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| HC refuses to quash FIR registered by CB in fraud case | | | Early Times Report
JAMMU, Apr 2: Justice Vinod Chatterji Koul of Jammu & Kashmir and Ladakh High Court held that merely quashing an FIR or complaint based on the perception that the complainant will not support the prosecution's case is not justified in law and further said that the Sessions Court has the power to discharge an accused under Section 227 Cr.P.C. even before trial, making it unnecessary to invoke the High Court's jurisdiction under Section 482 Cr.P.C. for quashing prosecution in such cases.
Court further observed that".. the perception that since complainant therein had not supported the complaint, he would not support the case of prosecution and there would be no chance of conviction, thus the trial itself would be a futile exercise… quashing of FIR/complaint on such a ground could not be held to be justified in law… ordinarily, the court of Sessions was empowered to discharge an accused under Section 227 Cr.P.C. even before initiating the trial. The accused could, therefore, move the Trial Court itself for such a relief and the Trial Court would be in a better position to analyse and pass an order."
The petition stemmed from a FIR registered by the Crime Branch Kashmir, which arose from a complaint by one Shareefa Jan, who alleged that petitioners Khursheed Ahmad Mahajan (a retired professor) and his wife Roshan Jahan had fraudulently induced her to invest Rs. 66.74 lakh in residential and commercial flats in Greater Noida through real estate firms M/s Earth Infrastructure Pvt. Ltd. and Jaydev Infratech Pvt. Ltd. Despite making payments, she neither received the properties nor the promised returns.
The Petitioner's Counsel Mr. Shafqat Nazir argued that the FIR was an abuse of process, as the complainant had voluntarily entered into agreements with Jaydev Infratech and even encashed some returns. He claimed the Crime Branch ignored material facts, including the closure of an earlier preliminary verification and that the petitioners were themselves victims of the real estate firms' insolvency.
Respondents through Counsels Ms. Nadiya Abdullah, Mr. Shahbaz Sikandar & Mr. Omais Kawoos, asserted that investigations revealed only Rs. 52.81 lakh was acknowledged by Jaydev Infratech, leaving Rs. 13.92 lakh unaccounted. They alleged the petitioners acted as middlemen, knowingly misrepresenting the firms' financial stability to exploit the complainant.
The Court noted that the Sessions Court is empowered under Section 227 Cr.P.C. to discharge an accused if no prima facie case is made out. Since the Trial Court is equipped with the entire case record, it is in a better position to assess the case at the appropriate stage.
Court further observed that complainant's disinterest is irrelevant and even if the complainant resiles later, the State's duty to prosecute societal crimes remains. It reasoned, ".. an offence committed is a crime against a society and not against a victim alone. The victim, under undue pressure or influence of the accused or under any threat or compulsion, may resile back but that would not absolve the State from bringing the accused to book, who has committed an offence and has violated the law of the land"
Observing that the prosecution should not be pre-judged at this juncture the High Court emphasized that whether the complainant supports the case or not is a matter of evidence, and the prosecution process should not be pre-judged on mere assumptions.
"The power of quashing the criminal proceedings has to be exercised very sparingly and with circumspection and that too in the rarest of rare cases. The Court cannot be justified in embarking upon an enquiry about reliability or genuineness or otherwise of allegations made in the FIR/Complaint, unless the allegations are so patently absurd and inherently improbable so that no prudent person can ever reach such a conclusion", the court underscored.
With these observations, High Court dismissed the petition with the direction that the petitioner to avail the remedy before the Sessions Court under Section 227 Cr.P.C. if he seeks discharge. —JNF |
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