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Jammu & Kashmir High Court

Dharampal Kataria & Ors. vs State And Ors. on 28 September, 2017

Author: Sanjay Kumar Gupta

Bench: Sanjay Kumar Gupta

                   HIGH COURT OF JAMMU AND KASHMIR
                              AT JAMMU

Petition u/s 561-A Cr.P.C. No.335/2016 & MP No.01/2016
                                                Date of decision:- 28.09.2017


Dharampal Kataria & ors.                      V.                  State and others

Coram:
                           Hon'ble Mr. Justice Sanjay Kumar Gupta


Appearing Counsel:
For the petitioner(s):        Mr. Rakesh Chargotra, Advocate.
For the respondent(s)         Mr. S. S. Nanda, Sr. AAG for respondent No.1.

None for respondent Nos.2 & 3.

       i.       Whether approved for
                reporting in Press/Media        :    Yes/No/Optional
       ii.      Whether to be reported in
                Digest/Journal                     :   Yes/No

1. This Petition has been filed under Section 561-A Cr.P.C. seeking quashment of the complaint/application titled Ravi Kumar vs. Gopal Krishan & ors. filed by respondent No.2 under Section 156(3) Cr.P.C. and order dated 22.04.2015 passed by learned Judicial Magistrate 1st Class (Munsiff), Jammu in the said application for investigation; also for quashing FIR No.88/2015 dated 26.04.2015 registered against the petitioners in Police Station, Janipur Jammu for the commission of offences punishable under Sections 147, 427, 506 RPC pursuant to the order passed by learned Magistrate; and consequently for quashing of Police Challan titled State vs Gopal Krishan & ors. pending disposal before the Court of learned Special Railway Magistrate, Sub-Judge, Jammu; and proceedings initiated thereon by learned Magistrate.

2. Facts giving rise to filing of the instant petition are that respondent No.2 alongwith his father- Mela Ram and brother-Kavi Kumar has tried to encroach upon the path of proforma-respondent forcibly & illegally and proforma-respondent in order to prevent them has filed a civil suit titled Gopal Krishan vs. Mela Ram & ors. which was assigned to the Court of learned Munsiff, Jammu and learned Munsiff Jammu on 28.05.2014 was pleased to pass an order whereby the parties to the suit were directed to maintain status quo on spot with regard to the suit property; that despite passing of the status quo order, respondent No.2 alongwith his family members i.e. defendants in the said suit had tried to obstruct the proforma- respondent and his family members to use the path, therefore, the proforma- respondent has moved an application for implementation of order dated 28.05.2014 through police and the Court of Munsiff, Jammu passed an order dated 16.04.2015 whereby the interim order of status quo dated 28.05.2014 was directed to be implemented on spot by SHO Police Station, Janipur Jammu; that on 17.04.2015, Police of Police Station, Janipur Jammu had come on spot and implemented the order dated 28.05.2014 in presence of proforma-respondent, respondent No.2 and family members of respondent No.2 and at the said relevant time, the petitioners were not present on spot; that petitioner No.2 namely Shiv Kumar Kataria is Junior Engineer in BSNL and was posted at office of the DE Bts BSNL Jammu whereas petitioner No.3 namely Anurodh Kataria is Generator Operator and was on duty at Uflex Limited, Lane No.3, Phase-I, Bari Brahmana Samba on 17.04.2015 but despite that respondent No.2 has moved a false and frivolous application titled Ravi Kumar Vs. Gopal Krishan & ors. before the Court of learned Munsiff, Jammu under Section 156(3) Cr.P.C. for directing the Incharge Police Station Janipur to lodge an FIR against the petitioners and proforma- respondent on various false and frivolous facts without approaching the police authorities and consequent upon filing of this application before the Court of learned Munsiff, Judicial Magistrate Jammu, the learned Magistrate 561-A Cr.P.C. No.335/2016 & MP No.01/2016 Page 2 of 7 without appreciating the fact that the application does not disclose the commission of cognizable offence and the complainant/respondent No.2 before filing of the application under Section 156(3) Cr.P.C. has not complied with Section 154(1) and 154(3) Cr.P.C., passed an order dated 22.04.2015 whereby the police of Police Station Janipur was directed to investigate the matter; that after registration of FIR, investigation of the matter has started and the petitioners have approached the police and co- operated with the Investigating Agency.

3. It is submitted that the petitioners were not on spot at the time of alleged occurrence and petitioner Nos.2 & 3 namely Shiv Kumar Kataria & Anurodh Kataria were on their duty and the concerned authorities have issued the documents which prima facie prove that at the time of alleged occurrence, the petitioner-Shiv Kumar Kataria and Anurodh Kataria were on their official duty and both the petitioners in order to prove their innocence have produced the aforesaid documents before the police in terms of the Police Rules 597; that the police has not considered the documents produced in terms of the Police Rules 597 before the Investigating Officer by the petitioners to prove their innocence and has filed the challan against the petitioners and proforma-respondent before the Court of learned Chief Judicial Magistrate, Jammu and the learned Chief Judicial Magistrate, Jammu transferred the said challan to the Court of learned Special Railway Magistrate, Sub-Judge, Jammu and the learned Special Railway Magistrate, Sub-Judge, Jammu has initiated the proceedings on the said Police Challan; that the petitioners are aggrieved by the application filed under Section 156(3) Cr.P.C. and order passed by the learned Munsiff Jammu on the said application for investigation on 22.04.2015 and consequently, the petitioners are also aggrieved by the registration of FIR No.88/2015 registered with Police Station, Janipur Jammu and Police Challan pending disposal before the Court of learned Special Railway Magistrate, Sub-Judge, Jammu and proceedings initiated thereon by the learned Magistrate, therefore, the petitioners have left 561-A Cr.P.C. No.335/2016 & MP No.01/2016 Page 3 of 7 with no option except to approach the Hon'ble Court with prayer for quashing the same, on the following grounds:-

(i) That a bare perusal of the allegations made in the application/complaint filed under Section 156(3) Cr.P.C. before the Magistrate, even if are taken at their face value and accepted in their entirety do not even prima facie constitute an offence or make out a case against the petitioners, therefore, the order passed on the said application and consequently, the FIR, Police Challan and proceedings initiated by the learned Trial Magistrate are not tenable under law, as such, the same are liable to be quashed.

(ii) That as per the provisions contained in Section 154 Cr.P.C.

after commission of cognizable offences, the aggrieved party may report the information relating to the commission of cognizable offence to the Police Station and if Police does not enter the information given with regard to the commission of cognizable offence in the concerned register in the Police Station, the aggrieved person can approach to the Superintendent of Police concerned for investigation and thereafter, if Police does not register a case even after resorting to the recourse available to the said persons under Section 154(1) & 154(3) Cr.P.C., he can file an application before the learned Magistrate under Section 156(3) Cr.P.C. for investigation. It is well settled principle of law that powers under Section 156(3) Cr.P.C. cannot be exercised by a Magistrate unless the complainant/applicant has resorted to the recourse available to him under Section 154(1) & 154(3) Cr.P.C and unless the documents/ material proving the fact that the applicant/complainant has resorted to the recourse available to him under Section 154(1) & 154(3) Cr.P.C. before approaching the Magistrate, is kept on the record of application filed under Section 156(3) Cr.P.C. Perusal of the complaint/application filed under Section 156(3) Cr.P.C., prima facie proves that the complainant has not approached the Superintendent of Police and has approached the Police Station only. It is humbly submitted that the application/complaint filed under Section 156(3) Cr.P.C. is not filed inconsonance with law and the learned Trial Magistrate has ignored this preposition of law and has passed the order dated 22.04.2015 which is against the law and not tenable, therefore, the application/complaint filed under Section 156(3) Cr.P.C., order passed thereon and consequently, the FIR under challenge, Police Challan and proceedings initiated thereon are also not inconsonance with law and are liable to be quashed.

(iii) That as per Rule 597 of the Police Rules, the alleged accused in the FIR are at liberty to prove their innocence by way of defence documents and the attendance certificates of the alleged accused persons/petitioners namely Shiv Kumar Kataria and Anurodh Kataria, prima facie, prove that they were not present at the time of alleged occurrence because they were on their official duty at the said relevant time. The Investigating Officer has not considered the documents and concluded the investigation contrary to the Police Rules and filed the challan. That if the aforesaid documents were considered and the police has enquired from the place of working of the aforesaid petitioner Nos.2 & 3, Investigating Officer definitely had come to the conclusion that not only the aforesaid petitioners namely Shiv Kumar Kataria and Anurodh Kataria were falsely implicated rather all the petitioners are falsely implicated in the aforesaid case. On this ground also, complaint, order passed by the learned Magistrate thereon, FIR, Police Challan and proceedings initiated thereon are bad in the eyes of law and liable to be quashed.

(iv) That after passing of the status quo order by the learned Civil Court when respondent No.2 and his family members failed to close the path of proforma-respondent and his family members, they have converted the civil litigation to criminal one by filing a false and frivolous application under Section 156(3) Cr.P.C. and also by lodging a false FIR only to harass the petitioners and proforma-respondent by implicating them in a false and frivolous case, therefore, the application/complaint filed under Section 156(3) Cr.P.C and consequent proceedings on the said application including FIR, Police Challan and proceedings initiated thereon are required to be quashed in order to prevent the abuse of process of law and for ends of justice. The allegations made in the application/complaint filed under Section 156(3) Cr.P.C. by respondent No.2 are patently absurd and inheritably improbable on the basis of which no prudent person can reach a just a conclusion that there are sufficient grounds for proceedings against the petitioners, therefore, the order passed by the learned Magistrate on the said application/complaint and consequently, FIR, Police Challan, proceedings initiated by the learned Magistrate are not consonance with the law and per se illegal, as such, liable to be quashed.

(v) That the petitioners are innocent and they have been falsely implicated in the case by respondent No.2 so that proforma-respondent may not press the civil suit pending before the Hon'ble Court and thus, the impugned complaint filed under Section 156(3) Cr.P.C., order passed by the learned Magistrate, 561-A Cr.P.C. No.335/2016 & MP No.01/2016 Page 5 of 7 FIR, Police Challan and proceedings initiated thereon by the learned Magistrate manifestly attended with mala fide and moreover, the aforesaid criminal proceedings maliciously instituted with an ulterior motive for wrecking vengeance on the alleged accused/petitioners and with a view to spit them due to personal grudge. On this ground also, complaint, order passed by the learned Magistrate thereon, FIR, Police Challan and proceedings initiated thereon are liable to be quashed.

(vi) That the complaint/application filed under Section 156(3) Cr.P.C. is a result of well planned conspiracy of respondent No.2 who has got register a FIR to scuttle the process of law and to wreck personal vendetta against the petitioners and the aforesaid criminal proceedings have been got instituted by respondent No.2 only to harass and humiliate the petitioners despite the fact that they are innocent and have not committed any offence, therefore, the application/complaint, order passed by the learned Magistrate thereon, FIR, Police Challan and proceedings initiated thereon are liable to be quashed.

4. With these submissions, learned counsel for the petitioners has prayed that the instant petition be allowed with the aforementioned prayer.

5. Record from the court of Judicial Magistrate Ist Class (Munsiff) Jammu has been received.

6. None has put in appearance on behalf of respondent Nos.2 & 3. Despite, several opportunities, objections have not been filed on behalf of respondent No.1.

7. Mr. S. S. Nanda, learned Sr. AAG, appearing on behalf of respondent No.1- State, has opposed the prayer made by the petitioners and prayed for dismissal of the instant petition out-rightly.

8. I have learned counsel for the petitioners and learned Sr. AAG representing the State. I have also perused the record of court below and considered the law on the subject.

9. From the perusal of file, it reveals that FIR no. 88/2015 dated 26.4.2015 U/S 147/427/506 RPC has already culminated into presentation of challan, which is pending before Railway Magistrate Jammu. The argument of 561-A Cr.P.C. No.335/2016 & MP No.01/2016 Page 6 of 7 counsel for petitioners that I/O has not considered their documents during investigation as per police rule 597 , is not tenable at this stage, because that stage is over.

10. From the perusal of complaint, which has culminated into Police Challan, it is evident that accusation against the petitioners herein is that on 17.4.2015 at about 3.30 pm , they after forming unlawful assembly trespassed into the property of complainant when no male members except old father of 78 years was at home; accused were possessing big iron hammers and started breaking iron gates; on listening the noise, ladies came out and accused threatened and used abusive languages. Accused after breaking the bolt, caused damages to gate and pillar thereon. The perusal of these allegations, it is evident that a case of cognizable offence is made out.

11. Another argument that Petitioner no.2 was not present on spot is not tenable at this stage, because it is a plea of Alibi which can be established during trial. Third plea of petitioner that a civil suit is pending with regard to gate before Civil Court, is also not tenable because order annexed is dated 28.5.2014, no latest status of case was provided despite query put to counsel for petitioners.

12. Further, FIR is dated 26.4.2015 and this petition has been filed after more than two years, no explanation has been given. Thus, petition also suffers from delay and laches.

13. Hence this petition is dismissed at admission stage.

( Sanjay Kumar Gupta ) Judge Jammu 28.09.2017 Narinder 561-A Cr.P.C. No.335/2016 & MP No.01/2016 Page 7 of 7