainant rejected the offer and
filed a complaint alleging offences under Sections 406 and 420
read with Section 120-B IPC. The Magistrate by his order dated
06.01.1998 issued summons against the appellants. The
appellants approached the Patna High Court, invoking its
inherent power under Section 482 Cr. P. C. to quash the aforesaid
order. The High Court dismissed the said petition. The appellant’s
case before the Supreme Court was that the disputes between it
and the respondent no.2 was purely civil in nature, arising out of
contractual relationship relating to commercial transactions; that
even looking to the sworn statements, terms of the agreement and
the notice, no case was made out to proceed against the appellants
on the criminal side, and that the essential ingredient of the
offence under Section 405 IPC was not made out as the appellants
were not entrusted with any property or with domain over
property, and similarly the ingredients of the offence under
Sections 415 and 120-B IPC also were not satisfied. The Supreme

561-A Cr.p.c. No. 248/ 17 Page 25 of 51
Court in paragraphs 8, 9 and 10 of the judgment spelled out the
ingredients of the offence of criminal breach of trust and of the
offence of cheating as under:

“8. Before examining respective contentions on
their relative merit, we think it is appropriate to notice
the legal position. Every breach f trust may not result in
a penal offence of criminal breach of trust unless there
is evidence of a mental act o fraudulent
misappropriation. An act of breach of trust involves a
civil wrong in respect of which the person wronged may
seek his redress for damages in a civil court but a breach
of trust with mens rea gives rise to a criminal
prosecution as well.

9. The ingredients in order to constitute a
criminal breach of trust are: (i) entrusting a person with
property or with any dominion over property; (ii) that
person entrusted (a) dishonestly misappropriating or
converting that property to his own use or (b)
dishonestly using or disposing of that property or
wilfully suffering any other person so to do in violation

(i) of any direction of law prescribing the mode in which
such trust is to be discharged; (ii) of any legal contract
made, touching the discharge of such trust.

10. The ingredients of an offence of cheating
are: (i) there should be fraudulent or dishonest
inducement of a person by deceiving him; (ii) (a) the
person so deceived should be induced to deliver any
property to any person, or to consent that any person
shall retain any property; or (b) the person so deceived
should be intentionally induced to do or omit to do
anything which he would not do or omit if he were not
so deceived; and (iii) in cases covered by (ii)(b), the act
of omission should be one which causes or is likely to
cause damage or harm to the person induced in body,
mind, reputation or property.”

561-A Cr.p.c. No. 248/ 17 Page 26 of 51

Further, in para 21 of the judgment, the Court held that ‘in
order to constitute an offence of cheating, the intention to deceive
should be in existence at the time when the inducement was
made. It is necessary to show that a person had fraudulent or
dishonest intention at the time of making the promise, to say that
he committed an act of cheating. A mere failure to keep up
promise subsequently cannot be presumed as an act leading to
cheating’. The Supreme Court in that case found that there was
nothing either in the complaint and/or in the sworn statements of
the complainant and the three witnesses that any property was
entrusted to any of the appellants at all or the appellants had
domain over any of the properties of respondent no.2 which they
dishonestly converted to their own use so as to satisfy the
ingredients of Section 405 IPC punishable under Section 406 IPC,
and that the agreement also did not require entrustment of any
property to the appellant. Taking the complaint and the
statements of the witnesses as they were, the Supreme Court
observed that it cannot be said even prima facie that the
appellants had committed any offence punishable under Section
406 IPC, since the ingredients of that offence had not been
satisfied.

30. Going by what the Supreme Court has laid down in
paras 10 and 21 as mentioned above and keeping in view the
sequence of events and the intention underlying thereto alleged
by the complainant against the accused, this judgment, in effect
and in essence, advances and supports the case of the

561-A Cr.p.c. No. 248/ 17 Page 27 of 51
complainant rather than rendering any kind of help to the
petitioners.

31. U. Dhar v. State of Jharkhand, (2003) 2 SCC
219: This is a case where Bukaro Steel Plant, a unit of Steel
Authority of India Ltd. (SAIL), allotted a contract of a certain
work to Tata Iron Steel Co. Ltd. (TISCO). TISCO entrusted part
of the work to Tata Construction Project Ltd. (TCPL). TCPL, in
turn, awarded the work to M/s Singh Construction Co., the
complainant before the Magistrate. According to the complainant,
after completing the work, TCPL failed to make payment to it.
M/s Singh Construction Co., complainant, therefore, filed a
criminal complaint under Sections 403, 406, 420 and 120-B IPC.
The Magistrate took cognizance of the alleged offences and issued
summons. The accused challenged the said order of cognizance
before the High Court of Jharkhand. The High Court dismissed
that petition. In the appeal, the Supreme Court found that the
dispute between the parties was purely of civil nature. The
complainant’s case before the Supreme Court was that TCPL had
already received the money for the work from SAIL and that TCPL
had misappropriated the same for its own use instead of paying it
to the complainant and further that it was for this reason that
offences under Sections 403, 406 and 420 IPC etc were alleged.
The Supreme Court held that the contract between the
complainant and TCPL was altogether different from the contract
between SAIL and TCPL. The contractual obligations under both
the contracts wee separate and independent of each other. The
rights and obligations of the parties were to be governed by the

561-A Cr.p.c. No. 248/ 17 Page 28 of 51
contract between them for which the contract between SAIL and
TCPL had no relevance; therefore, even if SAIL had made the
payment to TCPL under its contract with the latter, it would not
give rise to plea of misappropriation of money because that
money was not money or movable property of the complainant.
The Court further held that Section 403 IPS uses the words
‘dishonestly’ and ‘misappropriation’ and that these are necessary
ingredients of an offence under Section 403 IPC. Since neither of
these ingredients were satisfied in the facts and circumstances of
the case, the order of taking cognizance of the offence as well as
the issue of summons to the appellants was held to be wholly
uncalled for. The Court concluded as under:

“8…So far as the appellants are concerned, when
no case is made out for the alleged offences even as per
the complaint filed by the complainant, there is no
reason to permit the appellants to be subjected to trial
for the alleged offences. Hence, the appeal is allowed.
The impugned orders of the High Court as well as of the
Chief Judicial Magistrate are hereby ordered to be
quashed.”

The judgment is not at all attracted to the facts and
circumstances of the present case, more so when there has been
no contract between the parties herein. So far as the observation
and finding recorded by the Supreme Court in the aforesaid
judgment, that even if SAIL had made the payment to TCPL under
its contract with the latter, it would not give rise to plea of
misappropriation of money because that money was not money or
movable property of the complainant, it does not lend any help to

561-A Cr.p.c. No. 248/ 17 Page 29 of 51
the petitioners to say that the Medical documents belonged to the
patients, and that, if the entries made therein, of whatever nature,
including the dates and Degrees, either printed or handwritten, by
the complainant as a Doctor, were altered, to any extent, by
committing forgery, such forgery would not have any effect on the
Doctor, when, admittedly, such alleged forged documents were
produced before the Police for taking action against the
complainant.

32. B. S. Joshi v State of Haryana, (2003) 4 SCC
675: This judgment is not even remotely relevant, for, therein the
wife had filed a complaint for offence under Sections 498-A/323
and 406 IPC. The husband and wife, ultimately, resolved their
matrimonial dispute by a mutual divorce. The husband sought
quashing of the criminal proceedings and the wife supported the
prayer. The High Court dismissed the petition on the ground that
offences under Sections 498-A and 406 IPC were not
compoundable. The Supreme Court held that where there was
almost no chance of conviction, it would be improper to decline to
exercise power of quashing on the ground that it would be
permitting the parties to compound non-compoundable offences.

33. State of Orissa v Saroj Kumar Sahoo, (2005) 13
SCC 540: In that case, the High Court had quashed the
proceedings against one of the accused in an FIR registered for
the commission of offences punishable under Sections 120-B,
420, 468 and 471 IPC read with Sections 13(2) and 13(1)(a) of
Prevention of Corruption Act on the ground that on perusal of the
statements recorded during the investigation it was clear that the

561-A Cr.p.c. No. 248/ 17 Page 30 of 51
ingredients of the offences alleged were not in existence. The
Supreme Court held that it was impermissible for the High Court
to look into materials, the acceptability of which is essentially a
matter for trial. The Supreme Court further held that even at the
stage where charge is framed, the court has to only prima facie be
satisfied about the existence of sufficient ground for proceeding
against the accused and for that limited purpose it can evaluate
material and documents on record, but it cannot appreciate the
evidence. The Supreme Court further held that the High Court
should not ordinarily embark upon an enquiry as to reliability of
evidence to sustain the allegations which is the function of the
trial Judge. Strictly speaking, in view of above, this judgment
clearly goes against the accused-petitioners.

34. Reshma Bano v State of Uttar Pradesh, (2008)
5 SCC 791: In that case, the only reference of the appellant before
the Supreme Court made in the FIR was that ‘questioning from
the sister of the boy (the boy being the main accused), Smt.
Reshma Bano, might be advantageous’. The Supreme Court held
that this did not indicate commission of any offence by her; it
rather put her in the position of a witness. The Supreme Court
quoted with approval the seven illustrative categories of cases
indicated in State of Haryana v. Bhajan Lal (supra) wherein
such power under Section 482 Cr. P. C. could be exercised,
together with the caution indicated in para 103 of that judgment.
So this judgment is of no help to the petitioners.

561-A Cr.p.c. No. 248/ 17 Page 31 of 51

35. Divine Retreat Centre v. State of Kerala,
(2008) 3 SCC 542: AIR 2008 SC 1614: That was a case where a
Judge of the High Court of Kerala on acting on an anonymous
complaint addressed to him, took a suo motu action and directed
investigation of the crime to be taken away from the investigating
officer concerned and entrusted the same to a special
investigation team constituted by the learned Judge. The Supreme
Court, in that context, discussed the nature and scope of the
Courts’ inherent power under Section 482 of the Central Cr. P. C.
(which corresponds to Section 561-A Cr. P. C. of the State Cr. P.
C.) and the various spheres thereof, including its suo motu
exercise etc. The judgment is not attracted to the facts and
circumstances of the present case.

36. Fakhruddin Ahmad v State of Uttaranchal,
(2008) 17 SCC 157: In that case, the High Court had dismissed the
appellant’s petition under Section 482 Cr. P. C. for quashing
charge-sheet and consequent proceedings initiated against him by
complainant for allegedly committing offences punishable under
Sections 420, 467, 468 and 471 IPC, on the ground that it was not
permissible for it to look into the materials placed before the
Magistrate. The Supreme Court held that such an approach was
not in consonance with the broad parameters enumerated in a
series of decisions of the Court. It may also be relevant to point
out here that in that case the appellant before the Supreme Court
had been issued a cheque for a certain sum by the complainant
and his partner in lieu of supply of chicken. That cheque, on being
presented to the Bank, was returned for lacks of funds. The

561-A Cr.p.c. No. 248/ 17 Page 32 of 51
appellant filed a complaint under Section 138 of the Negotiable
Instruments Act, 1881 and Section 420 IPC against the
complainant and his partner. The complainant cooked up a story
that he had issued blank cheques to a third person, Salim Ali by
name in lieu of a loan raised from him. Allegedly, Salim Ali had
misplaced the cheques which had been found and misused by the
appellant. The complaint made by the complainant in that regard
was referred by the Magistrate to Police for registration of case
and investigation. The Police registered a case and made a report
to the Magistrate from which it appeared that the allegation of the
complainant was found to be incorrect. It is in this context that
the Supreme Court in paragraphs 20 and 21 of the judgment
observed and laid down as under:

“20. So far as the scope and ambit of the powers of
the High Court under Section 482 of the Code is concerned,
the same has been enunciated and reiterated by this Court in a
catena of decisions and illustrative circumstances under
which the High Court can exercise jurisdiction in quashing
proceedings have been enumerated. However, for the sake of
brevity, we do not propose to make reference to the decisions
on the point. It would suffice to state that though the powers
possessed by the High Court under the said provision are very
wide but these 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 inherent
powers possessed by the High Court are to be exercised very
carefully and with great caution so that a legitimate
prosecution is not stifled. Nevertheless, where the High Court
is convinced that 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
or where the allegations made in the F.I.R. or the complaint

561-A Cr.p.c. No. 248/ 17 Page 33 of 51
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, the
powers of the High Court under the said provision should be
exercised. [See: Bhajan Lal’s case (supra)]

21. Bearing in mind the above legal position, we are
convinced that the High Court was not justified in dismissing
the petition on the afore-stated ground. In our opinion, in
order to arrive at a conclusion, whether or not the appellant
had made out a case for quashing of the charge-sheet against
him, the High Court ought to have taken into consideration
the material which was placed before the Magistrate. For
dismissal of the petition, the High court had to record a
finding that the uncontroverted allegations, as made, establish
a prima facie case against the appellant. In our judgment, the
decision of the High Court dismissing the petition filed by the
appellant on the ground that it is not permissible for it to look
into the materials placed before the Magistrate is not in
consonance with the broad parameters, enumerated in a series
of decisions of this Court and briefly noted above, to be
applied while dealing with a petition under Section 481 of the
Code for discharge and, therefore, the impugned order is
unsustainable.”

As seen above, the Supreme Court found that a story had been
cooked up. Here, in the case at hand, the complaint submitted before the
Police Station in clear words mentions that medical documents were
obtained from other people whom the accused-proforma-respondent has
styled as his neighbours.

37. L. Narayana Swamy v. State of Karnataka, AIR 2016 SC
4125: In that case, a complaint made to the Sessions Judge, involving
offences under Section 13(1)(d) read with Section 13(2) of Prevention
of Corruption Act and Sections 120-B, 427, 447 and 506 read with
Section 34 IPC, was referred to the Police Inspector of the jurisdictional
Police for further investigation. The Police registered the crime for the

561-A Cr.p.c. No. 248/ 17 Page 34 of 51
said offences. The accused in the complaint filed a petition under
Section 482 Cr. P. C. before the High Court of Karnataka seeking
quashing of the said proceedings. The High Court dismissed the
petition. The following two questions of law, as mentioned in para 7 of
the judgment, arose for consideration before the Supreme Court:

(i) Whether an order directing further investigation under
Section 156(3) of the Cr. P.d C. can be passed in
relation to public servant in the absence of valid
sanction and contrary to the judgment of this Court in
Anil Kumar ors. v. M. K. Aiyappa anr. and
Manharibhai Muljibhai Kakadia and anr. v.
Shaileshbhai Mohanbhai Patel ors?

(ii) Whether a public servant who is not on the same post
and is retransferred (whether by way of promotion or
otherwise to another post) loses the protection under
Section 19(1) of the P. C. Act, though he continues to
be a public servant, albeit on a different post?

Obviously, the judgment is not attracted to the facts of the
present case.

38. IRIS Computers Limited v. Askari Infotec (P)
Ltd., (2015) 14 SCC 399: This decision of the Supreme Court
fundamentally concerns the question whether the Magistrate has
power to review its order and it has been held that no, no such
power of review exists in Cr. P. C., and that where the Magistrate
lacks jurisdiction to entertain a complaint, the remedy lies before
the High Court by way of a petition under Section 482 Cr. P. C.
Therein the Magistrate had returned the complaint after having

561-A Cr.p.c. No. 248/ 17 Page 35 of 51
issued process and the Supreme Court held that the Magistrate
had erred in doing so.

39. Coming to the judgments of this Court cited by the
learned counsel, I may at the outset say that these do not add
anything the judgments of the Supreme Court, but are rather
based on the judgments of the Supreme Court. Nonetheless,
referred to the same, I may say that R. K. Zalpuri v. State,
2011(I) SLJ 149 [wrongly cited as 2011(I) SLJ 150] is a decision in
a service matter, holding that supply of record of proceedings of
inquiry alongwith show cause notice to the delinquent employee
was mandatory, and that failure to do so amounted to violation of
Rule 34 of the JK Civil Services (Classification, Control and
Appeal) Rules, 1956 and Article 311(2) of the Constitution of
India.

40. Ramesh Chander v Sonika Gupta, 2012 (I) JKJ
404[HC]: In that case the complainant alleged that the petitioners
had dishonestly misappropriated her ‘Istridhan’ and were still
misappropriating it. The Court found that the statements of the
complainant and her witness were significantly silent about any
such act or omission on the part of the petitioners, and that no
such facts on the basis of which even an inference of
misappropriation could be drawn were indicated either in the
complaint or in the statements. The Court, therefore, held that
mere reproduction of the wording of the Penal Section by the
complainant and her witnesses in their statements does not
satisfy the requirements of Section 204 Cr. P. C. and the process

561-A Cr.p.c. No. 248/ 17 Page 36 of 51
issued by the Magistrate was not justified. Such is not the case
herein.

41. Basant Rath v. Ch. Nagar Singh, 2012 (III) SLJ
948 (HC). In that case the learned Chief Judicial Magistrate on
recording the statement of the complainant and that of his
witness, deferred issuance of process, observing that the matter
deserved a thorough probe and in-depth inquiry. The issuance of
process was postponed and, in terms of Section 202 Cr. P. C,
inquiry was directed. to be conducted by Special Municipal
Magistrate, Jammu. The Special Municipal Magistrate passed an
order summoning two of the alleged accused persons, who were
police officers, to tender their explanation regarding the alleged
CD. The two alleged accused filed 561-A Cr. P. C. petition before
the Court seeking quashment of the above order passed by the
Inquiring Magistrate summoning them to explain, on the ground
that the learned Magistrate in his capacity as Inquiry Officer
lacked power to summon the alleged accused-petitioners, that too
when cognizance of the offence was yet to be taken by the
Magistrate before whom complaint was filed. It is in context of the
above point involved in the case that the Court in the aforesaid
judgment expounded the scope of Sections 202 and 203 of the
Code. Such is not the point involved herein. The judgment is
wholly irrelevant.

42. Iqbal Malhotra v Trans Asian Industries
Exposition Pvt. Ltd., 2017 (I) SLJ 150 (HC). The basic point
raised in that case before the High Court in 561-A Cr. P. C.
petition, as reflected in para 4 of the judgment (wrongly

561-A Cr.p.c. No. 248/ 17 Page 37 of 51
numbered as para no.19), was that the Magistrate had postponed
the process and referred the complaint for police report and that
there was nothing different contained in the report of the SHO
than what had been stated in the complaint, and that once the
Magistrate was not satisfied with the truth or otherwise of the
allegations made in the complaint when it was presented before it,
on account of which it was referred to the Police for enquiry, the
Magistrate could not issued process on the same basis as there
was nothing new to assume such satisfaction. In this regard, the
Court held that postponing the process and directing the SHO to
conduct enquiry appears to have been done by the learned
Magistrate to derive satisfaction about the e-mail
(communication) to have reached to the JK Bank, Corporate
Headquarter at Srinagar. The Court further held that while
entertaining a complaint, taking cognizance and then for issuing
process a detailed order is not required to be passed. The
judgment is not attracted to any of the points raised by the
petitioners in this petition.

43. Now, I proceed to chronologically refer to the
judgments cited by Mr. Qayoom. These are:

44. Maninder Kaur v. Rajinder Singh, 1992 Supp
(2) SCC 25: In that case, the appellant before the Supreme Court
had filed a complaint under Sections 363, 366, 376 and 368 read
with Section 34 of IPC before a Judicial Magistrate. Besides
herself, she examined her father and a neighbour as her
witnesses. The Magistrate, being of the opinion that there was
sufficient ground for proceedings, issued process against the

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accused. Before the High Court, in the petition under Section 482
Cr. P. C. some probabilities, statedly of inherent nature, were
pressed into service to disbelieve the complainant-appellant’s
version which had appealed the High Court which quashed the
complaint. The Supreme Court, in para 4 of the short judgment,
inter alia, observed and laid down as under:

“…The matter is plain and simple as on the
statement of complainant and her two witnesses, the
leaned Magistrate came to the opinion that there was
sufficient ground for proceeding in that complaint and
he issued process against the accused respondents. Now
at that stage to judge the sufficiency or otherwise of the
ground for proceeding was beyond the power of the
High Court so as to quash the proceedings under
Section 482 Cr. P. C. From the facts and circumstances
of the case, we are of the view that the High Court was
not justified in quashing the proceedings at the initial
stage so as to strangulate it at its inception…”

45. State of T. N. V. Thirukkural Perumal, (1995) 2
SCC 449: In that case, an FIR for certain offences had been
lodged with the Police and investigation was under process while
the Police had also collected some evidence. The alleged accused,
respondent before the Supreme Court, filed a petition under
Section 482 Cr. P. C. The learned Singh Judge of the High Court
quashed the proceedings emanating from the FIR. The Supreme
Court found and laid down as under:

“4…From a bare perusal of the order of the
learned Single Judge it appears that while quashing the
proceedings, reliance has been placed upon some
evidence collected by the investigating agency during

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the investigation. The approach of the learned Judge in
relying upon such evidence, which is yet to be produced
before the trial court, to quash the criminal proceedings
in Crime Case No.246 of 1992 (supra) was not proper.
The power of quashing an FIR and criminal proceedings
should be exercised sparingly by the courts. Indeed the
High Court has the extraordinary or inherent power to
reach out injustice and quash the first information
report and criminal proceedings. Keeping in view the
guidelines laid down by this Court in various judgments
(reference in this connection may be made with
advantage to State of Haryana v. Bhajan Lal) but the
same has to be done with circumspection. The normal
process of the criminal trial cannot be cut short in a
rather casual manner The court is not justified in
embarking upon an enquiry as to the reliability or
genuineness of the allegations made in the FIR or the
complaint on the basis of the evidence collected during
investigation only while dealing with a petition under
Section 482 Cr. P. C. seeking the quashing of the FIR
and the criminal proceedings. The learned Single Judge
apparently fell into an error in evaluating the
genuineness and reliability of the allegations made in
the FIR on the basis of the evidence collected during the
investigation…”

46. Rajesh Bajaj v. State NCT of Delhi, AIR 1999 SC
1216: In that case the appellant had lodged an FIR under Section
420 IPC. A Division Bench of the Delhi High Court, relying on the
decision of the Supreme Court in State of Haryana v. Bhajan Lal
(supra) quashed the FIR on the ground that the complaint did
not disclose the offence. The Division Bench had put forward
three premises in this regard: first, that the complaint did not
disclose commission of any offence of cheating punishable under
Section 420 IPC; second, that there was nothing in the complaint
to sugrgest that the accused-petitioner had dishnest or fraudulent

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intention at the time the respondent exported goods; and third,
that there was nothing to indicate that the respondent by
deceiving the complainant, induced him to export goods. The
Supreme Court in para 9 of the judgment held as under:

“9. It is not necessary that a complainant should
verbatim reproduce in the body of his complaint all the
ingredients of the offence he is alleging. Nor is it
necessary that the complainant should state in so many
words that the intention of the accused was dishonest or
fraudulent. Splitting up of the definition into different
components of the offence to make a meticulous
scrutiny, whether all the ingredients have been precisely
spelled out in the complaint, is not the need at this
stage. If factual foundation for the offence has been laid
in the complaint, the Court should not hasten to quash
criminal proceedings during investigation stage merely
on the premise that one or two ingredients have not
been stated with details. For quashing an FIR (a step
which is permitted only in extremely rare cases) the
information in the complaint must be so bereft of even
the basic facts which are absolutely necessary for
making out the offence. In State of Haryana v. Bhajan
Lal…this Court laid down the premise on which the FIR
can be quashed in rare cases…”

47. State of Karnataka v. M. Devendrappa, (2002)
3 SCC 89: In that case, a charge sheet was submitted by the
Police against the respondents alleging commission of offences
under Sections 465, 468, 471 and 420 read with Section 120-B
IPC. A learned Single Judge of the High Court in 482 Cr. P. C.
petition, on analysis of the background facts, held that
involvement of the excise officials could not be ruled out. It was
also noted that there was no definite evidence to show that

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accused nos. 1 and 2 were directly involved, and that there was no
material to hold that the accused had committed theft of letter
heads from the Bank and/or that they had committed forgery for
the purpose of cheating or had used as genuine the forged
documents or had cheated the Government, etc. The Supreme
Court in para 6 of the judgment laid down as under:

“6…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 rests specially 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 abuse. It would be an abuse of process of
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 initiation/continuance of it
amounts to abuse of 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.”

The Supreme Court in the aforesaid decision, reiterated and
quoted the illustrative categories indicated in State of
Haryana v Bhajan Lal (supra). And in para 9 of the
judgment, the Supreme Court laid down that “…the High Court
being the highest court of a State should normally refrain from

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giving a prima facie decision in a case where the entire facts are
incomplete and hazy, moreso 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…”

48. State of U.P. v. Neeraj Awasthi, (2006) 1 SCC
667 [wrongly cited as (2006) 1 SCC 672]: That was a service
matter, concerning appointments made in excess of the available
posts – 5600 appointments against 3395 posts – and termination
of about 1021 employees. Obviously, the judgment is irrelevant.

49. Iridium India Telecom Ltd. v. Motorola
Incorporated, AIR 2011 SC 20: In that case, the complaint
against the respondent before the Supreme Court, pertaining to
allegations of cheating under Section 420 read with Section 120-
B IPC, had been quashed by the Bombay High Court. The
Supreme Court held that inherent powers cannot be exercised to
stifle prosecution. The Court in para 44, inter alia, observed and
laid down as under:

“…As noticed earlier, both the appellants and the
respondents have much to say in support of their
respective view points. Which of the views is ultimately
to be accepted, could only be decided when the parties
have had the opportunities to place the entire materials
before the Court. This Court has repeatedly held that
power to quash proceedings at the initial stage have to
be exercised sparingly with circumspection and in the
rarest of rare cases. The power is to be exercised ex
debito justitiae. Such power can be exercised where a
criminal proceeding is manifestly attended with mala
fide and have been instituted maliciously with ulterior

561-A Cr.p.c. No. 248/ 17 Page 43 of 51
motive. This inherent power ought not to be exercised to
stile a legitimate prosecution…”

50. Taramani Parakh v. State of M. P., 2015 Cri. L.

J. 2031 with specific reference to paras 11 and 14: In that case, the
wife lodged a complaint alleging that her husband and his
parents harassed her with demand of dowry amounting to
cruelty. This led o registration of FIR which culminated into filing
of charge sheet against the accused. The accused moved the High
Court under Section 482 Cr. P. C. The wife contested that
petition. The High Court, relying upon the judgments of the
Supreme Court in Neelu Chopa v. Bharti, (2009) 10 SCC 184 :
AIR 2009 SC (Supp) 2950; Manjoj Mahavir Prasad Khaitan v.
Ram Gopal Moddar, (2010) 10 SCC 673; and Geeta Mehrotra v
Stae of U P., (2012) 10 SCC 741 : AIR 2013 SC 18, held that since
there were no specific allegations, the criminal proceedings
against the accused amounted to abuse of the court’s process.
Accordingly, the High Court quashed the criminal proceedings.
The Supreme Court, on appeal by the wife, in para 11, referred to
and relied upon by the learned counsel, said that in matrimonial
cases, the Courts have to be cautious when omnibus allegations
are made, particularly against relatives who are not generally
concerned with the affairs of the couple. The Supreme Court in
this para of the judgment relied upon 20 of its earlier judgments.
Then in para 14, again referred to and relied upon by the learned
counsel for the contesting respondent, the Supreme Court laid
down: “14. From reading of the complaint it cannot be held that
even if the allegations are taken as proved no case is made out”. I

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do not see any resemblance in the facts of that case and the
present case.

51. Rakhi Mishra v State of Bihar, AIR 2017 SC
4019: Again, this case related to the complaint filed by wife
against her husband and other members of his family alleging ill
treatment by them. The FIR, which was registered on the wife’s
complaint, and the proceedings initiated on the charge sheet filed
before the trial court taking cognizance, were quashed by the
High Court. On appeal, the Supreme Court observed that a
perusal of the complaint would disclose a prima facie case against
respondents 2, 4 to 10, and that the order passed by the Chief
Judicial Magistrate by which cognizance was taken ought not to
have been interfered with by the High Court. In para 5 of the
judgment, the Supreme Court laid down as under:

“5. …It is settled law that the power under
Section 482 Cr. P. C. is exercised by the High Court only
in exceptional circumstances only when a prima facie
case is not made out against the accused. The test
applied by this Court for interference at the initial stage
of a prosecution is whether the uncontroverted
allegations prima facie establish a case.”

52. Looking at the above decisions, it transpires that it has
been conclusively settled that the High Court, with a view to preventing
abuse of the process of any court or otherwise to secure the ends of
justice, not only can, but has to, exercise its inherent powers, 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

561-A Cr.p.c. No. 248/ 17 Page 45 of 51
prima-facie constitute any offence or make out a case against the
accused or where the allegations made in the F.I.R. or the complaint are
so absurd and inherently improbable as no prudent person can ever
reach a just conclusion that there is sufficient ground for proceeding
against the accused. However, if the Court finds that a criminal
prosecution is otherwise justifiable and based upon evidence, it will not
be vitiated even on account of mala fides or vendetta of the first
informant or the complainant. For purposes of finding whether a
prosecution is justifiable it has been held to be impermissible for the
High Court to look into materials, for, the acceptability of it is
essentially a matter for trial. It is also held that at the stage where charge
is framed, the court has to only prima facie be satisfied about the
existence of sufficient ground for proceeding against the accused and
for that limited purpose it can evaluate material and documents on
record, but it cannot appreciate the evidence, and that at this stage, the
court cannot judge the sufficiency or otherwise of the ground for
proceeding as the same is beyond the power of the High Court. The
Supreme Court further held that the High Court should not ordinarily
embark upon an enquiry as to reliability of evidence to sustain the
allegations which is the function of the trial Judge. It is also laid down
that High Court cannot substitute its own view for the prima facie
satisfaction arrived at by a trial Magistrate. It has repeatedly been held
that power to quash proceedings at the initial stage has to be exercised
sparingly with circumspection and in the rarest of rare cases, solely ex
debito justitiae, and that it is not necessary that a complainant should
verbatim reproduce in the body of his complaint all the ingredients of
the offence he is alleging. Nor is it necessary that the complainant

561-A Cr.p.c. No. 248/ 17 Page 46 of 51
should state in so many words that the intention of the accused was
dishonest or fraudulent. Splitting up of the definition into different
components of the offence to make a meticulous scrutiny, whether all
the ingredients have been precisely spelled out in the complaint, is not
the need at this stage. If factual foundation for the offence has been laid
in the complaint, the Court should not hasten to quash criminal
proceedings.

53. The judgments cited at the Bar and relied upon by the
learned counsel, as mentioned and quoted above, make things crystal
clear, leaving no score for this Court to elaborate on any point. The
submission made by the learned counsel for the petitioners to persuade
the Court that this case falls within the first and the last (7th) categories
of cases mentioned by the Supreme Court in State of Haryana v. Ch.
Bhajan Lal (supra), also stands adequately dealt with and is, therefore,
answered in negative. I may also say that having gone through the trial
court record, I am convinced that this is a case where the allegations
made in the complaint do prima-facie constitute the offences and make
out a case against the accused, and that the allegations made in the
complaint are not absurd and/ or inherently improbable that no prudent
person can ever reach a just conclusion that there is sufficient ground
for proceeding against the accused. It may be mentioned here that from
the record it transpires that in support of the complainant, apart from the
statement of the complainant, Ghulam Nabi Kaboo, the person from
whom the medical records were obtained by the accused, has also
tendered his statement as a witness and he has supported the allegations
contained in the complaint.

561-A Cr.p.c. No. 248/ 17 Page 47 of 51

54. Before I conclude this judgment, I deem it necessary to
refer to and deal with the argument of the learned counsel that medical
records do not constitute property and that, even if that be so, it belongs
to the patient, not to the Doctor. What constitutes criminal breach of
trust for which punishment is prescribed under Section 406 RPC is
stipulated in Section 405 RPC. Section 405 RPC does not define
property. However, the Supreme Court, long back, more than 55 years
back, in R. K. Dalmia v. Delhi Administration, 1962 AIR 1821 : 1963
SCR (1) 253, has held as under:

“We are of opinion that there is no good reason to
restrict the meaning of the word ‘property’ to movable
property only when it is used without any qualification in S.
405 or in other sections of the Indian Penal Code. Whether
the offence defined in a particular section of the Indian Penal
Code can be committed in respect of any particular kind of
property will depend not on the interpretation of the word
‘property’ but on the fact whether that particular kind of
property can be subject(ed) to the acts covered by that
section. It is in this sense that it may be said that the word
property in a particular section covers only that type of
property with respect to which the offence contemplated in
that section can be committed.

Section 22 I.P.C. defines ‘movable property’. The
definition is not exhaustive. According to the section the
words ‘movable property’ are intended to include corporeal
property of every description, except land and things attached
to the earth or permanently fastened to anything which is
attached to the earth. The definition is of the expression
‘movable property’ and not of ‘property’ and can apply to all
corporeal property except property excluded from the
definition. It is thus clear that the word ‘property’ is used in
the Code in a much wider sense than the expression ‘movable
property’. It is not therefore necessary to consider in detail

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what type of property will be included in the various sections
of the Indian Penal Code.”

Sections 22 and 405 of the IPC are akin to Sections 22 and 405 of
the RPC. Therefore, the above judgment squarely covers the point
raised whether medical records could be termed as property. Then
comes the question of ownership; I am of the view that the entries
recorded by a Doctor in the medical records of a patient cannot be said
to belong to the patient, for, anything wrong therein mentioned would
make the Doctor liable to action, not the patient. Every entry recorded
therein is more sacrosanct and valuable to the Doctor than the patient,
since it attaches the risk of liability of the Doctor. If any entry therein is
altered, the risk is earned by the Doctor, as is the fact as well as
allegation in the present case – fact to the extent and insofar as a
complaint has been filed against the complainant by accused no.1 on the
basis of contents of medical documents/record attributed to the
complainant and allegation to the extent the complainant alleges forgery
of some entries therein. I am of the considered view that the medical
documents of a patient, prepared and recorded by a Doctor, insofar as
contents thereof are concerned, cannot be said to be the property of the
patient. For purposes of day-to-day use, record and reference a set of
such medical records have to be available to, and in possession of the
patient, and in this age of science, technology and digitalization, the
established and organized clinics maintain record and storage of such
records of a patient for future and ready reference with them, as is
claimed by the claimant in the present case, inasmuch as the he states
that he has been keeping the record of medical history/ reports of his
patients. Then the learned counsel also raised the point of entrustment.

561-A Cr.p.c. No. 248/ 17 Page 49 of 51

Though the Supreme has also held that the complainant is not required
to spell out each and every ingredient of an offence in his complaint and
the High Court, while exercising its inherent powers at the initial stage
of a criminal prosecution, cannot split up of the definition into different
components of the offence to make a meticulous scrutiny whether all
the ingredients have been precisely spelled out in the complaint, yet it is
not only alleged that accused no.1 had fraudulently and dishonestly
obtained the medical records of the witness, Ghulam Nabi Kaboo, from
his wife, it is admitted by him in his complaint before Police Station,
Parimpora, that he had the dominion over the medical records of his
neighbours, which medical records had been written, recorded and
prepared by the complainant. The words ‘in any manner’ used in
Section 405 RPC has a wider meaning. The argument raised is,
accordingly, answered as rejected.

55. In light of all what has been discussed above, this petition
is dismissed together with the connected interim application, if any. The
subsisting interim direction(s), if any, shall stand vacated.

56. Any observation made in the judgment shall not form the
basis for deciding the complaint by the trial Magistrate and the
complaint shall be decided exclusively on merits.

57. The parties are directed to appear before the trial court for
further proceedings on 03.02.2018. The Registry is directed to sent

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down the original trial court records forthwith and, in any case, before
03.02.2018.

(Ali Mohammad Magrey)
Judge

Srinagar,
31.01.2018
Syed Ayaz, Secretary.

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