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2021 DIGILAW 375 (JK)

Fareeda Begum v. Union Territory of J&K

2021-07-28

RAJNESH OSWAL

body2021
JUDGMENT : Rajnesh Oswal, J.- CRM(M) No.59/2021 1. The petitioners feeling aggrieved of registration of the FIR bearing No. 08 dated 07.01.2021 registered with Police Station, Mendhar for commission of offences under sections 436, 511, 382, 336, 427, 332 and 353 IPC against them, have filed the instant petition for quashing of the same. 2. The factual aspects as narrated by the petitioners in the present petition are that in the month of February, 2018, one company in the name and style of ‘Hablas-e-commerce’ was started by some persons in Tehsil, Mendhar, Poonch which was being run under the care and control of the local administration/police. The father of the petitioner No. 2 after being attracted by the investment scheme floated by the company, invested all his saving including the savings of his sons and other family members in the said company. The father of petitioner No. 2 made this investment, after availing loan from the J&K Bank and selling the jewelry items of all the family members and the vehicle as well. In this manner, he had deposited an amount of Rs. 91,00,000/- in the said company with the hope to get double the amount within a period of one month. The petitioner No. 2 also invested an amount of Rs. 21 lakhs in the said company and after the lapse of period of one month, the petitioner No. 2 and his father approached the office of the said company but the officials of the said company openly refused to give the amount to them, as the father of petitioner No. 2 needed the money for his heart surgery. The petitioner No. 2 and his father had been given assurance by the company to visit their office after a period of one month. It is further stated that after few days, the officials of the said company along with local police officials approached the petitioners and started harassing and threatening petitioner No. 2 and his deceased father in order to force them to forego their claim regarding their amount. During this period, the father of petitioner No. 2 suffered heart attack and after his treatment, the petitioner No. 2 again approached the police officials and requested them to assist him to get back their hard earned money but the police officials were also involved in the crime. During this period, the father of petitioner No. 2 suffered heart attack and after his treatment, the petitioner No. 2 again approached the police officials and requested them to assist him to get back their hard earned money but the police officials were also involved in the crime. The said company was closed after duping the investors of their hard earned money running in to crores of Rupees. It is further stated that the respondent authorities without any reason in order to harass the petitioners, seized the truck of petitioner No. 2 and the same was released by the court of learned Chief Judicial Magistrate, Poonch. 3. On 01.07.2020, Dy. S.P. Crime Branch, Jammu, Inspector along with other officials of the Crime Branch, Jammu have raided the house of the petitioners and started beating petitioner No. 2 along with his family and also other local people, who came to help the petitioners. The father of the petitioner No. 2 again suffered heart attack on 01.07.2020 and he expired on 08.07.2020. The petitioner No. 2 on 09.07.2020 approached the Police Station, Mendhar in order to lodge FIR against the officials of the said company and the police officials regarding which FIR bearing No. 154/2020 for commission of offences under sections 306 and 109 IPC dated 09.07.2020 was registered. The mother of petitioner No. 2 also approached the Sub Divisional Police Officer, Mendhar (SDPO) with an application to lodge FIR against the officials of the company and the Dy SP Crime Branch as well as Inspector Crime Branch. It is further alleged that the officials of the Crime Branch just to take revenge trespassed into the house of the petitioners in the midnight of 07.01.2021 at about 2.30 AM along with other officials of Crime Branch and Police of Police Station, Mendhar and starting beating the petitioner No. 1with deadly weapons. It is further stated that the petitioner No. 2 was out of station and the petitioner No. 1 was residing along with her children, but the respondents did not care about that and assaulted the petitioner No. 1 and then petitioner No. 1 started crying loudly and the petitioner no. 3 came to help the petitioner No. 1 who was also beaten by the officials and thereafter some local people came to help the petitioners, then the respondents ran away after taking Rs. 60,000/- cash and Gold worth Rs. 3 came to help the petitioner No. 1 who was also beaten by the officials and thereafter some local people came to help the petitioners, then the respondents ran away after taking Rs. 60,000/- cash and Gold worth Rs. 10 lakhs from the house of petitioner No. 1 and petitioner No. 2. Thereafter, the petitioner No. 1 approached the Judicial Magistrate 1st Class(JMIC), Mendhar under section 156(3) Cr.P.C. for lodging FIR against the police officials and the learned JMIC, Mendhar vide order dated 15.01.2021 directed the SHO, Police Station, Mendhar to investigate the matter. 4. The petitioners have impugned the FIR on the ground that the same is false and frivolous and has been lodged to wreak vengeance as a counterblast as the mother of petitioner No. 2 has filed an application before the SDPO, Mendhar for lodging of FIR against the officials of the Crime Branch, Jammu. It is further stated that in the impugned FIR, it has been stated that the police reached Mendhar for execution of the warrant under section 25 of the Police Act issued by the JMIC against the accused Sayeed Khan S/o. Mohd. Khalid R/o Dhaki Bhera Mendhar accused in case FIR No. 70/2019, whereas none of the petitioners are accused in the above said FIR and lastly, it is stated that the FIR is manifestly attended by mala fides and to force the petitioners so that they do not claim any amount from the officials of the company-Hablas-e-commerce. 5. The official respondents have filed the response in which it is stated that the present petition is not maintainable as the petition is based on a concocted story and involves factual disputes and further that the investigation is at very initial stage and the powers under section 482 Cr.P.C. are to be exercised sparingly. It is also stated that the crime committed by the petitioners is crime against law enforcing agency particularly against the society at large. More so the petitioners have not only committed serious offence against the law enforcing agencies but have also committed the criminal contempt of court because the officials of Crime Branch, Jammu and the police party had gone there to execute the warrant of court of law. 6. More so the petitioners have not only committed serious offence against the law enforcing agencies but have also committed the criminal contempt of court because the officials of Crime Branch, Jammu and the police party had gone there to execute the warrant of court of law. 6. Briefly stated, on 07.01.2021, complainant, Irfan Wani of Cime Branch, Jammu reported in the Police Station and produced a letter in the Police Station, Mendhar mentioned therein that in order to execute the warrant under section 25 of the Police Act issued by the learned JMIC (City Judge), Jammu in FIR No. 70/2019 under sections 420 and 120-B RPC registered with Crime Branch, Jammu, when the officials of Crime Branch along with police party headed by Sub Inspector Mohd Khalid of Police Station, Mendhar reached the house of Sayed Khan near Petrol Pump Khaki Mendhar and was asked to open his gate but the accused persons did not do so and gathered his nears and dears through telephone and started crying and shouting for support. He further mentioned that 50/60 unknown persons reached on spot equipped with lathis and stones and they including the accused person Sayeed Khan and his family, attacked the Crime Branch team/officials of the police party and started pelting stones and also damaged the vehicle of the Crime Branch bearing No. JK02AB 4043 and the driver of the vehicle namely Jatinder Singh got injured. He further mentioned that the mob tried to set ablaze the vehicle but same was rescued and during scuffle the purse of HC Mohd Iqbal having Rs. 1100/- and original identity card were snatched by the accused persons. On this, FIR baring No. 08/2021 under sections 436, 511, 382, 336, 427, 332 and 353 IPC was registered and investigation was entrusted to Sub Inspector Maqbool Hussain and during the course of investigation, statements of eye witnesses under section 161 CrPC were recorded. The search of the accused persons was made at different places but they were not found. During the course of further investigation, Investigating Officer raided around vicinity of Mendhar and also raided at Uchhad, Sakhi Maidan and Poonch City but no whereabouts of the accused persons could be ascertained. 7. Mr. The search of the accused persons was made at different places but they were not found. During the course of further investigation, Investigating Officer raided around vicinity of Mendhar and also raided at Uchhad, Sakhi Maidan and Poonch City but no whereabouts of the accused persons could be ascertained. 7. Mr. Muzaffar Iqbal Khan, learned counsel for the petitioner has vehemently argued that the impugned FIR has been lodged just to wreck vengeance as the mother of petitioner No. 2 has already filed an application against the respondents and the officials of Hablas-e-commerce company and further that the Crime Branch officials were harassing the petitioners and the petitioner No. 2 has never figured in the accused figured in the FIR in which the warrants were issued by the JMIC (City Judge) Jammu. 8. Mr. Adarsh Bhagat, learned GA, on the contrary, has argued that the petitioners have scant respect for law and the FIR has been registered pursuant to the report submitted by the official of the Crime Branch, who had no personal enmity against the petitioners and further that the petitioners by way of their conduct have interfered in the judicial process. Mr. Bhagat has also produced the warrant issued by the learned City Judge, Jammu on 14.12.2020. 9. Heard and considered. 10. The main grievance that has been raised by the petitioners is that the said FIR has been lodged in order to wreck vengeance as the mother of petitioner No. 2 has filed a complaint before the SDPO, Mendhar against the officials of the police who were assisting the company-Hablas-e-commerce for its functioning. A perusal of the annexure-5 filed before the JMIC, Mendhar reveals that in the said application none of the officials of the Crime Branch is a party. So far as the annexure-4, the application allegedly filed by the mother of the petitioner No. 2 with the SDPO, Mendhar is concerned, the same is without any receipt or endorsement made by the SDPO concerned and also is not forthcoming as to when the said application was filed. So far as the application filed by the petitioner No. 1 before the JMIC pursuant to which order dated 15.01.2021 was passed, can at the most be considered as a counter version of the occurrence. So far as the application filed by the petitioner No. 1 before the JMIC pursuant to which order dated 15.01.2021 was passed, can at the most be considered as a counter version of the occurrence. It is worthwhile to mention here that the FIR against the petitioners was registered on 07.01.2021 in which details of the occurrence have been mentioned. More so, a perusal of the warrant dated 14.12.2020 issued by the learned City Judge, Jammu reveals that the warrant was issued on the application of the Crime Branch that arrest of the accused persons including the petitioner No. 2 was required for the purpose of investigation and in pursuant to that warrant only, the officials of the Crime Branch visited the residence of the petitioners. The issues raised by the petitioners are disputed questions of fact and also it is not the case of the petitioners that the FIR lacks the ingredients of the offences for which the same has been lodged. Also no FIR has been registered against the respondent No:6 initially, who has lodged FIR impugned. Also F.I.R lodged against the petitioners is earlier to the directions issued by JMIC Mendhar. 11. It is a well settled law that the criminal proceedings can be quashed only on the grounds as narrated by the Hon’ble Apex Court in the case of State of Haryana And Ors vs Ch. Bhajan Lal And Ors., 1992 AIR 604. If the issues raised in the instant case are examined on the touchstone of law laid down by the Hon’ble Apex Court in the State Of Haryana And Ors vs. Ch. Bhajan Lal And Ors (supra), the petitioners have miserably failed to make out any case for invoking the powers under section 482 Cr.P.C. for quashing F.I.R. As such the prayer for quashing of FIR is rejected. 12. Simultaneously along with the present petition for quashing, the petitioners have also filed a bail application seeking bail in anticipation of their arrest on similar grounds and the respondents have also filed the response. As already noted above that the allegations leveled against the petitioners are very serious in nature and petitioners have obstructed the law enforcing agencies to carry out the mandate of law. As already noted above that the allegations leveled against the petitioners are very serious in nature and petitioners have obstructed the law enforcing agencies to carry out the mandate of law. The Crime Branch Officials as well as police officials after getting the warrant from the learned City Judge, Jammu were performing the official duties but the act of the petitioners reveals that they have no respect for law and they have deliberately obstructed the officials from performing their duties and while doing so, they not only attacked them but also made an attempt to torch the vehicle in which they had arrived. Not only this, the Identity Card as well as wallet of one of the officials were also snatched. In considering the bail application in anticipation of arrest, besides the nature and gravity of the offence, the impact of the alleged offence over the society is also required to be seen. The officials were performing their duties so to ensure that the rule of law prevails, but the respondents by their act had prevented them from doing so. If leniency is shown to such type of persons, it will lead to anarchy in the society as no one will respect the rule of law and also it would have demoralizing effect over the law enforcing agencies. No doubt the personal liberty is a paramount consideration but equally important is the interest and welfare of the society. In a democratic set up, the balance has to be maintained between the liberty of a person and interest of the society at large and if it is in the interest of the society to curtail the liberty of a person, the same can be resorted to. 13. In view of all what has been discussed above, the petition for quashing FIR as well as accompanying bail application are dismissed. 14. Registry to place a copy of this judgment in each file.