Jammu & Kashmir High Court
Joginder Singh vs State Of J&K And Another on 28 February, 2020
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
CRR No. 9900005/2012
Reserved on: 19.02.2020
Pronounced on: 28.02.2020
Joginder Singh .....Petitioner (s)
Through :- Mr. R. P. Sharma, Advocate
V/s
State of J&K and another .....Respondent(s)
Through :- Mr. Aseem Sawhney, AAG
Coram: HON'BLE MR. JUSTICE SANJAY KUMAR GUPTA, JUDGE
JUDGMENT
01. The instant revision petition filed by the petitioner is directed against order dated 21.05.2012 passed by learned Principal Sessions Judge, Poonch, by virtue of which charges under Sections 467, 468, 471, 409, 420 and 120-B RPC have been framed against him.
02. In the petition, it is stated that the petitioner has wrongly and falsely been implicated for commission of offence punishable under section 467, 468, 471, 409, 420 and 120-B RPC in reference to FIR No.189/2011 registered with Police Station, Poonch. Petitioner was arrested by the Police in the afore-stated FIR and was subsequently admitted to bail by this Hon'ble Court vide order dated 16.04.2012 in Bail Application filed by the petitioner being Bail Application No.39/2012 & Cr.M.P. No.10/2012 titled Joginder 2 CRR No. 9900005/2012 Singh vs. State of J&K and others. That a criminal challan in reference to the aforesaid FIR No.189/2011 has been presented before the court of Ld. Principal Sessions Judge, Poonch. As per the investigation of the police, as contained in the final report, it has been made out that the main accused Ghulam Hussain, who is posted in Revenue Department, has misappropriated the compensation/award amount belonging to various land owners whose land has been acquired in reference to land acquisition proceedings, by fraudulently and fictitiously withdrawing the same and in this regard an amount of Rs.23.00 lacs is alleged to have been misappropriated by him.
03. It is further stated in the petition that the petitioner is working as Flock Supervisor in the Sheep and Animal Husbandry Department of the I&K Government and has got absolutely no concern with the withdrawal or disbursement of the compensation/ award amount amongst the land owners whose land was acquired. That in the challan, it has been alleged that Ghulam Hussain has shifted an amount of Rs.1.00 lacs in the account of the petitioner though the said amount belonged to one Mohd. Iqbal and the said amount had been withdrawn. It is only on this singular evidence that the petitioner has been charge-sheeted with the aid of section 120-B of RPC alongwith Ghulam Hussain. That the petitioner even in the bail application filed by him before the Hon'ble High Court had pleaded that said Ghulam Hussain is known to the petitioner and he had taken an amount of Rs.1.00 lac from the petitioner as loan and has executed necessary loan documents also. It was also pleaded by the petitioner and is being emphasized now also that an amount of Rs.1.00 lac had 3 CRR No. 9900005/2012 been shifted to the bank account of the petitioner by Sh. Ghulam Hussain in satisfaction of pending liability towards the petitioner.
04. Petitioner, in this petition, has also stated that at the time when bail application was filed by the petitioner before this Hon'ble Court, the investigation was going on and as such the factum of existence of the loan document in favour of the petitioner by Ghulam Hussain was duly brought to the notice of the Investigating Officer because the copies of the bail applications were also given to the Investigating officer and State Agency also. The petitioner had additionally supplied the said loan document to the Investigating officer personally. That despite the knowledge of existence of the loan transaction between the petitioner and the co-accused, the Investigating Officer has neither relied upon the same nor has he considered the same for exonerating the petitioner from the criminal charge alleged against the petitioner. That there was absolutely nothing on record to show complicity of the petitioner in the commission of the crime and there was no role of the petitioner in the criminal conspiracy between him and the main accused for misappropriation of the amount.
05. That the only assumption, which has been drawn against the petitioner qua shifting of an amount of Rs.1.00 lacs by the main accused Ghulam Hussain in the account of the petitioner, by itself, is not indicative of the conspiracy between the petitioner and the main accused because of the reasons stated above. That neither the petitioner had deposited the said amount nor it bears the signature of the petitioner and as such, it is for the Ghulam Hussain only to disclose as to why the money has been shifted to the account 4 CRR No. 9900005/2012 of the petitioner particularly in view of the case pleaded by the petitioner that the deposit of the said amount in his account was qua satisfaction of pending loan.
06. Petitioner has further stated in the petition that none of the witnesses had deposed against the petitioner during the investigation as is clear from the bare perusal of the final report. That the only factum which can be proved against the petitioner is the deposit of amount in his account which by itself cannot be assumed to be refer-able to existence of any criminal conspiracy between the petitioner and the main accused. That after filing of the Challan before the court of Ld. Principal Sessions Judge, Poonch, charges under section 467, 468, 471, 409, 420 and 120-B RPC have been framed against the main accused as also against the petitioner by the Ld. Trial court vide order dated 21.05.2012.
07. The petitioner is aggrieved of the impugned order dated 21.05.2012 whereby charges under section 467, 468, 471, 409, 420 and 120-B RPC have been framed against the petitioner and is also aggrieved of the impugned challan/charge-sheet presented against him by the prosecution, therefore, the petitioner wishes to challenge the same on the following amongst other grounds to be urged at the time of hearing. The grounds are taken alternatively and without prejudice to each other:-
(a) That the order impugned framing charges against the petitioner is against law and facts, therefore, the same deserves to be set aside.5 CRR No. 9900005/2012
b) That the criminal challan which has been presented as against the petitioner suffers from serious legal infirmities and discrepancies in as much as the petitioner, as is evident from the perusal of the prosecution story as projected in the challan presented before the Ld. Trial court, has neither committed any offence nor participated in the commission of any offence, but despite pleading the aforesaid facts and circumstances before the learned trial court, the same have not been appreciated in their right and true perspective.
(c) That further no impartial investigation has been conducted in the matter by the police, but FIR as against the petitioner has been registered without existence of any prima-facie evidence. It is well settled preposition of law that before registration of FIR, the police agency is required to conduct impartial investigation into the allegations and ought not to have registered FIR mere on the basis that the main accused has shifted an amount of Rs.1.00 lacs in the account of the petitioner. This aspect though specifically pleaded before the learned trial court was not taken note of by the learned trial court while passing the order impugned.
(d) That impugned challan as also the order impugned passed therein by the learned trial court deserve to be quashed on the ground that the learned trial court has failed to appreciate that the amount transferred into the account of the petitioner by the main accused is in satisfaction of the pending liability against the main accused Ghulam Hussain for which liability proper loan document had also been executed by the said person.
(e) That there exists no reasons or occasion for the learned trial court to frame charges whatsoever against the petitioner and while framing the charges against the petitioner has not even referred to the pleas taken by the petitioner for seeking 6 CRR No. 9900005/2012 his discharge. This renders the entire challan as also the order impugned framing charges against the petitioner illegal and deserve to be set aside.
(f) That the criminal challan as also the charges framed thereupon against the petitioner by the learned trial court are totally contrary to the factual and legal aspects. Therefore, the same deserve to be quashed.
(g) That the challan presented by the prosecution against the petitioners contains lot of discrepancies and does not at all make out any case much less a case for commission of offences as alleged against the petitioners in the said challan.
(h) That a mere reading of the challan presented by the prosecution clearly reveals that no offence muchless the offences as alleged against the petitioner have been attracted against him at all.
(i) That the pendency of the criminal challan against the petitioner before the trial court is an abuse of the process of law and if the same is not checked and turned down by this Hon'ble Court by exercising its inherent jurisdiction under section 561-A Cr.P.C., the same will cause miscarriage of justice and the petitioner shall suffer an irreparable loss and injury which cannot be compensated in future by any means.
(j) That viewed from any angle, the prosecution case contains inherent defects and deficiency and does not even remotely connect the petitioner with the commission of crime. Therefore, the proceedings pending in the challan aforementioned against the petitioner are required to be quashed.
(k) That this Hon'ble Court has inherent jurisdiction under section 561-A Cr.P.C to quash the challan and to set aside the order framing charges against the petitioner and direct discharge 7 CRR No. 9900005/2012 of the petitioner from the criminal case pending trial against him in the trial court.
08. Heard learned counsel for the petitioner as well as learned Addl. Advocate General representing the respondents. Perused the document annexed with the petition.
09. In support of his case, learned counsel for the petitioner has reiterated all those grounds taken in the memo of petition; whereas learned Addl. Advocate General representing the respondents while refuting the arguments advanced by the other side, has placed reliance on the decisions of Hon'ble Supreme Court in cases titled R. Kalyani Vs. Janak C. Mehta & Ors., reported in 2009 (1) SCC 516; and State of Madhya Pradesh Vs. Yogendra Singh Jadon and anr., Criminal Appeal No.175 of 2020 (Arising out of SLP (Criminal) No.172 of 2017) decided on 31.01.2020.
10. I have given my thoughtful consideration to whole aspects of the matter and law on the point. Firstly, it is evident from pleadings that petitioner has raised disputed question of facts, which cannot be taken note of in this petition.
11. Law with regard to quashment of charge has now been well settled. In AIR 2014 SC 1106 in case titled Umesh Kumar Vs. State of AP, it is held as under:-
A) Code of criminal procedure -section 482 -instead of considering prima facie case-High court appreciating and weighing the materials on record -concluding that charge sheet could not have been filed against accused and further ,no charges could have been framed -
virtually acting as an appellant court -approach illegal and erroneous.
8 CRR No. 9900005/2012
A Constitution Bench of this Court reiterated a similar view in CBI & Ors. v. Keshub Mahindraetc., AIR 2011 SC 2037 observing that when the charges are framed, the court makes an endorsement till that stage. So charges are framed on the materials produced by the prosecution for framing the charges "at that stage". Such indication is necessary otherwise the provisions contained in Sections 216, 323, 386, 397, 399, 401 etc. Cr.P.C., would be rendered nugatory and denuded a competent court of the powers under those provisions. The court cannot be restrained from exercising its powers either under Section 323 or Section 216 Cr.P.C."
12. In 2015 (9) SCC 294 in case titled The State Rep. by the Inspector of Police, "Q' Branch CID., Tirunelveli Range, Tamil Nadu Vs. Mariya Anton Vijay, it is held as under:-
"85. The question as to how, in what manner and to what extent, the inherent powers of the High Court under section 482 of the Code are exercised for quashing the registration of FIR/final report/charge sheet/complaint etc. are no more res integra and settled by several decisions of this Court.
86. One leading case on this question is Bhajan Lal's case (supra) and the other is S.B.Johari's case (supra) apart from many others.
87. So far as the case of Bhajan Lal (supra) is concerned, following proposition of law is laid down:
"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.9 CRR No. 9900005/2012
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice."
(88) As far as S.B. Johari (Supra) case is concerned, following proposition of law is laid down:
"4. In our view, it is apparent that the entire approach of the High Court is illegal and erroneous. From the reasons recorded by the High Court, it appears that instead of considering the prima facie case, the High Court has appreciated and weighed the materials on record for coming to the conclusion that charge against the respondents could not have been framed. It is settled law that at the stage of framing the charge, the court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. If the court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. The charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross-examination or rebutted by defence evidence, if any, cannot show that the accused committed the particular offence. In 10 CRR No. 9900005/2012 such case, there would be no sufficient ground for proceeding with the trial. In Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjayya, (1990) 4 SCC 76, after considering the provisions of Sections 227 and 228 CrPC, the Court posed a question, whether at the stage of framing the charge, the trial court should marshal the materials on the record of the case as he would do on the conclusion of the trial. The Court held that at the stage of framing the charge inquiry must necessarily be limited to deciding if the facts emerging from such materials constitute the [pic]offence with which the accused could be charged. The court may peruse the records for that limited purpose, but it is not required to marshal it with a view to decide the reliability thereof. The Court referred to earlier decisions in State of Bihar v. Ramesh Singh, (1977) 4 SCC 39, Union of India v. Prafulla Kumar Samal,(1979) 3 SCC 4 and Supdt. & Remembrancer of Legal Affairs, W.B. v. Anil Kumar Bhunja,(1979) 4 SCC 274 and held thus: (SCC p. 85, para 7) "From the above discussion it seems well settled that at the Sections 227- 228 stage the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging there from taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The court may for this limited purpose sift the evidence as it cannot be expected even at the initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case."
(emphasis supplied)
5...................................................................."
6. In our view the aforesaid exercise of appreciating the materials produced by the prosecution at the stage of framing of the charge is wholly unjustified. The entire approach of the High Court appears to be as if the Court was deciding the case as to whether the accused are guilty or not...................."
13. Keeping the aforementioned principles of law in mind and applying the same to the facts of the case in hand, I am of considered opinion that Sessions Judge, while framing charge under section 269 of Cr.P.C. is obliged to scan the evidence collected during investigation for limited purpose in order to satisfy himself as to whether there are sufficient grounds to presume that accused has committed offence as is alleged. For the purpose of framing of charge, therefore, the Judge has to consider judicially whether on consideration of the materials on record, it can be said that the accused has been reasonably connected with the offence alleged to have been committed 11 CRR No. 9900005/2012 and that on the basis of said materials there is a reasonable probability of chance of accused being found guilty of the offence alleged. If the answer is in the affirmative, the judge will be at liberty to presume "that the accused has committed an offence". Charge is first notice to the accused of an accusation made against him. It should be conveyed to him in sufficient clearness and certainty what the prosecution intends to prove and which case the accused is to meet.
14. Section 4 (c) of Code of Criminal Procedure defines a "charge". Charge includes any head of charge when the charge contains more heads than one. As per Law, a charge may be precise formulation of a specific accusation made against a person of offence alleged to have been committed by him. The main purpose of framing charge is to give intimation to the accused of clear, unambiguous and precise notice of the nature of accusation that the accused is called upon to meet in the course of trial.
15. At the time of framing charge, the Court has to prima facie consider whether there is sufficient ground to proceed against the accused and Court is not required to appreciate whether the material produced is sufficient or not for convicting the accused.
16. Bare perusal of documents on record and order of court below with regard to framing of charge, I find that court below has carefully scanned the evidence collected by investigating agency during investigation.
17. Counsel for petitioner, who sought quashment of charges, during the course of argument has brought to the knowledge of this Court two Hundi 12 CRR No. 9900005/2012 executed by co-accused Ghulam Hussain of Rs.40,000/- each; as per argument said accused took loan of Rs.1.00 lac from him and in rebuttal he deposited Rs.1.00 lac in his account and so charge was not maintainable. I have considered this aspect of the matter; this plea is not maintainable, because these documents were never before trial court and secondly, it is a sort of defense which petitioner has to prove during trial. So I do not find any infirmity of law and facts in order of framing of charges against accused/petitioner under section 467/468/471/409/420 read with section 120-B RPC.
18. Further, it is settled law that charges can be modified/amended at any stage of the proceeding. This petition is dismissed accordingly.
(Sanjay Kumar Gupta) Judge Jammu 28.02.2020 Narinder Whether the order is speaking : Yes / No Whether the order is reportable : Yes / No NARINDER KUMAR SHARMA 2020.02.28 13:14 I attest to the accuracy and integrity of this document