Jammu & Kashmir High Court - Srinagar Bench
Bashir Ahmad Dar & Others vs Ut Of J&K & Another on 20 April, 2022
Author: Sanjay Dhar
Bench: Sanjay Dhar
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
Reserved on: 06.04.2022
Pronounced on:20.04.2022
CRM(M) No.302/2021
CrlM No.1070/2021
CrlM No.218/2022
BASHIR AHMAD DAR & OTHERS ... PETITIONER(S)
Through: - Mr. M. S. Latief, Sr. Adv. with
Mr. Zahid Khan, Advocate.
Vs.
UT OF J&K & ANOTHER ...RESPONDENT(S)
Through: - Mr. Sajjad Ashraf, GA-for R1.
Mr. Naveed Gul, Advocate-for R2.
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1) The petitioners have challenged FIR No.47/2021 for offences under Section 147, 451, 308, 506, 34 IPC of Police Station, Rajbagh Srinagar.
2) Before coming to the contentions raised in the petition, it would be apt to refer to the contents of the impugned FIR.
3) On 10.06.2021, the impugned FIR came to be lodged by respondent No.2 alleging that the petitioners and other unknown persons took out machinery worth lacs of rupees from his shop located at Kursoo Rajbagh near Hurriyat office, Srinagar. As per the complainant, he was tenant of petitioner No.1 in respect of three shops wherein he was running a 2 CRM(M) No.302/2021 CrlM No.1070/2021 CrlM No.218/2022 business unit by the name of M/S Dig Way. It is alleged in the impugned FIR that the accused persons, prior to lockdown, approached the complainant and asked him to vacate the premises. It is also alleged that the accused/petitioners trespassed into the shops which were in possession of the complainant and thereafter stole the property in the shape of machinery and other items. They also extended threats to the complainant. On the basis of these allegations, the impugned FIR for offences under Section 147, 451, 380, 506, 201 and 34 IPC was registered by the police and the investigation was set into motion.
4) In the petition, it has been admitted by the petitioners that respondent No.2-complainant was in possession of residential flat comprising of two rooms, kitchen and bathroom situated at Kursoo Rajbagh, Srinagar, as a tenant but in the year 2014, due to the devastating floods, the residential house of petitioner No.1 was damaged and it was required to be re-constructed. Accordingly, the petitioner No.1 obtained permission from the competent authority for reconstruction/restoration of the structure. It is further averred that the respondent No.2-complainant filed a suit for permanent prohibitory and mandatory injunction against the petitioner No.1 before the Court of Judge Small Causes, Srinagar, seeking a decree of mandatory injunction directing the petitioner No.1 to execute fresh rent agreement with a further direction commanding the petitioner No.1 herein to reserve three shops for the complainant in the redeveloped building. An injunction directing the petitioner No.1 not to cause any interference in the business of the complainant was also sought. 3 CRM(M) No.302/2021 CrlM No.1070/2021 CrlM No.218/2022 The suit is stated to be still pending disposal before the Court and the petitioner No.1 has also filed his written statement.
5) It is contended by the petitioners that the matter between them and the respondent No.2 is essentially a dispute between the landlord and tenant and that respondent No.2 by filing the impugned FIR has given it a criminal flavour which is not permissible in law. It has been further contended that the police has not conducted any preliminary enquiry before lodging the FIR despite there being undue delay in lodging the same. The petitioners have also contended that the contents of the impugned FIR do not disclose commission of a cognizable offence and that the same has been lodged just to wreak vengeance upon the petitioners.
6) Respondent-State filed its response to the petition, in which it has reiterated the allegations made in the impugned FIR. It has been stated that the investigation of the case has been undertaken and statements of the witnesses have been recorded. According to official respondents, after investigation of the case, offences under Section 147, 451, 380, 506, 201 and 34 IPC stand established against the petitioners.
7) The respondent-State has also filed an application seeking vacation of interim order dated 27.09.2021, whereby they were directed not to file the challan against the petitioners.
8) I have heard learned counsel for the parties and perused the material on record including the Case Diary.
4 CRM(M) No.302/2021CrlM No.1070/2021 CrlM No.218/2022
9) The primary contention of the petitioners is that the dispute between them and the respondent No.2 is purely of civil nature, inasmuch there is a dispute of tenancy going on between the parties. The respondent No.2- complaiannt claims his right to re-enter as a tenant in the newly constructed building which is being resisted by the petitioners. This aspect of the matter gets further clarified from the fact that the respondent No.2 has filed a civil suit against the petitioners claiming the following reliefs:
a) A decree for mandatory injunction, whereby the defendant be directed to execute fresh rent agreement containing the terms and conditions in pursuance of the previous rent agreement with plaintiffs with regard to rented premises to be erected and redeveloped after demolition, situated at Kursoo Raj Bagh near Hurriyat Office Srinagar with the further direction commanding upon the defendant to reserve the three shops for the plaintiffs in the building to be redeveloped.
b) A decree for permanent injunction, whereby the defendant be directed not to cause any sort of interference with the business of the plaintiffs carried out by the plaintiffs through the rented premises after redevelopment of the building, situated at Kursoo Raj Bagh near Hurriyat Office Srinagar.
10) In the aforesaid civil suit, which has been filed somewhere in the month of March, 2021, before the Civil Court, respondent No.2 has admitted that the tenanted premises got submerged in devastating floods in the year 2014 and his equipments and items got damaged. Even the documents relating to tenancy were also damaged. In the suit, the main grouse of the respondent No.2 is that the petitioner No.1 by dismantling the rented premises cannot deprive him of his tenancy rights and that he has a right to be inducted as a tenant after re-development of the premises. 5 CRM(M) No.302/2021 CrlM No.1070/2021 CrlM No.218/2022
11) The question now arises is as to whether the aforesaid undisputed facts would give rise to a cause for criminal action to the respondent No.2 against the petitioners. It is a settled law that a particular action or omission can give rise to both criminal as well as civil consequences. In this regard, it would be apt to notice the legal position on the subject.
12) The Supreme Court in the case of M/S Indian Oil Corporation vs. M/S NEPC India Ltd. & Ors (2006) 6 SCC 736, has laid down the principles which guide the Courts in ascertaining as to whether allegations regarding a commercial dispute would give rise to a criminal action apart from the civil remedy. These principles are reproduced as under:
(i) A complaint can be quashed where the allegations made in 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 the case alleged against the accused.
For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint.
(ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with malafides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable.
(iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution.
6 CRM(M) No.302/2021CrlM No.1070/2021 CrlM No.218/2022
(iv)The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence.
(v) A given set of facts may make out: (a) purely a civil wrong; or (b) purely a criminal offence; or
(c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceedings are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not.
13) From the foregoing enunciation of law on the subject, it is clear that the mere fact that a complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available, is not by itself a ground to quash the criminal proceedings. It is only if it is shown that the complaint even if taken at its face value does not disclose commission of any offence or if it is found that criminal proceedings have been initiated with malafides/malice for wreaking vengeance that the same can be quashed.
14) In the light of the aforesaid legal position, let us now analyze the contents of the impugned FIR and the material collected by the 7 CRM(M) No.302/2021 CrlM No.1070/2021 CrlM No.218/2022 investigating agency during the investigation of the case which is available in the Case Diary. The grouse of the complainant is that the petitioners have trespassed into his tenanted premises and taken away machinery and equipments lying over there besides threatening him to evict from the premises. It is not in dispute that the complainant has filed a civil suit. A copy of the plaint has been placed on record by the petitioners along with the petition. In the plaint, respondent No.2 has clearly admitted that due to unprecedented floods in the year 2014, the tenanted premises got damaged and his items and equipments installed in the shop in question also got damaged. He has also admitted that the petitioner No.1 dismantled the said premises and re-developed the same. In the plaint, respondent No.2 is seeking reservation of three shops for himself in the re-developed building, which in other words means that he was not in possession of the tenanted premises as on date of filing of the suit nor was he in its possession after the re-development of the tenanted premises was undertaken by the petitioners. It seems that respondent No.2, finding the route of the civil proceedings somewhat difficult and time consuming, has resorted to shortcut method by lodging the impugned FIR to pressurize the petitioners to achieve what he could not achieve in the civil suit within a short span of time. The malafide intention of the complainant can be gauged from the fact that he has not only implicated the petitioner No.1, the land lord, but has also implicated his young children as accused in the impugned FIR. This clearly shows that the impugned FIR and the proceedings emanating there from have been 8 CRM(M) No.302/2021 CrlM No.1070/2021 CrlM No.218/2022 launched by respondent No.2 to wreak vengeance upon the petitioners and to achieve the goal of his induction into the newly constructed building.
15) Apart from the above, neither the impugned FIR nor the statements of the witnesses recorded under Section 161 of Cr. P. C during investigation of the case disclose as to what machinery and equipment has been stolen by the petitioners from the premises in question. I could not find anything in the Case Diary that would even remotely suggest the details of the machinery alleged to have been stolen by the petitioners. Simply by mentioning printing press, stabilizer, furniture, furnishing etc. would not make out a case of theft against the petitioners unless it is clearly identified by the complainant as to what type of machinery, its make, year of manufacture, particulars of furniture or furnishing are mentioned either in the FIR or even in the Case Diary. According to the investigating agency, the investigation of the case is complete. Thus, even after completion of the investigation, the investigating agency has not been able to get these details. This clearly goes on to show that the allegations made in the impugned FIR and in the statements made by witnesses under Section 161 Cr. P. C during investigation of the case are palpably improbable.
16) Recently, the Supreme Court in the case of Mitesh Kumar J. Shah vs. The State of Karnataka & Ors. 2021 SCC Online SC 976, has expressed its disapproval for imparting criminal colour to a civil dispute merely to take advantage of a relatively quick relief granted in a criminal case in contrast to a civil dispute. The Court further went on to observe 9 CRM(M) No.302/2021 CrlM No.1070/2021 CrlM No.218/2022 that such an exercise is nothing but an abuse of the process of law which must be discouraged in its entirety. Thus, respondent No.2, it appears, has given a criminal colour to a pending civil dispute relating to tenancy, which clearly amounts to abuse of process of law.
17) There is yet another aspect of the matter which requires to be noticed. In the instant case, as per the statement of the complainant recorded under Section 161 Cr. P. C, the trespass into the tenanted premises was undertaken by petitioner No.1 somewhere in July, 2020, when the lockdown was in operation. However, respondent No.2 has woken up from deep slumber only in June, 2021 and lodged the impugned FIR. There is no explanation for delayed lodging of the FIR either in the report filed by respondent No.2 or even in the Case Diary which includes the statement of the complainant recorded under Section 161 of the Cr. P.C.
18) The Supreme Court has, in the case of Lalita Kumari vs. Government of UP, (2014) 2 SCC 1, clearly observed that in cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay, there has to be a preliminary inquiry before registering an FIR. I could not find anything in the Case Diary that would even remotely suggest that respondent No.1 has conducted any preliminary inquiry with regard to the reasons for delay in lodging the FIR or with regard to assessing the veracity of the allegations made in the impugned FIR. The aforesaid dictum laid down by the Supreme Court in Lalita Kumari's case has been observed in breach by 10 CRM(M) No.302/2021 CrlM No.1070/2021 CrlM No.218/2022 the investigating agency. In the instant case, there is about one year's delay in lodging of the FIR. Thus, it was necessary for the investigating agency to conduct a preliminary inquiry in order to ensure and protect the rights of the accused, which they have failed to do.
19) In view of the foregoing discussion, it is a fit case where this Court should exercise its powers under Section 482 of Cr. P. C to prevent the abuse of process of law and to secure the ends of justice.
20) Accordingly, the petition is allowed and the impugned FIR and the investigation emanating there from are quashed.
21) Case Diary be returned to the learned counsel for the respondent No.1.
(SANJAY DHAR) JUDGE Srinagar, 20.04.2022 "Bhat Altaf, PS"
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No