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2008 DIGILAW 506 (JK)

State Of J. &K. v. Ab. Rashid Zargar

2008-12-22

MUZAFFAR HUSSAIN ATTAR

body2008
1. Both the petitions are taken up together for final disposal. The facts of the case are briefly summarized as under: - During the investigation of the case FIR no. 87/96 by Police Station Crime Branch Srinagar, it surfaced that Abdul Rashid Zargar and proprietors of Golden Transport Company situated at Srinagar and some other persons who were beneficiaries of a criminal conspiracy (sic) including the employees of the Sales (sic) Department misused the CST/GST numbers of non existing traders namely M/s S.S. Enterprises Leh, M/s Dynamic Traders Leh, M/s Fayaz Enterprises Leh and M/s K.S. Merchants Leh. The accused person in pursuance to the criminal conspiracy imported goods from outside the State with the criminal intention of grabbing and misappropriating taxes against the trade goods costing Rs. 4,001,45,576/-. It further revealed that tax to the tune of Rs. 42,11,642/- (forty two lacs eleven thousand six hundred and forty two) for the period 29.3.95 to 27.3.96 has been misappropriated by the accused person as the goods have never been sent to Leh but were sold in the valley. The investigation revealed that the purpose for importing the goods from the outside state in the name of non existent firms, allegedly based in Leh, was for the reason that Leh is exempted from tax. It further surfaced during the investigation that in order to devour and misappropriate the tax amount, the taxable goods were brought from outside with criminal design and intention to misappropriate the tax amount and to cause wrongful loss to the State exchequer and wrongful gain to themselves as the goods were sold in the valley itself and could not be dispatched to Leh because the firms on whose name they were imported into State were found to be non existent firms in Leh. The Police Station, Crime Branch, Srinagar, registered FIR no. 83/1997. In the same fashion, FIR no. 84/97 was registered in Police Station Crime Branch, Srinagar against the accused persons on identical facts for importing goods worth Rs. 2,84,99,250/- (Two Crore, eighty four lacs ninety nine thousand two hundred fifty) and tax amount of Rs.22,79,850/- (Twenty two lacs seventy nine thousand eight hundred and fifty) for the period 30.6.96 to 21.9.96 was misappropriated. The Investigating Agency conducted investigation and after completion of the investigation, report u/s 173 Cr. 2,84,99,250/- (Two Crore, eighty four lacs ninety nine thousand two hundred fifty) and tax amount of Rs.22,79,850/- (Twenty two lacs seventy nine thousand eight hundred and fifty) for the period 30.6.96 to 21.9.96 was misappropriated. The Investigating Agency conducted investigation and after completion of the investigation, report u/s 173 Cr. P.C. was submitted before the court of competent jurisdiction against accused persons, who according to the investigating agency were alleged to have committed offence u/s 409, 420, 468, 471, 120-B RPC. Two challans were presented before the ld. Chief Judicial Magistrate Srinagar on 19.10.2004, and were transferred for being tried to the court of ld. City Magistrate Srinagar. The Ld. Magistrate, Srinagar after hearing Ld. counsel for the parties and after considering the record of the case ordered for framing of charges against the accused persons in both the cases on 1.7.2006. 2. The accused prayed before the Ld. trial Magistrate that they are entitled to be discharged of the offences on the ground that Police Station Crime Branch had no competence and authority to conduct investigation for the offences for which accused were sought to be charged. Reference was made by the accused to notification dated 2.4.1991 issued vide SRO 133. In terms of the said SRO, the Govt. of Jammu & Kashmir in exercise of the powers conferred by clause (o) of sub-section (1) of section 4 of the Code of Criminal Procedure, Samvat, 1989 (Act No. XXIII of 1989) declared the office of Superintendent of Police, Crime Branch Kashmir and Jammu to be the Police Stations within their respective jurisdictions for the purposes of investigation of offences under local and special laws and relevant sections of RPC as indicated in annexure A to the said notification. 3. The State Government has yet issued another notification dated 3.6.1999 issued vide SRO 202 which provides that in supercession of notification SRO 133 dated 2.4.1991, the government hereby declare the office of Crime Branch Kashmir and office of Crime Branch Jammu to be Police Stations within their respective jurisdictions in their divisions for the purpose of registration and investigation of offence indicated in the annexure annexed to the said notification on the orders of the head of the Crime Branch; and cases which may be referred by the Government from Director General of Police from time to time. The Ld. The Ld. trial Magistrate however, after considering the matter negatived the contention so raised by the accused and ordered framing of charge against them as indicated hereinabove. 4. The accused being aggrieved of the said order of the ld. Magistrate challenged the same in revision petition which was filed in the court of ld. Principal District & Sessions Judge Srinagar. The ld. Principal District & Sessions Judge Srinagar after considering the matter and arguments of the parties and placing reliance on judgments passed by this Court in Criminal Revision no. 32/2004 in case titled State vs. Suresh Kumar, set aside the order of framing of charge against the accused. The ld. Principal District and Sessions Judge, Srinagar, however, gave liberty to the State to get the case investigated through competent police agency. 5. Being aggrieved of the order of Principal District and Sessions Judge Srinagar, these two petitions u/s 561-A 48/2007 & 561-A 47/2007 Cr. P.C. have been filed by the State seeking quashment of the said order. 6. Heard learned counsel for the appearing parties. The ld. Addl. Advocate General, Mr. M.A. Rathore, appearing for the State in both the petitions submitted that as per part II Clause D: II and IV the police station Crime Branch has competence and authority to register FIR and investigate the cases in respect of bogus transport companies and cases of misappropriation. The ld. counsel has referred to annexure A of SRO 133 and submitted that in respect of Ranbir Penal Code Clause (D) (II) refers the bogus transport companies and in (D) (VI) reference is made to misappropriation as well. The ld. counsel has further relied upon the judgment passed by this Court in case titled Chain Singh vs. State reported in 2006 (II) SLJ page 769. Counsel for the respondent Mr. Makroo, however, while controverting the submission of learned counsel for the petitioner submitted that the police station Crime Branch Kashmir had neither competence nor authority to conduct investigation in the case of the accused respondent. The learned counsel has further submitted that the order impugned in these petitions is legal and does not warrant any interference. He has submitted that the Police Station Crime Branch without any competence and authority has conducted the investigation in the case which renders the investigation illegal. 7. The learned counsel has further submitted that the order impugned in these petitions is legal and does not warrant any interference. He has submitted that the Police Station Crime Branch without any competence and authority has conducted the investigation in the case which renders the investigation illegal. 7. Section 4(h) of the Code of Criminal Procedure, Samvat 1989, hereinafter referred to as Code defines investigation and Section 4(k) refers to offence. Both are reproduced as under: - (h) "Investigation"- "Investigation" includes all the proceedings under this Code or the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorized by the Magistrate in this behalf: (k) "Offence" "Offence" means any act or omission made punishable by any law for the time being in force: It also includes any act in respect of which a complaint may be made u/s 20 of the Cattle Trespass Act, 1977; Section 4 (o) defines Police Station which is reproduced as under: - "Police Station" "Police Station" means any post or place declared, generally or specially, by (the Government) to be a Police-Station, and includes any local area specified by (the Government) in this behalf; 8. Part V Chapter XIV of the Code deals with information to the police and their powers to investigate, Section 154 of Code relates to information relating to cognizable cases. Sub section (1) is reproduced as under: - "Every information relating to the commission of a cognizable offence is given orally to an officer-in-charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant, and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as (the Government) may prescribe in this behalf. Sub-sections (1) (2) and (3) of Section 156 of Code deals with investigation into cognizable cases which is reproduced as under: - (1) Any officer-in-charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the local limits of such station would have power to inquire into or try under the provisions of Chapter XV relating to the place of inquiry or trial. (2) No proceeding of police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. (3) Any Magistrate empowered under section 190 may order such an investigation as above mentioned. 9. Section 157 of the Code deals with procedure where cognizable offence is suspected. Sub-section (1) of section 157 is reproduced as under: - (i) If, from information received or otherwise, an officer-in-charge of a police station has reason to suspect the commission of an offence which he is empowered under section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report, and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as (the Government) may, by general or special order, prescribe in this behalf to proceed the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender. 10. Part V Chapter XIV further deals with conduct of the investigation, exemption of the police etc. Sub-section (1) of Section 170 of the Code reveals that if upon an investigation under this chapter it appears to the officer-in-charge of the Police Station that there is sufficient evidence or reasonable grounds as aforesaid, such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police report and to try the accused or commit him or trial. 11. 11. Sub-section (1) of Section 173 of the Code provides that every investigation under this Chapter shall be completed without unnecessary delay and as soon as it is completed the officer-in-charge of the police station shall forward the same to a Magistrate empowered to take cognizance of the offences on a police report, a report in the form prescribed by the government. 12. Part VI Chapter XV deals with the jurisdiction of the criminal courts in inquiries and trials. Section 177 of the Code provides that every offence shall ordinarily be inquired into and tried by a court within the local limits of whose jurisdiction it was committed. Section 190 of the Code relates to cognizance of offence by Magistrates, Section 190 is reproduced as under: - "190. Cognizance of offence by Magistrates (1) Except as hereinafter provided, (any Chief Judicial magistrate and any other Judicial Magistrate) specially empowered in this behalf, may take cognizable of any offence- (a) upon receiving a complaint of facts which constitutes such offence; (b) upon a report in writing of such facts made by any police officer; (c) upon information received from any person other than a police officer, or upon his knowledge or suspicion, that such offence has been committed. (2) The High Court may empower any Judicial Magistrate to take cognizance under sub-section (1), clause (a) or clause (b), of offences for which he may try to commit for trial. (3) The High Court may empower any Judicial Magistrate of the first or second class to take cognizance under sub-section (1), clause (c), of offences for which he may try or commit for trial. 13. A conjoint reading of the provisions referred to herein above admits of no doubt and ambiguity that even if a case is investigated by police station without competence and authority, that cannot become basis for court of competent jurisdiction to throw out the case, and not to embark upon trial in the said case. The laws as indicated above, agencies created and courts set up are not only to resolve disputes inter se parties but their prime purpose is to maintain and preserve the moral fabric of the society. It is true that right to liberty of an individual is a right guaranteed under Article 21 and it is being considered to be one of the basic human rights. It is true that right to liberty of an individual is a right guaranteed under Article 21 and it is being considered to be one of the basic human rights. But the right to liberty of an individual when pitted against the rights vested in the society, the interpretation of the laws and statutes tilt in favour of the society. 14. Taking of cognizance of offence by the Magistrate, which have been investigated upon by the police station which have no authority to conduct such investigation, will not be rendered bad for this reason alone. The scheme of the Code as referred to, hereinabove, refers to conduct of investigation, collection of evidence and material by the investigating agency. The courts/ Magistrates have to look into the allegations made in report u/s 173 Cr. P.C coupled with the material enclosed therewith to take cognizance of the offences, and thereafter to issue process against the accused, if satisfied on such material, that process requires to be issued and accused requires to be put on trial. The taking of cognizance of the offences by the Magistrates is not dependent on the investigation of a case conducted by competent authority, but such cognizance of offence can be taken on the report submitted u/s 173 Cr. P.C. which report may be culmination of investigation conducted by an incompetent authority or police station having no competence to deal with same. 15. A person if aggrieved about the conduct of investigation by an incompetent authority or when unauthorizedly conducted by police station, may challenge the same before the court of competent jurisdiction and seek annulment of same. The accused has to be vigilant about his rights and must initiate action at the earliest while the case is still under investigation, to challenge the same on the ground of authority and competence, so that the such investigation is halted in its tracks in the initial stage. The accused, if does not challenge the investigation on the ground of incompetence etc may be said to have acquiesced in such investigation. The accused however may challenge the investigation on the ground of having been conducted unauthorisedly and without competence even after the filing of challan. The accused, if does not challenge the investigation on the ground of incompetence etc may be said to have acquiesced in such investigation. The accused however may challenge the investigation on the ground of having been conducted unauthorisedly and without competence even after the filing of challan. But in such eventuality he shall have to satisfy that the case of the unauthorized investigation, on which cognizance has been taken by the magistrate, he has been made to suffer mis-carriage of justice, and prejudice is caused, otherwise, such an accused will be precluded from calling in question the investigation after the report u/s 173 of the Code is filed before the court/ Magistrate. 16. The Magistrates power to take cognizance of offence as stated in the scheme of the provisions of the Code is not solely dependent on the investigating agencies authority and competence. The Magistrate can take cognizance of offences even on an illegal and unauthorized police report. The Honble Supreme Court in case H.N. Rishbudh and another v. State of Delhi reported in AIR 1955 SC 196 has held in Para 9 as under: - "The question then requires to be considered whether and to what extent the trial which follows such investigation is vitiated. Now, trial follows cognizance and cognizance is preceded by investigation. This is undoubtedly the basic scheme of the Code in respect of cognizable cases. But it does not necessarily follow that an invalid investigation nullifies the cognizance or trial based thereon. Here we are not concerned with the effect of the breach of a mandatory provision regulating the competence or procedure of the Court as regards cognizance or trial. It is only with reference to such a breach that the question as to whether it constitutes an illegality vitiating the proceedings or a mere irregularity arises. A defect or illegality in investigation, however serious, has to direct bearing on the competence or the procedure relating to cognizance or trial. No doubt a police report which results from an investigation is profiled in Section 190 Cr. P.C. as the material on which cognizance is taken. But it cannot be maintained that a valid and legal police report is the foundation of the jurisdiction of the Court to take cognizance. Section 190, Cr.P.C. is one out of a group of sections under the heading "Conditions requisite for initiation of proceedings". P.C. as the material on which cognizance is taken. But it cannot be maintained that a valid and legal police report is the foundation of the jurisdiction of the Court to take cognizance. Section 190, Cr.P.C. is one out of a group of sections under the heading "Conditions requisite for initiation of proceedings". The language of this section is in marked contrast with that of the other sections of the group under the same heading, i.e. Sections 193 and 195 to 199. These latter sections regulate the competence of the Court and bar its jurisdiction in certain cases excepting in compliance therewith. But Section 190 does not. While no doubt, in one sense. Clause (a), (b) and (c) of Section 190 (1) are conditions requisite for taking of cognizance, it is not possible to say that cognizance on an invalid police report is prohibited and is therefore a nullity. Such an invalid report may still fall either under Clause (a) or (b) of Section 190 (1), (whether it is the one or the other we need not pause to consider) and in any case cognizance so taken is only in the nature of error in a proceeding antecedent to the trial. To such a situation Section 537 Cr. P.C. which is in the following terms is attracted: "Subject to the provisions hereinbefore contained, no finding, sentence or other passed by a Court of competent jurisdiction shall be reversed or altered on appeal or revision on account of any error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during trial or in any enquiry or other proceedings `under this Code, unless such error, omission or irregularity, has in fact occasioned a failure of justice." If, therefore, cognizance is in fact taken, on a police report vitiated by the breach of a mandatory provision relating to investigation, there can be no doubt that the result of the trial which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a mis-carriage of justice. That an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the Court for trial is well settled as appears from the cases in `Prabhu vs. Emperor, AIR 1994 PC 73 (C) and- `Lumbhardar Zutshi vs. The King, AIR 1950 PC 26 (D). That an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the Court for trial is well settled as appears from the cases in `Prabhu vs. Emperor, AIR 1994 PC 73 (C) and- `Lumbhardar Zutshi vs. The King, AIR 1950 PC 26 (D). These no doubt relate to the illegality or arrest in the course of investigation while we are concerned in the present case with the illegality with reference to the machinery for the collection of the evidence. This distinction may have a bearing on the question of prejudice or miscarriage of justice, but both the cases clearly show that invalidity of the investigation has no relation to the competence of the Court. We are, therefore, clearly, also, of the opinion that where the cognizance of the case has in fact been taken and the case has proceeded to termination, the invalidity of the precedent investigation does not vitiate the result, unless miscarriage of justice has been caused thereby." The Supreme Court in case titled Ambika Prasad and another v. State reported in (2000) 2 SCC 646 at Para 8 has held that in case of a defective investigation it would not be proper to acquit the accused if the case is otherwise established. In Para 10 of the same judgment, the Honble Supreme Court has stated: - "Further, it is to be borne in mind that a criminal trial is meant for doing justice to the accused, the victim and the society so that law and order is maintained. Hence, as observed by this Court in State of U.P. vs. Anil Singh it is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform." The Supreme Court in case titled State of M.P. & Others versus Ram Singh reported in (2000) 5 SCC 88 at Para 5 has relied upon the law laid down by the Supreme Court in earlier judgment of H.N. Rishbudh case. One is as important as the other. Both are public duties which the Judge has to perform." The Supreme Court in case titled State of M.P. & Others versus Ram Singh reported in (2000) 5 SCC 88 at Para 5 has relied upon the law laid down by the Supreme Court in earlier judgment of H.N. Rishbudh case. This Court in case titled Habib-ul-lah Reshi (Trail) vs. Stale of J&K reported in 2001 SLJ page 168 after relying upon H.N. Rishbudh case has held that courts power to take cognizance is not affected even if the investigation suffers from any infirmity. This Court has again reiterated the same legal position in case titled Chain Singh vs. State reported in 2006 (II) SLJ page 769. 17. The learned revisional court however while setting aside the order of the trial Magistrate has relied upon the judgment passed by this court in case titled State of J&K vs. Suresh Kumar in Criminal Revision no. 32/2004. It appears that the relevant provisions of the Code as also the law laid down by the Supreme Court and this court has not been brought to the notice of the Honble Judge. 18. The issue of taking of cognizance on a police report which is result of incompetent/ illegal investigation was neither raised nor considered, neither deliberated upon in the above referred judgment of this Court. In view of the law laid down by the Honble Supreme Court in H.N. Rishbudh case the jurisdiction of the magistrate to take cognizance of offence(s) on a police report, where the concerned police agency conducted investigation without competence and/or authority of law is not affected. The magistrate has power to take cognizance of offence(s) on such police report. The law laid down by the Honble Supreme Court is binding on all in terms of Article 141 of the Constitution. 19. SRO 133 requires to be given useful and purposive interpretation. Cases investigated cannot be thrown out on mere technicalities. 20. One more legal ground on which the impugned order deserves to be set aside deserve consideration of this court. The legislatures in their-wisdom have amended Section 435 Code of Criminal Procedure. No revision petition can be filed against an interim order in view of the statutory bar as contained in Sub-section 4-a of Section 435 of Code of Criminal Procedure. This is done to curtail the unnecessary litigation. The legislatures in their-wisdom have amended Section 435 Code of Criminal Procedure. No revision petition can be filed against an interim order in view of the statutory bar as contained in Sub-section 4-a of Section 435 of Code of Criminal Procedure. This is done to curtail the unnecessary litigation. Division bench of this Honble Court in criminal reference no. 27/1997 titled S.K. Mahajan v. Municipality Jammu & Ors while considering the import of Section 435 (4-a) of Code of Criminal Procedure has authoritatively laid down as under: - (i) The bar created by sub-section (4-a) of Section 435 would be attracted to it, and the court would be powerless to revise an order framing a charge in exercise of its powers under section 439 read with section 435, where the challenge to the order is based upon the merits of the main controversy, viz. whether or not the accused has been guilty of the offence charged. (ii) Such a bar would not be, however, attracted to it, and the Court would be competent to revise an order framing a charge in exercise of its aforesaid powers, in case the challenge to the order is based upon a plea, which is independent of the main controversy, and which if accepted, would conclude the proceeding against the accused. 21. Revision petition was filed by the accused before the Principal Sessions Judge Srinagar on the plea and ground that the investigation conducted in the case is illegal for the reason same has been conducted unauthorizedly and without competence. In view of the law laid down by Honble Supreme Court in H.N. Rishbudh case and this Court, trial court is not disentitled to take cognizance of offences and try a case even though investigation is conducted unauthorizedly and without any competence by the concerned police agency. The plea of the accused in such circumstances would not end the case and they could not be discharged on this ground alone. The bar contained in Section 435 (4-a) Cr. P.C. is attracted to the facts of this case. The revision petition was incompetent and not maintainable. On these grounds also, the impugned order is set aside. 22. In view of the above discussion, these petitions are allowed and the orders passed by Ld. Principal District & Sessions Judge Srinagar impugned in these petitions are quashed, to secure the ends of justice. The revision petition was incompetent and not maintainable. On these grounds also, the impugned order is set aside. 22. In view of the above discussion, these petitions are allowed and the orders passed by Ld. Principal District & Sessions Judge Srinagar impugned in these petitions are quashed, to secure the ends of justice. The accused will appear before the trial Magistrate to face trial. The learned Magistrate will deal with the cases in accordance with law. 23. Record of the trial court be send back immediately.