Research › Search › Judgment

J&K High Court · body

2009 DIGILAW 39 (JK)

Chaman Lal Bindro v. State Of J. &K.

2009-02-05

HAKIM IMTIYAZ HUSSAIN

body2009
1. This criminal revision is directed against the order dated 12.12.2007 of the Chief Judicial Magistrate, Sopore in a police challan-State through Chaman Lal, FIR No.424/04 under Sections 447, 420, 467, 468, 471 and 120-B RPC. 2. Brief facts relevant for the disposal of the present petition are as under: On 10.12.2004 one Chaman Lal filed a written complaint duly endorsed by the Additional Superintendent of Police, Sopore in Police Station, Sopore alleging therein that his land measuring 6 kanals and 01 marlas situated at Sopore colony opposite R&B Complex comprising Khasra No. 970/33 belongs to him and that some construction work is being raised in the said land without seeking any authority or permission from him. The complainant further informed the police that he has not sold the said land nor has he executed any legal document in respect of the said land in favour of any person. 3. On this report FIR No. 424/04 U/S 447/RPC was registered in Police Station, Sopore and the investigation was started. During the investigation it was found that Syed Mohd. Farid was raising construction on the land. Said Syed Mohd. Faried produced a power of attorney allegedly executed by the complainant and registered by the Sub Registrar Munsiff, Jammu on 4.8.2004, before the Police. Under the said deed the complainant has allegedly appointed the said person as his attorney on his behalf. Relevant record alongwith the deed of agreement to sell was seized and questioned documents alongwith the specimen signature/admitted signature document of the complainant were sent to FSL J&K Srinagar for examination and expert opinion. 4. Statements of the prosecution witnesses were also recorded under section 161 Cr.P.C. 5. Statement of witness namely Shiban Kishan Bhat and Ravinder Suri revealed that the alleged accused Syed Mohd. Farid and the complainant had agreed to sell/purchase the land in question and the sale consideration was fixed at Rs. 42 lacs. The Complainant has received Rs. 41 lacs from the said accused. Subsequently the Police closed the investigation of the case as not proved. The complainant agitated the matter before the higher authorities due to which vide PHQ Order No. 1971 of 2005. dated 7.7.2005 the investigation of the case was transferred to the Crime Branch, Jammu for further investigation. The Complainant has received Rs. 41 lacs from the said accused. Subsequently the Police closed the investigation of the case as not proved. The complainant agitated the matter before the higher authorities due to which vide PHQ Order No. 1971 of 2005. dated 7.7.2005 the investigation of the case was transferred to the Crime Branch, Jammu for further investigation. During the course of investigation by the Crime Branch, Jammu more specimen signatures of the complainant were obtained and the admitted signature documents of the complainant were also obtained and seized in the case. All the questioned documents alongwith specimen/admitted signatures documents were sent to Government Examiner Questioned Documents Shimla for re-examination. The FSL report received from the Examiner, reveal that there is impersonation in the documents. 6. Basically the case was registered under Section 447 RPC. Since the forged documents have been executed at Jammu, after re-examination of the documents from the Govt. Examiner, and as per FSL report, offences under sections 420/ 467/4687 471/ 120-B RPC were added and it was found that the fraud has been committed at Jammu at the initial stage. The police, however, on further investigation found that the evidence was insufficient. They, therefore, closed the case as untraced. Accordingly a report was submitted to the Chief Judicial Magistrate, Sopore under Section 173 Cr.P.C. The Chief Judicial Magistrate vide Order dated 12.12.2007, which is impugned in the present petition allowed the prayer. 7. Feeling aggrieved of the said order the complainant has filed the present revision petition assailing the said order on various grounds inter-alia that the Court below has passed the order without properly appreciating the issues involved in the case, there was neither any factual basis nor any legal justification available to the Court to pass the order, the jurisdiction, power and authority of the Court does not depend on what an investigation agency may desire against the facts and law, in an investigation but it is to be based on the facts that emerge from the allegations and the evidence. 8. Heard. I have considered the matter. 9. Learned counsel for the petitioner would refer to the order impugned and submit that the trial Court has without any appreciation of the evidence collected by the investigating agency acted upon the findings arrived at by such agency and directed filing of the case. 8. Heard. I have considered the matter. 9. Learned counsel for the petitioner would refer to the order impugned and submit that the trial Court has without any appreciation of the evidence collected by the investigating agency acted upon the findings arrived at by such agency and directed filing of the case. The police report, according to the learned counsel sufficiently establishes that impersonation has taken place and forged documents have been prepared on the basis of which the permission to alienate the property of the petitioner has been granted. The police under the influence of the accused has closed the case as untraced. The Magistrate has acting mechanically, accepted the findings of the investigating agency and while doing so has ignored the evidence particularly FSL reports which sufficiently establish forgery and impersonation committed in the matter. 10. The learned counsel for the respondents on the other hand defended the report and submitted that the investigating agency has on thorough investigation found that no offence was made out and have rightly applied for filing of the case. 11. The learned Magistrate has while considering the report of the police observed as under: "I have perused the report. I have also perused the protest petition and certified copies of the plaint/suit pending in the Court of Ld. Sub Judge, Jammu. I have already heard complainant and his counsel, I have also heard wife of the complainant. The grounds taken in the protest petition are the same which have been investigated in this case. The case has been investigated by two agencies, one through Police Station Sopore and another through Crime Branch Jammu. Both the agencies have come to the conclusion that the evidence is insufficient and have closed the case as un-traced. On consideration of material contained in the final report and after hearing counsel for the complainant, let the report be filed. However, the conclusion arrived at by the investigating agency shall not affect the rights of complainant under the Jammu & Kashmir Migrant Immovable Property, Preservation, Protection and Restraint on Distress Sales Act, 1997, Transfer of Property Act and the Registration Act. This order shall not also affect the civil rights of the complainant and the suit titled as Chaman Lal Bindroo v. Syed Mohd. Farid pending in the Court of Ld. Sub Judge Jammu. This order shall not also affect the civil rights of the complainant and the suit titled as Chaman Lal Bindroo v. Syed Mohd. Farid pending in the Court of Ld. Sub Judge Jammu. This order shall not bar the police from further investigation or reinvestigation of the case on fresh grounds. This order shall also not affect the powers of District magistrate in terms of Sec. 4 and 54 of the Jammu and Kashmir Migrant Immovable Property Preservation, Protection and Restraint on Distress Sales Act 1997. Copy of this order be supplied to the complainant. Disposed of accordingly." 12. The provisions regarding filing of the report are contained in Section 173 Cr.P.C. which reads as under:- "Report of police office on completion of investigation -- (l) Every investigation under this chapter shall be completed without unnecessary delay; Provided that investigation into offences under Section 152,153-A,295-,295-A,296,297,298,435,436 and 505 of the State Ranbir Penal code shall be completed within two weeks, and if the investigation is not so completed the investigating officer shall report the causes of the delay to the District Superintendent of Police who shall issue necessary instructions for completion of the investigation." 14. The issue was examined in Bagwant Singh v. Commissioner of Police AIR 1985 SC 1285, where a three judge Bench of the Apex Court held that when report under section 173 is received by a Court, three options are open to the Court, when such report states that no offence has been committed by the persons accused in the complaint. They are: 1. The court may accept and drop the proceedings or 2. The Court may disagree with the report and take cognizance of the offence and issue process if he takes the view that there is sufficient ground for proceeding further or 3. The Court may direct further investigation to be made by the police. 15. In another case India Carat Pvt. Lid. v. State of Karnaatka AIR 1989 SC 885, the Court observed as under:- "The position is, therefore, now well settled that upon receipt of a police report under Section 173(2) a Magistrate is entitled to take cognizance of an offence under Section 190(1) (b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the Police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused..." 16. In Union Public Service Commission v. S. Papaiah and Ors.AIR 1997 SC 3876 the Court considered the scope of Section 173 (8) Cr.P.C. and observed as under;- "The magistrate could thus in exercise of the powers under S. 173(8) Cr.P.C. direct the CBI to "further investigate the case and collect further evidence keeping in view the objections raised by the appellant to the investigation and the `new report to be submitted by the investigating officer would be governed by Sub secs. (2) to (6) of S. 173 Cr.P.C." 17. In Hemant Dhasmana v. Central Bureau of Investigation AIR 2001 SC 2721 the Apex Court observed: "Although Sub Section (8) of S. 173 Cr.P.C. does not, in specific terms, mention about the powers of the Court to order further investigation the power of the police to conduct further investigation envisaged therein can be triggered into motion at the instance of the Court. When any such order is passed by a court which has the jurisdiction to do so it would not be a proper exercise of revisional powers to interfere therewith because the further investigation would only be for the ends of justice. After the further investigation, the authority conducting such investigation can either reach the same conclusion and reiterate it or it can reach a different conclusion. During such extended investigation the officers can either act on the same materials or on other materials which may come to their notice. It is for the investigating agency to exercise its power when it is put back to that track. If they come to the .same conclusion it is of added advantage to the persons against whom the allegations were made and if the allegations are found false again the complainant would be in trouble. So from any point of view the Special Judges direction would be of advantage for the ends of justice. It is too premature for the High Court to predict that the investigating Officer would not be able to collect any further material at all. That is an area which should have been left to the Investigating officer to survey and recheck." 18. It is too premature for the High Court to predict that the investigating Officer would not be able to collect any further material at all. That is an area which should have been left to the Investigating officer to survey and recheck." 18. When a report is submitted before the Magistrate under section 173 Cr.P.C., the Magistrate should apply his mind and find out whether the findings of the police are based on the material collected by the police during investigation. This can be done only if the magistrate duly applies his mind to the case, which includes allegations made in the FIR and the evidence collected by the police during investigation. The Magistrate should not blindly accept the report and act mechanically. There should be due application of mind to the evidence collected during the investigation and appreciation of the same. 19. In the present case, as would appear from the impugned order the Magistrate has without assigning any reasons directed filing of the case on the report of the investigating agency. The Magistrate has not applied his mind as he has not considered the material collected during the investigation by the police. This fact is evident from the order itself as there is no mention of it in the order. Even the reasons are not recorded in the order why the Magistrate has agreed with the police report. Thus from the order itself it would appear that the Magistrate has acted mechanically and directed filing of the case on the findings returned by the investigating agency without himself considering the case. 20. In these circumstances I find the order impugned cannot stand. This petition is, therefore, allowed and the order dated 12.12.2007 of the Chief Judicial Magistrate, Sopore, impugned in the present petition, is set aside. The Magistrate shall re consider the matter in light of the observations made above and pass appropriate orders. Order accordingly. This Judgment is announced by me on 5-2-09 in terms of Rule 138(3) of the J&K High Court Rules, 1999.