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2023 DIGILAW 470 (UTT)

Naeem Ahmad v. State of Uttarakhand

2023-08-16

RAVINDRA MAITHANI

body2023
JUDGMENT : By means of instant writ petition, the petitioner seeks quashing of the FIR No. 38 of 2023, dated 16.01.2023, under Sections 420, 467, 468, 471 IPC, Police Station Jaspur, District Udham Singh Nagar. 2. Heard learned counsel for the parties and perused the record. 3. According to the FIR, the respondent no.3, the informant had given an application for inquiry of the caste certificate of the petitioner. The District Magistrate constituted a District Level Scrutiny Committee, which revealed that, in fact, the petitioner had forged the documents, so as to procure the residential certificate. 4. Learned counsel for the petitioner would submit that earlier also, the informant had given an application for lodging of FIR on the same grounds against the petitioner. On that application, the then District Magistrate, Udham Singh Nagar conducted an inquiry and by an order dated 26.06.2018, directed that the first information report may be lodged against the petitioner. Based on the direction dated 26.06.2018 of the District Magistrate, Udham Singh Nagar, FIR No. 177 of 2018, under Sections 420, 467, 468, 471 IPC was registered at Police Station Jaspur, District Udham Singh Nagar, against the petitioner on the same grounds. Meanwhile, the order dated 26.06.2018, passed by the District Magistrate, Udham Singh Nagar was challenged by the petitioner in Writ Petition (M/S) No. 2030 of 2018, Naeem Ahmad Vs. State of Uttarakhand and others (“the first petition”). The first petition was decided on 07.06.2022. It was allowed. The Court observed as hereunder:- “On this short premise only, the writ petition is allowed. The impugned orders dated 26.06.2018, passed by the District Magistrate, and the order dated 06.07.2018, passed by respondent Nos. 3 & 4, and the consequential order passed thereof cancelling the caste and domicile certificates, would stand quashed. The writ petition would stand allowed. But, allowing of the writ petition would be without prejudice to the rights of the respondent no.2, that in case if at all he entails to take an action on the complaint submitted by respondent No.5, he would first notice the petitioner, supply him a copy of the complaint in order to enable him to submit his reply, its veracity and then after hearing the petitioner if any decision is required to be taken, he may do so only after providing opportunity of hearing to the petitioner. Subject to the aforesaid, the writ petition stands allowed.” 5. Subject to the aforesaid, the writ petition stands allowed.” 5. It is further the case of the petitioner that thereafter, the petitioner challenged the FIR No. 177 of 2018, lodged at Police Station Jaspur, District Udham Singh Nagar by the informant against the petitioner in Writ Petition (Criminal) No. 1391 of 2018, Naeem Ahmad Vs. State of Uttarakhand and others (“the second petition”). In view of the order dated 07.06.2022, passed in the first petition, the second petition was allowed on 01.12.2022, but while doing so, the Court had granted liberty to the department to take such legal action against the petitioner, as is permissible under the law, if there are new facts. 6. According to the State, after order dated 01.12.2022, passed in the second petition, an inquiry was conducted and thereafter, FIR in the instant case has been lodged, which is as per law. 7. Learned counsel for the petitioner would submit that in the second petition, this Court had granted liberty to the department observing “however, based on new facts, the department is at liberty to take such legal action against the petitioner, as is permissible under the law.” It is argued that the second FIR has not been lodged by the department, instead it has been lodged by the informant, which is not as per law. 8. On the other hand, learned State counsel would submit that the order dated 26.06.2018 was quashed by this Court in the first petition. Thereafter, the department conducted an inquiry, of which notice was given to the petitioner and that Scrutiny Committee on 30.11.2022 concluded that the petitioner had prepared forged documents. Thereafter, FIR in the instant case has been lodged. Based on this report, the informant had lodged the report. 9. Learned State counsel would submit that there is nothing wrong with the FIR. It is as per direction of this Court. Learned State counsel would also submit that after the inquiry, the informant had no other option except to lodge the report which he did. Therefore, no interference is warranted. 10. A larger question may perhaps not require deliberation in this petition. The larger question is as to whether a person may lodge a report of cognizable offence? Learned State counsel would also submit that after the inquiry, the informant had no other option except to lodge the report which he did. Therefore, no interference is warranted. 10. A larger question may perhaps not require deliberation in this petition. The larger question is as to whether a person may lodge a report of cognizable offence? Unless the Code of Criminal Procedure, 1973 (“the Code”) bars or makes specific provision, commission of cognizable offence may be reported by any person to the Police, based on which, FIR under Section 154 of the Code may be lodged and investigation proceeds. 11. But, instant case is slightly different. Initially, it is the informant, who had given a report against the petitioner to the District Magistrate, Udham Singh Nagar. The District Magistrate, Udham Singh Nagar on that report given by the informant, had conducted inquiry and post conducting an inquiry, he directed for lodging of the FIR on 26.06.2018. This order dated 26.06.2018 was challenged by the petitioner in the first petition, which was allowed on 07.06.2022. 12. Be it noted that in the first petition, the Court has mainly considered the fact that the petitioner was not heard in the inquiry, based on which directions were given by the District Magistrate, Udham Singh Nagar on 26.06.2018 for lodging of the FIR. Therefore, the Court in the first petition, on 07.06.2022 had directed that the District Magistrate, if intends to take any action on the complaint filed by the informant, he would first notice the petitioner and supply him the copy of the complaint, so as to enable him to file his reply and thereafter, after hearing the petitioner, if any decision is to be taken, another opportunity of hearing would be provided to the petitioner. This order dated 07.06.2022 has already been quoted hereinabove. 13. The order dated 07.06.2022 passed in the first petition, makes it explicitly clear that liberty was given to the District Magistrate, Udham Singh Nagar to whom the informant had given a complaint. The liberty was given in the following manner:- (i) If the District Magistrate, Udham Singh Nagar intends to take any action on the complaint filed by the informant, he would issue notice to the petitioner, so as to enable him to file his reply. (ii) Thereafter, the District Magistrate, Udham Singh Nagar shall proceed to hear the petitioner. The liberty was given in the following manner:- (i) If the District Magistrate, Udham Singh Nagar intends to take any action on the complaint filed by the informant, he would issue notice to the petitioner, so as to enable him to file his reply. (ii) Thereafter, the District Magistrate, Udham Singh Nagar shall proceed to hear the petitioner. (iii) After hearing the petitioner, if the District Magistrate, Udham Singh Nagar decides to take any action, it can only be done after affording an opportunity of hearing to the petitioner. 14. The informant may not be permitted to nullify the order dated 07.06.2022 passed in the first petition. Now, this argument cannot be entertained that if FIR discloses cognizable offence, it has to be lodged and the right of the informant could not be closed by this Court by way of passing order dated 07.06.2022 in the first petition. 15. On the complaint of the informant, an action was taken by the District Magistrate, Udham Singh Nagar on 26.06.2018 for lodging of the FIR. As stated, that order had already been quashed. Based on that order 26.06.2018, an FIR had been lodged, which has subsequently been quashed in the second petition by an order dated 01.12.2022, keeping in view the order passed in the first petition. 16. The District Magistrate, Udham Singh Nagar was granted liberty to proceed in the matter, in a particular manner by this Court on 07.06.2022, while disposing of the first petition. The action could have been taken in that manner and not in any other manner. 17. The District Magistrate, Udham Singh Nagar did conduct an inquiry. The Scrutiny Committee has submitted its report, which is on record, which admits that forgery was committed by the petitioner. As per order dated 07.06.2022 passed in the first petition, if the District Magistrate wanted to take any action it was incumbent upon him to afford another opportunity of hearing to the petitioner and thereafter, take an action, as he deems fit. This has not been done. Therefore, this Court is of the view that if instant FIR, at the instance of the petitioner is permitted to continue, it would be in defiance to the direction this Court passed in the first petition on 07.06.2022. It is admitted that, in fact, in the first petition, the informant was party. This has not been done. Therefore, this Court is of the view that if instant FIR, at the instance of the petitioner is permitted to continue, it would be in defiance to the direction this Court passed in the first petition on 07.06.2022. It is admitted that, in fact, in the first petition, the informant was party. He was aware as to what directions have been given by the Court in the first petition. Accordingly, this Court is of the view that instant FIR deserves to be quashed. Accordingly, the petition deserves to be allowed. 18. The writ petition is allowed. 19. The impugned FIR is quashed. 20. However, the Court still keeps it open to the District Magistrate, Udham Singh Nagar to follow the directions dated 07.06.2022 passed in the first petition if he intends to take any action in the matter.