Justice Sanjay Dhar, Jammu and Kashmir and Ladakh High Court
Jammu & Kashmir & Ladakh High Court: If Allegations Clearly Show Accused's Act Falls Under IPC General Exceptions, No Need To Await Submission Of Proof From Accused To Confirm The Same
|The Jammu & Kashmir and Ladakh High Court quashed the impugned order passed by the Judicial Magistrate and the consequential FIR registered pursuant thereto.
The Jammu & Kashmir and Ladakh High Court clarified that if a complaint's allegations clearly show the accused's act falls under the IPC's General Exceptions, there's no need to await submission of proof from the accused to confirm this.
The Court quashed the impugned order passed by the Judicial Magistrate and the consequential FIR registered pursuant thereto, along with the proceedings emanating therefrom. The Petitioners had challenged the aforementioned order and FIR for offences under Section 447, 354 and 506 of the IPC.
A Single Bench of Justice Sanjay Dhar remarked, “From the forgoing analysis of law on the subject, it is evident that once it is clearly discernible from the allegations made in the complaint that the act of the accused falls within the General Exceptions, there is no need to wait for submission of proof on behalf of the accused so as to bring his case within the purview of General Exceptions. The instant case is a classic example where the complainant in his complaint itself has admitted that the petitioners were acting pursuant to the abrogation of ROSHNI Act, which means that they were acting pursuant to the judgment of the Division Bench of this Court in S. K. Bhalla’s case (supra). Thus, on this ground also no offence is made out against the petitioners.”
Advocate Salih Pirzada appeared for the Petitioners, while GA Faheem Nisar Shah represented the Respondents.
Brief Facts
The Respondent had filed an Application under Section 156(3) of the CrPC before the Judicial Magistrate alleging that the a trust named Darul Arifa Hazrat Khadijatul Qubra (RA) at was imparting education (religious/technical) to poor orphan girls with hostel and mess facilities. It was stated that the Petitioners, "who are said to be officials of the Forest Department," along with a police contingent, visited the trust premises without any authority of law and resorted to wanton destruction of the structure and articles of the trust. It was also alleged that the Petitioners assaulted the staff members and outraged the modesty of lady members/girl students and threatened them with dire consequences.
The Magistrate had then directed the Station House Officer to register an FIR against the Petitioners and investigate the matter.
Court’s Reasoning
The High Court explained, “I am conscious of the fact that Section 78 of IPC falls in the chapter relating to General Exceptions which can only be put up as a defence to the prosecution case but in a case where facts are clear, either from a bare perusal of the complaint lodged against a person or from the material collected by the Investigating Agency during investigation of the case, it may not be necessary to wait for the accused to lead evidence so as to bring his case within the purview of General Exceptions. If on the basis of the allegations made in the complaint, the case falls in General Exceptions, it can be stated that the action cannot be termed as an offence.”
The Bench noted that the Petitioners were "public servants who were engaged in discharging their official duties as officials of Forest Department." The Court found that "no specific allegations" had been made against any of the Petitioners and that the allegations made by the complainant were "general and omnibus in nature."
The Court stated, "A perusal of the allegations made by the complainant would show that the allegations are general and omnibus in nature. No specific allegations have been made against any of the petitioners. It has not been spelt out as to which of the petitioners has committed which particular offence."
Consequently, the Court ordered, “For the foregoing reasons, the petition is allowed and impugned order dated 25.03.2022 passed by the learned Judicial Magistrate, 1st Class, Vailoo, as well as the impugned FIR No.55/2022 registered pursuant thereto along with the proceedings emanating therefrom are quashed.”
Accordingly, the High Court allowed the Petition.
Cause Title: Syed Muiz Qadri & Ors. v. UT of J&K & Ors. (CRM(M) No.119/2022)
Appearance:
Petitioners: Advocates Salih Pirzada and Bhat Shafi
Respondents: GA Faheem Nisar Shah