Jammu & Kashmir High Court
State vs Chairman Airport Authority Of India ... on 10 May, 2012
Author: Mohammad Yaqoob Mir
Bench: Mohammad Yaqoob Mir
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. Cr Rev No. 52 OF 2011 AND 561-A No. 155 OF 2011 1.State 2.Davinder Kumar Petitioners Sanjeev Kumar Sharma & Ors Respondent !Mr. P.N. Raina, Sr.adv.with Mr. J.A.Hamal,adv. and Mr. B.S.Salathia Sr. adv. for petitioner. ^Mr. M.L.Gupta, Adv. for respondents Honble Mr. Justice Mohammad Yaqoob Mir, Judge Date: 10.05.2012 :J U D G M E N T :
1. Aggrieved by the order dated 28.5.2011 passed by the court of learned Sessions Judge, Jammu, State through C.B.I has filed the criminal revision petition where as the complainant Davinder Kumar uncle of the deceased has filed petition 561-A Cr.P.C, both seek reversal of the same. Deceased Romika Sharma was married to respondent no. 1 Sanjeev Kumar. Said Sanjeev Kumar got appointed in M/s Rainbow Camera E-Pvt. Ltd Satungal Kathmandu (Nepal) where he was provided accommodation in the 2nd floor of the building nearby the factory. After marriage both went to Kathmandu on 14.2.2003. Said Romika was seen lying in an injured condition by security guard and other employees of the factory. She was shifted to B&B Hospital Kathmandu, where she was declared as brought dead. Her husband respondent no. 1 lodged the report with District Police Officer Lalitpur Kathmandu and also informed his mother-in-law about the incident. Mother of the deceased while reaching to Kathmandu noticing the death of Romika suspicious, lodged report on 15.7.2003 in police station Hanuman Dhoka based on which case was registered as FIR no. 1774. With the assistance of the Indian Embassy dead body of the deceased was brought to Jammu on 17.7.2003.
2. Davinder Kumar Sharma, uncle of the deceased petitioner in 561-A petition filed an application before the Chief Judicial Magistrate, Jammu alleging demand of dowry by the respondents and the murder of the deceased. Learned CJM, Jammu observing the occurrence to have taken place with the territorial jurisdiction of police station Nowabad, so directed the investigation by the said police where case has been registered as FIR 105/03 under Sections 302/120-B RPC.
3. The Government of India with the consent of Government of Jammu and Kashmir issued order no. 228/18/2004-DSPE dated 21.5.2004 where under handed over the investigation of the case to CBI, as such, investigation was being conducted by the CBI.
4. Respondent (accused) filed petition under 561-A Cr.P.C, same was registered as petition no. 561-A 35/2004, challenging therein the registration of the case on the ground that regarding the occurrence which had taken place at Kathmandu case has been registered there, therefore, registration of the second case in police station Nowabad, which is now investigated by CBI is impermissible. The said petition stands decided by this Court vide detailed judgment dated 6.6.2005. The operative part of which reads as under:
As the accused can be tried for commission of offence in the State also, though he allegedly committed the same beyond the State of J&K i.e, Kathmandu Nepal, the FIR against him for the commission of such offence can be registered within the State at any place where he may be found. The accused is resident of Jammu i.e, Mohalla Malhotrian which falls within the jurisdiction of Police Station Nowabad, therefore, said police station was legally competent to register the FIR for commission of offences committed by him at Kathmandu.
Therefore, there is no merit in this petition, which is accordingly dismissed alongwith connected CMPs.
5. The said judgment was challenged by the medium of SLP before the Honble Supreme Court, which has been disposed of on 9.4.2007. The order passed reads as under:
Heard learned counsel for the parties.
It has been stated that upon the completion of investigation, final form has been already submitted but no order thereupon has been passed by the concerned court. It is needless to say that after an order is passed upon the final form submitted by the Central Bureau of Investigation, the petitioners, if so aggrieved thereupon, may move the High Court. If such a petition is filed before the High Court, the same shall be considered on its own merits without being prejudiced by any observation in the impugned order.
The Special Leave Petition is, accordingly, disposed of.
6. The respondents (accused) thereafter filed one more petition registered as 561-A Cr.P.C no. 110/2007 in this court, which stands disposed of vide order dated 9.12.2010. The order passed is quoted hereunder:-
After arguing for some time, learned counsel for the petitioners stated that in view of the subsequent developments in the matter i.e, the investigation of the case has been completed and the prosecution has filed charge sheet before the concerned Magistrate who has committed the case to the court of sessions for trial and that the trial court has now to consider the petitioners and will take all the pleas available to them for consideration of the court. Learned counsel on this ground seeks withdrawal of the petition, permitted.
Order accordingly.
In case any such plea is made, the trial court shall consider all same and pass appropriate orders after hearing both the parties. Perusal of the file show the matter pertains to the year 2003. It is stated by the learned counsel that the case is still at the stage of framing of charge. The trial court is therefore, directed to expedite the matter and pass proper order regarding framing or otherwise of the charge within a period of three months. Registry to send of the case to the trial court immediately. Parties shall appear before the trial court on 13.12.2010.
7. The learned trial court i.e, the court of Sessions Judge Jammu, after hearing the prosecution and the defence on the question of framing or otherwise of the charge dismissed the challan as not maintainable and observed that the accused are set free, the passport seized by the police in second FIR shall stand released to accused no. 1. It is this order, which is under challenge in both the petitions.
8. According to learned counsel appearing for the petitioners, the learned trial court has erred while dismissing the challan as not maintainable and has also erred in observing that the case registered at Jammu is the second FIR. As the issue was already decided by this court vide detailed judgment dated 6.6.2005 which has not been set aside by the Honble Apex Court, therefore, same issue was not open for reconsideration to the trial court. The trial court was to decide farming or otherwise of the charge on the strength of the material as was collected by the investigating agency.
9. Learned counsel for the respondent in opposition would contend that while deciding the question of framing or otherwise of the charge, trial court has ample powers also to see the question of limitation and the requirement of sanction. In this behalf relied on the judgment rendered by Full Bench of the Andhra Pradesh High Court reported in AIR 1980 A.P. 291. In addition contended that material collected by the investigating agency is not enough for framing the charge against the respondent (accused). In this connection relied on the judgments rendered by the Honble Apex Court in Rajbabu and anr. V. State of M.P reported in 2009MLR 50 and 2009(4) Crimes 190, 2010(6) Supreme 376, 2010(4) Crimes 101 and has also relied on two judgments of the Honble Apex Court in reference to registration of two FIRs i.e, AIR 2001 SC 2636 and 2006 JR (Criminal) 266 SC and vis-`-vis question of sanction has relied on the judgments reported in 2005 Cr.LJ 3399 and 1934 Sindh 96.
10. Chapter XXIII of the Code of Criminal Procedure provide the procedure of trial before the court of Sessions. Section 268 which corresponds to Section 227 of the Central Code provides that the learned Sessions Court upon consideration of the record, documents and after hearing prosecution and the accused if considers that there is no sufficient ground after recording the reasons has to discharge the accused, otherwise has to proceed in accordance with Section 269 which provides that if the judge is of opinion that there is ground for presuming commission of offence by the accused then has to frame the charge against the accused. The words employed in Section 268 i.e, there is no sufficient ground and the words employed in Section 269 that there is ground for presuming are wide enough, therefore, while considering the case for discharge or otherwise under Section 268 and 269, the words no sufficient grounds and as to whether ground exist for presuming commission of offence also takes into its sweep the consideration vis-`-vis requirement of sanction and question of limitation.
11. In the judgment rendered by the Full Bench of the Andhra Pradesh High Court reported in AIR 1980 page 219, while dealing with the said issue it has been held in para 17 of the judgment as under:
It is clear from Section 227, Cr.P.C that the Sessions Judge is bound to discharge the accused if he considered that there is no sufficient ground for proceeding against the accused. The language is wide enough to include any ground which he considers sufficient for not proceeding against the accused. The ground may be that the evidence produced is not sufficient to warrant the Sessions Judge to proceed against the accused or it may be that there is no legal ground for proceeding against the accused even on the facts placed before him. If therefore, the Sessions Judge finds that the accused cannot be proceeded against as no sanction has been obtained or that the prosecution is clearly barred by limitation or that he is precluded from doing so because of a prior judgment of this court, the Sessions Judge is not only justified in discharging the accused but is bound to do so.
12. Now coming to the case in hand what is clear is that vide judgment dated 6.6.2005 the petition filed under Section 561-A Cr.P.C stands dismissed. The FIR registered in police station Nowabad has been maintained as is clear from the operative part of the judgment as referred to hereinabove. The Honble Apex Court while disposing of SLP on 9.4.2007 has not set aside the same judgment instead has observed that in view of the completion of investigation final form has been submitted, no order thereupon has been passed by the concerned court and when an order is passed upon the final form submitted by the CBI, the petitioners therein (respondents) if so aggrieved thereupon may move the High Court and in case such petition is filed, the High Court shall consider the same on its own merits without being prejudiced by any observation in the impugned order. Thereafter one more petition 561-A Cr.P.C filed by the petitioner was disposed of by this court on 9.12.2010 as quoted hereinabove wherein it was observed that the petitioners (respondent herein) shall take all pleas which the trial court shall consider and the trial court was under direction to expedite the matter and pass proper order regarding framing or otherwise of the charge within a period of three months.
13 The learned trial court vide order impugned after noticing all factual aspects and the developments has concluded as reflected in para 48 of the order that it is held that the police in Jammu was not competent to entertain the second FIR in respect of the offences regarding which FIR is pending at Kathmandu where the offence had actually taken place. Trial Court has also recorded as under:
It is also held that in absence of sanction by the Government supra, this court has no jurisdiction to hold the trial then has further recorded as under:
It is held that the learned Chief Judicial Magistrate, Jammu had no jurisdiction to entertain the so called application filed by the Uncle of the deceased by holding that offence was committed within the jurisdiction of his Court.
14. In para 36 of the impugned order the trial court has observed that although the High Court has declared the registration of Second FIR as maintainable but the Honble Supreme Court while disposing of SLP has given liberty to the accused to approach the High Court for reconsideration without being prejudiced by any observations made earlier. In short learned trial court has dismissed the challan (final charge sheet) on three grounds:
firstly, that the police at Jammu was not competent to entertain the second FIR, secondly, the offence was committed at Kathmandu, therefore, in absence of sanction court at Jammu has no jurisdiction to hold the trial and thirdly, that the learned Chief Judicial Magistrate Jammu had no jurisdiction to entertain the application filed by the uncle of the deceased as the offence was not committed within the jurisdiction of the Chief Judicial Magistrate, Jammu.
15. Ground first and third were not open for the ld. trial Court to be looked into in view of the earlier order dated 6.6.2005 of this Court as quoted above, as the said order has not been set aside. While doing so was also competent to take into all other pleas excluding the one which were not open for reconsideration to trial court in view of the order of this Court dated 6.6.2005.
16. Trial Court was required to ascertain as to whether ground exist for framing or otherwise of the charge as was also specifically directed to be done while disposing of second petition bearing 561-A Cr. P.C no. 110/2001.
17. The position of the procedure as envisaged under Section 188 Cr.P.C has not been taken note of in the earlier judgment dated 6.6.2005, therefore, this plea was open to be taken and considered as has been done by the learned Sessions Judge in its order dated 28.5.2011, wherein learned Sessions Judge has concluded that in absence of requisite sanction as envisaged by proviso to Section 188 Cr.P.C, the charge as to the offence could not be enquired in the State. Trial court has dealt with the issue at para 42 of the order holding therein that there is no sanction on record and has also observed that Government of India in consultation with the Government of State of Jammu and Kashmir has transferred the case to the CBI but that will not be a sanction within the meaning of proviso to Section 188 Cr.P.C. The view taken is not correct because it was a matter to be looked into during trial and it was for the prosecution during the trial to discharge the onus whether the order sanctioning transfer of the investigation of the case to the CBI would in any manner be deemed to be a sufficient compliance of requisite sanction as required in terms of first proviso to Section 188 Cr.P.C.
18. The question of absence of sanction has to be raised and decided at the stage of deciding framing or otherwise of the charge where as the question of invalidity of the sanction has to be considered during the course of the trial. In my view I am fortified by the judgment rendered by the Honble Apex Court in case Dinesh Kumar vs. Chairman Airport Authority of India reported in Cri.L.J 2012,
699. Para 11, of the said judgment reads as under:
While drawing a distinction between the absence of sanction and invalidity of the sanction, this Court if Parkash Singh Badal expressed in no uncertain terms that the absence of sanction could be raised at the inception and threshold by an aggrieved persons. However, where sanction order exists, but its legality and validity is put in question, such issue has to be raised in the course of trial. Of course, in Parkash Singh Badal, this Court referred to invalidity of sanction on account of non-application of mind. In our view, invalidity of sanction where sanction order exists, can be raised on diverse grounds like non-availability of material before the sanctioning authority or bias of the sanctioning authority or the order of sanction having been passed by an authority not authorized or competent to grant such sanction. The above grounds are only illustrative and not exhaustive. All such grounds of invalidity or illegality of sanction would fall in the same category like the ground of invalidity of sanction on account of non-application of mind- a category carved out by this Court in Parkash Singh Badal, the challenge to which can always be raised in the course of trial.
19. Viewed thus, the order impugned for the aforesaid stated reasons and circumstances and the position of law is un-sustainable, as such, set aside.
Case remitted back to the learned Sessions Judge, Jammu for proceeding in the matter afresh in accordance with the Chapter XXIII of the Code of Criminal Procedure. The parties shall ensure appearance before the trial court on 26.05.2012. Both Criminal Revision Petition no. 52/2011 and the Petition filed by the Complainant Davinder Kumar U/s 561-A Cr.P.C no. 155/2011 are allowed as above. Connected Cr.M.P. no. 166/2011 shall also stand disposed of.
(Mohammad Yaqoob Mir) Judge Jammu, 10.05.2012 Abdul Rashid Bench Secretary