Gh. Hassan Bhat vs Gh. Hassan Gorsi

Gh. Hasnain Massodi, J.—This is a petition u/s 561-A of Code of Criminal Procedure for quashment of order of Learned Additional

Sessions Judge, Anantnag in a Revision Petition titled ""Ghulam Hassan Gorsi v. Ghulam Hassan Bhat"" dated 20th May 2009, whereby Revisional

Court set aside order of Learned Judicial Magistrate (Ist Class) Anantnag taking cognizance of offence punishable u/s 379 Ranbir Penal Code in a

complaint titled ""Ghulam Hassan Bhat v. Ghulam. Hassan Gorsi"", directing issuance of process against the Respondent/accused and also

temporarily releasing seized property (Tractor) on superdnama in favour of Petitioner/complainant.

The facts necessary for disposal of the present petition may be summarized, in the first instance:

The Petitioner/complainant on 18th of March 2009 filed a complaint in the court of Chief Judicial Magistrate, Anantnag, alleging therein that his

Tractor bearing Registration No. JK02A/7760 was intercepted by the Respondent/accused at Batingoo on Bijbehara- Anantnag road and forcibly

taken away from the possession of Petitioner/complainant's son Shri Javid Ahmad Bhat, who at the time of occurrence, was driving the vehicle in

question. The Petitioner/complainant claimed to have purchased the vehicle in question from M/s Valley Tractors Awantipora, through authorized

agents of the Dealer and paid an amount of Rs. 3,35,000/- together with an amount of Rs. 10,000/- for the documents to the Vendor. The

Petitioner/complainant denied to have sold/transferred the vehicle in question to any person, including the Respondent/accused. It was further

alleged that the Respondent/accused assaulted the Petitioner/complainant and resorted to use of criminal force.

The Learned Chief Judicial Magistrate, on receipt of the complaint and after recording statement of the Petitioner/complainant and one Shri

Mohammad Khalil Dar, a witness accompanying the complainant, decided to defer issuance of process against the Respondent/accused and

instead decided to get the veracity of the complaint ascertained through an inquiry. Accordingly, in terms of Section 202 Code of Criminal

Procedure an inquiry was directed in the matter by Station House Officer Police Station Anantnag.

The Inquiry Officer made a threadbare inquiry into the matter, recorded statements of the complainant and other witnesses as also Dealer, who

had sold the vehicle mentioned in the complaint. The Inquiry Officer also seized the vehicle in question, allegedly taken away by the

Respondent/accused. The Inquiry Officer found that the vehicle (Tractor) was originally purchased by the Respondent/accused from M/s Valley

Tractors, Awantipora, and thereafter sold to the Petitioner/complainant for an amount of Rs. 3,65,000/-, about two years prior to the date

complaint was filed. It was also found that at the time of sale transaction, the Respondent/accused had agreed to liquidate the loan, raised by him at

the time of purchase of vehicle against its hypothecation, from J&K Bank Limited Branch Seer Hamdan. It was found that the

Respondent/accused did not abide by the terms and conditions of sale transaction and avoided to repay the loan raised from the aforementioned

bank at the time of purchase of vehicle (Tractor in question). The Inquiry Officer discovered that the Respondent/accused accompanied by his

accomplices, on the day of occurrence, took control of the Vehicle at Batingoo, while it was being taken by the Petitioner/complainant's son for

repairs to a local workshop and pretending that the vehicle (Tractor) in question was being seized by the bank officials took it to the Bank

premises, wherefrom the vehicle was seized by the Inquiry Officer. The Inquiry officer came to know from the bank officials that though the

Tractor was initially hypothecated to the said bank, yet all the outstanding amount had been cleared and the bank had no more any claim on the

said vehicle. The Dealer (Valley Tractors), on being approached by the Inquiry officer, disclosed that the Vehicle was sold by the Dealer to the

Respondent/accused for an amount, paid in the shape of Demand Draft, drawn by the J&K Bank Limited Branch Seerhamdan. The Inquiry

Officer seized the sale letters, registration certificates in respect of the vehicle as also receipts of the consideration amount paid by the

Petitioner/complainant to Respondent/accused for the Vehicle in question, including photo copy of cheque No. 21436325. Both

Petitioner/complainant and Respondent/accused produced Registration Certificates in respect of seized Vehicle (Tractor) issued under Seal and

Signature of Assistant Regional Transport Officer (ARTO) Anantnag, before the Inquiry Officer.

Learned Judicial Magistrate Ist Class Anantnag, to whom the Learned Chief Judicial Magistrate, Anantnag assigned the complaint, on perusal of

complaint, inquiry report, statement of complainant and his witness as also the documents collected during inquiry, arrived at the conclusion that the

material prima facie disclosed commission of offence punishable u/s 379 RPC by the Respondent/accused. Learned Judicial Magistrate Ist Class

Anantnag, accordingly, took cognizance of the offence and thereafter proceeded to temporarily release the vehicle in question, seized during the

inquiry, in favour of the Petitioner/complainant on superdnama and bound down the Petitioner/complainant not to dispose of the vehicle in question

or alter its shape and to produce it as and when so required during the course of trial. The Registration Certificate of the vehicle was directed to be

retained.

The Respondent/accused aggrieved of the order dated 18.4.2009, assailed it through the medium of a revision petition before Additional

Sessions Judge An-antnag. The grievance voiced in the revision petition was that the Respondent/accused had purchased the vehicle in question

with financial assistance of T&K Bank Branch Seer Hamdan and that the Petitioner/complainant intended to lay claim to the vehicle on the strength

of fake and fabricated documents. The Respondent/accused avoided to comment on transfer of the vehicle in question by the Respondent/accused

to Petitioner/complainant, as concluded by the Inquiry Officer, for an amount of Rs. 3,65,000/- and did not specifically deny the transaction. It was

pleaded that the Learned Judicial Magistrate Ist Class Anantnag, placing reliance on report submitted by the Inquiry officer had failed to take into

consideration other aspects of the case, not disclosed in the complaint. The Respondent/accused also took exception to the Trial Magistrate,

taking cognizance of the offence punishable u/s 379 RPC notwithstanding the fact that the commission of offence punishable u/s 327 and 352

RPC, was alleged in the complaint. The Petitioner/complainant was alleged to have tampered with the Chasis number and Engine number of the

vehicle in question to lend credibility to his claim.

Learned Additional Sessions Judge Anantnag on 25th of May 2009 set aside the order of Learned Judicial Magistrate Ist Class Anantnag dated

18.4.2009 and asked the Trial Magistrate to ""issue process afresh u/s 204 Code of Criminal Procedure."" The vehicle was directed to be released

in favour of the claimant, the engine number and chassis number recorded in whose registration certificate/sale letter, tallied with the engine number

and chassis number found on the vehicle in question.

The order of Revisional Court dated 20.5.2009 is sought to be quashed on the ground that the order as regards temporary release of the vehicle

on suprednama was an interlocutory order and the Revisional court lacked power to interfere with the order in terms of Section 435(4)(a) Code of

Criminal Procedure Insisting that the vehicle is to be released in favour of the registered owner in a matter like present one, the

Petitioner/complainant submits that the Revisional Court has in effect declined the prayer of registered owner for release of the vehicle in question.

The impugned order is said to have been passed without jurisdiction and also in irregular exercise of assumed jurisdiction. The Revisional Court

after concluding that the parties had a dispute over the title of the vehicle in question, according to the Petitioner, ought not to have disturbed the

interim arrangement made by the Trial Magistrate. The controversy, it is insisted, involves important questions of law. It is stated that having regard

to the manner, in which the Revisional Court has exercised its revisional powers, the matter calls for exercise of inherent powers u/s 561-A Code

of Criminal Procedure

Heard and considered.

Learned Revisional Court, after obviating threshold challenge to the maintainability of the Revision Petition as being one against a purely

interlocutory order, on the score that what was challenged before the Revisional Court was composite order, taking cognizance of offence

punishable u/s 379 as also release of the property, has embarked on a haphazard and directionless exercise, to spot the issues involved in the

matter.

The order of Learned Revisional Court presents a confusing reading and on the first look appears self contradictory. Learned Revisional Court

while recording its agreement that the Trial Magistrate may on perusal of the complaint and inquiry/investigation report, if any, u/s 202 Cr.P.C, take

cognizance of an offence other than one alleged in the complaint, has found fault with the order on the ground that the Learned Trial Magistrate had

in the present case by taking cognizance of offence punishable u/s 379 RPC reviewed the order of Chief Judicial Magistrate dated 18th March

2009 and set it at naught. The conclusion was based on the ground that Learned Chief Judicial Magistrate on 18th March 2009 while entertaining

the complaint had in effect taken cognizance of offences disclosed in the complaint, and the Trial Magistrate after receipt of the inquiry report,

lacked power to reexamine the complaint and other material and take cognizance of an offence other than one alleged in the complaint and of

which supposedly cognizance was taken by Learned Chief Judicial Magistrate. Learned Revisional Court has in this regard made following

observations:

....Even if Ld. CJM did not mention in so many words regarding taking of cognizance, but since the process was postponed and matter was

directed to be investigated u/s 202 Code of Criminal Procedure It presupposes that cognizance was taken by him with respect to offences alleged

in the complaint, and there cannot be two orders of taking of cognizance. Assuming for a moment that magistrate has power to take cognizance of

any other offence disclosed by the enquiry report u/s 202 Cr.P.C, But vide order impugned Ld. Magistrate has not taken cognizance of offence u/s

379 RPC on the basis of enquiry report only. Ld. trial court while taking cognizance has observed ""On account of investigation report and after

perusing the contents of the complaint alongwith the statement of the complainant and his witness, I deem it proper to take cognizance against the

accused u/s 379 RPC.

Therefore Ld. court below has re-examined contents of the complaint alongwith statements of the complainant and his witness and while doing so

he has not only set the earlier order of taking cognizance by Ld. CM at naught, bat reviewed the same, which is not contemplated by Code of

Criminal Procedure

Learned Revisional Court thereafter proceeded to hold that the allegations made in the complaint and the facts that emerged during inquiry

constituted a civil controversy revolving around the title over the movable property and that there are counter claims of the parties in the litigation.

The court proceeded to observe:

....Ld. trial magistrate despite being conscious of the factum that the entire matter involved civil transaction came to the conclusion that it is his

bounden duty to consider all these aspects. This is neither the jurisdiction of an enquiry officer or investigating agency nor that of a criminal court to

adjudicate upon title of movable property.

The Revisional Court after concluding that the dispute involved, was of pure civil nature proceeded to set aside order, taking cognizance of the

offence u/s 379 RPC.

The Revisional Court as regards release of property disagreed with the argument advanced by the counsel for the Petitioner/complainant that

the seized vehicle was invariably to be released in favour of the registered owner. The Revisional court was of the view that law laid down in 2005

(2) SLJ 607 did not ask for such a recourse and proceeded to observe that law laid down in 1981 Cri.L.J. 1453, was not applicable as title over

the vehicle, ""was not questioned"".

The conclusions arrived at by the Revisional Court are untenable on counts. In the first instance the provisions of Chapter XIV are to be read

conjointly and not in isolation. Chapter XIV of the Code maps out the procedure to be followed by a Magistrate on receipt of a complaint before

the complaint is taken to the ""commencement of proceedings"" stage governed by Chapter XVII of Code. The Magistrate on receipt of the

complaint takes its cognizance and has a few options available to him. The Magistrate may return the complaint in terms of Section 201, if it finds

himself not to be competent to take cognizance of the case or in terms of Section 202 postpone issue of process till he gets veracity of the

complaint ascertained through inquiry or investigation. Once the outcome of inquiry/investigation is made available to the Magistrate, the Magistrate

may proceed in either of the two ways given in Sections 203 and 204 Code of Criminal Procedure i.e., to dismiss the complaint, where he finds

that the complaint together with the inquiry/investigation report do not disclose sufficient grounds for proceedings, or issue process against the

accused, if in the opinion of the Magistrate there is sufficient ground for proceeding in the case. In the circumstances, the view that the Magistrate,

after taking cognizance of the complaint u/s 200 Cr.P.C cannot, after the he has before him the outcome of inquiry/investigation, take cognizance of

offence, commission whereof is disclosed on perusal of said material, is palpably erroneous. Ss. 200 to 204, thus deal with the stage, through

which the complaint has to go through at the threshold, till the Court either decides to commence the proceedings or dismiss the complaint. It is

cognizance of the complaint/case that is contemplated by Section 200 Cr.P.C as is evident from expression ""to take cognizance of the case"", in

Section 201 Code of Criminal Procedure After the inquiry report is made available, the Magistrate, if he does not dismiss the complaint u/s 203

Cr.P.C, is to issue process against the accused u/s 204 Code of Criminal Procedure in an offence, commission whereof is prima facie disclosed by

the material on the file. There is thus no question of Magistrate at the stage contemplated by Section 204 Cr.P.C, sitting in appeal over the

threshold order u/s 200 Cr.P.C or reviewing the said order. Learned Revisional Court ought to have realized that Learned Chief Judicial

Magistrate on receipt of the complaint did not opine on the offence(s), disclosed by the complaint but directed an inquiry to ascertain truthfulness

or falsehood, and a stage to find out what offence(s) appeared to have been committed, would come thereafter. The view taken by the Revisional

Court thus is not in accordance with law.

Again the observation that as the matter was of civil nature, the Trial Magistrate ought to have desisted from taking cognizance of the matter, is

not based on correct view of the law. What was alleged in the complaint was that the vehicle in question was ""taken"" by the Respondent/accused

from the possession of the Petitioner/complainant and Learned Trial Magistrate on objective perusal of the material, including complaint and

outcome of inquiry, opined that prima facie commission of offence punishable u/s 379 RPC, was disclosed. Only because the dispute between the

parties has dimensions of civil dispute should not persuade the Court from throwing out a criminal complaint, which otherwise discloses

commission of offence punishable under law. A dispute between the parties may have a number of dimensions/aspects ""and the criminal

proceedings cannot be throttled on the ground that some of the dimensions can be dealt with in civil proceedings before a Civil Court.

It has been held in Lalmuni Devi v. State of Bihar and Ors. 2000 IX AD (S.C.) 562, where in exercise of inherent powers, a criminal

complaint alleging commission of offence punishable u/s 419, 420, 467 & 120B IPC, was quashed on the ground that the complaint spelt out civil

wrong and continuance of criminal proceedings would be abuse of process of court. The Supreme Court observed:

8...However, it is also settled law that facts may give rise to a civil claim and also amount to an offence. Merely because a civil claim is

maintainable does not mean that the criminal-complaint cannot be maintained.

In Maratt Rubber Ltd v. J.K. Marattukalam 2000 VII AD (S.C.) 34, it has been held that scrutiny and weighing of the material by the High

Court to opine that the matter pertained to civil proceedings between the parties, was certainly in excess of the inherent jurisdiction, conferred on

the High Court and the High Court exceeded its jurisdiction in quashing criminal proceedings.

The principle was reiterated in Kamaladevi Agarwal Vs. State of West Bengal and Others, , where the Magistrate issued process in a complaint,

alleging commission of offence u/s 465, 467, 468, 471 & 120B IPC and the High Court quashed the complaint, on the ground that a civil case is

pending between the parties before a superior court and therefore it would not be proper to try the matter. Supreme Court held:

Criminal prosecution cannot be thwarted at the initial stage merely because civil proceedings are also pending. After referring to judgments in

State of Haryana and others Vs. Ch. Bhajan Lal and others, , Rajesh Bajaj Vs. State NCT of Delhi and Others, this Court in Trisuns Chemical

Industry v. Rajesh Agarwal and Ors. 1999(8) SC 687 held:

Time and again this Court has been pointing out that quashing of FIR or a complaint in exercise of the inherent powers of the High Court should be

limited to very extreme exceptions [vide State of Haryana v. Bhajan Lal 1992 Supp (l) SCC 335 and Rajesh Bajaj Vs. State NCT of Delhi and

Others, .

In the last referred case this Court also pointed out that merely because an act has a civil profile is not sufficient to denude it of its criminal outfit.

We quote the following observations: (SCC p.263, para. 10)

It may be that the facts narrated in the present complaint would as well reveal a commercial transaction or money transaction. But that is hardly

a reason for holding that the offence of cheating were committed in the course of commercial and also money transaction.

The Court, after making review of catena of judicial pronouncements on the subject, observed:

In view of the preponderance of authorities to the contrary, we are satisfied that the High Court was not justified in quashing the proceedings

initiated by the Appellant against the Respondents. We are also not impressed by the argument that as the civil suit was pending in the High Court,

the Magistrate was not justified to proceed with the criminal case either in law or on the basis of propriety. Criminal cases have to be proceeded

with in accordance with the procedure as prescribed under the Code of Criminal Procedure and the pendency of a civil action in a different court

even though higher status and authority, cannot be made a basis for quashing of the proceedings.

Learned Revisional Court, after observing that the dispute between the parties was of pure civil nature and reprimanding the Trial Magistrate

for his having made an effort to adjudicate upon a civil dispute, has left no room for the Magistrate to dismiss the complaint u/s 203 Cr.P.C, but

asked him to ""issue process afresh u/s 204 Cr.P.C"".

Learned Revisional Court has again contradicted itself by observing that the law and in particular law laid down in 2005(2) SLJ 607 did not

mandatorily require release of seized vehicle in a criminal case in favour of registered owner and thereafter proceeded to impart exclusive reliance

on the Registration Certificate and asked the Station House Officer to handover vehicle as per the particulars detailed in the registration certificate.

The release is thus final and absolute without any conditions whatsoever.

Learned Revisional Court, again appears to have sidelined the real controversy emerging from the complaint and inquiry report. The inquiry

Officer reported that as per inquiry conducted the vehicle in question was found to have been sold by the Respondent/accused to the

Petitioner/complainant for an amount of Rs. 3,65,000/-, some two years before the complaint was filed. The transaction was prima facie well

documented as was evident from the material, on which inquiry officer was able to lay hands during inquiry. Though this aspect of the case was

discussed by Learned Trial Magistrate while taking cognizance of the matter yet the Respondent/accused did not comment or respond to

conclusions drawn by Inquiry Officer, leading to prima facie conclusion that the sale transaction was admitted by the Respondent/accused. The

Revisional Court did not at all take notice of this dimension of the case, which was relevant to the case set up before the Revisional Court. Learned

Trial Magistrate, though taking notice of the sale transaction of the vehicle in question between the accused/Respondent and the

Petitioner/complainant, proceeded to release the vehicle/tractor in question in favour of the Petitioner/complainant on superdnama, only on the

ground that the complainant/Petitioner was registered owner of the vehicle in question. The Petitioner/complainant in turn also based his claim for

release of the vehicle, on his being a registered owner of the vehicle (tractor in question). Both the Trial Magistrate and the counsel for the

Petitioner/complainant seem to have failed to notice that the Registration Certificate, relied upon by the Petitioner/complainant, pertains to a

Tractor, seemingly other than Tractor (vehicle in question) sold by M/s Valley Tractors to the Respondent/accused and thereafter by the

Respondent/accused to the Petitioner/complainant. The Engine Number of the Tractor sold by M/s Valley Tractors to the Respondent/accused is,

as per sale letter and Registration Certificate, in the name of Respondent/accused, is E-2041340 whereas the engine number recorded in the

Registration Certificate, pressed into service by the Petitioner/complainant, is T-2041345, though the Chassis Number remains same. Thus the

parties apparently have succeeded in getting two registration numbers viz. JK03B-4871 and JK023A-7760, in respect of same Chassis Number -

T2040393. The Petitioner/complainant could not lay claim on the seized Vehicle (Tractor) on the strength of the registration certificate produced

by him before the Trial Magistrate for the simple reason that the Engine Number recorded in the Registration Certificate in his name, did not tally

with the Engine Number of the seized Vehicle (Tractor). It appears that the Petitioner/Complainant after the Vehicle (Tractor) was sold to him by

the Respondent/accused and the sale price of Rs. 3,65,000/- received, either because of non-cooperation of the Petitioner/Complainant or some

other reason nursed an apprehension that the Respondent/accused may not come forward to get the vehicle/Tractor transferred in the name of

Petitioner/complainant in the records maintained by the Assistant Regional Transport Officer, Anantnag and to outwit Respondent/accused

embarked on an exercise on his own to get the Vehicle/tractor registered in his name, seemingly on the basis of a false sale letter and giving

incorrect Engine Number and persuaded the Assistant Regional Transport Officer, Anantnag, to issue a Registration Certificate in respect of the

vehicle in his favour. The effort made by the Petitioner/complainant to get the Vehicle (Tractor) entered in his name and obtain a certificate of

course apparently by unlawful means, is a different issue and does not neutralize the effect of sale transaction of the vehicle entered into by parties.

For the reasons discussed above, in order to secure ends of justice, the order dated 20.05.2009 of Learned Additional Sessions Judge,

Anantnag warrants exercise of inherent jurisdiction u/s 561A Code of Criminal Procedure The order of Learned Additional Sessions Judge

Anantnag dated 20.05.2009, is, accordingly, quashed. The order as regards taking of cognizance u/s 379 RPC and issuance of process against the

accused, being in accordance with law, warranting no interference u/s 435 Cr.P.C, by the Revisional Court, is to be followed by the proceedings

contemplated by Chapter XXVII of the Code of Criminal Procedure. However, the Judicial Magistrate shall make a fresh appraisal of rival

contentions/claims of the parties as regards temporary release of the vehicle (Tractor in question) and hear the parties, and pass orders in

accordance with law. The Trial Magistrate shall be free to make any temporary arrangement as regards interim custody of the vehicle (Tractor) as

may appear to him to be just and proper, till applications for temporary release of the Vehicle are disposed of. Record be send down. The parties

shall appear before the Judicial Magistrate (Ist Class) Anantnag on 23rd of April 2010.

Before parting with this order I find it necessary to mention that the mode and manner, in which two Registration Certificates bearing two

numbers viz. JK03B-4871 and JK023A-7760, have been issued by Assistant Regional Transport Officer, Anantnag, in respect of seemingly one

vehicle i.e., FARMTRAC 60 Agriculture Tractor, warrants an inquiry independent of the proceedings in criminal complaint titled ""Ghulam Hassan

Bhat v. Ghulam Hassan Gorsi"", awaiting disposal before the Learned Trial Magistrate. The fact that both the Registration Certificates bear the

same Chassis Number ought to have put the Assistant Regional Transport Officer, Anantnag, on alarm and made him conscious of the fraud that

was being played on his office unless of course Assistant Regional Transport Officer, Anantnag or his subordinates were a party to the crime.

Learned Judicial Magistrate Ist Class Anantnag will do well to ask a Senior Police Officer, stationed at Anantnag to look into and investigate this

aspect of the matter, so that the culprits are brought to the book and public confidence reinforced in Government Institutions like office of the

Transport Authority. The Registration Certificates, submitted by the parties in original for perusal of the Court, shall be forwarded in a Sealed

Cover to Judicial Magistrate Ist Class Anantnag so that any investigation ordered by the Judicial Magistrate Ist Class Anantnag as regards issuance

of parallel Registration Certificates in respect of same vehicle, is not prejudiced and the record is made available to the Investigating Officer. Photo

copies of the Registration Certificates, duly attested by the Registrar Judicial, High Court Wing Srinagar, may be made available to the parties for

their record.

Disposed of.