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2015 DIGILAW 296 (JK)

Asif Nazir Mir v. State of J&K

2015-06-05

ALI MOHAMMAD MAGREY

body2015
JUDGMENT : Ali Mohd. Magrey, J. 1. This case depicts a sad scenario where a son has pitted himself against his father seeking to claim and enforce his right over the immovable properties owned and possessed by his father. What is most dumbfounding is that the son is conscious that he is governed by the Shariat, under which he, at best, can claim to be only an heir apparent. The petitioner has filed MP No. 1/2015 seeking a direction to the official respondents to implement order dated 31.12.2013 passed by this Court and to report compliance. However, the learned counsel for the respondents submitted that though they have not filed their respective objections/replies, yet they were ready to argue the writ petition itself on admission without filing the objections. Learned counsel for the petitioner did not object to the suggestion. The matter was, accordingly, taken up for hearing on admission on 02.06.2015 with the consent of the learned counsels appearing for the parties. They were heard and the order was reserved. 2. The writ petition has its genesis in, and, of course, is an off-shoot of the adversarial civil and criminal litigation that the son and father duo commenced against each other, and has been filed with the following prayers: "In the premises, it is, therefore, prayed that this Hon'ble Court may be pleased to accept this writ petition and issue a writ in the nature of: (a) Mandamus commanding the official respondents not to create any sort of impediment or restrictions of any nature with respect to the petitioner and his family's entry in their only ancestral house situated at Nigeen, Hazratbal, Srinagar, Kashmir, including the business place situated at Ishber, Nishat, Srinagar, Kashmir. (b) Mandamus, commanding the respondents to provide necessary and adequate security to the petitioner and his family so that their lives and livelihood will be safeguarded against the unnecessary harassment; (c) Mandamus commanding the respondents to initiate necessary enquiry against the respondent No. 4, 5 and 6 for misuse of their official status at the hands of proforma respondent No. 7 by some independent agency; (d) Any other writ, order or direction, which this Hon'ble Court may deem fit and proper in the circumstances of the case may also be passed in favour of the petitioner against the respondents." 3. The foundational facts anchoring the aforesaid reliefs claimed by the petitioner-son are that he filed a civil suit for declaration and permanent injunction against his father, proforma respondent No. 7 herein, and two sisters. In the suit, the petitioner, inter alia, prayed to declare the deed of declaration/Will dated 29.08.2012 executed by his father and duly registered before the Sub-Registrar, Srinagar, regarding his various properties, as null and void, illegal, unjustified and having been executed against the rights and interests of the petitioner. In that suit, the learned trial court, City Munsiff, Srinagar, on 16.09.2013, passed an order directing the parties to maintain status-quo with respect to the suit property. The suit properties were delineated in paragraph 4 of the plaint as well as in the order so passed by the learned trial court. In terms of the pleading made in paragraph 4(i) of the plaint filed by the petitioner, a copy whereof has been appended to the writ petition as annexure P2, the house and the land underneath and appurtenant thereto situated at Nigeen, Srinagar, also mentioned in the prayer clause (a) of the present writ petition, is the property inherited by proforma respondent No. 7 from his father. 4. After the trial court passed the ad-interim order dated 16.09.2013, directing the parties to maintain status quo with respect to the suit property, proforma respondent No. 7, on 04.12.2013 lodged FIR No. 127/2013 at Police Station Nigeen alleging that the petitioner herein, accompanied by his wife, Shazia, had trespassed into his house, assaulted him and his daughter Nadeema, and put them in wrongful restraint. It was also alleged therein that the husband and wife duo had threatened the complainant and his daughter of dire consequences and insulted them. On this complaint, the Police registered the aforesaid FIR for the commission of offences punishable under Sections 452, 354, 506 RPC. Subsequently, Section 307 RPC was also added in the case. 5. Meanwhile, on 09.12.2013, the petitioner filed a contempt petition against SHO Police Station Nigeen before the learned trial court alleging non-compliance of the ad-interim order dated 16.09.2013 in which notice was issued to the SHO to file objections. 6. Subsequently, Section 307 RPC was also added in the case. 5. Meanwhile, on 09.12.2013, the petitioner filed a contempt petition against SHO Police Station Nigeen before the learned trial court alleging non-compliance of the ad-interim order dated 16.09.2013 in which notice was issued to the SHO to file objections. 6. Few days thereafter, i.e., on 14.12.2013, the petitioner filed an application under Section 156(3) Cr.P.C. before the learned Chief Judicial Magistrate, Srinagar, stating therein that he was the owner and in joint possession of residential houses situated at Nigeen, Srinagar, known as Jamal House, Nigeen Hazratbal, Srinagar, and was living with his family peacefully alongwith his father, and that from few days his sister was also temporarily living in the said house. The petitioner alleged that he was arrested in connection with the aforesaid FIR 127/2013 from the house on 05.12.2013, and he locked two rooms in the house, which were in his possession, in presence of the Police. In the same breath he stated therein that after his release he found his entire belongings missing, taken away and stolen and that it came to surface that his wife was also dragged out of the house when he was arrested. The petitioner sought a direction in the name of the SHO Police Station Nigeen, Srinagar, to register an FIR against the accused persons. In the aforesaid complaint, notice was issued to the SHO concerned by the CJM, Srinagar on 19.12.2013. 7. Around the same time, a petition under Section 561-A Cr.P.C. was filed on behalf of the petitioner before this Court seeking quashing of FIR No. 127/2013. 8. The learned counsel for the petitioner submitted that the petitioner is unnecessarily being harassed by the police at the instance of his father, proforma respondent No. 7. He submitted that despite being owner of the ancestral house situated at Nigeen, Hazratbal, Srinagar, the petitioner and his family are not allowed entry therein by the respondents. Learned counsel submitted that the petitioner has a right to hold, possess and enjoy his property without any let or hindrance from the respondents. 9. The learned State counsel submitted that the official respondents are not causing any harassment to the petitioner. He submitted that the proforma respondent No. 7 has filed an FIR alleging serious offences against the petitioner. Learned counsel submitted that the petitioner has a right to hold, possess and enjoy his property without any let or hindrance from the respondents. 9. The learned State counsel submitted that the official respondents are not causing any harassment to the petitioner. He submitted that the proforma respondent No. 7 has filed an FIR alleging serious offences against the petitioner. Since the 561-A Cr.P.C. petition filed by the petitioner stands dismissed by this Court with direction to the Police to complete the investigation in the case, the police is duty bound to bring the investigation of the case to a logical end. However, while doing so, there is no question of causing any harassment to the petitioner. 10. Mr. Manzoor A. Dar, submitted that the civil suit No. 108/N filed by the petitioner stands dismissed by the trial court on 30.05.2015 for non-prosecution. To buttress his submission, the learned counsel produced a certified copy of the order passed by the trial court before the Court. The same is taken on record. He submitted that the whole claim made in the present writ petition is unfounded and based on concoctions. The learned counsel submitted that the reliefs prayed for in the writ petition cannot be granted in favour of the petitioner and the same is not maintainable. 11. I have given my thoughtful consideration to the matter. 12. As seen above, the petitioner has founded his prayer clause on the plea that he has been residing at his ancestral house situated at Nigeen, Srinagar since decades and that the civil court has protected his interests. As mentioned earlier, the civil suit filed by the petitioner stands already dismissed on 30.05.2015. Any claim laid on the basis of such suit is unfounded and untenable. Coming to the claim of the petitioner that he has been residing in his ancestral house since decades is belied by his own statements made in the complaint filed by him before the learned Chief Judicial Magistrate, Srinagar. In paragraph 4 of the complaint, he has tried to lay a foundation to his aforesaid claim that, when he was arrested, he locked two rooms in the house which were in his possession. In paragraph 4 of the complaint, he has tried to lay a foundation to his aforesaid claim that, when he was arrested, he locked two rooms in the house which were in his possession. In the very next paragraph he has alleged that after his release on bail "it also came to the surface that the applicant's wife namely Shazia has also been dragged out of the home when the applicant was arrested". The two statements made in the complaint are irreconcilable. If, at the time of his arrest; the petitioner had locked the only two rooms in his possession, it is unimaginable that his wife would have continued to be anywhere in the house wherefrom the non-applicants in the complaint could have dragged her out. Further, it is his positive case that he filed a contempt petition against the SHO concerned for non-compliance of order dated 16.09.2013. The trial had ordered maintenance of status quo. It is not the petitioner's case that during the subsistence of the status quo order, he was thrown out of the rooms and dispossessed. Reading between the lines, the petitioner under the garb of the status quo order seems to have endeavoured to have entry into the house, which was averted. This seems to have prompted the petitioner to file the contempt petition against the SHO of the Police Station. These facts only show that the petitioner has not been in possession of any part of the house/property. Further, it is the positive stand of the petitioner taken by him in the plaint that the property in question was inherited by his father, respondent No. 7. Therefore, it cannot lie in the mouth of the petitioner that he is the owner of the said property or that, in presence of his father, he has any right of entry therein. 13. Apart from the above factual and legal scenario attendant to the case, it is the admitted case of the petitioner that his father, i.e., proforma respondent No. 7, has lodged an FIR against him involving, apart from others, a heinous offence of attempt to murder. The petitioner had filed a petition under Section 561-A Cr.P.C. seeking quashing of the FIR, but has failed. The petitioner had filed a petition under Section 561-A Cr.P.C. seeking quashing of the FIR, but has failed. Obviously, once he has failed in his aforesaid petition, the Police has to bring the complaint to its logical end and, in that connection, it is duty bound to complete the investigation in the FIR. Conduct of the investigation in the FIR cannot be termed as intimidation and/or harassment on the part of the Police. 14. It may also be observed here that a writ of mandamus cannot be sought to refrain the police from discharging its statutory duty. The petitioner having failed in the remedy chosen by him against the FIR and the Police's power to investigate into the matter, this writ petition seeking almost the same relief under a different garb and guise will not lie, more so when the petitioner has not brought any law or rule to the notice of the Court to show that the Police is duty bound not to investigate into the FIR. 15. It may also be observed here that the petitioner in his civil suit has drawn the helpless and hapless picture of his father, private respondent No. 7, inasmuch as his wife has expired, his one daughter is in California, another daughter is married in Maharashtra and the son, i.e., the petitioner is pitted against him in a manner that the old aged father has had to seek police protection against none other than his own blood, the petitioner herein. In the circumstances, Police is within its powers to take all appropriate measures to ensure the safety of the life and property of respondent No. 7. Such measures, if taken by the Police, by no stretch of imagination would call for interference by this Court, especially so when the petitioner only wants that he should be allowed entry into the properties of his father despite he being only an heir apparent. 16. For all what has been discussed above, no ground is made out to warrant admission of this petition to hearing. It is dismissed in limine. The connected CMPs are also, accordingly, dismissed and the interim direction dated 31.12.2013 is vacated. No order as to costs.