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2021 DIGILAW 467 (JK)

Parwez Sumuel Koul v. Union Territory of J & K

2021-09-09

JAVED IQBAL WANI

body2021
ORDER : Writ petition bearing WP(C) 803/2020 came to be directed to be listed along with WP(C) 901/2020, in terms of order dated 10.06.2020 passed by this Court in the said petition. These writ petitions raise common issues for consideration, therefore, both are being disposed of by this common order at this stage with the consent of the appearing counsel for the parties WP(C) No. 803/2020 1. In this petition the petitioners on the foundation of the case set up, implores for the following reliefs:- (a) An appropriate writ, order of direction in the nature of writ of certiorari quashing order issued by respondent No. 2 under endorsement no. Div.Com./Dev/41/2020/118 dated 06.03.2020 whereby cognizance of highly motivated, vexatious and baseless complaints filed by the respondents 4 and 5 against the petitioners has been taken and respondent no. 3 has been appointed as Enquiry Officer, being totally illegal, arbitrary and contrary to the provisions of law. (b) An appropriate writ, order or direction in the nature of writ of mandamus commanding the respondents to dismiss/reject the complaints filed by respondents 4 and 5 against the petitioners being outcome of wreck vengeance and bias entertained by respondents 4 and 5 against the petitioners who are hell bent upon to harass, victimize and blackmail the petitioners under the garb of the similar complaints being filed by them before different authorities. (c) An appropriate writ, order or direction in the nature of writ of prohibition restraining the respondents from harassing and victimizing the petitioners on the basis of the highly motivated and baseless complaints filed by the respondents 4 and 5. 2. The facts set up in the petition on the basis of which the aforesaid reliefs are being prayed by the petitioners reveal that the Tyndale Biscoe and Mallinson Society (for short the Society) registered under the provisions of Societies Registration Act, 1960 are running various prestigious educational institutions in Kashmir valley. The Society is stated to be under the control of “Diocese of Amritsar, Church of North India”. Petitioner No. 1 is stated to be the Principle of Tyndale Biscoe School and petitioner No. 2 is stated to be his wife. Petitioner No. 3 is stated to be the Administrator of the Tyndale Biscoe and Mallinson Society, Srinagar. 3. The Society is stated to be under the control of “Diocese of Amritsar, Church of North India”. Petitioner No. 1 is stated to be the Principle of Tyndale Biscoe School and petitioner No. 2 is stated to be his wife. Petitioner No. 3 is stated to be the Administrator of the Tyndale Biscoe and Mallinson Society, Srinagar. 3. The respondent No. 4 is stated to be an ex-employee of Tyndale Biscoe, School having resigned in February, 2018 and after leaving the school is stated to have started harassing, victimizing and blackmailing the petitioners by filing vexatious and baseless complaints against them before the different authorities. 4. A baseless, concocted and vexatious criminal complaint is stated to have been filed by the respondents 4 and 5 herein against the petitioners before the Court of Chief Judicial Magistrate, Srinagar on 12.12.2018, seeking a direction to the crime branch for an in-depth investigation into the allegations leveled in the said criminal complaint. The said complaint is stated to have been forwarded on 12.12.2018, itself by the Court of Chief Judicial Magistrate, Srinagar to SHO Police Station, Crime Branch, Kashmir for necessary action, notwithstanding the fact that the Crime Branch had no jurisdiction to direct investigation into such complaint. Initially a compliance report is stated to have been filed by the Senior Superintendent of Police, Crime Branch, Kashmir on 28.12.2018, in respect of the said complaint before CJM, Srinagar and subsequently, a second status report is stated to have been filed on 04.06.2019, indicating therein that the statements of the petitioners as also few other persons were recorded and during the course of enquiry the petitioners are stated to have provided documentary proof against the allegations leveled in the complaint. The learned Court of CJM, Srinagar on 14.10.2019, is stated to have dismissed the said compliant by consigning the same to records after noticing that none appeared for the complainants-respondents 4 and 5 herein and that the enquiry into the matter is going on and observed that in case offences are made out against the petitioners, criminal proceeding be initiated against them. 5. A similar complaint is stated to have been filed after consigning to records of the earlier complaint by respondents 4 and 5 again before the Court of Chief Judicial Magistrate, Srinagar leveling similar kind of allegations therein as were leveled in earlier complaint. 5. A similar complaint is stated to have been filed after consigning to records of the earlier complaint by respondents 4 and 5 again before the Court of Chief Judicial Magistrate, Srinagar leveling similar kind of allegations therein as were leveled in earlier complaint. The said complaint is stated to have been entertained by the Court of CJM, Srinagar as well directing respondent No. 3 to report in the light of application vide order dated 28.12.2019. 6. The Crime Branch, Srinagar on 30.12.2019 is stated to have filed a detailed status report before CJM, Srinagar indicating therein that the enquiry against the petitioners is at its final stage and that the complainants-respondents 4 and 5 herein have been requested to attend the Crime Branch as most of the allegations are not proving and that the final decision will be taken after the complainants attend the Crime Branch. 7. The complainants-respondents 4 and 5 herein are stated to have filed another compliant in the month of January, 2020 before the Inspector General of Police, Crimes, Kashmir leveling the same allegations as had been leveled in the complaint filed before the Court of CJM, Srinagar that too without waiting for the outcome of the enquiry/investigation being conducted by the Crime Branch. The said complaint is stated to have been forwarded by the Inspector General of Police, Crime Branch to the investigating officer. 8. The complainants-respondent 4 and 5 herein are stated to have filed another complaint with same set of allegations against the petitioners before the Director, Industries and Commerce, Department, Kashmir (Registrar of Societies) on 31.12.2019 as well. 9. It is being stated that the complaints filed by the respondents 4 and 5 herein before the Court of CJM, as also before the different authorities demonstrate that the respondents 4 and 5 herein intended to subject the petitioners to blackmailing, though no offence whatsoever have had been committed by the petitioners herein if going by the allegations leveled in the complaints. 10. A petition under Section 482 Cr.P.C being CRM (M) 28/2020, is stated to have been filed by the petitioners before this Court, challenging the maintainability of the complaints filed by the respondents 4 and 5 herein before CJM, together with the proceedings initiated thereupon by the Crime Branch. 10. A petition under Section 482 Cr.P.C being CRM (M) 28/2020, is stated to have been filed by the petitioners before this Court, challenging the maintainability of the complaints filed by the respondents 4 and 5 herein before CJM, together with the proceedings initiated thereupon by the Crime Branch. The investigation in the said complaint is stated to have been stayed by this Court while considering the said petition on 19.02.2020. 11. The respondents 4 and 5 herein are stated to have filed two similar complaints again with similar set of allegations against the petitioners before respondent No.2-Divisional Commissioner, Kashmir, after coming to know about the order passed by this Court on 19.02.2020 in CRM No. 28/2020. The respondent No. 2 is stated to have entertained the said complaint and passed an order dated 06.03.2020, where under respondent No. 3 is stated to have been appointed as an Enquiry Officer to conduct an in-depth enquiry within 10 days. The said order dated 06.03.2020 is impugned in the instant writ petition and is being challenged inter alia on the grounds that the same is illegal, arbitrary and contrary to the provisions of law, inasmuch as, that the said order has been issued without any power and authority by respondent No. 2. The impugned order is also contended to have been passed by respondent No. 2 in breach of Circular No. 2-GAD (Vig) of 2014 dated 31.07.2014. The impugned order also is contended to have been passed by respondent No. 2, at the back of the petitioners condemning them unheard in the matter. The impugned order is also contended to be bad in law, insofar as, it directed respondent No 3 to hold an enquiry into the matter, as the respondent No. 3 is stated to be working as Joint Director in the Education, Department and thus, not subject to the jurisdiction of respondent No. 2. It is further urged in the grounds that the complaint filed by respondents 4 and 5 herein before the respondent No. 2 could not have been maintained or entertained on account of the pendency of CrLM No. 28/2020 before this Court. 12. The claim of respondent No. 4 to be as a member of All Saint Church, Srinagar is being denied by the petitioners in the petition supported by a certificate issued by Priest In-charge of All Saint Church, Srinagar. 13. 12. The claim of respondent No. 4 to be as a member of All Saint Church, Srinagar is being denied by the petitioners in the petition supported by a certificate issued by Priest In-charge of All Saint Church, Srinagar. 13. The impugned order dated 6.03.2020 is thus, prayed to be quashed, besides seeking a writ of mandamus against respondent No. 2 for dismissing the complaint filed by respondents 4 and 5. 14. Respondents 1 to 3 have not filed any reply despite availing opportunities, whereas, complainants-respondents 4 and 5 have filed objections in opposition to the petition, wherein it is being contended that petitioner No. 1 took over as Principal of Tyndale Biscoe School and the Mallinson Girls School and indulged in malpractice, gross administrative irregularities, indiscipline, misappropriations and embezzlement of the funds of both the Schools. The answering respondents admit to have filed the complaints before the Court of Chief Judicial Magistrate, Srinagar against the petitioners. The petitioners are alleged to have purchased number of properties in their individual names and withdraw the salaries fictitiously. Motor cars are alleged to have been purchased by the petitioners in their individual names by committing fraud out of the funds of the schools. Insurance claims are also alleged to have been received by the petitioners from the insurance companies as reimbursement in a deceitful and fraudulent manner qua the school properties. Petitioner No. 3 is stated to have been appointed as Administrator of the Schools illegally, violating the byelaws, rules and regulations and the provisions of Constitution of Diocese of Amritsar, Church of North India. Landed property at Baramulla is alleged to have been purchased by the petitioners in their names from the funds of the school society and a construction is also alleged to have been raised thereupon illegally Parallel rules as against the Constitution of the Society without any approval is also alleged to have been prepared and published by the petitioners. The petitioners also are alleged to have described themselves as patron, Chairman, Founding Members of the Society contrary and in violation of the byelaws of the society. A fresh certificate of registration is alleged to have been applied for before the Registrar of the Societies under the Societies Registration Act by the petitioners. False and wrong information is also stated to have been provided in the balance sheets of the Society under the signatures of petitioner No. 3. A fresh certificate of registration is alleged to have been applied for before the Registrar of the Societies under the Societies Registration Act by the petitioners. False and wrong information is also stated to have been provided in the balance sheets of the Society under the signatures of petitioner No. 3. It is also stated in the objections that the complaint filed before the respondent No. 2 by the respondents. 4 and 5 has been filed validly, legally and that there is no infirmity in the impugned order passed by respondent No. 2, thereupon whereby respondent No. 3 has been directed to hold an enquiry into the matter. While the answering respondents in the objections have admitted the filing of complaints before the Court of Chief Judicial Magistrate, Srinagar, yet no response is submitted about the fate of the said complaints, in particular the contention raised by the petitioners in the petition in this regard that the Crime Branch while submitting one of its reports before the Chief Judicial Magistrate, Srinagar wherein, it had been said that most of the allegations are not proving. 14. To sum up in the objections the filing of complaints before respondent No. 2 is being justified by the respondents 4 and 5 to be valid and legal, so is also the impugned order passed by respondent No.2 defended by respondents 4 and 5, contending the same to have been passed validly and legally. 15. The answering respondents thus, seek dismissal of the instant petition. WP(C) 901/2020 1. Through the medium of the instant petition, petitioners seek the following reliefs:- “(a) An appropriate writ, order of direction in the nature of writ of certiorari quashing the proceeding initiated by respondents’ 2 to 4 against the petitioners pursuant to highly motivated, vexatious and baseless complaints filed by the respondents 5 and 6 being totally illegal, arbitrary and contrary to the provisions of law. (b) An appropriate writ, order or direction in the nature of writ of mandamus commanding the respondents 2 to 4 to dismiss/reject the complaints filed by respondents 5 and 6 against the petitioners being outcome of wreck vengeance and bias entertained by respondents 5 and 6 against the petitioners who are hell bent upon to harass, victimize and blackmail the petitioners under the grab of the similar complaints being filed by them before different authorities. (c) An appropriate writ, order or direction in the nature of writ of prohibition restraining the respondents from restraining the respondents from harassing and victimizing the petitioners on the basis of the highly motivated and baseless complaints filed by the respondents 5 and 6.” 2. The background facts on the basis of which the aforesaid reliefs are being prayed for would reveal that the respondents 5 and 6 herein had filed complaints before respondents 2 and 4 similar to the complaints filed by the said respondents before the Court of Chief Judicial Magistrate, Srinagar and respondent No.2-Divisional Commissioner, Kashmir (in WP(C) 803/2020). The said complaints are stated to have been filed by the respondents 5 and 6 against the petitioners whereupon respondent No. 2-Director, Industries & Commerce Department, Srinagar, Kashmir is stated to have sought information from the Chairman Bishop of the Diocese of Amritsar vide communication dated 07.01.2020. The complaints filed before respondent No. 4-Assistant Commissioner, Nazool, Srinagar is stated to have been forwarded to the lease section for processing the file and for issuance of summons. The said complaints are stated to have been filed despite the fact that the allegations leveled in the complaints had been the same and similar to the allegations leveled in the complaint filed before the Chief Judicial Magistrate, Srinagar, wherein an enquiry/investigation had been undertaken and status reports filed before the said Court, providing that the final decision would be taken by the Crime Branch after the complainants attend the Crime Branch and that till final stage most of the allegations have not been found to be proved. The said complaints are stated to have been filed by the respondents 5 and 6 concealing the fact that the complainants had earlier filed complaints before the CJM, Srinagar being under enquiry by the Crime Branch. The complainants in this view of the matter, are stated to have while filing the complaints in question made the official respondents to undertake an exercise in disregard to the law inasmuch as, to enquire into the said motivated complaints and the official respondents are stated to have also initiated proceedings thereupon the said complaints without in the first instance disclosing the source and nature of power under which the complaints have been entertained and proceedings initiated thereupon and in the process have committed illegality and violated the rights of the petitioners. 3. 3. Official respondents have not filed any reply in opposition to the writ petition. However, complainants-respondents 5 and 6 herein have filed almost same and similar reply in sum and substance the said respondents have filed in opposiytion to WP(C) 803/2020. Heard learned counsel for the parties and perused the record. 4. The moot point involved in both the petitions which begs consideration of this Court would be as to whether respondent No. 2-Divisional Commissioner, Kashmir (in WP(C) 803/2020), is possessed of any power, competence, jurisdiction and authority in admitting and entertaining the complaint filed by the respondents 5 and 6 against the petitioners for having committed the alleged acts of omissions and commissions including embezzlement, fraud, corrupt practices viz-a-viz the educational institutions, namely, Tyndale Biscoe School and Mallinson Girls School and in the process could have passed the impugned order dated 06.03.2020 and further as to whether respondents 2 and 4 (in WP(C) 901/2020), could have entertained similar complaints as had been filed by the respondents 5 and 6 for alleged acts of embezzlement, fraud and corrupt practices against the petitioners before the CJM, Srinagar having been entrusted to Crime Branch for enquiry/investigation and also the said respondents also have entertained the said complaints and initiated proceedings thereupon. 5. Perusal of the record tends to show that the educational institutions which the petitioners are running, operating and regulated under Jammu and Kashmir Education Act 2002 (for brevity the Act of 2002) and are being run under the umbrella of the Society supra. 6. Admittedly, the complainants-respondents 4 and 5 (in WP(C) 803/2020) have leveled allegations against the petitioners for having resorted to corrupt practices qua the society and its properties and the educational institutions established there under. The matter in relation to the said allegations of alleged corrupt practices has been taken cognizance of by the Court of Chief Judicial Magistrate, Srinagar and an enquiry thereof undertaken thereto pursuant of its direction by the Crime Branch, which however, is subject matter of petition before this Court being CRM(M) 28/2020, wherein though a stay order has been passed by this Court on 19.02.2020, yet the said stay order cannot per se be said to have decided the fate of the complaints and proceedings initiated thereupon. The stay order has merely eclipsed the complaints and the proceedings initiated thereupon. The stay order has merely eclipsed the complaints and the proceedings initiated thereupon. In presence of the said complaints and proceedings initiated thereupon, there was no occasion in law for the complainants-Respondents 4 and 5 to file a complaint one after another on the same set of allegations before respondent No. 2 ( in WP(C) 803/2020) and respondents 2 and 4 (in WP(C) 901/2020). The said respondents under the name of the Act of 1998 or the Act of 2002 are no entities or authorities to undertake an enquiry into the corrupt practices alleged to have been taken recourse to by the petitioners. The respondent No. 2-Divisional Commissioners, Kashmir ( in WP(C) 803/2020) as also the respondent No. 2-Director, Industries & Commerce Department, Srinagar and respondent No. 4- Assistant Commissioner, Nazool, Srinagar [in WP(C) 901/2020] thus, have acted without any competence and jurisdiction in the matter. 7. Having regard to what has been observed, considered and analyzed hereinabove, the writ petitions succeed and impugned order bearing No. Div.Com./Dev/41/2020/118 dated 06.03.2020 passed by Divisional Commissioner, Kashmir challenged in WP(C) No 803/2020 is set aside. The complaints filed by the complainants-respondents 4 and 5 and also proceedings initiated thereupon by the official respondents are legally not sustainable and are thus, quashed. 8. It is, however, made clear that the quashment of the above complaints and proceedings initiated thereupon by the official respondents shall not be construed to be expression of any opinion about the veracity or otherwise of the allegations leveled in the complaints against the petitioners. 9. Registry to place a copy of this order on the file of WP(C) 901/2020.