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2018 DIGILAW 228 (JK)

Yash Paul v. State of J&K

2018-04-18

JANAK RAJ KOTWAL

body2018
JUDGMENT : 1. In this petition under section 561-A Cr.P.C. petitioners seek quashing of FIR No. 170/2017 dated 04.08.2017 of Police Station, R.S. Pura under sections 5(1)(2) of J&K (Prevention of Unfair Means) Examination Act, 5(2) P.C. Act and 120-B RPC. 2. Report of the Deputy Superintendent of Police (Dy.SP)/SDPO, R. S. Pura, which is annexed to the status report filed on behalf of the respondents and the impugned FIR would show that on 04.05.2017 source information was received at Police Station, R. S. Pura that some employees of the Education Department deployed at the examination centers for 12th Class Examination at Government Boys Higher Secondary School, R. S. Pura and Government Girls Higher Secondary School (GGHSS), R.S. Pura were assisting the candidates in copying in connivance with some civilians. On this information the FIR was registered and thereafter the Dy.SP/SDPO R. S. Pura accompanied with the SDM R. S. Pura inspected the examination centers at Government Higher Secondary School, Boys, R.S. Pura where 2/3 candidates were found copying. They also visited GGHSS, R.S. Pura. The petitioners were found coming from the school ground towards the gate of the school. They were chased and overpowered by the Dy.SP. On questioning, they disclosed their names as the petitioners herein and also that they were the teachers of Government Girls High School, Rangpur, Mullanian. They, however, could not explain their presence in the premises of GGHSS, R.S. Pura. Feeling suspicious about the activity of the petitioners, the Dy.SP conducted their personal search. Rs. 16,000/- in Indian currency were recovered from inside the right shoe of the petitioner, Ravinder Kumar and in addition Rs. 5445 and one slip containing three-digit roll numbers of some candidates were recovered from him. Rs. 5320 and one mobile phone were recovered from the possession of petitioner, Yash Paul. The report of the Dy.SP further shows that the petitioners had received this amount from the candidates and on seeing the police party, petitioner, Ravinder Kumar took out the said amount from his pocket and concealed the same in his right shoe. During investigation information provided by the Headmaster of Government Girls High School, Rangpur, Mullanian was that the petitioners were the teachers of that school and on the day of incident both of them had left the school availing half day leave. During investigation statements of witnesses were recorded. During investigation information provided by the Headmaster of Government Girls High School, Rangpur, Mullanian was that the petitioners were the teachers of that school and on the day of incident both of them had left the school availing half day leave. During investigation statements of witnesses were recorded. It was found that the three-digit roll numbers recorded on the aforementioned slip were those of the candidates who had paid bribe to petitioner, Ravinder Kumar for facilitating the copying. Statements of candidates namely, Rajesh Choudhary, Roll No. 2301965, Sukhvir Singh and Sham Lal were recorded, who stated that petitioner, Ravinder Kumar had asked them to pay Rs. 3500 per student and had “assured them for doing copy in the examination hall”. Rajesh Choudhary and Sham Lal had paid Rs. 3500 each, while Sukhvir Singh paid Rs. 6000 to petitioner, Ravinder Kumar as bribe. Statements of remaining witnesses were yet to be recorded. 3. Quashing of FIR is sought on the grounds that allegations in the FIR even if taken at their face value and accepted in their entirety do not prima facie constitute commission of any offence against the petitioners. The allegations are inherently improbable and there is no sufficient ground for proceedings against the petitioners. The FIR has been maliciously registered by the respondents with an ulterior motive to extract money. The petitioners are respectable law abiding citizens and the registration of the impugned FIR is aimed at injuring and maligning their reputation in the society. It is further contended that the respondents till date have not been able to collect any incriminating evidence against the petitioners and registration of FIR is nothing but sheer abuse of process of law. The impugned FIR is a well planned conspiracy to extract money from the petitioners and actuated with mala fide. Without denying the recovery of aforementioned amount from the petitioner, Ravinder Kumar the possession of the said money is explained as follows: “(v) That with regard to the cash amount which has been illegally seized by the respondent from the pocket of petitioner no. 2 amounting to Rs. 25000 is concerned, it is submitted that the real brother of the petitioner No. 2 namely Dharminder Kumar withdrew Rs. 25000 in the evening of 02/08/2017 from his account No. 20035895694 SBI Bank, Bari Brahmana Branch. 2 amounting to Rs. 25000 is concerned, it is submitted that the real brother of the petitioner No. 2 namely Dharminder Kumar withdrew Rs. 25000 in the evening of 02/08/2017 from his account No. 20035895694 SBI Bank, Bari Brahmana Branch. The said amount was received by the petitioner No. 2 on 04/08/2017 at Samka near International Border around 2:30 PM. The said amount was to be used for purchasing electrical material for home.” 4. Mr. B.S. Salathia, learned Senior Advocate, appearing on behalf of the petitioners, besides reiterating the grounds taken in the petition, sought to explain in reference to annexure-E to the petition that the amount recovered from petitioner, Ravinder Kumar was withdrawn by his brother from his bank account and was handed over to the petitioner for purchase of electric material for their house. Learned counsel also referred to the objections filed in SWP No. 2412/2017 in which petitioners have challenged their suspension on account of incident in question by the respondents. Learned counsel argued also that the petitioners have been falsely implicated inasmuch as they have been released on bail by the Anti Corruption Court and their suspension has been stayed by this Court. 5. Per contra, Mr. S. S. Nanda, Sr. AAG, opposed the petition. He argued that sufficient material has been collected by the Investigating Officer during investigation to establish that the petitioners were running a racket of manipulating large scale copying in the examination centers and that this petition has been filed only for the purpose of pressurizing the police and justifying the illegal act committed by the petitioners. 6. Before taking up the petitioners’ contention on merit, I may briefly state the scope of jurisdiction under Section 561-A of the Code. High Court under section 561-A of the Code (sec. 482 of the Central Code) is vested with inherent jurisdiction to make such order as may be necessary to give effect to any order under the Code or to prevent abuse of process of any Court or otherwise to secure the ends of justice. This jurisdiction of the High Court can be invoked to seek quashing of FIR and investigation by the police or any criminal proceedings pending in any Court if it is shown to the satisfaction of the Court that such proceedings is the abuse of process of that Court. This jurisdiction of the High Court can be invoked to seek quashing of FIR and investigation by the police or any criminal proceedings pending in any Court if it is shown to the satisfaction of the Court that such proceedings is the abuse of process of that Court. The jurisdiction of the High Court is vast indeed but it is well settled that this jurisdiction is to be exercised cautiously, carefully and sparingly and the Court has not to function as a Court of appeal or revision. Supreme Court in State of Haryana v. Bhajan Lal, AIR 1992 SC 604 , has given categories of cases by way of illustration wherein inherent jurisdiction under section 561-A Cr.P.C. (Sec. 482 of the Central Code) can be exercised to prevent the abuse of process of Court or to secure the ends of justice. The categories are: “108……… 1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. 2. Where the allegations in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under S. 156(1) of the Code except under an order of a Magistrate within the purview of S. 155(2) of the Code. 3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. 4. Where, the allegations in the FIR do not constitute a cognizance offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under S. 155(2) of the Code. 5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 6. 5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 6. Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceedings 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. 7. Where a criminal proceedings is manifestly attended with mala fides and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge”. 7. The Impugned FIR was registered on a brief source information about involvement of some employees deputed at examination centers and civilians in facilitating copying in the examination centers for promoting their monetary interests. Contention of the petitioners that the FIR does not disclose commission of any offence, therefore, has no substance. 8. In the matter of exercise of inherent jurisdiction under section 561-A Cr.P.C. for quashing an FIR not only the contents of the FIR, but also the material collected by the Investigating Officer and the events, having taken place in the course of investigation are to be taken into consideration. The Dy.SP in this case had visited the school and found the petitioners in suspicious circumstances. Substantial amount was recovered from one of them, which he had kept in his shoe and some amount was recovered from the other also. A slip containing roll numbers of some candidates was also recovered from one of them. None of them was posted in the school where they were apprehended and it was found that they had availed half day leave from the school where they were posted. The objections filed on behalf of the respondents in SWP No. 2412/2017, which has been filed by the petitioners against their suspension on account of the incident in question, contains report of the inquiry conducted by the Chief Education Officer, Jammu, which reveals that at the time of their apprehension by the Dy.SP, the petitioners had stated that they have come there to meet the Superintendent of centre No. 2301, Mr. Kuldeep Raj, Lecturer but when they were confronted with the said Mr. Kuldeep Raj, the latter, had denied to have anything to do with them. Statements of three candidates named above are important too, who have made implicating statements against the petitioners. 9. On according consideration to the FIR and the material collected by the Investigating Officer, it cannot be said that there is no prima facie case of commission of offences by the petitioners, for which the impugned FIR has been registered. Contention raised on behalf of the petitioner, Ravinder Kumar, that money recovered from him had been given to him by his brother cannot be entertained at this stage as it involves a question of fact, which can be ascertained by the Investigating Officer and adjudicated upon at the trial of the case. 10. For the aforementioned fact situation and having regard to the scope of jurisdiction that can be exercised under section 561-A Cr.P.C. this petition has no merit and is dismissed.