Dr. Sham Saroop Padha vs State Of J&K

Ma Chowdhary, J

The petitioner, through the medium of present Criminal Revision Petition, has assailed order dated 21.11.2006 (hereinafter to be referred as the “impugned order”) passed by the court of learned Chief Judicial Magistrate, Jammu in criminal case No. 393 titled “State Vs. Gurdeep Kour and others” for commission of offences under Sections 420 and 120-B RPC arising out of FIR No. 26/1998 registered at Crime Brach, Jammu and in the alternative, petition under Section 561 A Cr.P.C. to quash the proceedings aforementioned along with the order impugned.

The petitioner has assailed the impugned order on the following grounds:

(i) That the offences under Sections 420/120-B RPC are not made out against the petitioner and a bare perusal of the averments in the challan does not make out any offence against the petitioner at all.

(ii) That the allegations in the FIR are that the accused Gurdeep Kour is originally resident of Bandar Bagh, Srinagar and her husband is posted as Inspector in the Police Department and in the year 1985, the husband of Gurdeep Kour was allotted quarter in Police Housing Complex, Gulshan Ground, Jammu and she is residing in the said Government Quarter. The said Gurdeep Kour, knowing fully well that her husband is a Government employee fraudulently and with criminal intention conspired to get herself registered as a migrant with Relief Zone II Nanak Nagar, Jammu.

(iii) That there is no allegation in the challan which prima facie involves the petitioner with commission of offence under section 420/120-B as alleged conspiracy is against the petitioner is not made out from any evidence attached with the challan.

(iv) That none of the prosecution witnesses under Section 161 Cr.P.C has made any statement against the petitioner.

(v) That the only allegation against the petitioner is that he has attested “D” form and in fact Smt. Gurdeep Kour was registered on the basis of verification made by the Relief Organization. There was no overt or covert act attributed to the petitioner that he conspired with the said Gurdeep Kour to get the relief from the Relief Organization.

(vi) That the relief was granted to Smt. Gurdeep Kour after the enquiry made by Relief Organization and not on the sole basis of attestation of form “D” by the petitioner.

(vii) That even otherwise, in order to constitute an offence under section 420/120-B RPC mens rea is required to constitute an offence as has been laid down by Hon”ble Supreme Court of India and by this Hon”ble Court in various judgments, reference whereof shall be made at the time of hearing.

(viii) That it is a settled position of law that in order to prove the conspiracy, the necessary evidence is required which is totally lacking in the present case.

(ix) That additional or alternate grounds of challenge may be allowed to be urged at the time of hearing.

Pursuant to notice, the respondent/State through response filed by the learned Additional Advocate General submitted the following objections:

(a) That FIR No. 26/1998 was registered for commission of offences under Sections 420/120-B by the Crime Branch, Jammu and on investigation the petitioner was found guilty for commission of aforementioned offences and a charge-sheet was laid before the court of learned Chief Judicial Magistrate, Jammu against the petitioner and one Gurdeep Kour on 07.08.2006 after obtaining approval from the Home Department;

(b) That the trial court after going through the material on record, documentary evidence and after hearing the counsels for the parties found the petitioner and the co-accused prima facie involved in commission of offences and rightly framed charges against them after applying its judicial mind vide impugned order dated 21.11.2006;

(c) It was further submitted that in a petition seeking quashment of charge, this Court cannot evaluate the evidence for the purpose of determining the question as to whether the charge framed against the accused is likely to succeed or not as this question has to be considered by the trial court after recording the entire evidence in the case. Finally, it was prayed that the petition be dismissed.

Learned counsel for the petitioner has argued that the petitioner had been accused of cheating and having committed a criminal conspiracy with the co-accused while attesting “D” form of the co-accused wherein she had claimed to be declared a migrant to be registered with the Relief Department. It has been argued that the petitioner had merely attested the “D” form as gazetted officer which was required at the time for processing the case of the co-accused for seeking status of a migrant and the petitioner was not concerned with the declaration made by the co-accused as applicant, while applying for status of migrant to seek relief. He has further argued that the petitioner had neither been a beneficiary nor any favour had been extended to him due to attestation of the “D” form of the co-accused, therefore, he cannot be said to have committed any of the offences punishable under Section 420/120-B RPC. He has further argued that the prosecution had failed to prove any nexus between the petitioner and the beneficiary so as to constitute criminal conspiracy. He has further argued that as per the definition clause provided under Transfer of Property Act, the attestation means to have seen the executant of an instrument, while signing or affixing mark on such instrument. The reference clause is extracted for ready reference as under:

[“attested”, in relation to any instrument, means attested by two or more witnesses each of whom has seen the executants sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by direction of the executants, or has received from the executants a personal acknowledgement of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executants, but it shall not be necessary that more than one of such witnesses shall have been present at the same time and no particular form of attestation shall be necessary;]

He further argued placing reliance on the law laid down by Hon”ble High Court of Bombay in a case titled “Bhupinder Pal Singh Vs. Union of India & Ors” reported as 2022(1) SLJ 438 (Bombay), where to a question phrased as “Should the disciplinary proceedings initiated against the petitioner under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules by issuance of Memorandum of Charges dated October 23, 2013 (hereafter “the charge-sheet”, for short), served on him on October 29, 2013, i.e., immediately preceding his retirement on superannuation on October 31, 2013 as Commissioner of Customs and Central Excise, be interdicted and nullified on the ground of delay as well as subsequent acquittal in judicial proceedings,” replied in para 61, which is extracted for ready reference as under:

“61. We are of the considered opinion that the reasons assigned by us while allowing Writ Petition No. 5764 of 2021, as above, would squarely apply on facts and in the circumstances of the present case and that there being no valid and acceptable explanation for the delay of almost 6 (six) years in issuance of the charge-sheet coupled with the fact that the petitioner attained the age of superannuation on November 30, 2011, it would be just and proper and in the interest of justice to set aside not only the impugned judgment and order of the Tribunal dated March 1, 2019 but also the Memorandum of Charges dated December 4, 2009. It is ordered accordingly.”

He has further argued that legally it is not correct to believe that benefits were given to the co-accused merely on the basis of attestation of “D” form of the co-accused by the petitioner and not after conducting inquiry as was required by the Department concerned. He further argued that the trial court had fallen in error to hold that the petitioner had been found prima facie to have committed the offences in absence of any evidence in this regard and prayed for the revision petition to be allowed and the impugned order be set aside.

Learned counsel for the respondent on the other hand argued that the co-accused-Gurdeep Kour had filled up the “D” form to seek relief as a migrant with the averments that she had migrated from Budgam District to Jammu in the year 1990 and had been residing at Nanak Nagar, Jammu in a rented accommodation, whereas the fact of the matter was that she had come to stay with her husband, who was a Police Officer serving as Inspector in the J&K Police and having an official accommodation at Gulshan Ground, Jammu, as such, the averments that she had made in her “D” form were authenticated by the petitioner herein as a gazetted officer and on the basis of that authentication, the case of the co-accused was processed for treating her as a migrant by the Relief Department and she was also provided relief in the form of cash and ration, thereby cheating the State of its resources. She has further argued that it was not simply a case of attestation of the signatures as projected by the learned counsel for the petitioner, but it was a case of authentication of the fact stated in the “D” form which could only be done on the basis of personal knowledge, which was prerequisite. She has further argued that no malafide can be attributed towards the Investigating Agency as the Crime Brach of Police has nothing to do with the petitioner”s service or career so as to implicate him falsely, as has been alleged. She would finally pray dismissal of instant revision petition, upholding the impugned order.

Heard and considered.

Before appreciating the rival submissions, it will be beneficial to advert to the factual matrix of the case. One Gurdeep Kour, originally resident of Bandar Bagh, Budgam was residing with her husband who had been posted as Inspector in the Police and in the year 1985 he had been allotted official quarter in Police Housing Complex, Gulshan Ground, Jammu; that the said Gurdeep Kour knowing fully well that her husband is a Government employee, fraudulently and with criminal intention conspired with the petitioner to get herself registered as a migrant with the Relief Zone II, Nanak Nagar, Jammu.

The accused Gurdeep Kour alias Gurdeep at the time of her registration as migrant had submitted a declaration in which she had given certain particulars; that she migrated from Kashmir Valley due to disturbed conditions along with her family members on 15.04.1990; that she was residing in a rented accommodation at Nanak Nagar, Jammu and that the income of her family was Rs. 400/- per month and she had given names of her six children as her family members. This declaration form was certified at its foot by the petitioner herein as a gazetted officer, certifying that he knew her personally and that the contents of the form were true and correct.

The contention of the petitioner through his counsel is that he was not involved in any criminal conspiracy with the said Gurdeep Kour, as he had not obtained any benefit and had nothing to do with her declaration except formally attesting the same as a gazetted officer. It cannot be construed to be a mere formality for attestation without any purpose. The attestation sought to be on the basis of personal knowledge, gives credence to the declaration made by the applicant, whereupon the Relief Organisation had registered the said Gurdeep Kour as a migrant and she was stated to have received cash relief of Rs. 51,000/-, besides 3,087 kilograms of rice, 686 kilograms of flour and 49 kilograms of sugar during the period from 1990 to 1994, to which she was not at all entitled.

The Apex Court in a case titled “State of Delhi Vs. Gyan Devi and others” reported as 2000 0 SCC (Cri) 1486 in Para 7 of the judgment which is extracted as under for reference has held that:

“The legal position is well-settled that at the stage of framing of charge the Trial Court is not to examine and assess in detail the materials placed on record by the prosecution nor is it for the Court to consider the sufficiency of the materials to establish the offence alleged against the accused persons. At the state of charge the Court is to examine the materials only with a view to be satisfied that a prima facie case of commission of offence alleged has been made out against the accused persons. It is also well settled that when the petition is filed by the accused under Section 482 Cr.P.C seeking for the quashing of charge framed against them the Court should not interfere with the order unless there are strong reasons to hold that in the interest of justice and to avoid abuse of process of Court a charge framed against the accused needs to be quashed. Such an order can be passed only in exceptional cases and on rare occasions. It is to be kept in mind that once the Trial Court has framed a charge against an accused the trial must proceed without unnecessary interference by a superior court and the entire evidence from the prosecution side should be placed on record. Any attempt by an accused for quashing of a charge before the entire prosecution evidence has come on record should not be entertained sans exceptional cases.”

The contention of the learned counsel for the petitioner that attestation of any instrument as provided under Transfer of Property Act is mere an attestation of having seen the executant, sign or affix his mark to the instrument, in the considered opinion of this Court is of no consequence, as the declaration which the petitioner had attested was required to be made on the basis of the personal knowledge by a gazetted officer with regard to declaration made by the applicant to register herself as migrant for grant of relief through Relief Organisation. The petitioner cannot take refuge of attesting the declaration just for the sake of attestation and without any consequence. The another contention which the learned counsel for the petitioner has raised that since the petitioner had retired from service, he should not be prosecuted for the criminal offence, which he has been alleged to have committed in view of Bhupinder Pal Singh judgment of the Hon’ble High Court of Bombay (Supra), I am afraid that such a contention is acceptable, as that has been laid down by Bombay High Court with regard to the disciplinary proceedings in service matter and that cannot be stretched to the criminal prosecution of an employee. Both these contentions are, thus, not of any consequence to form an opinion that the petitioner should not have been charge-sheeted by the trial court.

The trial court has passed the impugned order framing charge against both the accused including the petitioner by a reasoned order and the same cannot be interfered with at this stage either by exercising revisional jurisdiction or inherent jurisdiction by this Court. In view of law laid down by the Apex Court and having regard to the factual matrix of the case, it is held that the trial court has rightly passed the impugned order, directing framing of charge against both the accused including the petitioner for commission of offences under Sections 420 B and Section 120-B RPC and in the considered opinion of this Court, the same does not warrant any interference by this Court. The impugned order is, thus, upheld and accordingly, the instant petition is dismissed.

Copy of this order be sent to the trial court for information and compliance.