Research › Search › Judgment

J&K High Court · body

2018 DIGILAW 835 (JK)

Mukhtar Ahmad v. State of J&K

2018-10-26

SANJAY KUMAR GUPTA

body2018
JUDGMENT : 1. Through the medium of instant petition, petitioner-Mukhar Ahmad has sought quashing of FIR No. 33/2011 dated 26.02.2011 registered with Police Station Tuljapur, District Osmanabad, Maharashtra, and also prayed for issuance of direction to the respondents not to arrest the petitioner in the afore said FIR whereby a criminal case under Sections 467, 468, 471, 420 of IPC and Section 3/25 of Arms Act has been registered. 2. Petitioner has stated in the petition that he has worked as Collector Defence/Additional District Magistrate Rajouri from April 2008 to August 2009 and as Sub-District Magistrate Mendhar from August 2009 onwards. That an FIR came to be lodged at Police Station Janipur Jammu being FIR No. 18/2011 dated 07.02.2011 for commission of offence under Sections 467/468/471/420 RPC and 3/25 Arms Act against certain persons mentioned in the FIR for possession of 12-Bore Guns with alleged Fake Gun Licenses issued under the seal and signature of SDM Mendhar. The persons were arrested, the guns and licenses seized and the investigation commenced. A Special Investigation Team (SIT) was constituted to investigate the case. During the investigation, the police implicated the petitioner also in the case on the allegation that the gun licenses were issued without following the procedure and after receiving the money from the licence holders and that the issuing officer was not competent to issue the same. Ultimately the petitioner was arrested by the SIT in the case on 12.04.2011 and lodged in the Police Station, Janipur. 3. That the petitioner moved a bail application before the learned Special Judge Anticorruption, Jammu in which a detailed report was filed by the Incharge Special Investigation Team on 18.04.2011, wherein the Investigating Agency not only justified the arrest of the petitioner, but have tried to throw the whole weight of all the alleged misdeeds and misgivings in the case upon the petitioner only. The Investigating Agency has tried to make out a case of conspiracy between the petitioner, his subordinate staff, Arms dealers and license holders in lieu of bribe money. The investigation is still going on. 4. That the learned Special Judge Anti-Corruption, Jammu after considering the report of the SIT and Case Diary was pleased to grant bail to the petitioner on 26.04.2011. 5. The investigation is still going on. 4. That the learned Special Judge Anti-Corruption, Jammu after considering the report of the SIT and Case Diary was pleased to grant bail to the petitioner on 26.04.2011. 5. That on the one hand the investigation is going on through SIT in J&K in the incident of alleged issuance of fake gun licenses and on the other hand, the Maharashtra Police in District Osmanabad apparently taking a lead from the news of the registration of the above said FIR, also claimed to have caught hold of some fake gun licenses issued from the Office of SDM, Mendhar in favour of certain local residents of J&K, who have secured jobs in Maharashtra on the basis of these Gun licenses and guns purchases on the basis of these licenses. An FIR has been registered against these persons in Police Station, Tulzapur, District Osmanabad, Pune Maharashtra being FIR No. 33/2011 dated 26.02.2011 for commission of offences u/s 467, 468, 471, 420 IPC and Section 3/25 of Arms Act. A bare perusal of the FIR No. 33/2011 sufficiently indicates that the petitioner is neither shown involved in the commission of offence nor his name figures in the list of the accused persons. There is no such allegation in the FIR against the petitioner, as such, which could justify the formal detention of the petitioner in the said FIR. It further reveals that the investigation in the said FIR is regarding the fake license, allegedly issued from the office of the Sub-District Magistrate, Mendhar and Additional District Magistrate, Rajouri. It is submitted that the petitioner has issued licenses after following due procedure under law and after receiving authority from the concerned District Magistrate. 6. That the Maharashtra Police while investigating the FIR No. 33/2011 has reached Jammu to arrest the petitioner in the said FIR and even approached the Local Magistrate here at Jammu for transit warrant against the petitioner which was refused by him without any material being placed before him to justify the prayer and thereafter, the said police has reached the SSP, Jammu for help in arresting the petitioner, who instructed the SHO, Trikuta Nagar to help them in arresting the petitioner and the Maharashtra Police and the local police are bent upon to arrest the petitioner in the FIR No. 33/2011 of Police Station, Tuljapure in Pune. Though the petitioner has been granted bail in FIR No.18/2011, but he is not able to move because of the threat of arrest by the Maharashtra Police in FIR No. 33/2011 of Police Station, Tulzapur for the commission of the same offences, as alleged in FIR no. 18/2011. The Maharashtra Police has raided the house of the petitioner and his many relatives at Jammu also in order to arrest the petitioner. 7. That the petitioner feeling aggrieved against the action of the respondents for proceeding with the investigation arising out of the second FIR i.e., FIR No. 33/2011 and also seeking arrest of the petitioner, has invoked the jurisdiction of this Hon’ble Court for challenging the subsequent FIR on the following grounds:- (i) That the respondents have no authority under law to go ahead with the investigation in FIR No. 33/2011 registered with Police Station, Tuljapure Maharashtra. It is submitted that registration of an FIR and conducting investigation in respect of very same incident, which is subject matter of FIR No.18/2011 of Police Station, Janipur Jammu and the offences alleged are also the same is totally unjustified and unwarranted. (ii) That question in the instant case arises for consideration before this Hon’ble Court is that whether the investigation in FIR No. 33/2011 of Police Station, Tuljapure Maharashtra can continue when for the same incident FIR stands already registered at Police Station, Janipur Jammu (J&K) and investigated by the Special Investigation Team of J&K, in which the petitioner has already suffered arrest and detention for 15 days before he was granted bail by the competent Court. In this regard, it is submitted that information given under Sub-Section (1) of Section 154 Cr.P.C is commonly known, as the First Information Report (FIR) though this term is not used in the Code. It is a very important document, which sets the criminal law in motion and marks the investigation, which ends up with information of option under Sections 169 and 170 Cr.P.C, as the case may be and forwarding the Final Police Report under Section 173 Cr.P.C. to the competent Magistrate. It is submitted that from the perusal of above FIR, it reveals that the gravamen of the allegations in two FIRs viz., FIR No. 18/2011 of Police Station, Janipur and FIR No. 33/2011 of Police Station, Tuljapure is the same in pith and substance. It is submitted that from the perusal of above FIR, it reveals that the gravamen of the allegations in two FIRs viz., FIR No. 18/2011 of Police Station, Janipur and FIR No. 33/2011 of Police Station, Tuljapure is the same in pith and substance. The investigation being conducted by the SIT in the FIR No. 18/2011 in J&K does cover the licenses issued to the persons against whom the FIR No. 33/2011 has been registered in Pune Maharashtra. Under such circumstances, it is not known as to how the investigation in both these FIRs could go side by side and what will be fate of the accused in both the FIRs. Have they to face two trials and two punishments in case the prosecution succeeds? There is no justification with continuance of investigation in the FIR No. 33/2011. (iii) That the offences alleged in FIR registered at Police Station, Tuljapure, Pune Maharashtra are the same, as alleged in FIR No. 18/2011. Since the FIR registered at Pune Maharashtra is later in time than the FIR registered in Jammu (J&K), therefore, the investigation shall have to continue in only one FIR i.e. the FIR registered in Police Station Janipur, Jammu (J&K) which is prior in time. The investigation in the second FIR i.e. FIR No.33/2011 becomes totally irrelevant in view of the nature of allegations in both the FIRs. (iv) That another question which arises for consideration in the instant case is as to what is the scope and ambit of power of the court exercising jurisdiction under section 561-A Cr.P.C. in this regard, it is submitted that the Hon'ble Supreme Court in R.P. Kapur Vs. (iv) That another question which arises for consideration in the instant case is as to what is the scope and ambit of power of the court exercising jurisdiction under section 561-A Cr.P.C. in this regard, it is submitted that the Hon'ble Supreme Court in R.P. Kapur Vs. State of Punjab AIR 1960 SC 866 summarized the some categories of cases where inherent powers can and should be exercised to quash the proceedings; (a) where it manifestly appears that there is legal bar against the institution or continuing the proceedings; (b) where the allegations in the FIR taken at their face value and accepted in their entirety do not constitute the offence alleged; (c) where all allegations constitute an offence but there is no legal evidence adduced or evidence adduced clearly and manifestly fails to prove the charge, the scope of exercise of power under section 561-A Cr.P.C., and the categories of cases where the High Court may exercise its power under it relating to cognizable offence to prevent abuse of process of any court or otherwise secure ends of justice were set out by the Apex Court in State of Haryana v/s Bhajan Lal 1992 suppl (1) SCC 335 it was held that the powers of the High Court are very wide. 8. On the basis of afore mentioned averments made in the petition, learned counsel for the petitioner has prayed that the instant petition be allowed and FIR impugned be quashed. 9. Objections stand filed on behalf of respondents whereby instant petition is opposed stating that it is not maintainable in view of the judgment of Hon’ble Supreme Court in case titled Ch. Bhajan Lal Vs. State of Haryana reported in AIR 1992 page 604. It is stated that since prima facie case is made out against the petitioner, as such, the above FIR came to be registered and investigation is still going on. That once FIR is registered, it becomes an obligation on the part of the investigating officer to investigate the matter to its logical end and bring the real facts/truth before the Court for further action in this regard. As such, the petitioner cannot seek quashing of FIR as the cognizable offences are disclosed on the perusal of FIR. That once FIR is registered, it becomes an obligation on the part of the investigating officer to investigate the matter to its logical end and bring the real facts/truth before the Court for further action in this regard. As such, the petitioner cannot seek quashing of FIR as the cognizable offences are disclosed on the perusal of FIR. That the case is still under investigation and the question whether the petitioner/accused person is involved in the commission of offence or not is the question of fact which can be agitated before the Trial Court once the challan is produced and there is no illegality in registration of the said FIR. That mere registration of FIR does not cause any loss to the petitioner because he can prove himself innocent once challan is presented and in case no case is made out then the proceedings can be dropped against him but for that matter the petitioner should wait for presentation of the challan before the learned trial Court. That the investigation in the case has not progressed due the pendency of the petition before the Court and prayed that they be allowed to carry on the investigation to its logical end and bring the real facts before the Court. So far as FIR No. 33/2011 dated 26.02.2011 registered in Police Station Tuljapur, District Osmanabad, Maharashtra, it is submitted that this Court has no jurisdiction to entertain the instant petition, as such, the same deserves outright dismissal. Lastly, it is submitted that the case is still at preliminary stage and also prayed that the stay of the proceedings be vacated and the respondents be allowed to proceed to find the truth in the case. 10. Heard learned counsel for the parties and gone through the law on the subject. 11. Law with regard to quashing of FIR/complaint is well settled. This can only be quashed in order to prevent abuse of process of law or to otherwise secure the ends of justice. The expression ends of justice and to prevent abuse of process of any court are intended to work out either when an innocent person is unjustifiable subjected to an undeserving prosecution or if an ex-facie all merited prosecution is throttled at the threshold without allowing the material in support of it. The expression ends of justice and to prevent abuse of process of any court are intended to work out either when an innocent person is unjustifiable subjected to an undeserving prosecution or if an ex-facie all merited prosecution is throttled at the threshold without allowing the material in support of it. This court while exercising the power under section 561-A Cr.P.C., does not function as court of trial, appeal or revision. Inherent jurisdiction has to be exercised sparingly, carefully and with great caution. These powers cannot be used to stifle the legitimate investigation. In view of above law, this petition is not maintainable. 12. Firstly, question arises as to whether this court has jurisdiction to quash the FIR which has been registered outside territorial jurisdiction of this Court. 13. The counsel for petitioner while arguing the matter on this point has cited AIR 2000 SC 2966 case titled, Navinchandra N. Majithia v. State of Maharashtra & ors., wherein it is held that in terms of Clause (2) of Article 226 that maintainability of the writ petition in the High Court depends on whether the cause of action for filing the same arose, wholly or in part, within the territorial jurisdiction of that Court. It has further been held that under Clause (2) of Article 226 the High Court may exercise its power conferred by Clause (1) if the cause of action, wholly or in part, had arisen within the territory over which it exercises jurisdiction, notwithstanding that the seat of such Government or authority or the residence of such parson is not within those territories. It has further been held that under Article 226 of the Constitution, it becomes clear that a High Court can exercise the power to issue directions, orders or writs for the enforcement of any of the fundamental rights conferred by Part III of the Constitution or for any other purpose if the cause of action, wholly or in part, had arisen within the territories in relation to which it exercises jurisdiction, notwithstanding that the seat of the Government or authority or the residence of the person against whom the direction, order or writ is issued is not within the said territories. 14. 14. Present petition has been filed under section 561-A Cr.P.C. for invoking inherent jurisdiction of this court for quashing the FIR which has been lodged in Police Station Tulzapur, District Osmanabad, Maharashtra, i.e. outside territorial jurisdiction of this court. 15. In 2013 1 Crimes (HC) 642 ORISSA HIGH COURT in case titled Tapesh Kyal versus Ms Shree Shyam Pulp and Board Mills, it is held as under:- “In this respect, it becomes important to take note of various provisions of Constitution of India regarding the issue of territorial jurisdiction of a High Court. In Part-I of the Constitution of India under Article 1, it has been declared that India, that is Bharat, shall be a Union of States and under sub-article (2) the States and the territories thereof have been specified in the first Schedule. Under sub-article (3) the territory of India has been defined as (a) the territories of the States. In the First Schedule of the Constitution of India at Serial No. 10, the State of Orissa and the territory thereof is noted as follows: “The territories which immediately before the commencement of this Constitution were either comprises in the Province of Orissa or were being administered as if they formed part of that province.” 18. In Part-VI of the Constitution of India, various aspects relating to the State is indicated and in Chapter-V under Article 214 it has been declared that there shall be a High Court for each State. Insofar as Article 226 of the Constitution of India is concerned, while every High Court has been vested with the power to issue directions, orders or writs including the writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari (as substituted by the Constitution, (Forty-fourth Amendment) Act, 1978 and all such directions, orders or writs may be issued by every High Court throughout the territories in relation to which it exercises jurisdiction. Under Article 227 of the Constitution every High Court is vested with the power of superintendence over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction. It would be relevant to take note of Article 228 of the Constitution where every High Court is vested with the power to transfer a case from “a Court subordinate to it” if a case involves any substantial question of law. 19. It would be relevant to take note of Article 228 of the Constitution where every High Court is vested with the power to transfer a case from “a Court subordinate to it” if a case involves any substantial question of law. 19. The aforesaid provisions of the Constitution of India which are referred to hereinabove clearly stipulate that “territorial jurisdiction of any State” is confined to the territory specified for each State in Schedule-I of the Constitution. Article 214 of the Constitution mandates that there shall be a High Court in each State and such a High Court under Article 226 shall have powers “throughout the territory in relation to which it exercises jurisdiction”, obviously. The territorial jurisdiction being the territory determined for the State in Schedule-I and no other. 20. Under Article 227, the High Court is vested with the power of superintendence only over those Courts and Tribunals throughout its territory in relation to which it exercises jurisdiction. Therefore, it clearly refers to the “territory of a State” as contained in Schedule-I of the Constitution. Under Article 228 while the High Court has power and authority to transfer a case pending before any “Court subordinate to it”, such a Court subordinate must be within the territorial limit to exercise jurisdiction. I have extracted various aspects of the Constitution determining the scope and ambit and territorial jurisdiction of the High Court including Orissa High Court which arises for consideration. Therefore, while, Orissa High Court has been established under Article 214 of the Constitution of India read with Article 226, such High Court has power to issue directions, orders or writs only “throughout the territory in relation to which it exercises jurisdiction. Therefore, the territory as defined in Schedule-I of the Constitution and no other. Similarly, the Orissa High Court under Article 227 of the Constitution is competent to exercise its power of superintendence only over those Courts and Tribunals located in the territory in relation to which it exercises jurisdiction i.e., the area stipulated in the First Schedule pertaining to the State of Orissa and no other. Similarly, for the purpose of analogy, the Orissa High Court exercises power to transfer a case from one Court to another located within the territory of the State of Orissa and which are subordinate to it as defined and stipulated in Schedule-I of the Constitution of India. 21. Similarly, for the purpose of analogy, the Orissa High Court exercises power to transfer a case from one Court to another located within the territory of the State of Orissa and which are subordinate to it as defined and stipulated in Schedule-I of the Constitution of India. 21. In the light of the analysis made hereinabove, this Court is of the considered view that in exercise of authority/powers vested in it by Articles 226 and 227 of the Constitution of India, such power and authority must be exercised with great caution and circumspection. Any attempt made by a litigant in order to coerce a Court to exceed its territorial jurisdiction, must be stoutly guarded. Any failure to do so, could lead to judicial chaos and anarchy. Accepting the contention of the learned Counsel appearing for the petitioner would, in my view, lead to legal chaos since, every High Court would then be held to be empowered to quash a proceeding of a Subordinate Court of any other State and in my considered view the founding fathers of the nation and framers of the Constitution, fixed territorial limits of every High Court to try and ensure that while all constitutional bodies including the Courts would be free to exercise jurisdiction and authority within their respect territorial jurisdiction any attempt to exceed the same was clearly unconstitutional. It is very often stated in various judgments of the Hon’ble Supreme Court, that greater the power or authority, greater should be the care and caution in exercise of such authority. 22. The Division Bench of this Court in the case of Kailash Chandra Mishra (supra) has placed reliance upon the judgment of the Hon’ble Supreme Court in the case of Harman Electronics (supra). This judgment of the Hon’ble Supreme Court is not an authority for the proposition that, the Orissa High Court would have jurisdiction to quash a proceeding pending before a Court located outside the territory of Orissa. 23. In the case at hand, without entering into the contentions raised on behalf of the petitioner relating to alleged lack of territorial jurisdiction on the part of the learned Metropolitan Magistrate, Saket Courts Complex, New Delhi, an aggrieved party must be made to abide by the rule of law and the Constitution of India. 23. In the case at hand, without entering into the contentions raised on behalf of the petitioner relating to alleged lack of territorial jurisdiction on the part of the learned Metropolitan Magistrate, Saket Courts Complex, New Delhi, an aggrieved party must be made to abide by the rule of law and the Constitution of India. Such a plea and/or grievance can only be redressed by a Superior Court located within the territory where the proceeding purportedly albeit without jurisdiction has been entertained and/or initiated. If any further grievance exists thereafter that party has every right to move the Hon’ble Supreme Court of India and also seek the exercise of power under Article 142.” 16. Similarly section 93 of Constitution of Jammu and Kashmir states that there shall be a High Court of State. Section 1(2) of State Code of Criminal Procedure states that provisions of this code shall be extended to whole of Jammu and Kashmir. Section 4 (f) of Cr.P.C. defines High Court – it says that High Court means highest Court of Criminal Appeal and revision in the Jammu and Kashmir. Jammu and Kashmir State also stands at serial no. 15 of schedule-I of Constitution of India and its territory has been defined as ‘The territories which immediately before the commencement of this Constitution are comprised in the Indian State of Jammu and Kashmir’. 17. In view of above, it is evident that the High Court can quash the FIR/complaint/any criminal proceedings which are pending within the territorial jurisdiction of the same High Court and not otherwise. So I am of the considered opinion that this court has no territorial jurisdiction to quash FIR No. 33/2011 dated 26.02.2011 registered with Police Station Tuljapur, District Osmanabad, Maharashtra, which is not within territorial jurisdiction of this very High Court. 18. Hence, without entering into the contentions raised on behalf of the petitioner relating to alleged lack of territorial jurisdiction on the part of concerned police station to conduct investigation into offence as similar challan is already pending on same facts, an aggrieved party may approach competent superior Court of that State, where FIR has been registered. 19. In view of the above, this petition is dismissed as not maintainable along with connected IAs. Stay, if any, is vacated. 20. Registry to send a copy of this order to the concerned Police Station for information.