If Allegations In FIR Are Not Substantiated, Continuance Of Investigation Is Abuse Of Law: J&K&L High Court Quashes Corruption FIR Against SHO

Justice Sanjay Dhar observed:

"It is a settled law that if allegations made in the FIR are not substantiated by the material assembled by the investigating agency during investigation of the case, the continuance of investigation/ prosecution in such matters amounts to abuse of process of law. Thus, this is a fit case where this Court should exercise its power under Section 482 of the Cr. P. C to quash the proceedings in the impugned FIR."

The petitioner-SHO had challenged FIR No.20/2021 for offences under Section 4-A of J&K Prevention of Corruption Act and Section 120-B RPC registered with Police Station, Anti Corruption Bureau, Srinagar.

The FIR was lodged by one Bisma Nawaz alleging that the then SHO, Police Station, Soura demanded illegal gratification through ASI Mohammad Ashraf from her and her father as reward for registering FIR pursuant.

Petitioner argued that the complaint lodged by the complainant, Bisma Nawaz, and her father is false and frivolous. It was further contended that the preliminary enquiry conducted by the Anti Corruption Bureau into the allegations made by the complainant was closed as not proved, even though they said enquiry continued for about two years. It was also contended that despite closure of preliminary enquiry against the petitioner, the respondents have registered the impugned FIR which is an afterthought.

It is also contended that the registration of the impugned FIR is ex-facie an abuse of process of law and that no offence is made out against the petitioner.

The respondent vehemently opposed the plea of the petitioner by filing a reply. It was submitted that the matter was examined by the government and it was found that the offence under Section 4-A of the J&K Prevention of Corruption Act is made out against the petitioner.

Court noted that the complainant has stated that in the year 2017 she was kidnapped by a person, namely, Parvaiz Ahmad Sheikh, and in this regard she moved an application before Police Station, Soura, but no action was taken on the said application which constrained her to approach the Court and a direction was issued to the SHO to register the FIR. Despite this the FIR was not registered.

The Court after perusing through the record also noted that the complainant and her father have stated that because of the attitude of the petitioner, they felt that perhaps petitioner is trying to extract illegal gratification from them though they have clearly stated in their statements that neither the petitioner nor any person on his behalf ever demanded any illegal gratification from them.

Thus, the ingredients of offence under Section 4-A of the J&K PC Act are not made out from the statements of these two important witnesses recorded during the investigation of the case.

In view of the above circumstance, the Court quashed the FIR against the petitioner and disposed of the petition.

Case Title: MOHAMMAD SHAHNAWAZ KHAN  Vs. UT OF J&K & ORS.

Citation: 2022 LiveLaw (JK) 30