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2019 DIGILAW 222 (JK)

Sajjad Tariq v. State of J&K

2019-04-12

SANJAY KUMAR GUPTA

body2019
JUDGMENT : 1. Through the instant petition filed under Section 561-A of the Code of Criminal Procedure (hereinafter for short, Cr.P.C.) petitioner seeks quashment of criminal proceedings titled State vs. M. S. Tariq and another, pending against the petitioner in the court of Railway Magistrate, Jammu. 2. The case of the petitioner is that on a written report of one Mohinder Singh a false case was registered in Police Station Bahu Fort, Jammu against the deceased father of the petitioner, namely, Mohd Sharief Tariq and the petitioner herein with the allegations that on 12th November, 2009 at about 10.35 AM, when said complainant Mohinder Singh came to attend his office as a Chairman of J&K Cooperative Bank at Sekhari Bhawan, Bahu Plaza, Railway Road, Jammu, he found a big crowd at the gate of the Bank and saw Mohd Sharief Tariq and the petitioner breaking open the lock of his office room with an Ari (Blade) and when he objected to it, he was man handled by the said culprits and Mohd Sharief Tariq occupied his chair without any authority. The complainant requested SHO Police Station Trikuta Nagar/Bahu Fort to oust the said person from his room. On the said report, a case for commission of offences under Sections 451, 323 RPC came to be registered in said Police Station. The police investigated the case and during theinvestigation besides taking other steps, the statements of the complainant Mohinder Singh, Barkat Ali, Peon in the said Bank, Parkash Sharma-Secretary to the Complainant and one Goutam Singh under Section 161-Cr.P.C came to be recorded and after completing the investigation charge sheet against the deceased father of the petitioner, namely. Mohd Sharie Tariq and the petitioner under Sections 451, 323, 201 RPC was filed in the court of law which is now pending disposal in the court of learned Railway Magistrate, Jammu. It is further stated that father of the petitioner, who expired long before the charge was submitted in the court of law, has been arrayed as main accused in the charge sheet. 3. The petitioner seeks quashment of the aforesaid proceedings, on the following grounds:- (a) That the father of the petitioner, namely, Mohd Sharief Tariq who expired long before the charge sheet was submitted in the court of law was arrayed as the main accused in the charge sheet. 3. The petitioner seeks quashment of the aforesaid proceedings, on the following grounds:- (a) That the father of the petitioner, namely, Mohd Sharief Tariq who expired long before the charge sheet was submitted in the court of law was arrayed as the main accused in the charge sheet. So to say the charge sheet besides against the petitioner by the State is also against dead person which is against all cannons of law and amounts to defamation. (b) That according to the prosecution case, the alleged occurrence took place at 10.35 AM and the office of the complainant was still under lock despite the fact that the peon of the bank was already present in the bank and the bank timing was 10.00 AM and the bank which is a busy place, cannot be believed to be closed even at 10.35 A.M. The story put forth by the prosecution that the office of the Chairman was broken open at 10.35 A.M. by the petitioner and his deceased father with an Ari (Blade) is not at all believable and is a bundle of lies. (c) The said prosecution story of breaking open the lock by the deceased father of the petitioner and the petitioner is a cock-bull story. Had there been any truth in the said allegation, it was not difficult for the investigating officer to recover the lock and blade. Offence under Section 201 RPC has been added just to fill in the gap and to show that the occurrence had actually taken placed. (d) That the reality is that the deceased father of the petitioner had been elected as Chairman of J&K Cooperative Societies Bank by majority of Board of Directors in the Bank itself at 10.00 AM on 12-11-2009 and has passed a resolution of no confidence against the complainant Mohinder Singh, who was left with no authority to sit on the chair of the Chairman of the said Bank. After the resolution was passed by the Board of Directors in majority and a resolution of no confidence against the complainant and after passing the resolution Mohd. Sharief Tariq, the deceased father of the petitioner after being elected as Chairman of the said Bank was in the chair in the presence of majority of Board of Directors which prompted the complainant to lodge a false report of alleged occurrence in Police station. Sharief Tariq, the deceased father of the petitioner after being elected as Chairman of the said Bank was in the chair in the presence of majority of Board of Directors which prompted the complainant to lodge a false report of alleged occurrence in Police station. (e) That in case there was any truth in the prosecution case, the investigating officer was supposed to record the statements of all the officials of the bank, but this was not done and investigating officer chose to record the statement of only three persons, namely, Om Parkash, who was the secretary to the complainant, Barkat Ali a Peon in the Bank and Goutam Singh an ex. Employee of the said bank who is a resident of Samba. (f) That in case there was any truth in the allegations that the lock was broken open with a blade, there should have been some marks on the door of the office of the Chairman. But no such marks are alleged to have been found on the door of the office of the Chairman of the Bank. (g) That the prosecution case further goes to allege that the complainant was also assaulted and man-handled by the mob including petitioner and his deceased father, but it appears from the prosecution case that the complainant was not got medically examined during the course of investigation and rather it appears that the complainant had refused to get himself medically examined even when it was desired by the investigating officer. This also indicates that the prosecution case is based on false grounds. (h) That in the FIR it is disclosed that the complainant had made a request to the SHO Police Station, that the deceased father of the petitioner be ousted from the chair of the Chairman of the Bank and the complainant be allowed to function as Chairman. This clearly gives an indication that the main purpose of the complainant was to oust the deceased father of the petitioner from Chairmanship of the Bank, who had been elected by majority of board of directors as a Chairman and to allow the complainant to occupy the chair of the Chairman of the bank despite the fact that vote of no confidence had already been passed by the majority of board of directors against the complainant and electing the deceased father of the petitioner as Chairman. (i) That in case the proceedings in the case are allowed to go on, it would certainly amount to harassment to the petitioner, who happens to be the son of late Shri M.S. Tariq, who was alleged to be main accused in the case and was arrayed as such in the charge sheet despite the fact that he had expired on 23rd March, 2010, when the charge sheet despite submitted by the prosecution in May, 2010, i.e., after his death, certainly it is a case of misuse of process of law. (j) That the F.I.R. was lodged on 12-11-2009, the challan was produced before the court in May, 2010 and arguments for charge have been fixed on 07.10.2011, consuming a period of about 2d years,, without any substantial reasons, which again amounts to abuse of process of law.” 4. I have heard counsel for parties and gone through the law on the subject. 5. Counsel for petitioner has reiterated the grounds taken in memo of petition. Whereas counsel for State has argued that FIR cannot be quashed as challan has been produced and petitioner has been charge sheeted. I have given my thoughtful consideration to whole aspects of matter. 6. The contents of the FIR No.262/2009 dated 12.11.2009 registered with Police Station, Trikuta Nagar, Jammu for commission of offences under Sections 451, 323 RPC reads as under:- “To The Station House Officer Trikuta Nagar, Jammu. Subject :- “Complaint against Sh. M. S. Tariq, Ex-Director, JCC Bank and others. Sir, I may bring it to your notice that today on 12th November, 2009, when I came to my office at about 10.35 A.M I found a huge gathering right from main entrance of the building of my office and at least 20 to 25 person were even standing in front of my office. I found that Mr. M. S. Tariq Ex-Director his son, Mr. Sajad Tariq along with one more person were breaking open the lock of my office where as other muscle man were standing around them, when I enquired from them about the breaking of lock of my office they manhandled me and even used filthy language. I being found myself in an awkward position skipped the office and tried to contact certain officers including your office, here I may bring it to your notice that Mr. I being found myself in an awkward position skipped the office and tried to contact certain officers including your office, here I may bring it to your notice that Mr. M. S. Tariq stood already ceased to be director on the board of the Bank and the question of his occupying the post of chairman or even of a Director of the Bank does not arise. The Board of Directors of the Bank in its meeting dated 13th January, 2009 have already resolved to disqualify Mr. M. S. Tariq as director of the bank in terms of provisions of Rule 25(4) (a) of the J&K Co-operative Societies Rules 2001 read with Banks bye law No. 19.3 hence he ceases to be a director of the bank from 13th January 2009. I am enclosing herewith copy of resolution dated 13 January, 2009 adopted by the board under agenda No. 13 as also the letter thereby communicated the decision of the board to Mr. M. S. Tariq copies of which even stands marked to the concerned quarter. Since M. S. Tariq has forcibly entered into my office by using force and occupied the chair of the chairman of the bank that too without any authority of law. I, therefore, request you to please initiate appropriate action against Mr. Tariq and his son Mr. Sajjad Tariq and other persons accompanying them under law and Mr. M. S. Tariq may be thrown out of office. Yours sincerely, Mohinder Singh Chairman” 7. On this complaint, FIR No.262/2009 u/s 451/323 RPC was registered and investigation culminated into filing of challan under section 451/323/201 RPC before Sub-Judge Special Railway Magistrate (Judl.) Jammu against accused Sajjad Tariq as another accused namely Mohd. Sharif Tariq died prior to filing of challan. Petitioner, the only accused, has already been charge sheeted on 27.03.2012; even perusal of interim order dated 20.11.2012, it is evident that court below granted last opportunity to prosecution to produce witnesses. 8. The law with regard to quashing of charge sheet /FIR /complaint has now been well settled. In 2008 (3) SCC 753 case titled Som Mittal Vs. Govt. of Karnataka, it has been held as under :- “(10) In a catena of decisions this Court has deprecated the interference by the High Court in exercise of its inherent powers under Section 482 of the Code in a routine manner. In 2008 (3) SCC 753 case titled Som Mittal Vs. Govt. of Karnataka, it has been held as under :- “(10) In a catena of decisions this Court has deprecated the interference by the High Court in exercise of its inherent powers under Section 482 of the Code in a routine manner. It has been consistently held that the power under Section 482 must be exercised sparingly, with circumspection and in rarest of rare cases. Exercise of inherent power under Section 482 of the Code of Criminal Procedure is not the rule but it is an exception. The exception is applied only when it is brought to the notice of the Court that grave miscarriage of justice would be committed if the trial is allowed to proceed where the accused would be harassed unnecessarily if the trial is allowed to linger when prima facie it appears to Court that the trial would likely to be ended in acquittal. In other words, the inherent power of the Court under Section 482 of the Code of Criminal Procedure can be invoked by the High Court either to prevent abuse of process of any Court or otherwise to secure the ends of justice. (11) This Court, in a catena of decisions, consistently gave a note of caution that inherent power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. This Court also held that the High Court will not be justified in embarking upon an inquiry as to the reliability or genuineness or otherwise of the allegations made in the F.I.R. or the complaint and that the extra-ordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whims and caprice. (12) We now refer to a few decisions of this Court deprecating the exercise of extra ordinary or inherent powers by the High Court according to its whims and caprice. (13) In State of Bihar v. J.A.C. Saldanha (1980) 1 SCC 554 this Court pointed out at SCC p. 574: The High Court in exercise of the extraordinary jurisdiction committed a grave error by making observations on seriously disputed questions of facts taking its cue from affidavits which in such a situation would hardly provide any reliable material. (13) In State of Bihar v. J.A.C. Saldanha (1980) 1 SCC 554 this Court pointed out at SCC p. 574: The High Court in exercise of the extraordinary jurisdiction committed a grave error by making observations on seriously disputed questions of facts taking its cue from affidavits which in such a situation would hardly provide any reliable material. In our opinion the High Court was clearly in error in giving the direction virtually amounting to a mandamus to close the case before the investigation is complete. We say no more. (14) In Hazari Lal Gupta v. Rameshwar Prasad (1972) 1 SCC 452 this Court at SCC p. 455 pointed out: In exercising jurisdiction under Section 561-A of the Criminal Procedure Code, the High Court can quash proceedings if there is no legal evidence or if there is any impediment to the institution or continuance of proceedings but the High Court does not ordinarily inquire as to whether the evidence is reliable or not. Where again, investigation into the circumstances of an alleged cognizable offence is carried on under the provisions of the Criminal Procedure Code, the High Court does not interfere with such investigation because it would then be the impeding investigation and jurisdiction of statutory authorities to exercise power in accordance with the provisions of the Criminal Procedure Code. (15) In Jehan Singh v. Delhi Administration (1974) 4 SCC 522 the application filed by the accused under Section 561-A of the old Code for quashing the investigation was dismissed as being premature and incompetent on the finding that prima facie, the allegations in the FIR, if assumed to be correct, constitute a cognizable offence. (16) In Kurukshetra University v. State of Haryana (1977) 4 SCC 451 , this Court pointed out: It surprises us in the extreme that the High Court thought that in the exercise of its inherent powers under Section 482 of the Code of Criminal Procedure, it could quash a first information report. The police had not even commenced investigation into the complaint filed by the Warden of the University and no proceeding at all was pending in any court in pursuance of the FIR. It ought to be realized that inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice. The police had not even commenced investigation into the complaint filed by the Warden of the University and no proceeding at all was pending in any court in pursuance of the FIR. It ought to be realized that inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice. That statutory power has to be exercised sparingly, with circumspection and in the rarest of rare cases.(emphasis supplied) (17) In State of Bihar v. Murad Ali Khan (1988) 4 SCC 655 this Court held that the jurisdiction under Section 482 of the Code has to be exercised sparingly and with circumspection and has given the working that in exercising that jurisdiction, the High Court should not embark upon an enquiry whether the allegations in the complaint are likely to be established by evidence or not.” 9. The foremost argument advanced by counsel for petitioner is that FIR has been registered in non-cognizable offence under Section 323 RPC as well as cognizable offence under Section 451 RPC, so police was not legally authorized to investigate the matter without prior permission of concerned Magistrate in terms of Section 155 Cr.P.C. Counsel for the petitioner has further stated that in Central Cr.P.C., Section 155 has been amended and clause (4) has been added wherein it has been specifically mentioned that in a case relating to two or more offences, of which alteast one is conizable, then case shall be considered as cognizable; whereas in our State Cr.P.C., no such clause has been added in Section 155 Cr.P.C. 10. Section 155 of Central Code of Criminal Procedure, 1973 reads as under:- “155. Information as to non- cognizable cases and investigation of such cases. (1) When information is given to an officer in charge of a police station of the commission within the limits of such station of a non- cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer the informant to the Magistrate. (2) No police officer shall investigate a non- cognizable case without the order of a Magistrate having power to try such case or commit the case for trial. (2) No police officer shall investigate a non- cognizable case without the order of a Magistrate having power to try such case or commit the case for trial. (3) Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case. (4) Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non- cognizable.” 11. Section 155 of our State Cr.P.C., reads as under:- “155. Information in Non-cognizable cases.- (1) When information is given to an officer-in-charge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter in a book to be kept as aforesaid the substance of such information and refer the informant to the Magistrate *[having power to, try such case or commit the same for (2) Investigation into non-cognizable cases.- No police officer shall investigate a non-cognizable case without the order of a Magistrate of the first or second class having power to try such case or commit the same for trial. (3) Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer-in-charge of a police station may exercise in a cognizable case. 12. Admittedly in our State there is no such provision. But this argument does not hold good as in AIR 1965 SC 1185 in case titled Parvin Chandra Mody v State of Andhra Pradesh, a three judges bench has held as under:- “8. Section 156(2) provides that where a police officer enquire into an offence under S. 156(1) his action cannot be called into question on the ground that he was not empowered to investigate the offence. The enquiry was an integrated one, being based on the same set of facts. Even if the offence under the Essential Commodities Act may not be cognizable-though it is not alleged by the appellant that it is non- cognizable-the police officer would be competent to include it in the charge-sheet under S. 173 with respect to a cognizable offence. The enquiry was an integrated one, being based on the same set of facts. Even if the offence under the Essential Commodities Act may not be cognizable-though it is not alleged by the appellant that it is non- cognizable-the police officer would be competent to include it in the charge-sheet under S. 173 with respect to a cognizable offence. In Ram Krishna Dalmia v. State AIR 1958 Punj 172, Falshaw J. (as he then was) observed that the provisions of s. 155(1), Criminal Procedure Code, must be regarded as applicable to those cases where the information given to the police is solely about a non-cognizable offence. Where the information discloses a cognizable as well as a non-cognizable offence the police officer is not debarred from investigating any non-cognizable offence which may arise out of the same facts. He can include that non-cognizable offence in the charge-sheet which he presents for a cognizable offence. We entirely agree. Both the offences if cognizable could be investigated together under Chapter XIV of the Code and also if one of them was a non, cognizable offence.” 13. Further in AIR 1997 SC 1 in case titled State of Orissa v. Sharat Chandra Sahu & another, it is held as under:- “12. Sub-section (4) of Section 155 is a new provision introduced for the first time in the Code in 1973. This was done to overcome the controversy about investigation of non- cognizable offences by the police without the leave of the Magistrate. The statutory provision is specific, precise and clear and there is no ambiguity in the language employed in sub-section (4). It is apparent that if the facts reported to the police disclose both cognizable and non-cognizable offences, the police would be acting within the scope of its authority in investigating both the offences as the legal fiction enacted in Sub-section (4) provides that even non- cognizable. 13. This Court in Praveen Chandra Mody vs. State of M.P. AIR 1965 SC 1185 has held that while investigating a cognizable offences and presenting a charge-sheet for it, the police are not debarred from investigation any non- cognizable offence arising out of the same facts and including them in the charge-sheet. 14. 13. This Court in Praveen Chandra Mody vs. State of M.P. AIR 1965 SC 1185 has held that while investigating a cognizable offences and presenting a charge-sheet for it, the police are not debarred from investigation any non- cognizable offence arising out of the same facts and including them in the charge-sheet. 14. The High Court was thus clearly in error in quashing the charge under Section 494 I.P.C. on the ground that the Trial Court could not take cognizance of that offence unless a complaint was filed personally by the wife or any other near relation contemplated by Clause (c) of the Proviso to Section 198(1).” 14. In view of above law, argument of counsel for the petitioner is not tenable. 15. Another plea taken is that challan has been produced against dead person as one of accused has already died when challan was produced. This argument also does not hold good, because from perusal of initial order on challan passed by court below on 19.11.2010, it is evident that it was produced in presence of one accused and it was reported that accused Mohd. Sharif Tariq has died on 24.03.2010 and court below on the same date, deleted him from array of list of accused. 16. All others pleas taken in the petition and those have been argued are pertaining to appreciation of facts which this court cannot do in this petition. All these pleas are defenses of accused, which he has to establish during course of trial. It is not case of petitioner that there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceeding. 17. In view of above discussion, this petition is dismissed. Stay, if any, is vacated.