Jammu & Kashmir High Court
Kuldeep Singh And Ors. vs State And Ors. on 28 September, 2018
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
CRMC No.140/2013 & IA Nos. 171/2013, 201/2013 & 99001/2013
Date of order: 28.09.2018
Kuldeep Singh & ors. Vs. State of J&K and ors.
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearance:
For the petitioner (s) : Mr. J. A. Hamal, Advocate.
For the respondent(s) : Mr. C. M. Koul, Sr. AAG.
i) Whether to be reported in
Digest/Journal : Yes/No.
ii) Whether approved for reporting
in Press/Media : Yes/No.
1. This is a petition filed by petitioner for quashing the FIR no.11 of 2013 dated 11.5.2013 registered with Police Station Crime Branch, Jammu for offences u/s 420/465/467/468/471/120-B RPC read with Section 5(2) of Prevention of Corruption Act.
2. Facts giving rise in filing of the instant petition are stated that the forefathers of the petitioners have been residing in village Kote, Tehsil and District Jammu. The permanent resident certificate has been issued on 03.09.1958 in favour of Shani Devi, who is grandmother of the petitioners. Grandfather of the petitioners namely Jagat Singh in the year 1924 i.e. prior to the partition, has taken a loan of Rs.20/- from the money lender-Niku Mahajan. It is shown in the Nakal Fahrist which has been issued by the revenue official pertaining to the Mardam Shumari and Maal Shumari of Village Kote, Tehsil & District Jammu i.e., also known as Bandobasti for the year 1979-80 Bk. i.e. 1924 that the grandfather of the petitioners has taken Rs.20/- from a person named Niku Mahajan who was residing at the relevant time at Village Kote, Tehsil & District, Jammu. Nakal Bandobasti speaks that the petitioners' grandfather in the year 1924 was residing in Village Kote, Tehsil & District Jammu. The CRMC No.140/2013 Page 1 of 9 Permanent Resident Certificate was issued by the competent officer in favour of the father of the petitioners in the year 1964 after conducting the detailed enquiry. The petitioners forefathers being the residents of Village Kote, the petitioners are also the permanent residents of the State of Jammu & Kashmir and the petitioners have annexed certain documents with the petition.
3. It is further contended in the petition that a person, who is having inimical terms with the petitioners, particularly petitioner No.2 as the petitioner No.2 was elected as Sarpanch of Panchayat Halqa Kote, filed a frivolous complaint against the petitioners and also other family members that the petitioners have somehow managed to get fake permanent resident certificates. The Police Station Crime Branch Jammu on the basis of said compliant registered First Information Number (FIR) No. 11 of 2013 dated 11.05.2013 in Police Station Crime Branch, Jammu for the offences punishable under Sections 420, 465, 467, 468, 471, 120-B R.P.C. read with Sections 5/2 P.C. Act. The petitioners challenge the said FIR No.11 of 2013 dated 11.05.2013 inter alia, on the grounds that:
a. As per the mandate of Section 7 of the Grant of Permanent Resident Certificate (Procedure) Act if any person for the purpose of procuring anything under this act i.e., Grant of Permanent Resident Certificate (Procedure) Act makes any representation which is false in material particulars, the said person shall be punished with the imprisonment of six months or with fine or with both. It is submitted that the petitioners have not got Permanent Resident Certificate from the competent officer by representation of false material but has been obtained by the petitioners on the basis of Permanent Resident Certificate issued in favour of their father in whose favour it was issued after a detailed inquiry and on the basis of record which shows that the forefathers of the petitioners have been residing in Village Kote, Tehsil & District Jammu. Moreover, if it is revealed that the petitioners have got Permanent Resident Certificate issued on the basis of false material, the petitioners can be punished with imprisonment for a term which may extend to six months as the punishment envisages under Section 7 of the Grant of Permanent Resident Certificate CRMC No.140/2013 Page 2 of 9 (Procedure) Act but in no circumstances FIR in offences under Sections 420, 465, 467, 468, 471, 120-B R.P.C. read with Section 5/2 of the P.C. Act can be registered against the petitioners.
b. That as per section 6 of the Grant of Permanent Resident Certificate (Procedure) Act if a permanent resident certificate is wrongly issued in favour of any person, the Government by its own or on the motion of an application may cancel the permanent resident certificate or recall the order passed by the competent authority. It is urged by the petitioners that the person, who is having inimical terms with the petitioners on whose instance FIR has been registered, has also filed complaint before the State Subject Enquiry Commission for cancellation of the Permanent Resident Certificate which is still sub-judice before the said Commission. No investigation can be carried out on a document said to be as forged document until and unless the said document has been proved to be as false and recommended for cancellation. It is further submitted that until and unless the Permanent Resident Certificate of the petitioners have not been declared by any of the authority or by the Civil Court or by the State Subject Enquiry Commission that the certificates issued in favour of the petitioners shall stand cancelled, the FIR cannot to be registered against the petitioners. Hence the FIR against the petitioners is bad in the eyes of law.
c. That it is apparent from the face of the FIR that the certificate has been issued in consonance of the rules by the competent officer as it is never objected by the other side that the official who has issued the Permanent Resident Certificate in favour of the petitioners was not competent to issue Permanent Resident Certificates in favour of the petitioners.
d). That SRO 202 of 1999 dated 3rd of June 1999 which is amended from time to time delegates the powers to the Crime Branch for registration of the FIR in the different offences under different Acts. Counsel for the petitioners submits that it is apparent from the face of SRO 202 that the Crime Branch has the power to register the forgery cases pertaining to the note forgery only and none of the other kind of forgery cases but in the present case the crime branch has shown to be investigating the case of forgery of Permanent Resident Certificate which the crime branch has no jurisdiction to carry out the investigation.CRMC No.140/2013 Page 3 of 9
4. Counsel for the petitioners has also placed reliance on the judgment passed by the Division Bench of this Court in two Civil Revisions wherein it is held that the Crime Branch has no jurisdiction to investigate the matter pertaining to the forgery; and judgment of Apex Court delivered in Criminal appeal nos. 359-360 of 2010 titled Sheila Sebastian v. R. Jawaharaj decided on 11.5.2018.
5. Counsel for the State- respondents has not chosen to file objections despite number of opportunities granted by the Court, but has argued that SRO 202 dated 03/06/1999 is applicable in present case, because as per item No.23 of Annexure to SRO 202, a cognizable offence has been made out against public servants viz., Additional Deputy Commissioner, Tehsildar and present petitioners. Further FIR has been registered in cognizable and non cognizable offences and so it requires investigation.
6. Heard and considered the rival contentions. Perusal of FIR reveals that it has been lodged on direction of JMIC (Forest Magistrate) Jammu in terms of section 156(3) Cr.P.C. The allegation against the petitioners herein is that they are basically from Pakistan; their grandfather Jaggat Singh migrated from Pakistan in 1947 to India and settled in Punjab; even Punjab Govt. allotted him the land in village Bela Tajowal, Gurdaspur; after death of Jaggat Ram, father of petitioners namely Lakhan Singh sold the land and came to Jammu; where he and petitioners and some others family members managed PRC certificates fraudulently; Lakhan Singh also got appointment in PDD. During investigation it was found that petitioners with the connivance of Additional DC B.A. Runyal and Tehsidar Prem Bhushan Gupta managed forged documents and on the basis of said documents procured the PRCs for themselves and others family members who were minor at that time.
7. Accordingly FIR no. 11/2013 u/s 420, 465, 467, 468, 471, 120-B R.P.C. read with Section 5/2 of the P.C. Act was registered and investigation commenced.
CRMC No.140/2013 Page 4 of 98. First argument of counsel for petitioners is that as per the mandate of Section 7 of the Grant of Permanent Resident Certificate (Procedure) Act, if any person for the purpose of procuring anything under this act i.e., Grant of Permanent Resident Certificate (Procedure) Act makes any representation which is false in material particulars, the said person shall be punished with the imprisonment of six months or with fine or with both, so FIR is liable to be quashed. I am not in agreement with this argument, because making of false representation and forgery of documents are quite different offences. Petitioners have been allegedly found involved in making of false documents in order to procure PRCs.
9. Another argument of counsel for petitioners is that SRO 202 of 1999 dated 3rd of June 1999 which is amended from time to time delegates the powers to the Crime Branch for registration of the FIR in the different offences under different Acts and Crime Branch has the power to register the forgery cases pertaining to the note forgery only and none of the other kind of forgery cases but in the present case the crime branch has shown to be investigating the case of forgery of Permanent Resident Certificate which the crime branch has no jurisdiction to carry out the investigation.
10. I have considered this aspect of matter. The said SRO reads as under:-
"Government of Jammu and Kashmir Home Department NOTIFICATION SRINAGAR, THE 3'd June 1999.
SRO-202 :In exercise of the powers conferred by clause (0) of Sub-section (1) of section 4 of the code of Criminal Procedure, Samvat 1989 (Act No. XXIII of 1989) and in supersession of notification SRO 133 dated 2-4-1991, the Government hereby declare the office of Crime Branch, Kashmir and the office of Crime Branch Jammu to be the Police Stations within their respective jurisdiction to their division for purpose of registration and investigation of, -
i. Offences as indicated in the Annexure annexed to this notification on the orders of the Head of the Crime Branch: and ii. Cases which may be referred by the Government or Director General of Police from time to time.CRMC No.140/2013 Page 5 of 9
By order of the Government of Jammu and Kashmir.
No. Home-306/90-ISA (ll) Sd/-
Dated: 3-6-1999 . Principal Secretary to Government,
Home Department.
ANNEXURE T0 SRO NO: 202 DATED 03-06-1999
1 .Note forgery cases.
2. Cases of counterfeit coining.
3. Cases of professional poisoning.
4. Theft of Govt. Arms and Ammunition and illicit trade in arms.
5. Frauds by means of advertisement, bogus funds, and companies personating public servants swindling etc.
6. Cases of dacoity or house breaking of a peculiar nature which indicate the work of an adopt gang not previously noticed or accounted for by local police.
7. Cases of Fraud, theft or cheating of a peculiar nature which affect more than one District.
8. Important theft of currency notes or important defalcation of public money.
9. Cases of smuggling of opium, Cocaine etc.
10. Cases of bringing fraudulent suits.
11 .Gangs cases.
12. Important conspiracy cases whose ramification extends to several districts.
13.Pornography.
14. Any serious crime which appears to have a political motive, including all offences connected with arms and ammunition explosive which suspected to be of political nature.
15.Explosive Act 1984 (Act No: IV of 1984) and Explosive Substances Act, 1908(Act No.lll, VI of 1908).
16.Cinematography Act of 1952Nideo Piracy read with the copy of right (Amendment Act) 1984.
17.Public Gambling Act (Svt 1977) 18.Narcotic Drugs and Psychotropic substances Act, 1985.
19. Suppression of immoral Traffic in Women and girls Act 1956.
20. Drug Act (XX) 2000.
21 lndian Arms Act, 1959. 22. Dowry Restraint Act, 1962.
23.Cognizable offences committed by or relating to public servant.
Sd/-
Addl. Secretary to Government, Home Department."
11. Bare perusal of item No.23 of annexure to SRO 202, it is evident that Crime Branch has power to investigate the case of Cognizable offences committed by or relating to public servant. In present case, cognizable offence against public servants Additional Deputy Commissioner, Tehsildar and present petitioners has been made out. Further Crime CRMC No.140/2013 Page 6 of 9 branch has not lodged the FIR on its own; but has been lodged on the direction JMIC under section 156(3) Cr.P.C
12. In Criminal Procedure Code there are different provisions dealing with lodging of FIR and investigation by police; and cognizance taken by Magistrate after the complaint is filed before him. Relevant sections read as under:-
"154. Information in cognizable cases.- *[(l) Every information relating to the commission of a cognizable offence if given orally to an officer-in charge of a police station, shall be reduced to writing by, him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the, person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as **[the Government] may prescribe in this behalf].
*[(2) A copy of the information as recorded under sub-Section (1) shall be given forthwith free of cost, to the informant against a proper receipt.
(3) Any person aggrieved by a refusal on the part of an officer-in-
charge of a Police Station to record the information referred to in sub- Section (1) may deliver personally or cause to be delivered or send by post the substanceof such information, in writing to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer-in-charge of the police station in relation to that offence]."
Section 156 of Cr.P.C. reads as under:-
"156. Investigation into cognizable cases.- (1) Any officer-in-charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the local limits of such station would have power to inquire into or try under the provisions of Chapter XV relating to the place of inquiry or trial.
(2) No proceeding of police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this Section to investigate.
(3) Any Magistrate empowered under Section 190 may order such an investigation as above-mentioned."
Section 190 reads as under:-
CRMC No.140/2013 Page 7 of 9"190. Cognizance of offence by Magistrates.- (1) Except as hereinafter provided, [any Chief Judicial Magistrate and, any other Judicial Magistrate] specially empowered in this behalf, may take cognizance of any offence-
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a report in writing of such facts made by any police officer;
(c) upon information received from any person other than a police officer, or upon his own Knowledge or suspicion, that such offence has been committed. (2) The [High Court may empower any Judicial Magistrate] to take cognizance under sub-Section (1), clause (a) or clause (b), of offences for which he may try or commit for trial. (3) The [High Court may empower any Judicial Magistrate] of the first or second class to take cognizance under sub-Section (1), clause (c), of offences for which he may try or commit for trial."
13. Bare perusal of relevant provisions of these sections, it is evident that under section 154 of Cr.P.C., police shall register FIR on information received with regard to cognizable offence/s. In terms of section 156 Police has statutory duty to investigate the matter, when cognizable offence/s are made out after lodging of FIR. Section 190 of Cr.P.C deals with power of Magistrate on receiving complaint. Complaint is quite different to information as given in section 154 Cr.P.C. Complaint as defined in section 4 (e) of Cr.P.C., it means the allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence but it does not include the report of a police-officer.
14. The ways, in which such cognizance can be taken, are set out in clauses
(a), (b) and (c) of Section 190(1). Magistrate has power for ordering investigation, by police of area who has territorial jurisdiction, under Section 156(3) Cr.P.C; it is not the case of petitioner that crime branch has no territorial jurisdiction to conduct investigation.
15. In view of above, the argument that crime branch has no jurisdiction in terms of SRO 202 for conducting investigation, is not tenable. The law cited by counsel for petitioners is not applicable, because facts are quite distinguishable.
CRMC No.140/2013 Page 8 of 916. In view of above discussion, this petition is dismissed. Stay, if any, is vacated.
(Sanjay Kumar Gupta) Judge Jammu 28.09.2018 Sunita CRMC No.140/2013 Page 9 of 9