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2019 DIGILAW 384 (JK)

Swaran Singh v. State of J&K

2019-08-16

TASHI RABSTAN

body2019
JUDGMENT 1. Instant petition has been filed seeking quashment of FIR No. 84/2016 registered by respondent No.2 on 13.12.2016 for the alleged commission of offence under Sections 420,467,471,120-B RPC read with Section 5(2) of the Prevention of Corruption Act, 2006 and preliminary inquiry allegedly done before registration of the FIR; with a further direction to the respondents not to proceed with the investigation. 2. Brief resume of facts leading to registration of FIR are that on a written complaint of respondent no.3 filed with the Crime Branch, Jammu that the petitioner No. 2 and his father petitioner no.1 have constructed a huge building which has been given to the State bank of India on rent and also installed a petrol pump on the land belonging to the Irrigation department, Jourian. This land is stated to have been encroached with the connivance of the Revenue Department, irrigation Department and the Hindustan Petroleum Company Ltd by managing NOC’s from all the concerned departments which have been issued by the officials of the department in sheer misuse of their official position and that the accused person with intention to cause wrongful loss to the state had managed to obtain fake and fraudulent title over the land. On receipt of the complaint, a preliminary verification was initiated in Crime Branch, Jammu and during the course of verification it was found that the accused persons had encroached a considerable portion of the state land belonging to the Irrigation Department and had constructed a building over the same which has been rented out to the State Bank of India, Branch Jourian and have also installed a Petrol Pump of HPCL under the name and style Ms/ Jhandu Filling Station. It was also found that the then Tehsildar Irrigation Department, Akhnoor, AEE Canal Office New Pratap Canal, Sub Division Akhnoor and Executive Engineer Irrigation Division Akhnnor in furtherance of a criminal conspiracy with Manjeet Singh and Swaran Singh facilitated the encroachment of the said land in sheer misuse of their official position and even issued NOC’s in their favour in order to cause wrongful gains to themselves and wrongful loss to the State thereby, prima facie, constituted offences punishable u/s 420. 467, 468, 471, 120-B RPC r/w Section 5(2) of PC Act Svt. 2006, accordingly, a formal case FIR was registered in P/S Crime Branch, Jammu. 467, 468, 471, 120-B RPC r/w Section 5(2) of PC Act Svt. 2006, accordingly, a formal case FIR was registered in P/S Crime Branch, Jammu. Further investigation in FIR No. 84/2016 of Police Station, Crime branch, Jammu was stayed by this Court vide order dated 31.12.2016. 3. The petitioners have challenged the registration of FIR on the grounds tailored in the petition. The petitioners have submitted that FIR is registered only for harassing the petitioners and a criminal proceeding is manifestly attended with mala fide and 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. It was submitted that the predecessor-in-interest of the petitioner, namely, Sh. Jhandu Ram son of Sh. Lakhu Ram was refugee of 1947. He was allotted, apart from other, a piece of land measuring 2 Kanals 18 Marlas comprised under Kh. No.293 situate at Rakdok (Jourian), Tehsil Akhnoor, Distt. Jammu under 578-C Cabinet order of 1954 and Mutation No.94 of 1982 dated 25.07.1982 was also attested in favour of said Jhandu Ram. After his death, this land was inherited by his two sons, namely, Swaran Singh and Baldev Singh in equal shares, which was endorsed in the revenue record by mutation No.169 Jimon 19.07.1989. Swaran Singh and Baldev Singh were the father and uncle respectively of petitioner No.2 herein, transferred a piece of land measuring 30 Marlas viz. 1 Kanal and 10 Marlas out of Khasra No.293 min Khata No. 45/27 and Khewat No.3 in favour of petitioner No.2 vide Gift Deed and recorded in Mutation No.322. M/s Hindustan Petroleum Corporation Ltd. in order to set up a Petrol Pump/Retail Outlet on said donated land of the petitioner no. 2 approached the Deputy Commissioner, Jammu for issuance of ‘No Objection Certificate’ for setting up the Retail Outlet (Petrol Pump) on Akhnoor-Jourian Road, at Jourian Town and the Deputy Commissioner, Jammu verified the title, feasibility and ownership of the petitioner No.2 over the land in question, and conveyed ‘No Objection Certificate’ to the Senior Sales Officer, Hindustan Petroleum Corporation Ltd. Opposite Hotel Asia, Gandhi Nagar, Jammu, subject to the condition imposed by the various departments. After the ‘No Objections Certificate’ was given by the Deputy Commissioner, Jammu at the land, in question, a Petrol Pump/Retail Outlet was set up by the Hindustan Petroleum Corporation Ltd. in July, 2004. After the ‘No Objections Certificate’ was given by the Deputy Commissioner, Jammu at the land, in question, a Petrol Pump/Retail Outlet was set up by the Hindustan Petroleum Corporation Ltd. in July, 2004. A lease deed was also executed on 15th July, 2005. Later, after having recorded the satisfaction about the feasibility of the setting up of the Petrol Pump, a Lease Agreement was executed in respect of the land, in question, for 30 years, between petitioner No.2 and M/s Hindustan Petroleum Corporation Ltd. on 27th May, 2006 registered on the same date. It was submitted that, a Bank Building has been raised with the proper documentation in favour of the petitioner No.1 and is given on lease to State Bank of India from the past over 12 years. It was further submitted that respondent No.3 who is the nephew of petitioner No.1 and the first cousin of the petitioner No.2 is having a serious grudge against the petitioner no.2 and is already in litigation with the petitioner No.1 which is not only the civil litigation between the parties, but also criminal cases launched against each other. It is only to settle the score, after more than 12 years of the setting up of the petrol pump/retail outlet and the bank building that the respondent filed complaint with Crime Branch, Jammu. 4. Against the above mentioned accused persons and investigation of the case was taken up. During the investigation, permission to conduct investigation under section 5(2) PC Act was obtained from CJM, Jammu and the PV file of the instant case was seized. During further course of investigation the matter was taken up with Sr. manager Hindustan Petroleum Corporation Ltd. Jammu, Regional manager, Region-2 State Bank of India, Regional Busi9ness Office Jammu and deputy Commissioner, Jammu respectively for obtaining the requisite record i.e. Original Land/ Revenue records of the land upon which petrol pump of HPCL has been installed at Jourian by the accused persons including the original copy of No objection certificate dated 17.06.2004 issued by the office of Deputy Commissioner, Jammu and the original copy of the lease agreement dated 27.05.2006 signed between HPCL and alleged Manjeet Singh son of Sh. Swaran Singh resident of Jourian and other record. Swaran Singh resident of Jourian and other record. In the meanwhile, an order dated 31.12.2016 passed by this court in the instant petition was received in the Crime Branch whereby the investigation of the case FIR No.84/2016 has been stayed and, accordingly, the investigation was stopped forthwith. Thus it is contended on behalf of respondents 1 and 2 that the accused have committed the above mentioned offences for which the instant investigation was initiated but due to the stay order passed by this court the same has been stopped, as such, the stay order passed by this court is required to be vacated and the accused are required to be directed to associate themselves with the investigation enabling the Crime Branch to finalize the case on merits. 5. The petitioners have taken the ground that the documents placed on record clearly show that the petitioners have set up a Petrol Pump/retail Outlet in the name of the petitioner No.2 after verification of the title of the land in question and similarly the bank building is also constructed on the land owned by the petitioner No.1 and preliminary inquiry does not disclose that the land in question where the petrol pump and bank building have been set up belonging to the Irrigation Department and the concerned authorities after recording satisfaction have given ‘No Objection Certificates’ in favour of the petitioners. Perusal of the FIR do not prima facie constitute any offence or make out a case against and the allegations levelled in the FIR 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 petitioners. 6. The respondent state has filed the objections. It is contended that on receipt of the complaint, a preliminary verification was initiated in Crime Branch, Jammu and during the course of verification it was found that the accused persons had encroached a considerable portion of the state land belonging to the Irrigation Department and had constructed a building over the same which has been rented out to the State Bank of India, Branch Jourian and have also installed a Petrol Pump of HPCL under the name and style M/s Jhandu Filling Station. It was also found that Tehsildar Irrigation Department, Akhnoor, AEE Canal Office New Pratap Canal, Sub Division Akhnoor and Executive Engineer Irrigation Division Akhnnor in furtherance of a criminal conspiracy with Manjeet Singh and Swaran Singh facilitated the encroachment of the said land in sheer misuse of their official position and even issued NOC’s in their favour in order to cause wrongful gains to themselves and wrongful loss to the State, which prima facie, constituted offences punishable u/s 420, 467, 468, 471, 120-B RPC r/w Section 5(2) of PC Act Svt. 2006. 7. The respondent No.3 in his reply contends that the writ petition is utterly misconceived and cannot be maintained against the right of Crime Branch to investigate the matter, once the complaint has been received that the land other than the allotted land stands encroached by the dimensions shown in the reports of the Zilladar Jourian (Akhnoor), as such its investigation is to be completed to logical end. It has been alleged in the complaint that some portion of land situated near D-6A of New Canal Jourian has been encroached where a building has been constructed which has been rented out to State Bank of India besides, installing a Petrol Pump over the land. It is a positive case in the complaint that a land belonging to Irrigation Department has been encroached upon by the tacit connivance of the officials of Revenue Department. Even the NOC’s issued by various authorities has been issued by misusing their official positions for obtaining illegal gratification that is why a case under provisions of Section 5(2) Prevention of Corruption Act Svt. 2006 has been registered which cannot be scuttled at the instance of wrong doers. It is contended that in November, 2010 the Irrigation Department got demarcation of the land done and it was found that the land of D-6A of NPC measuring 226’ x 14’ was encroached upon right at the time of installation of Petrol Pump and building where the SBI is housed. It is contended that in November, 2010 the Irrigation Department got demarcation of the land done and it was found that the land of D-6A of NPC measuring 226’ x 14’ was encroached upon right at the time of installation of Petrol Pump and building where the SBI is housed. It is contended that Assistant Executive Engineer NPC Sub Division had issued notice dated 08.06.2016 to the petitioner to restore entire encroached area belong to Irrigation Department to its original position failing which the building on the irrigation land shall be got demolished under the J&K Water resource (Regulation and Management) Act, 2010, but the petitioner was so impervious that he did not bother to remove the encroachment and before any coercive action could be undertaken , he sought the indulgence of this Court and due to pendency of the present lis, it is not at all possible to take desired action under law. Learned counsel further submits that in terms of Section 13 of the Jammu and Kashmir Agrarian Reforms Act, 1976, the petitioner could not have converted land in question for commercial purposes. Even though Section 3-A provides that displaced persons cultivating evacuee’s lands personally shall in respect thereof be deemed to be occupancy tenants. But, however, such displaced persons shall have right to transfer their occupancy/tenancy by sale, mortgage or fit subject to the provisions of the Alienation of Land Act and section 60 of the J&K Tenancy Act, Samvat 1980. Because the commercial use of land by displaced persons including the one who has stepped into his shoes has been held illegal being against the land use by displaced persons, therefore, the conversion of land which is deemed to be cultivable evacuee land and has to be only an agricultural or cultivable land. Therefore, question of its being turned into commercial land is non-est in the eyes of law. He further contends that not only the encroachment that was accomplished by hatching criminal conspiracy with the officials, wrongful losses to State for their own wrongful gain has caused serious injury to the interest of State. 8. I have heard and considered the rival contentions of the learned counsel appearing for the parties and pursued the file. 9. He further contends that not only the encroachment that was accomplished by hatching criminal conspiracy with the officials, wrongful losses to State for their own wrongful gain has caused serious injury to the interest of State. 8. I have heard and considered the rival contentions of the learned counsel appearing for the parties and pursued the file. 9. The inherent jurisdiction of this court under section 561-A Cr.P.C can be exercised to quash the FIR to secure the ends of justice or prevent the abuse of process of court, if the FIR does not disclose any offence and purpose of investigation is only to harass the citizens. However, where the allegations in the FIR constitute an offence and a long pending civil litigation between complainant and accused or other criminal proceedings is no ground for quashing the FIR. The high court cannot give a prima facie decision in a case where facts are incomplete and evidence has not been collected. 10. The Supreme Court in the case of Vinod Raghuvanshi v. Ajay Arora, reported in (2013) 10 SCC 581 has held that it is a settled legal proposition that while considering the case for quashing of the criminal proceedings the Court should not “kill a still born child”, and appropriate prosecution should not be stifled unless there are compelling circumstances to do so. An investigation should not be shut out at the threshold if the allegations have some substance. When a prosecution at the initial stage is to be quashed, the test to be applied by the Court is whether the uncontroverted allegations as made, prima-facie establish the offence. At this stage neither can the Court embark upon an inquiry, whether the allegations in the complaint are likely to be established by evidence nor should the Court judge the probability, reliability or genuineness of the allegations made therein. Similarly in the case of State of Punjab Vs. Inder Mohan Chopra and others reported in AIR 2009 SC (Supp) 198, the Supreme Court has held that the powers possessed by the High Court under Section 482 of the Criminal Code (which is pari materia to Section 561-A of State Cr.P.C) are very wide and the very plenitude of the power requires great caution in its exercise. The Court must be careful to see that its decision in exercise of this power is based on sound principles. The Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest Court of a State should normally refrain from giving a prima-facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to the cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. 11. In the present case, prima-facie, the allegations in the FIR disclose the commission of crime and it also admitted by the petitioner in ground (vii) that a compound wall has been raised on Government land. On preliminary enquiry, the Crime Branch has found connivance of government officials with petitioners in forging the documents and titles. On reading the allegations levelled in the FIR on its face value, it appears that the ingredients of offences are disclosed. At this stage, this Court is reluctant to appreciate the documentary evidence produced by the petitioners to claim their title over the disputed land, particularly, when the allegations are with respect to forging and manipulation of the documents. Moreso when, evidence is yet to be collected by the Investigating Authorities, and it would be premature to scuttle the investigation at nascent stage. The mala fides on the part of informant are of no consequence at this stage and its fate would depend upon the evidence collected during investigation and evidence led in trial Court. It would not be justified for this Court to give its prima-facie ruling on mala fides if the informant, more particularly, when evidence is yet to be collected. 12. In view of above discussion, this Court refuses to interfere with the investigation of FIR impugned and petition, as such, is dismissed. Petitioners are free to join the investigation and submit the evidence in their favour to the Investigating Officer as well as before the trial Court. 13. Dismissed, as above.