Quashing FIR On Perception Of Complainant's Non-Support To Prosecution Case Unjustified, Accused Can Seek Discharge Before Trial Court: J&K High Court

A bench of Justice Vinod Chatterji Koul emphasized 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.

Citing State of Maharashtra v. Arun Gulab Gawali, (2010) the court observed,

“.. 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.

Justice Koul meticulously analyzed the scope of Section 482 Cr.P.C., citing precedents like R.P. Kapur v. State of Punjab and State of Haryana v. Bhajan Lal, which caution against quashing FIRs except in "rarest of rare" cases where allegations are patently absurd or legally barred.

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.

The court further noted that the High Court cannot act as a trial court or assess evidence reliability at this stage. Quashing is permissible only if the FIR discloses no offence or is manifestly malafide (State of Andhra Pradesh v. Golconda Linga Swamy), the court stated.

Stating 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 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.

Based on these observations, the High Court dismissed the petition, directing the petitioner to avail the remedy before the Sessions Court under Section 227 Cr.P.C. if he seeks discharge.

Case Title: Khursheed Ahmad Mahajan and another Vs Govt Of J&K

Citation: 2025 LiveLaw (JKL) 124

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