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2019 DIGILAW 372 (JK)

Zabedha Akhter v. State of J&K

2019-08-08

SANJEEV KUMAR

body2019
JUDGMENT : Sanjeev Kumar, J.—This quashment petition is directed against an FIR No. 0225 dated 26.04.2019 registered in the Police Station, Rajouri for the offences under Sections 409/411/34 RPC and under Section 3 of the Essential Commodities Act, 1955 against the petitioners. The petitioners also seek a direction to the respondent No.2 to constitute a Special Investigating Team (SIT) to investigate the aforementioned FIR freely and fairly. 2. The impugned FIR is challenged by the petitioner primarily on the ground that the allegations made in the FIR, even if they are taken at their face value and accepted in their entirety do not prima-facie constitute any offence warranting registration of FIR and that the allegations made in the FIR are so absurd and inherently improbable that it is not justifiable to infer that there is sufficient ground for proceedings against the petitioners. It is also urged that the impugned FIR has been malicious instituted with an ulterior motive for wreaking vengeance on the petitioners. The petitioners has placed strong reliance upon the judgment of State of Haryana and others V. Ch. Bhajan Lal and others, reported in 1992 AIR 604. 3. For better appreciation of the grounds of challenge urged by the learned counsel for the petitioners, it would be appropriate to briefly refer to few facts, which have led to the registration of the impugned FIR. The petitioner No.1 is an Anganwari Worker working in Anganwari Centre located in Ward No.1, Mehari Gujjrain, Tehsil and District Rajouri. The petitioner No.2 is a Shopkeeper having his shop in village Dasangali and the petitioner No.3 is a relative of petitioner No.2. As per the allegations in the FIR on 16.04.2019, the Police Station concerned received an information from reliable source that the petitioner No.1, who is working as Anganwari Worker in Aganwari Centre, Ward No.1, Mehari Gujjrain, Tehsil and District Rajouri in connivance with the CDPO, Rajouri has been misappropriating the nutritional items supplied to her for their use and distribution in the Anganwari Centre and selling the same to the Shopkeepers of the area. A specific information was received by the Police that on the said day also the petitioner No.1 after getting the nutrition items released from the office of CDPO, Rajouri has instead of carrying it to the Anganwari Centre has sold it to the respondent No.2, a shopkeeper having his shop enroute situated at Dasangali and has, thus, misappropriated the property. On the basis of this information, the Police registered the impugned FIR and set the investigation in motion. As is evident from the FIR, the Police has found prima-facie commission of cognizable offences under Sections 409/411/34 RPC and 3 of the Essential Commodities Act. 4. Having heard learned counsel for the parties and perused the record, I am of the view that challenge to the FIR in so far as it pertains to the offences under Sections 409/34 RPC and Section 3 of the Essential Commodities Act is concerned must fail. However, learned counsel for the petitioners is correct in her submission that going by the averments/allegations made in the complaint as they are, no offence under Section 411 RPC is made out. Section 411 RPC reads as under:— “411. Dishonestly receiving stolen property: Whosever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.” 5. Admittedly, the nutrition items received by the petitioner No.1 from the office of CDPO, Rajouri was the property entrusted to her for the purpose of its use and distribution in the Anganwari Centre, Ward No.1, Mehari Gujjrain. The property in the hand of the petitioner No.1, therefore, cannot be brought within the ambit of “Stolen Property” nor the petitioners No. 2 and 3 can be said to have received the property, i.e., nutrition items having reason to believe that these items were stolen property. That being the position, the commission of offence under Section 411 RPC is not disclosed. The registration of FIR against the petitioner for the offence under Section 411 RPC is not tenable in law and, therefore, deserves to be quashed to that extent. That being the position, the commission of offence under Section 411 RPC is not disclosed. The registration of FIR against the petitioner for the offence under Section 411 RPC is not tenable in law and, therefore, deserves to be quashed to that extent. So far as the offences under Sections 409/34 RPC and 3 of the Essential Commodities Act, 1955 are concerned, the same are clearly made out if we were to accept the allegations made in the complaint as a gospel truth. Needless to say that it is enough if the information received by the Police discloses the commission of cognizable offence; an FIR has to be registered. The Police is under an obligation to investigate the offences, which are prima-facie made out on the basis of the information received. Undoubtedly, the petitioner No.1 is a public servant and she came to be entrusted with the property, i.e., nutrition items released in her favour by the office of CDPO, Rajouri. These entrusted nutrition items were meant to be distributed to the children enrolled with the Anganwari Centre concerned, but, the petitioner No.1 instead of discharging the trust misappropriated it and converted it to her own use. This she did by selling the nutrition items meant for the Anganwari Centre to a private shopkeeper for consideration. If these allegations in the FIR are taken to be correct on their face value, it is evident that the petitioner No.1 has prima-facie committed the offence punishable under Section 409 of the RPC. The nutrition items, which are meant for the children enrolled in the Anganwari Centre are essential commodities as defined under the Essential Commodities Act, 1955 and its diversion for the purpose other than it is meant for, is an offence under Section 3 of the Essential Commodities Act, 1955. Section 34 of the RPC is prima-facie attracted as the petitioner No.1 has acted along with the petitioners 2 and 3 in furtherance of common intention of misappropriating the property and converting it to their own use in violation of the direction of the law prescribing the mode in which such trust was to be discharged. Section 34 of the RPC is prima-facie attracted as the petitioner No.1 has acted along with the petitioners 2 and 3 in furtherance of common intention of misappropriating the property and converting it to their own use in violation of the direction of the law prescribing the mode in which such trust was to be discharged. In short, if we look to the allegations made in the FIR and take them as they are at their face value and accept in their entirety, we find that these allegations do prima-facie disclose the commission of cognizable offences like Section 409 RPC read with Section 34 RPC and Section 3 of the Essential Commodities, 1955. 6. The case of the petitioner as discussed above clearly does not fall within the parameters and the legal principles enunciated by the Supreme Court in case of the State of Harayana Vs. Ch. Bhajan Lal (supra). The allegations of the malafide leveled by the petitioners against the police are too vague and absurd to be accepted. Neither Incharge Police Station nor the Officer investigating the FIR have been named in anywhere in the petition nor any of them has been impleaded as party respondents. No specific allegations have been made against the aforesaid Officers of the Police. 7. The stand of the petitioners that when Tata Mobile Vehicle loaded with nutrition items reached Dasangali, it started raining heavily and because of this reason and in order to save the nutrition items from getting wet, the same were kept for one night in the shop of respondent No.2 and that the same were to be carried the next date to the Anganwari Centre concerned, even if correct, cannot be taken into consideration at this stage. The story as projected by the petitioners in this petition may be a valid defence available to the petitioners when trial begins before the competent Court of law. At the stage, when FIR is under challenge and the investigation is yet to be completed by the Police, it would not be appropriate for this Court to quash the FIR on the basis of the probable defence of the petitioners. 8. For the foregoing reasons, I find no merit in this petition and the same deserves to be dismissed. At the stage, when FIR is under challenge and the investigation is yet to be completed by the Police, it would not be appropriate for this Court to quash the FIR on the basis of the probable defence of the petitioners. 8. For the foregoing reasons, I find no merit in this petition and the same deserves to be dismissed. The investigation of the Police shall proceed in so far as it pertains to the offences under Section 409 RPC read with Section 34 RPC and Section 3 of the Essential Commodities Act. Section 411 RPC on the face of it is not made out and it would be sheer wastage of time and abuse of process of law if the Police is permitted to investigate the offence under Section 411 RPC alleged to have been committed by the petitioners. The entrusted property cannot partake the character of the stolen property. Ordered accordingly.