HEADNOTES;
PARA 18: "The law is no more res integra laid down by the Apex Court prohibiting filing of multiple criminal proceedings by the same person against the same accused for the same alleged offence and consistently has been held that getting an accused entangled in multiple criminal proceedings for the same alleged offence would be an abuse of process of law and as such, will not stand the scrutiny of Articles 21 and 22 of the Constitution of India. A reference in this regard to the judgment of Apex Court in T.T. Antony Vs. State of Kerala and ors reported in AIR 2001 SC 2637, Krishna Lal Chawla and others vs. State of Uttar Pradesh and anr reported in (2021) 5 SCC 435 and Rarak Dash Mukharjee & ors vs. State of Uttar Pradesh and Ors Criminal Appeal No. 1400 of 2022 decided on 23.08.2022 would be relevant and germane herein."
Full Judgment:
IN THE HIGH C0URT 0F JAMMU & KASHMIR AND
LADAKH AT SRINAGAR
OWP No. 1381/2015
Reserved on: 13-12-2022
Pronounced on: 27-12-2022
Gh. Mohammad Malik and Ors
....Appellant/Petitioner(s)
Through: Mr. M. Younis Bhat, Adv.
Vs.
State of JK and Ors.
.....Respondent(s)
Through: Ms. Asifa Padroo, AAG
Mr. Kaiser Ali, Adv.
CORAM:
HON’BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
JUDGMENT
1. In the instant petition filed under Article 226 of the Constitution, the petitioner herein prays for the following reliefs. “A writ of certiorari or any other appropriate writ may be passed directing the quashment of the investigation undertaken by the Crime Branch (respondent No. 1-3) upon complaint filed by respondent no. 4 before the Chief Judicial Magistrate, Srinagar which has been sent for investigation to Senior Superintendent Crime Branch Srinagar which exercising powers U/s 156(3) CrPC which has been the subject matter of FIR No. 262 of 2009.”
2. The background facts under the shade and cover of which the aforesaid relief is being prayed as stated in the petition would reveal that the respondent no. 4 filed a complaint on 7-10-2009 against the petitioners before SSP, Srinagar alleging therein that the petitioners had cheated him and obtained crores of rupees against land measuring 108 Kanals situated at Sharifabad Budgam and though the possession of the land had been delivered to him yet sale deeds thereof are not being executed. The said complaint is stated to have been forwarded by SSP, Srinagar to SHO Police Station, Parimpora for action under law.
3. It is being stated that the respondent no. 4/complainant thereafter filed a complaint before the Chief Judicial Magistrate, Srinagar with similar allegations against the petitioner which complaint came to be forwarded under Section 156 (3) Cr. P. C for
investigation by the Magistrate to Police Station, Parimpora resulting into registration of FIR No. 262/2009 and upon completion of the investigation therein, a challan thereof came to be presented before the Chief Judicial Magistrate, Srinagar against the petitioners for commission of offence under Section 420, which challan is stated to be pending trial.
4. It is being next stated that in the month of April, 2015, the respondents 1 to 3 herein, summoned the petitioners to the Police Station. Crime Branch where the petitioners came to know that the respondent no. 4 herein had yet filed another complaint before the Chief Judicial Magistrate, Srinagar under Section 156 (3)
which had been forwarded by the Magistrate for investigation to SSP, Crime Branch. The said complaint is also stated to have been maintained on the same allegations as had been filed earlier by the respondent no. 4/complainant while suppressing the filing of earlier complaint, registration of FIR No. 262/2009 and
consequential charge sheet laid thereof.
5. It is being further stated that the petitioners approached the Chief Judicial Magistrate, Srinagar through the medium of an application praying therein that in presence of the earlier complaints, FIR registered and consequent charge sheet laid upon the complaint of the respondent no. 4/ complainant, the enquiry/investigation undertaken by SSP, Crime Branch be stopped. In the said application, the magistrate is stated to have sought a status report from the Crime Branch, but after considering the application and the said status report declined to interfere in the enquiry/investigation being undertaken by the Crime Branch through provided a liberty to the petitioners to avail a remedy under appropriate law. The petitioners on account of the aforesaid refusal of the Chief Judicial Magistrate, Srinagar have approached this Court through the medium of the instant petition for seeking the aforesaid relief.
6. The short grievance projected by the petitioners in the instant petition is that the complainant/respondent no. 4 herein could not have maintained successive complaints against the petitioners for same set of allegations as the complainant/respondent no. 4 had earlier filed a complaint resulting into registration of FIR No. 262/2009 with Police Station Parimpora and consequent charge sheet thereof filed before the Court of Chief Judicial Magistrate, Srinagar, while suppressing the said fact at the time of filing of successive complaint in the year 2015 through the intervention of Chief Judicial Magistrate, Srinagar which complaint came to be forwarded to the Crime Branch for investigation by the Magistrate.
7. Objections to the petition have been filed by the respondents 1 to 3, wherein it is being admitted that upon the complaint filed by the complainant/respondent no. 4 herein, an FIR bearing No. 262/2009 came to be registered with Police Station Parimpora and consequently charge sheet before the Court of Chief Judicial Magistrate, Srinagar filed and that the said charge sheet came to be followed by another complaint filed by complainant/respondent no. 4 herein against the petitioners whereupon the Magistrate sought a status report from the Crime Branch which came to be submitted on 11-04-2014 and though an application for stopping the enquiry/investigation in the said complaint was filed by the petitioners herein before the Magistrate, the said application came to be dismissed on 15th June, 2015.
8. Complainant/Respondent no. 4 has also filed objections to the petition wherein it is being stated that the plea raised in the instant petition has been raised by the petitioners earlier before the Chief Judicial Magistrate, Srinagar by filing an application praying therein for stopping enquiry/investigation being conducted by the Crime Branch upon complaint filed by the Complainant/Respondent no. 4 having been forwarded under Section 156 (3) Cr. P. C by the Magistrate for investigation, which application stands dismissed on 15th June, 2015.
9. It is being further averred in the objections that the allegations in the subsequent complaint filed by the Complainant/Respondent no. 4 whereunder the instant petition has arisen is directed besides petitioners herein against more persons with more facts substantiating the allegations leveled against the petitioners by the Complainant/respondent no. 4. The allegations leveled in the said complaint and those leveled in the earlier complaint are stated to be quite different. It is denied in the objections that the petitioners would suffer any double jeopardy on account of filing of subsequent complaint by the complainant/respondent no. 4 in presence of an earlier charge sheet filed against them on the basis of the complaint/FIR filed/registered by the respondent no.4/complainant herein.
10. It is being further stated in the objections that the subsequent complaint got necessitated on account of certain facts having got established on account of an enquiry conducted by a Committee constituted by the Deputy Commissioner and that, as such, the petition is liable to be dismissed.
Heard learned counsel for the parties and perused the record.
11. Learned counsel for the petitioners while reiterating the contentions raised in the petition would contend that the filing of subsequent complaint by the complainant/respondent no. 4 herein before the Chief Judicial Magistrate, Srinagar having been forwarded to respondents 1 to 3 for investigation while exercising power under Section 156 (3) Cr. P. C in fact is verbatim based on the allegations the complainant/respondent no. 4 have had earlier filed against the petitioners which had resulted into registration of FIR No. 262/2009 and finally culminated into charge sheet laid before the Court of Chief Judicial Magistrate, Srinagar and, as such, in presence of the said charge sheet, the complainant/respondent no. 4 had no reason to maintain subsequent successive complaint so also the Chief Judicial Magistrate, Srinagar had no power and competence to entertain the same and forward it for investigation to the respondents 1 to 3 while exercising power under Section 156 (3) Cr. P. C and also that respondents 1 to 3, as such, have had no power to conduct either an enquiry or investigation thereof.
12. Counsel for the respondents however, would controvert and oppose the contentions raised by the counsel for the petitioner.
13. In order to address to the issues raised in the instant petition, it would be appropriate and advantageous to advert to the complaint filed by the complainant/respondent no. 4 herein in the year 2009 having resulted into registration of FIR No. 262/2009 and culmination into charge sheet laid before the Court of Chief Judicial Magistrate, Srinagar.
14. Perusal of the said complaint appended with the petition as Annexure P1 would tend to demonstrate that the complainant/respondent no. 4 on behalf of International House Building Cooperative Ltd. Karanagar, alleges to have entered into an agreement with petitioner no. 3 for purchase of an orchard measuring 109 Kanals situated at Sharifabad, upon making monthly payments against execution of documents and delivery and possession of the land till 15th March, 2008, and that the petitioner no. 3 within few months obtained Rupees two crores and sixty lacs from the complainant/respondent no. 4 and did not in return furnish papers of the land, but instead out of the said land of 109 Kanals sold 22 Kanals to the residents of Sharifabad.
Perusal of the complaint would further reveal that the
complainant/respondent no. 4 had also alleged that the petitioner no. 3 had also extracted an amount of Rupees one crore and fifty lacs from the legal heirs of one Ghulam Rasool Mir against the land in question. The complainant had also alleged that the petitioner no. 3 had only furnished papers of land comprising of 4½ Kanals not being out of the land agreed to be purchased and that the Company of the complainant/respondent no. 4 have had in fact sold the land in question to number of people and had received approximately 50% of the sale consideration against that and on account of the fraud committed by petitioner no. 3, the complainant/respondent no. 4 herein suffered mental agony and frustration besides having got the reputation of the Company injured.
15. A further perusal of the complaint reveals that Complainant/respondent no. 4 herein had also alleged in the complaint that he the complainant was attacked by the petitioner no. 3 at Umerabad HMT and that the complainant apprehends that he would be got killed by the petitioner no. 3 and that he had been extended such threat in Police station Parimpora to the complainant.
16. Perusal of the status report filed by the official respondents herein before the Court of Chief Judicial Magistrate, Srinagar sought by the Magistrate while considering the application filed by the petitioners herein for stopping the enquiry/investigation undertaken by the respondents herein upon the subsequent complaint filed by the complainant/respondent no. 4 herein would demonstrate that the complainant/respondent no. 4 had claimed to be Chairman of International House Building Cooperative Ltd. and allegedly to have been fraudulently and dishonestly induced into a deal of land at Sharifabad against a sum of Rupees four crores by the non-applicants/accused persons on the basis of some forged documents and that the complainant had approached the Deputy Commissioner for help in this regard who had ordered an enquiry during which it was found that the non-applicants/petitioners herein managed to play fraud with the complainant by creating fraudulent documents of the land and grabbed Rupees four crores from the complainant/respondent no.4 herein and that in the enquiry ordered by the Deputy Commissioner, Budgam, it surfaced that the complainant/respondent no. 4 herein had entered into annagreement with petitioner no. 3 herein for purchase of land andndespite executing agreement had sold some portion of the land to other persons worth Rupees Forty Eight lacs deceiving both the parties.
17. Perusal of the said status report filed by the official respondents before the Chief Judicial Magistrate, Srinagar in respect of the successive complaints filed by the complainant/respondent no. 4 herein reveals that the enquiry officer of the Crime Branch have had observed as follows:
“
On perusal of the enclosed documents, it has bee found that apparently the subject matter of enquiry under probe with Crime Branch, Kashmir is similar to that of FIR No. 262/2009 of Police Station, Parimpora.”
18. In presence of the aforesaid specific observation made by the respondent no. 3 being the enquiry officer in the matter drawn by him while conducting enquiry upon the subsequent complaint filed by the complainant/respondent no. 4 herein against the petitioners, the Magistrate ought to have stopped the enquiry/investigation into the matter as directed by him. The said position, however, has manifestly been overlooked by the Magistrate and in that process, rejected the application filed by the petitioners herein for stopping the enquiry/investigation on wrong premise as the law is no more res integra laid down by the Apex Court prohibiting filing of multiple criminal proceedings by the same person against the same accused for the same alleged offence and consistently has been held that getting an accused entangled in multiple criminal proceedings for the same alleged offence would be an abuse of process of law and as such, will not stand the scrutiny of Articles 21 and 22 of the Constitution of India. A reference in this regard to the judgment of Apex Court in T.T. Antony Vs. State of Kerala and ors reported in AIR 2001 SC 2637, Krishna Lal Chawla and others vs. State of Uttar Pradesh and anr reported in (2021) 5 SCC 435 and Rarak Dash Mukharjee & ors vs. State of Uttar Pradesh and Ors Criminal Appeal No. 1400 of 2022 decided on 23.08.2022 would be relevant and germane herein.
19. For what has been observed, considered and analysed hereinabove, the petition succeeds and the complaint filed by the complainant/respondent no. 4 against petitioners herein before Chief Judicial Magistrate, Srinagar, pending enquiry/investigation before respondents no. 1 to 3 herein titled as International House Building Cooperative Limited through its Chairman Akhar Rashid Wani vs. Ghulam Mohammad Malik and ors is quashed.
20. Disposed of accordingly.
Tags:
Judgment