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2012 DIGILAW 679 (JK)

Shamas Din v. State & Ors.

2012-10-18

MANSOOR AHMAD MIR

body2012
The petitioner has invoked the jurisdiction of this Court in terms of Section 561-A of Code of Criminal Procedure (for short, Cr.P.C.), seeking to quash FIR No.16/2010 registered at Police Station, Vigilance Organization, Jammu, under Section 5(2) of J&K Prevention of Corruption Act (for short, P.C. Act) read with sections 161 and 120-B of Ranbir Penal Code (for short, RPC), on the grounds taken in the petition. 2. It appears that an FIR was lodged on 18.05.2010 by the Vigilance Organization, Jammu, against one Khem Raj, Forest Guard and the petitioner herein, and both were taken into custody. Thereafter they were released on bail. It is stated that the petitioner is not involved in the case and has not committed any offence. Vigilance Organization, Jammu (for short, VOJ) has falsely implicated him on the basis of a false and frivolous complaint made by one Sh. Sher Singh. 3. It is alleged that Inspector Javed Ahmad, VOJ, laid a trap in presence of independent witnesses and Khem Raj was caught while demanding and accepting bride from Sher Singh and tainted money was seized and recovered from his possession. The petitioner was neither present at Bani nor he made any demand nor accepted the bribe money from any person, not to speak of Sher Singh and nothing was recovered from him. At that time the petitioner was in his own Village, i.e., Surjan Chalog. After arrest of Khem Raj, he was telephonically directed to report at Forest Guest House, Bani. When he reached there on the said date at about 5 PM, he was arrested by respondent no.3. 4. Respondents have filed reply resisting the petition. It is stated that Khem Raj had disclosed that he demanded and accepted the bribe money for himself and also on behalf of Forester Shams Din. During Investigation Shamas Din also accepted that he had asked Khem Raj to accept the bride money from the complainant. During investigation, statements of complainant and two independent witnesses were recorded by the Magistrate in terms of Section 164-A Cr.P.C., which, prima facie, do disclose involvement of petitioner in the case. It would be relevant to reproduce relevant portion of brief facts of objections and grounds iii, iv and vii herein. During investigation, statements of complainant and two independent witnesses were recorded by the Magistrate in terms of Section 164-A Cr.P.C., which, prima facie, do disclose involvement of petitioner in the case. It would be relevant to reproduce relevant portion of brief facts of objections and grounds iii, iv and vii herein. “That during the course of further investigation, the statements of complainant and both the independent witnesses were recorded U/S 164-A Cr.P.C. In his statement, before the Magistrate (u/s 164-A Cr.PC) the complainant deposed that he had paid the bribe amount to accused Khem Raj, Forest Guard on the directions of accused Shams Din, Forester (petitioner). Similarly, the independent witnesses in their statements u/s 164 Cr.PC before Magistrate had also deposed that the accused Khem Raj in their presence, during the trap admitted that he had accepted the bride money on behalf of Forester Shamas Din. Further the trap team members in their statements recorded u/s 161 Cr.PC, have corroborated the version of complainant as well as of the independent witnesses. iii. In this regard, it is replied that the enquiry against the complainant Sher Singh is pending since 25.3.2010 with the accused Shamas Din petitioner, who did nothing in this regard upto 18.5.2010 but insisted the complainant to give him bribe which he had accepted through accused Khem Raj. iv. In reply to ground (iv) it is submitted that Trap Laying Officer (TLO) received the complaint and after perusal of same and examination of complaint of Shri Sher Singh forwarded the same to SP(SK) VOJ (through fax) who after registering the case FIR No.16/2010 ?S VOJ directed the TLO to lay the trap after completing all legal formalities and by arranging the services of two independent witnesses. During the trap accused Khem Raj was caught red handed while demanding and accepting the bribe on behalf of accused Shamas Din in presence of independent witnesses as stated earlier. viii. In reply to this ground, it is submitted abuse of any process of law that the ingredients of section 5(2) of J&K P.C. Act and 161 RPC r/w sec 120-B RPC i.e. demand, acceptance and recovery in conspiracy with each other, during the investigation conducted so far, have been proved beyond any doubt against the accused persons as such they deserve to be dealt under law.” 5. It would be appropriate to reproduce Section 561-A Cr.P.C herein:- “561-A. Saving of inherent power of High Court. Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.” 6. This remedy can be invoked/pressed into service or may be exercised in the following circumstances:- i) To pass orders in order to give effect to an order passed under Cr.P.C; ii) to prevent abuse of process of Court; iii) to otherwise secure the ends of justice; and iv) to prevent mis-carriage of justice. 7. The Apex Court in Som Mittal vs Govt. of Karnataka, 2008 AIR SCW 1003, and M. N. Ojha vs Alok Kumar Srivastav, AIR 2010 SC 201 , while laying down the tests, has held that the remedy under section 561-A Cr.P.C. (corresponding to Section 482 Cr.P.C of Central Code) and inherent power should not be exercised by the Courts in a routine manner, rather has to be exercised sparingly, carefully with caution and in rarest of rare cases. 8. Applying the aforesaid tests, it can be safely said that the petitioner has failed to carve out a case. 9. This Court also in a case, Mian Abdul Qayoom vs State & others, 561-A Cr.P.C. 98/2010, decided on 31.12.2010, 2011 (1) JKJ 470 (HC), has held that the Courts should refrain from making prima facie decision at the infancy stage or in a case where all the facts are incomplete and hazy. 10. The power under section 561-A Cr.P.C. has to be exercised cautiously, carefully and sparingly and Court has not to function as a Court of appeal or revision. The case of the petitioner does not fall in any of the said parameters. It is beaten law of the land that conducting of investigation cannot be scuttled away en-route. 11. I have gone through the entire petition and by no stretch of imagination it can be said that the case of petitioner falls within the ambit/contours of Section 561-A Cr.P.C. 12. It is apt to record herein that this Court has already dismissed the petition filed by Khem Raj under section 561-A Cr.P.C., no.243/2012, vide order dated 04.10.2012. 13. 11. I have gone through the entire petition and by no stretch of imagination it can be said that the case of petitioner falls within the ambit/contours of Section 561-A Cr.P.C. 12. It is apt to record herein that this Court has already dismissed the petition filed by Khem Raj under section 561-A Cr.P.C., no.243/2012, vide order dated 04.10.2012. 13. In the given circumstance, no case for interference is made out. Accordingly, this petition is dismissed in limine along with all connected CrMPs. 14. Registry to convey the order to the Vigilance Organization, Jammu.