Chetan Prabhakar
There are a lot of FIRs filed throughout the Republic of India. Some are true and honest; however, a large number of FIRs are also fake and false. In our Indian legal system, it is very easy to file a FIRif due process of law is followed and a prima facie case is made out; and which is the case that cannot be prima facie made out if a crafty lawyer wants it.
Also, the FIR can be filed anywhere in India as encountered in a recent case of Sudhir Choudhary, Editor in Chief of Zee news, wherein a FIR has been filed in Kerala against a news broad casted form Delhi for the land Jihad in the UT of Jammu and Kashmir as the complainant’s religious sentiments were hurt by the use of the word ‘Jihad’, and in pursuance thereof, the person against whom such FIR is filed is facing non-bailable warrants and as such,needs to take anticipatory bail or stay of investigation or arrest.
However, the real pain of the person against whom a fake FIR is filed is to go through the trial of the court until proven guilty and that is a tedious process which takes years to complete. Fake FIRs have basically become an instrument of harassment as once the FIR is filed, the criminal law is put into motion, and the whole legal system works for the person who files the FIR though one sided, and the other party against whom FIR is filed has to take anticipatory bail (before arrest) or regular bail (after arrest) and then need to go through the entire process of court trial until proven guilty, and during this time, the person go through much harassments, metal agony and pain such as non-bailablewarrants, arrest, joining of the investigation and then, joining the lengthy procedure of trial before the court until proven guilty.
In such cases, the most effective remedy is filing of a Petition for quashing of the FIRsbefore the Hight Courts under Section 482 of Code of Criminal Procedure, 1973. This is a very effective remedy in fake criminal cases. It may be pertinent to mention hereinthe guidelines given by the Hon’ble Supreme Court of India, which provide as to in what cases, a FIR can be quashed and the same are as follows:
a) the allegations and other materials accompanying the FIR do not disclose a cognizable offence, which justifies an investigation by police officers;
b) the uncontroverted allegations made in the FIR and the evidence collected in support of the same do not disclose the commission of any offence;
c) the allegations made in the FIR are so absurd and inherently, improbable that on the basis of which no prudent person could ever have reached a conclusion that there is sufficient ground for proceeding against the person:
d) there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (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 Act concerned, providing efficacious redress for the grievance of the aggrieved party;
e) the FIR is manifestly attended with mala fide and is maliciously instituted with an ulterior motive for wreaking vengeance.
Now considering these guidelines which have been given by the Hon’ble Supreme Court of India, the falseness of a FIR should be determined on the above basis and the innocent citizens should not suffer and go through the lengthy procedures of court such as seeking bail, attending the trial, joining investigation and appearing before the Court in every hearing. This creates a great prejudice to the person against whom such false criminal case is filed as FIR is only a one-sided version of the case and in the Indian legal system, the person against FIR is filed is considered innocent until proven guilty. To avoid these kinds of suffering and prejudices, we should be careful enough to challenge fake and false FIRs as soon they are filed and seek interim relief as to avoid arrest, seeking bail and attending the court hearing before the Court, until the quashing petition is decided by the High Court.Once quashing petition is filed before the High Court, if the prima facie case of quashing is sufficient made; the High Court is also not hesitant to give interim relief and stay the investigations.
The Hon’ble Apex Court has said that in the exercise of this wholesome power under Section 482 of the Code of Criminal Procedure; the High Court is entitled to quash FIR as allowing the proceeding under the FIR to continue would be an abuse of process of the court and the ends of justice require that these proceedings ought to be quashed. The saving of the High Court’s inherent powers; is designed to achieve a helpful public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realization of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice, between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction.
The Hon’ble Apex Court has further said that inherent power given to the High Court under Section 482 Cr. PC is with the purpose and object of advancement of justice. In case solemn process of Court is sought to be abused by a person with some oblique motive, the Court has to thwart the attempt at the very threshold. The Court cannot permit a prosecution to go on if the case falls in one of the categories as illustratively enumerated by the Hon’ble Supreme Court of India in State of Haryana v. Bhajan Lal. Judicial process is a solemn proceeding which cannot be allowed to be converted into an instrument of operation or harassment. When there are materials to indicate that a criminal proceeding is manifestly attended with mala fide and proceeding is maliciously instituted with an ulterior motive, the Hon’ble High Court should not hesitate in exercise of its jurisdiction under Section 482 Cr. PC to quash the FIR.
It is also pertinent to note that once the Hon’ble Judges of High Courts issue notices while appreciating the prima facia merits of the quashing petition, they are also not hesitant to give interim reliefs either to stay the investigation or the police to not file charge sheet or for the police to not take any coercive steps against the person which helps in curbing two things, one it helps in reducing multiplicity of proceedings such as lengthy Court trials, police investigations and filing of bail applications by the party as the same unnecessary increases the work of the High Court, trial court and police and another, undue harassment to the person against whom such FIR is filed; as once the Petition is filed, the matter becomes sub-judice before the High Courts and the FIR may get quashed as a result of the proceeding before the High Courts.
(The author is practising Advocate of Jammu High Court)
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