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2023 DIGILAW 536 (JK)

Rashidul Hassan Gojjer v. Commissioner/Secretary

2023-09-20

RAJNESH OSWAL

body2023
JUDGMENT : 1. The petitioner has questioned the FIR No.25/2012 dated 19th September, 2012, registered by Police Station, Crime Branch, Kashmir, under Section 420, 120-B RPC read with Section 5(2) of Prevention of Corruption Act, on the ground that the Scheduled Tribe certificate issued by the competent authority in favour of the petitioner is genuine and despite the fact that investigation was closed, as the allegations could not be proved, but still the respondents are continuing with the investigation of the case. 2. In the status report filed by the respondents in the month of July, 2022, it is stated that Police Station, Crime Branch, Kashmir, Srinagar, received a written complaint from Zonal Education Officer, Kulgam, stating therein that one Rashid-ul-Hassan Gojjar S/o Gh. Hassan R/o Arigatnoo Tehsil Kulgam was appointed as Teacher through Service Selection Board under ST category. He had submitted his joining report on 07.11.2007 in the office of Zonal Education Officer, Kulgam, and presented the requisite certificates/documents including Scheduled Tribe Certificate, Permanent Resident Certificate and Date of Birth certificate. On examining the certificates, it was found that the caste of the appointee in DOB certificate is reflected as ‘Wagay’ which contradicts with the caste of ‘Gojer’ reflected in PRC and ST certificate. A preliminary verification was conducted in the matter and it was revealed that the actual caste of the appointee was ‘Wagay’ and he in league with the revenue officials managed to change his caste from ‘Wagay’ to ‘Gojer’ and finally FIR No.25/2012 under Section 420, 120-B RPC read with Section 5(2) of PC Act was registered in Police Station, Crime Branch, Kashmir. During investigation, the statement of Shri Tariq Ahmad Reshi, the then Tehsildar Kulgam was recorded, who stated that during his posting as Tehsildar Kulgam, he received a complaint from Hon’ble Chief Ministers Grievance Cell against the petitioner and, accordingly, enquiry was initiated. During enquiry, the statements of concerned Patwari, Chowkidar and Numberdar of the village were recorded. The said witness further stated that he perused the relevant record/documents relating to issuance of ST certificate in favour of the petitioner. Since the office of Tehsildar, Kulgam was destroyed in a fire incident in February, 2013, so no official record was available in Tehsil Office, Kulgam. He further conducted enquiry into the matter and arrived at the conclusion that a mutation has been wrongly incorporated in Jamabandi and Girdawari of the concerned Halqa. Since the office of Tehsildar, Kulgam was destroyed in a fire incident in February, 2013, so no official record was available in Tehsil Office, Kulgam. He further conducted enquiry into the matter and arrived at the conclusion that a mutation has been wrongly incorporated in Jamabandi and Girdawari of the concerned Halqa. During further investigation, the order dated 24th April, 2012 passed by the accused Tehsildar Mohammad Amin Dar was brought on record and it revealed that the then Tehsildar Settlement, Kulgam, had directed the Patwari concerned to incorporate mutation No.391/1 in Misilisalan of Village Arigatnoo but mutation No.391/1 was non-existent and the Tehsildar misused his official position and directed Patwari concerned to enter a non-existent mutation into revenue record in order to shower undue benefit upon the beneficiary. During further investigation, it was revealed that the ST certificate has been issued on the basis of fake and forged mutation No.391/1 attested by Mohammad Amin Dar, the then Naib Tehsildar. The complicity of the petitioner Rashid-ul-Hassan Gojjar, Ab. Rashid Zargar, Gh. Mohammad Bahroo and Mohammad Amin Dar was established in the preparation of Scheduled Tribe Certificate on the basis of fake revenue record. It is also stated that the mutation No.391/1 dated nil attested by Naib Tehsildar concerned with respect to change of caste from Sheer Gojer to Gojer has been set aside. 3. Learned counsel for the petitioner has submitted that the Investigating Officers earlier had closed investigation of the FIR as untraced in absence of evidence but without any justification, the respondents are continuing with the investigation. He further submitted that PW Ghulam Nabi Bhat, Numberdar has categorically stated that when the conversion of caste took place, the petitioner was minor. Learned counsel has placed reliance on the following judgments of the Hon’ble Supreme Court: (I) Babubhai v. State of Gujarat, (2010) 12 SCC 254 (II) T.T. Antony v. State of Kerala, (2001) 6 SCC 181 (III) Pandurang Chandrakant Mhatre v. State of Maharashtra, (2009) 10 SCC 773 4. Mr. Mohsin Qadiri, learned Sr. AAG, vehemently argued that the caste of the petitioner has been reflected as Gojjar in ST certificate whereas the caste of the petitioner was Sheergojri and on the basis of fake mutation, caste of the petitioner was changed in the revenue records. Mr. Mr. Mohsin Qadiri, learned Sr. AAG, vehemently argued that the caste of the petitioner has been reflected as Gojjar in ST certificate whereas the caste of the petitioner was Sheergojri and on the basis of fake mutation, caste of the petitioner was changed in the revenue records. Mr. Qadiri further submitted that investigation stands completed and that he has filed an application seeking permission to file charge sheet before the court of competent jurisdiction. 5. Heard and perused the record including the Case Diary. 6. While perusing the case diary it emerged that the petitioner had earlier also filed the petition bearing 561-A No. 216 of 2012 for quashing the same FIR bearing No. 25/2012 dated 19.09.2012, which has been impugned by the petitioner in this petition. In the said petition also, the similar plea was taken by the petitioner that ST certificate issued in his favour was genuine. The said petition was dismissed by this court vide order dated 02.11.2012 with following observations: A. It is for the Investigating Agency to deal with such documents, if they are brought to its notice during the investigation of the case. B. It is for the petitioner to prove the documents before the competent court of jurisdiction in the vent challan is filed against him. They may be one of the grounds of the defense for him during the trial of the case. On these grounds FIR cannot be quashed. 7. The petitioner has nowhere disclosed in the present petition that earlier also, he had filed the petition for quashing the same FIR, which was dismissed by the court. This is a clear concealment of the fact by the petitioner and on this ground only the petition deserves to be dismissed. 8. Be that as it may, still this court would still examine the contentions raised by the petitioner. The first contention raised by the petitioner is that the Investigating Officers had earlier recommended the closure of the case but without any rhyme and reason, the investigation is still being continued by the respondents. It is not the case projected by the petitioner that the closure report was filed and accepted by the Magistrate. The first contention raised by the petitioner is that the Investigating Officers had earlier recommended the closure of the case but without any rhyme and reason, the investigation is still being continued by the respondents. It is not the case projected by the petitioner that the closure report was filed and accepted by the Magistrate. Rather, the perusal of the record reveals that the Inspector General of Police, Crime Branch, J&K, Srinagar, vide his communication dated 14th October, 2015 directed the Senior Superintendent of Police, Crime Branch, Kashmir, to conduct further investigation after observing that the revenue authorities have fraudulently converted the ‘Sheer Gojer’ caste of the petitioner to ‘Gojjer’ and thereafter issued a certificate in favour of the petitioner. The observations and the findings of the Investigating Officers were never accepted by the IGP, Crime Branch, who otherwise, has to record his satisfaction that the challan is fit to be filed or not. IGP, Crime Branch, J&K, Srinagar, has furnished the reasons for disagreeing with the findings of the Investigating Officers. The petitioner cannot derive any benefit from the recommendations of Investigating Officers during the course of investigation, particularly when the said findings/observations were not approved by the competent authority i.e. IGP. As such, this Court does not find any reason to accept the contention of the petitioner that the respondents are continuing with the investigation without any justification. The judgment relied upon by the learned counsel for the petitioner in T.T Antony’s case pertains to the registration of second FIR and as such the same is not applicable in the present case. 9. The second contention raised by the petitioner is that the certificate of the petitioner was genuine and not forged. The ST certificate of the petitioner, no doubt, has been issued by the competent authority but the same has been issued on the basis of fake/false document i.e. mutation No.391/1, whereby the caste was changed from Sheer Gojer to Gojer, which was never in existence. In view of this fact and also that earlier also the petitioner had raised the similar plea but was rejected by the court as mentioned above, there is no force in the contention of the petitioner that because his ST certificate is not forged, the same is required to be considered as a valid certificate. 10. In view of this fact and also that earlier also the petitioner had raised the similar plea but was rejected by the court as mentioned above, there is no force in the contention of the petitioner that because his ST certificate is not forged, the same is required to be considered as a valid certificate. 10. The last contention raised by the petitioner is that as per the statement of the Numberdar, when there was change of caste, the petitioner was a minor. This Court, while examining the validity of the FIR, cannot appreciate the statements of the witnesses recorded during investigation. In the instant case, a bare perusal of the impugned FIR reveals that cognizable offences are made out. Besides this, in the instant case, disputed questions of facts are involved which can’t be decided while deciding the petition under section 561-A (482) of the Cr. P. C. Reliance in this regard is placed upon the decision of the Hon’ble Apex Court in the case of Rajeev Kourav v. Baisahab, (2020) 3 SCC 317 , wherein it has been held as under: 8. It is no more res integra that exercise of power under Section 482 CrPC to quash a criminal proceeding is only when an allegation made in the FIR or the charge-sheet constitutes the ingredients of the offence/offences alleged. Interference by the High Court under Section 482 CrPC is to prevent the abuse of process of any court or otherwise to secure the ends of justice. It is settled law that the evidence produced by the accused in his defence cannot be looked into by the court, except in very exceptional circumstances, at the initial stage of the criminal proceedings. It is trite law that the High Court cannot embark upon the appreciation of evidence while considering the petition filed under Section 482 CrPC for quashing criminal proceedings. It is clear from the law laid down by this Court that if a prima facie case is made out disclosing the ingredients of the offence alleged against the accused, the Court cannot quash a criminal proceeding. 11. Moreover, the High Court was aware that one of the witnesses mentioned that the deceased informed him about the harassment meted out by Respondents 1 to 3 which she was not able to bear and hence wanted to commit suicide. 11. Moreover, the High Court was aware that one of the witnesses mentioned that the deceased informed him about the harassment meted out by Respondents 1 to 3 which she was not able to bear and hence wanted to commit suicide. The High Court committed an error in quashing criminal proceedings by assessing the statements under Section 161 CrPC. (emphasis added) 11. In view of above facts and more particularly taking into consideration the fact that the investigation in the impugned FIR is complete, this Court does not find any reason to show indulgence in the matter. The other judgments relied upon by learned counsel for the petitioner are not applicable in the present facts and circumstances of the case. 12. Though this is a fit case, which deserves to be dismissed with exemplary costs, as the petitioner has concealed the material fact of filing and dismissal of earlier petition for same relief but taking lenient view of the matter, the petition is dismissed without costs. The Case Diary be returned to the learned counsel for the respondents.