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2019 DIGILAW 516 (JK)

Muzaffar Iqbal v. State of J&K

2019-12-31

TASHI RABSTAN

body2019
JUDGMENT : 1. In this petition under Section 561-A Cr.P.C., the petitioners are seeking quashment of the charge sheet/challan bearing No.20/2018 arising out of an FIR No. 46/2015 registered by the Police Station, Darhal for the commission of offences punishable under section 420,409,467,468,471 and 109 RPC. 2. The facts in brief are that an FIR No. 46/2015 came to be registered by Police Station Darhal, on a written complaint of Branch Head, J&K Bank Ltd. Darhal, with respect to the alleged embezzlement of money meant for scholarship. The Facts Finding Committee was also considered vide order dated 15.03.2016 by the Baba Ghulam Shah Badshah University, Rajouri and as per the said Committee, the gross financial irregularities, embezzlement and bungling in the scholarship money have been done by the officers/officials of the University, who, instead of acting as its guardians, have misused their official powers thereby not only caused huge dent to the creditability of the institution, but also usurped the scholarship money of needy and poor students. The Committee was of the opinion that the scholarship and the security refund scams, which have come to the surface, were just tip of the iceberg, and that overall embezzlement of funds could be in crores of rupees and the same needed a thorough investigation by police/ vigilance / CBI. The Committee also observed that the then Vice Chancellor had ignored to cease and safeguard the whole record when the matter was initially brought to his notice and instead he allowed the accused officials/officers to hold the record for months together after the report of the embezzlement, which gave them free hand to tamper with the evidences against them. 3. The grounds averred in the petition, inter alia, are that the petitioners are innocent and have not committed any offence and they have been falsely implicated. It is submitted that the person, who has actually committed the offence(s), i.e., Mohd Rashid Choudhary, the then Dean of the students / Registrar of the University has not been made accused despite of him issuing the cheques which led to the embezzlement of money, therefore, the charge sheet is required to be quashed. 4. On the other hand, learned counsel for the respondents submits that the accused, namely, Mohd Ajaz Malik, Code 912588, an ex-employee of the bank was working as Banking Associate has been found in the fraudulent act of defrauding the amount of Rs.2,13,700. 4. On the other hand, learned counsel for the respondents submits that the accused, namely, Mohd Ajaz Malik, Code 912588, an ex-employee of the bank was working as Banking Associate has been found in the fraudulent act of defrauding the amount of Rs.2,13,700. He further submits that there seems to be a nexus between the employees of the University and Mohd Ajaz Malik. He further submits that the investigation is going on and some more record pertaining to the case is required to be obtained from Pahari Board Advisory, Tribal Affairs, Director Social Welfare Jammu, BGSBU and J&K Bank, Darhal, which is still awaited. On receipt of the requisite record and after its scrutiny if anybody else is found involved in the commission of the crime, a supplementary final report shall be submitted in the court of law. 5. Heard learned counsel for the parties and perused the record. 6. The petitioner seeks quashment of the charge sheet/challan bearing No.20/2018 arising out of an FIR No. 46/2015 registered by the Police Station, Darhal for the commission of offences punishable under section 420,409,467,468,471 and 109 RPC on the grounds, submission and averments made in the petition on hand, which are contentious and need threadbare trial. It is pertinent to mention here that Section 561-A of the Code of Criminal Procedure of the erstwhile State of J&K, which is pari materia to Section 482 Central Code of Criminal Procedure, provides that nothing in the Code shall be deemed to limit or affect the inherent powers of the High Court to make such order as may be necessary to give effect to any order under the Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. Nevertheless, while exercising powers under Section 482 of the Cr. P.C. the Court has to keep in mind that it should not ordinarily embark upon an enquiry whether evidence in question is reliable or not or whether on a reasonable appreciation of it, the accusation would not be sustained. This is a function of the Trial Court. Though the judicial process should not be an instrument of oppression or needless harassment but the Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances in consideration before issuing process under Section 482, lest the provisions Section 482 Cr. This is a function of the Trial Court. Though the judicial process should not be an instrument of oppression or needless harassment but the Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances in consideration before issuing process under Section 482, lest the provisions Section 482 Cr. P.C. become an instrument in the hands of various indifferent persons to claim the differential treatment only because they can spend money to approach higher forums. Section 482 Cr. P.C. is not an instrument handed over to indifferent and unscrupulous persons to short circuit the trial and bring about its sudden end. Having said so, orders impugned need not be interfered with. 7. Aside the above discussion, it is well settled that inherent powers under Section 482 Cr. P.C. because of their plenitude, are to be exercised rarely, sparingly and with due circumspection. The Court, in view of exercise of powers under Section 482 Cr. P.C., is not expected to hijack the trial proceedings pending before the Court below and assume its role to sift evidence and find out whether trial should proceed. It is only to prevent abuse of process of court and prevent miscarriage of justice that inherent powers are to be exercised. 8. The powers under Section 482 Cr. P.C. should be exercised very sparingly and with circumspection and that too in rarest of rare cases, has been so observed by the Supreme Court in State of Haryana vs Ch. Bhajan Lal, AIR 1992 SC 604 . It would be relevant to reproduce paragraph 109 thereof infra: “We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice.” 9. In Padal Venkata Rama Reddy vs Kovvuri Satyanarayana Reddy, (2011) 12 SCC 437 , the Supreme Court while relying on the case of Ch. Bhajan Lal (supra), has held: “31. In Padal Venkata Rama Reddy vs Kovvuri Satyanarayana Reddy, (2011) 12 SCC 437 , the Supreme Court while relying on the case of Ch. Bhajan Lal (supra), has held: “31. ........When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. The scope of exercise of power under Section 482 and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in detail in Bhajan Lal (supra). The powers possessed by the High Court under Section 482 are very wide and at the same time 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 inherent power should not be exercised to stifle a legitimate prosecution.” 10. The inherent powers cannot naturally be invoked concerning any matter covered by specific provisions of the Code of Criminal Procedure. It is only where the High Court is satisfied either that an order passed under the Code would be rendered ineffective or that the process of any court would be abused or that ends of justice would not be secured, that the High Court can and must exercise its inherent powers under Section 482 of the Code. This power can be invoked only in an event when aggrieved party is being unnecessarily harassed. The power under Section 482 Cr.P.C., is not intended to scuttle justice at threshold but to secure justice. 11. In the present case, perusal of the record on the file divulges that FIR No.46/2015 in question has been lodged with respect to the bungling and embezzlement and finally charge sheet/challan filed before the Trial Court. It is for the Trial Court to sift the evidence, record statement of witnesses to be adduced by both sides and consider the matter on the basis thereof. This Court in exercise of inherent powers as vested in it under Section 482 Cr.P.C. cannot sift the evidence, examine the witnesses and the record and act like Trial Court. It is for the Trial Court to sift the evidence, record statement of witnesses to be adduced by both sides and consider the matter on the basis thereof. This Court in exercise of inherent powers as vested in it under Section 482 Cr.P.C. cannot sift the evidence, examine the witnesses and the record and act like Trial Court. All that has been projected by petitioners in petition on hand can very well be taken by them before the Court below. 12. Based on the above discourse, the case, projected by petitioners to seek quashment of orders impugned, does not satisfy the requirement of Section 482 Cr.P.C., the law on the subject and the case law cited hereinabove. Accordingly, this petition is dismissed with connected application(s). Interim direction, if any, shall stand vacated. However, the petitioners are at liberty to approach the court concerned and may urge the grounds taken in the present petition if so advised. 13. Copy be sent down.