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2018 DIGILAW 669 (JK)

Mohd Iqbal Zargar v. State of J&K

2018-08-30

SANJAY KUMAR GUPTA

body2018
JUDGMENT : 1. In this petition filed under Section 561-A of the Code of Criminal Procedure, the petitioner seeks quashing of the order dated 29.09.2014 passed by the learned Principal Sessions Judge, Jammu whereby the petitioner has been charged for offence under Sections 420, 467, 468, 471 read with Section 120-B RPC. 2. The case of the petitioner is that he is serving as a Girdawar in the Revenue Department and is presently posted at Tehsil Thathri. On 02.01.2009, respondent No.5 being husband and attorney holder of respondent No.6, filed an application before the learned Chief Judicial Magistrate Jammu for investigation under Section 156(3) Cr.P.C. The allegations against the petitioner are that the petitioner has forged the register of Khasra Girdawari and made fictitious entries in the name of Swar Ali and Mubarak Ali with respect to land measuring 2 kanals under Kh.No.01 min owned and possessed by the respondent No.6 situated at village Sunjwan Tehsil and District Jammu. It is further contended that the learned Chief Judicial Magistrate, in turn, directed in-charge Police Station Crime Branch-respondent No.3 to look into the allegations and proceed under law. The respondent No.3, in pursuance of the order dated 09.07.2009 passed by the learned CJM, Jammu, registered FIR No.18 of 2009 under Sections 420, 467, 468, 471 read with Section 120-B RPC against the petitioner and other accused persons mentioned in the complaint. After registration of FIR, respondent No.3 has produced the challan before the learned Principal Sessions Judge, Jammu on 25.04.2013, who vide its order dated 29.09.2014 has discharged the co-accused, namely, Haji Sultan, Sadiq Ali, Abdul Khaliq, Sham Din and Akhtar Ali as apparently no prima facie case was found against them, whereas the petitioner and two other alleged accused, namely, Mubarak Ali and Swar Ali have been charged for offence mentioned above. 3. It is further stated that there was no sufficient ground before the learned trial court to proceed against the petitioner. Even if the evidence which the prosecution purposes to adduce to prove the guilt of petitioner is fully accepted, the same does not show that the petitioner has committed the offence. 3. It is further stated that there was no sufficient ground before the learned trial court to proceed against the petitioner. Even if the evidence which the prosecution purposes to adduce to prove the guilt of petitioner is fully accepted, the same does not show that the petitioner has committed the offence. In the charge sheet, a presumption has been drawn by the prosecution that the petitioner was the custodian of record when the insertion was made; the learned trial court without sifting the record has drawn a wrong conclusion and held the petitioner responsible which is not based on facts and material available. Further it is stated in the charge sheet that on 17.08.2009, the petitioner, then Halqa Patwari Sunjwan produced the said register girdwari before the Tehsildar Settlement Jammu for verification, who after detecting the forged entry, ordered cancellation of the said girdawri made in the name of the accused persons. Perusal of register Fard partal dated 17.08.2009 entered by the Tehsildar Settlement Jammu reveals that the same was produced for verification by the then patwari Halqa Mohd Maqbool and not the petitioner herein. The Court below ignored this vital discrepancy in the charge sheet and wrongly charge sheeted the petitioner. On 18.05.2007, the petitioner while posted as patwari halqa Sunjwan had issued copy of khasra girdawri of existing entry for the year Kharif 1999 to Rabi 2006 in favour of alleged accused Mubarak Ali. The alleged fictitious entry presumed to have been made by the petitioner was not sent to FSL test for comparison with the handwriting of the petitioner by the investigating officer. It is further stated that the respondent No.6 in her Attorney executed on 09.09.2008 and attested by the Notary Jammu on10.09.2008 has clearly stated that respondent No.6 is owner in possession of land measuring 2 kanals falling under Kh.No.01 min situated at Village Sunjwan Tehsil and District Jammu. The respondent No.6, intentionally, deliberately and knowingly omitted the word “State Land” in her Special Power of Attorney. It is, therefore, prayed that the order dated 29.09.2014 passed by the learned Principal Sessions Judge, Jammu may kindly be quashed and the petitioner be discharged in the interest of justice. 4. Heard learned counsel for the parties and perused the case file. 5. It is, therefore, prayed that the order dated 29.09.2014 passed by the learned Principal Sessions Judge, Jammu may kindly be quashed and the petitioner be discharged in the interest of justice. 4. Heard learned counsel for the parties and perused the case file. 5. During the course of arguments, learned counsel for the petitioner has filed the written arguments wherein he has reiterated the same facts as stated in the petition. He has laid emphasis particularly in paragraph No.3 to 6 of the written arguments, wherein it is stated that in the charge sheet, a presumption has been drawn by the prosecution that the petitioner was the custodian of record and has made such entry, in between, on 17.08.2009, the then Patwari Halqa Sunjwan (petitioner, Mohd. Iqbal Zargar) produced the register girdwari before the Tehsildar Settlement Jammu for verification, who after detecting the forged entry, order the cancellation of the said girdawri made in the name of accused persons, namely, Swar Ali s/o Khair Din and Mubarak Ali S/o Haji Sultan. Entries of the same order were made in register Fard Partal and register khasra-girdawari which makes the then patwari Halqa Mohd. Iqbal as custodian of revenue record, who is responsible for making forged entry in the register girdawari of village Sunjwan Tehsil and District Jammu. 6. I have given my thoughtful consideration to whole aspect of the matter. 7. The concluding para of order dated 29.9.2014 of framing of charge by court below reads as under:- “5. It is in the backdrop of these legal considerations that the case for framing of charges against the accused has to be considered. As per the police investigation, land measuring 2 kanals in survey No. 1 min situated at village Sunjwan, tehsil Jammu in the revenue record was in the name of Abdul Rashid Wani and in order to grab the land, accused Haji Sultan, Sadiq Ali, Abdul Khaliq, Mubarak Ali, Swar Ali, Sham Din, Akhtar Ali hatched a criminal conspiracy with Mohd Iqbal, patwari Halqa Sunjwan, Bhatndi, Jammu and in furtherance of the criminal conspiracy, accused Mohd Iqbal forged the register girdawari and made fictitious entry in the name of accused Swar Ali and Mubarak Ali in 1999. On conclusion of the investigation, the IO found the accused guilty of offence u/s 420/468/467/471/120-B RPC and filed the present challan in the Court. 6. On conclusion of the investigation, the IO found the accused guilty of offence u/s 420/468/467/471/120-B RPC and filed the present challan in the Court. 6. Looking to the a1legations levelled in the challan, It is apparent that prima facie case is not made out against accused Hali sultan, Sadiq Ali, Abdul Khaliq, Sham Din and Akhtar Ali. 7. In so far as other accused Mubarak Ali, Swar Ali and Mohd Iqbal are concerned, prima facie case is made out against these accused that they hatched a criminal conspiracy and in furtherance of the criminal conspiracy, accused Mohd Iqbal forged the register girdawari and made fictitious entry in the name of accused Swar Ali and Mubarak Ali in1999 in respect of land measuring 2 kanals in survey No. 1min situated at village Sunjwan, tehsil Jammu in the said revenue record and accordingly offence u/s 120B/420/467/468/471 RPC. Their statements have been recorded. They deny their guilt and claim trial. Prosecution is directed to adduce evidence on next date. Put up for prosecution evidence on 29.10.2014.” 8. Sessions Judge, while framing charge under section 269 of Cr.P.C. is obliged to scan the evidence collected during investigation for limited purpose for satisfying himself as to whether there are sufficient grounds to presume that accused has committed offence as is alleged. For the purpose of framing of charge, therefore, the Judge has to consider judicially whether on consideration of the materials on record, it can be said that the accused has been reasonably connected with the offence alleged to have been committed and that on the basis of said materials there is a reasonable probability of chance of accused being found guilty of the offence alleged. If the answer is in the affirmative, the judge will be at liberty to presume “that the accused has committed an offence”. Charge is first notice to the accused of an accusation made against him. It should be conveyed to him in sufficient clearness and certainty what the prosecution intends to prove and which case the accused is to meet. 9. Section 4 (c) of Code of Criminal Procedure defines a “charge” includes any head of charge when the charge contains more heads than one. As per Law a charge may be precise formulation of a specific accusation made against a person of offence alleged to have been committed by him. 9. Section 4 (c) of Code of Criminal Procedure defines a “charge” includes any head of charge when the charge contains more heads than one. As per Law a charge may be precise formulation of a specific accusation made against a person of offence alleged to have been committed by him. The main purpose of framing charge is to give intimation to the accused of clear, unambiguous and precise notice of the nature of accusation that the accused is called upon to meet in the course of trial. 10. At the time of framing charge, the Court has to prima facie consider whether there is sufficient ground to proceed against the accused and Court is not required to appreciate whether the material produced is sufficient or not for convicting the accused. 11. Now coming to present case, perusal of order of Sessions Judge, it reveals that while charging the petitioner u/s 420/467/468/471 RPC read with section 120-B RPC along with other accused, Judge has appreciated all the materials collected during investigation meticulously. This court while exercising the jurisdiction vested under section 561-A Cr.P.C., cannot re-appreciate the evidence on record. It is not the case of petitioner that there is some legal embargo in framing the charge or Court lacks jurisdiction to frame charge; a person who is custodian of certain record, is legally liable if any insertion or forgery is committed in record. So looking at allegations and evidence on record, one cannot say that there is nothing on record for framing of charge against the accused/petitioner. All the grounds taken in this petition are pertaining to finding of facts, which can be adjudicated upon during trial. Truthfulness or falsity of allegations essentially pertains to the realm of evidence and same cannot be prejudged at this stage. Other accused persons are already facing trial. 12. In case titled State of M.P v. S.B. Johari and other reported in 2000 (2) SCC 57 , it is held as under:- “In our view, it is apparent that the entire approach of the High Court is illegal and erroneous. From the reasons recorded by the High Court, it appears that instead of considering the prima facie case, the High Court has appreciated and weighed the materials on record for coming to the conclusion that charge against the respondents could not have been framed. From the reasons recorded by the High Court, it appears that instead of considering the prima facie case, the High Court has appreciated and weighed the materials on record for coming to the conclusion that charge against the respondents could not have been framed. It is settled law that at the stage of framing the charge, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The Court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. If the Court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. The charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross examination or rebutted by defence evidence, if any, cannot show that accused committed the particular offence. In such case, there would be no sufficient ground for proceeding with the trial. In Niranjan Singh Karam Singh Punjabi etc. v. Jitendra Bhimraj Bijjayya and Others etc. reported in (1990) 4 SCC 76 , after considering the provisions of Sections 227 and 228, Cr.P.C., Court posed a question, whether at the stage of framing the charge, trial court should marshal the materials on the record of the case as he would do on the conclusion of the trial? The Court held that at the stage of framing the charge inquiry must necessarily be limited to deciding if the facts emerging from such materials constitute the offence with which the accused could be charged. The Court may peruse the records for that limited purpose, but it is not required to marshal it with a view to decide the reliability thereof. The Court referred to earlier decisions in State of Bihar v. Ramesh Singh (1977) 4 SCC 39 , Union of India v. Prafulla Kumar Samal (1979) 3 SCC 4 and Supdt. The Court may peruse the records for that limited purpose, but it is not required to marshal it with a view to decide the reliability thereof. The Court referred to earlier decisions in State of Bihar v. Ramesh Singh (1977) 4 SCC 39 , Union of India v. Prafulla Kumar Samal (1979) 3 SCC 4 and Supdt. & Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja (1979) 4 SCC 274 , and held thus: - From the above discussion it seems well settled that at the Sections 227-228 stage the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The court may for this limited purpose shift the evidence as it cannot be expected even at the initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. (emphasis supplied).--------------------- . In our view the aforesaid exercise of appreciating the materials produced by the prosecution at the stage of framing of the charge is wholly unjustified. The entire approach of the High Court appears to be as if the Court was deciding the case as to whether accused are guilty or not. It was done without considering the allegations of conspiracy relating to the charge under Section 120-B. In most of the cases, it is only from the available circumstantial evidence an inference of conspiracy is to be drawn. Further, the High Court failed to consider that medicines are normally sold at a fixed price and in any set of circumstances, it was for the prosecution to lead necessary evidence at the time of trial to establish its case that purchase of medicines for the Cancer Hospital at Indore was at a much higher price than the prevailing market rate. Further again non-joining of two remaining members to the Purchase Committee cannot be a ground for quashing the charge. After framing the charge and recording the evidence, if Court finds that other members of the Purchase Committee were also involved, it is open to the Court to exercise its power under Section 319 of the Criminal Procedure Code. Further again non-joining of two remaining members to the Purchase Committee cannot be a ground for quashing the charge. After framing the charge and recording the evidence, if Court finds that other members of the Purchase Committee were also involved, it is open to the Court to exercise its power under Section 319 of the Criminal Procedure Code. Not only that, the Court erroneously considered the alleged statement of manufacturing company that quotations given by M/s Allied Medicine Agency, Indore were genuine without there being any cross-examination. The High Court ignored the allegation that many of the items have not been purchased and the amount is paid on bogus vouchers. Hence, there was no justifiable reason for the High Court to quash the charge framed by the trial court. In this view of the matter, the impugned orders passed by the High Court require be quashing and setting aside and we do so. The appeals are allowed accordingly.” 13. In view of above law, the arguments advanced by counsel for petitioner, are not sustainable. The order of Session Judge is, thus, correct and does not suffer from any infirmity of law. Stay, if any, is vacated. Copy of this order be sent to trial court. Record of Court below be sent back.