Dr. Sandeep Mawa @APPELLANT@Hash State Of Jammu & Kashmir Through Additional Advocate General, Jammu & Kashmir , High Court, Srinagar

In this petition, filed under Section 561_A Cr. PC, the petitioner has assailed the indefensibility of the FIR bearing No. 123/2013, registered

against him at Police Station, Sadder, Srinagar, for the commission of offences punishable under Sections 353, 186-RPC, as also the proceedings

emanating therefrom.

The string of incidents that led to the registration of the FIR against the petitioner are that on 09.07.2013, he barged into the premises of police

station, Sadder, Srinagar, where he caught hold of ASI Mohammad Yasin, by his collar and prevented him from discharging his official duties. He (the

petitioner) declared himself to be a reputed doctor and an influential person.

Per contra, the case of the petitioner is that he had been to the police station to get a stamp inscribed on the damage report of a vehicle which

otherwise appeared blurred. His request for the inscription of a distinctand well-marked stamp on the written report antagonized the police officials,

who resortedto violence and after using criminal force subjected the petitioner to illegal confinement for a considerable period of time. The petitioner

filed an application under Section 156(3) Cr. PC against the police authorities before the Court of the learned Chief Judicial Magistrate,

Srinagar,wherein he spelled out the above detailsand by an orderdated 10.07.2013, the learned Chief Judicial Magistrate directed the SSP, Srinagar to

get the matter investigated through a senior police officer.Â

The petitioner has challenged the FIR on the grounds, inter alia that the investigation of case lacks impartiality which is manifest from the allegations

in the challan which makes prosecution story highly improbable. The FIR has been registered by the police station on its own complaint with planted

witnesses in absence of any independent witness. The investigation has not been supervised by a senior official, as such, lacks credibility to maintain

the prosecution against the petitioner. It is also submitted that neither the directions of the learned Chief Judicial Magistrate, Srinagar, nor the orders of

this Court passed in the earlier petition bearing 561_A No. 81/2015 have been followed. Such omission is deliberate in order to screen the culprits

involved in the commission of offence and engage the petitioner in the prosecution based on police padding. A severe miscarriage of justice is likely to

occasion in case the trial is allowed to continue.

It is also submitted that none of the ingredients of an offence under Section 353 or 186 RPC are made out from the FIR or the material evidence. It

is not shown what kind of public functions were disrupted by the conduct of petitioner. Therefore, the registration of the FIR on the grounds which

are imaginary cannot be sustained, and as such, this Court in exercise of inherent jurisdiction may quash the impugned proceedings to meet the end of

justice.The prosecution has been launched to camouflage the delinquency indulged in. No credence has been given to the directions issued by this

Court while culminating a spurious investigation. In furtherance of a malicious design, the direction of the learned Chief Judicial Magistrate, Srinagar,

has also been stifled. The entire prosecution case is based on illusory grounds, and is, as such, liable to be quashed.In the end, it has been urged that

the aforesaid FIR and all the proceedings emanating therefrom being baseless, false and frivolous in the file bearing No. 46m titled State v.

Sandeep Mawa, pending before the Court of the learned Special Mobile Magistrate, Passenger Tax Electricity, Srinagar may be quashed in the

interest of justice.

The respondent has resisted and controverted the petition of the petitioner chiefly on the grounds that on 09.07.2013, the petitioner-Sandeep

Mawa S/o Roshan Lal Mawa R/o House No. 01 Karanagar, Srinagar, approached police station Sadder, Srinagar and verbally statedthat he is a

Doctor working in Medical College Srinagar, and is a close friend of the Home Minister of J&K State. It is further pleaded that the petitioner stated

in a loud voice as to why the vehicle of his brother in-law has been seized by the investigating Officer. The Investigating Officer ASI Mohammad

Yaseen No. 510/S was present in the MHC Room(Serishta) of police station Sadder, Srinagar. and he told the petitioner that the vehicle stands seized

under the provisions of Law upon which the petitioner turned violent. He caught hold of ASI Mohammad Yaseen No. 510/S by his uniform and

started shouting loudly for which an FIR bearing No. 123/2013 for the commission f offences under Sections 353, 186-RPC was registered against

him at police station Sadder, Srinagar, and the investigation of the case was earlier entrusted to SI Mushtaq Ahmad No. 7872/NGO of police station

Sadder, Srinagar and later to ASI Mohammad Lateef No. 97/CR. On the conclusion of the investigation of the case,a report in terms of Section 173

(2) Cr. PC has been laid before the Court against the petitioner.Â

Heard and considered.

What needs to be stated at the outset is that during the investigation of the case, the petitionerfiled apetition under Section 561_A, which came to be

decided and determined by an order dated 01.05.2015 of this Court. In this petition, the respondent, i.e., SHO P/S Sadder, Srinagar, was directed to

provide the copies of the documents, if any, that prompted it to register the aforesaid FIR against the petitioner within a period of two weeks, enabling

him to work out the remedy whatever available under law and convince the Investigating Officer that the allegations levelled against him are devoid of

any substance and no further proceedings are warranted. There is nothing on record to suggest that this direction was complied with.

Looking at the merits of the controversy raised herein this petition, a charge sheet has been laid against the petitioner by the police authorities of

police station Sadder, Srinagar, for the commission of offences punishable under Sections 353 & 186 RPC, on the set of facts as stated herein before.

The matter has been investigated into by ASI Abdul Gani Zargar and ASI Mohammad Lateef, who were working in police station, Sadder at the

relevant point of time. The complainant in the case is “ police station Sadder,Srinagarâ€. Learned counsel representing the petitioner has

vehemently argued that such a position cannot be countenanced under law where the name of the complainant has been spelt out as“Police Station

Sadder, Srinagarâ€, and both the investigating officers were working in the same police station at the time of the alleged occurrence. Learned counsel

to canvas his argument has placed reliance on the law laid down in the case of “Bhagwan Sing v. State of Rajasthan†reported in 1976 (1) SCC

15, para 5 of which assumes significance in the context of the decision of the instant petition,which is reproduced herein below verbatim et literatim:

“Now, ordinarily this Court does not interfere with concurrent findings of fact reached by the trial Court and the High Court on an appreciation of

the evidence. But this is one of those rare and exceptional cases where we find that several important circumstances have not been taken into

account by the trial Court and the High Court and that has resulted in serious miscarriage of justice calling for interference from this Court. We may

first refer to a rather disturbing feature of this case. It is indeed such an unusual feature that it is quite surprising that it should have escaped the notice

of the trial Court and the High Court. Head Constable Ram Singh was the person to whom the offer of bribe was alleged to have been made a by the

appellant and he was the informant or complainant who lodged the first information Report for taking action against the appellant. It is difficult to

understand how in these circumstances Head Constable Ram Singh could undertake investigation of the case. How could the complainant himself be

the investigator? In fact, Head Constable Ram Sing., being an officer below the rank of Deputy Superintendent of Police, was not authorised to

investigate the case but we do not attach any importance to that fact, as that may not affect the validity of the conviction. The infirmity which we are

pointing out is not an infirmity arising from investigation by an officer not authorised to do so, but an infirmity arising from investigation by a Head

Constable who was himself the person to whom the bribe was alleged to have been offered and who lodged the first information Report as informant

or complainant. This is an infirmity which is bound to reflect on the credibility of the prosecution caseâ€​.

To buttress his submissions further, learned counsel for the petitioner has put explicit reliance on the law laid down in the case of Megha Singh v.

State of Haryana, reported in 1996 (11) SCC 709, Para 4 of which reads as under:

“After considering the facts and circumstances of the case, it appears to us that there is discrepancy in the depositions of the P.Ws. 2 and 3 and in

the absence of any independent corroboration such discrepancy does not inspire confidence about the reliability of the prosecution case. We have also

noted another disturbing feature in this case. PW3, Siri Chand, head Constable arrested the accused and on search being conducted by him a pistol

and the cartridges were recovered from the accused. It was on his complaint a formal first information report was lodged and the case was initiated.

He being complainant should not have proceeded with the investigation of the case. But it appears to us that he was not only the complainant in the

case but he carried on with the investigation and examined witnesses underSection 161,Cr. PC. Such practice, to say the least, should not be resorted

to so that there may not be any occasion to suspect fair and impartial investigationâ€​.

Applying the ratio of the law laid down above to the facts of the instant case, the disturbing feature in the instant case is that the Investigating

Officers, two of them were serving in the same police station(police station, Sadder, Srinagar), where one of their officers, Shri Mohammad Yasin, is

said to have been intimidated by the accused. The complainant being the police station Sadder, Srinagar, itself, fair investigation appears to have

become a causality in the case. The case ought to have been investigated by a superior officer which could have at least attached a semblance of

fairness to it. The matter could not and should not have been investigated by an Officer on the rolls of the said police station. This aspect touches at

the very root of the case and demolishes it in its entirety.

The investigation in the case as is repeated here is tainted and biased. It suffers from irregularities and has been conducted under mala fide

exercise of power by the police causing serious prejudice and harassment to the petitioner. The complaint filed by the petitioner before the Court of

the learned Chief Judicial Magistrate, Srinagar, pleading therein that when he went to the police station, the police officials resorted to violence and

after using criminal force subjected him to illegal confinement for a long time has not seen the light of the day. The learned Chief Judicial Magistrate,

Srinagar, forwarded the same to the SSP Srinagar, under Section 156 (3) Cr. PC for investigation. To the dismay of the petitioner,this complaint has

neither been investigated into nor has any reference been made to it in the charge sheet laid against the petitioner before the trial Court. This speaks

volumes as to how the authorities of the police station Sadder, Srinagar, had a predetermined mind to implicate the petitioner in a row. Had the

complaint lodged by the police authorities and the complaint laid by the petitioner been thoroughly investigated, and that too without any bias Â

the truth would have come to the surface.

The law is that the investigation into a criminal offence must be free from objectionable features or infirmities which may legitimately lead to a

grievance on the part of the accused that the investigation was unfair and carried out with an ulterior motive. It is the duty of the investigating officer

to conduct the investigation avoiding any kind of mischief and harassment to any of the accused. The investigating officer should be fair and conscious

as to rule out any possibility of fabrication of evidence and his impartial conduct must dispel any suspicion as to its genuineness. The investigating

officer ""is not merely to bolster up a prosecution case with such evidence as may enable the court to record a conviction but to bring out the real

unvarnished truth. Not only fair trial but fair investigation is also a part of the constitutional rights guaranteed under Articles 20 and 21 of the

Constitution of India. Therefore, investigation must be fair, transparent and judicious as it is the minimum requirement of the rule of law. The

investigating agency cannot be permitted to conduct an investigation in a tainted and biased manner. Where non-interference of the court would

ultimately result in failure of justice, the court must interfere.Â

Looking at the petition from yet another perspective, it is difficult to understand and hard to perceive, appreciate and comprehend that a person

and that too a member of the community to which the petitioner belongs who left their hearth and home in the valley to take refuge in the other parts

of the country because of threat perception that loomed large on their heads will intrude into the police station and will bash a police officer in

presence of a battery of police officers and officials thereby causing interference and impediments in the discharge of his official functions.

Viewed in the context of what has been said and done above, the petition of the petitioner is allowed, as a consequence of which, the impugned

FIR bearing 123/2013, registered against the petitioner at Police Station, Sadder, Srinagar, for the commission of offences punishable under Sections

353, 186-RPC,is quashed alongwith all the proceedings emanating therefrom.Â

Record be returned back. Â