Gurmeet Kumar And Ors vs State Of Jammu & Kashmir Ors

Through the instant petition filed under Section 561-A of the Code of Criminal Procedure (hereinafter for short, Cr.P.C) petitioners seek quashing of order dated 14.03.2014 passed by learned Special Railway Magistrate (SJ) Jammu in a criminal Challan No.179/2010 under section 419/420 RPC titled as State Vs Gurmeet Kumar & Ors, whereby the learned court below has charged the petitioners with the offences under section 419, 420 RPC and directed to be tried for the said charges; and consequently quashing of the criminal challan.

The brief facts of the case are that petitioners applied and appeared in the recruitment of constables in J&K Police (Executive) on 10.06.2010 and successfully qualified the first three events i.e. Height, Chest and 1500 meters but stopped by the recruitment agency at the time of test of long jump and high jump and in this connection a false and frivolous FIR was registered under section 419, 420 RPC by the respondent No.1 at the behest of respondent No.2 against the petitioners and ultimately respondent No.1 filed the challan before the learned Chief Judicial Magistrate, Jammu and the same was transferred before the court of learned Special Railway Magistrate, Jammu.

The case projected by the respondents was that on10.06.2010 as per the report of Mr. Mohd. Amin Khan, Superintendent of Police i.e. respondent No.3 herein who was the Member of Recruitment Board, two persons i.e. petitioner Nos.1 & 2 were found impersonating in place of petitioners No.3 & 4 at 17.00 hours at Police Stadium, Gulshan Ground, Jammu. Both the impersonators successfully appeared and qualified the first three events i.e., Height, Chest and 1500 Meters and were identified during the fourth event i.e., the long Jump in presence of the supporting staff. On the basis of the said report, an FIR No.120/2010 came to be registered with respondent No.1. Thereafter, the Investigating Officer visited the scene of crime and made the site plan, recorded the statements of complainant and other witnesses u/s 161 Cr. P. C. and presented the challan before the learned C.J.M., Jammu who further transferred the same to the court of learned Special Railway Magistrate, Jammu for disposal under law. The Court below vide order dated 14.03.2014, petitionersNo.1 & 2 were charged under Section 419/34 RPC and petitioners No.3 & 4 were charged under Sections 420/34 RPC.

Learned counsel for the petitioners states that the complaint filed against the petitioners by respondent No.2, is only to harass and deprive the petitioners from getting appointments in Police Department, as the petitioners successfully passed all the tests. It is stated that the Challan presented by respondent No.1 and facts narrated herein above supported with documentary evidence do not disclose the commission of any offence alleged in the Challan. The continuance of the proceedings arising out of the Challan will undoubtedly amount to abuse of the process of law, as such, the same is required to be nipped at the outset. It is further stated that when all the petitioners were competing in the said selection process then there was no occasion with any of the petitioner to impersonate for others and moreover, at the time of selection process there were thousands of candidates in ground, the Selection Authority was inviting the candidate on Tehsil-wise, the petitioners were hailing from the same Tehsil and the petitioners participated when their names were called by the official who was holding the list of candidates. If there would have been any mischief, then how all the petitioners were supposed to be present there and who were ultimately taken into custody by the respondent No.1 on a false complaint reported by respondent No.3 to the respondent No.2 who in-turn got the FIR registered without verifying the accusations leveled against the petitioners.

Learned counsel for the petitioners contends that respondent No.3 in order to deprive the petitioners from their rightful claim managed to get them out from the zone of consideration by roping up in a false and frivolous case only in order to facilitate the entry of his blue eyed persons, otherwise, there was no occasion to rope-up the petitioners in a false and frivolous complaint. It is stated that respondents deliberately did not show the petitioner Nos.1&2 to have applied for the above said selection process, that speaks volumes on their part, as such, the petitioners through their counsel made an application under Right to Information Act, before the respondent No.2 for seeking complete particulars of the candidates appearing at Serial No.TR-74 for Physical Test of Constable. But no such information has been provided till date deliberately only in order to save themselves. That the offences for which the petitioners have been charged do not attract in the instant case, when the ingredients required to constitute the offence of cheating are not attracted. It is further contended that Testing the facts and evidence of the instant case on the touch-stone of the ingredients required to be satisfied by the prosecution, it is found that there is no evidence or even iota of hint in the evidence that the acts committed by the accused had caused or were likely to cause damage or harm to the complainant in body, mind or property, therefore, the evidence in the case to make out the important ingredients of the alleged offences is lacking.

Learned counsel for the petitioners relies upon a decision of Hon'ble Supreme Court in case reported in AIR 1974 SC 1811, titled Ram Jas vs State of U.P. In the said judgment it was observed that:

"(A) Penal Code (1860), s.419-Cheating by personating- To constitute and offence all ingredients of S.415. l. Р.С. must be present. A person by merely inducing the oath Commissioner, by wrong identification to at least the affidavit does not commit any offence under section419 as the act done by the Oath Commissioner of attesting the affidavit does not cause any damage or harm to the Oath Commissioner in body, mind, reputation or property."

Learned counsel for the petitioners further contends that besides the complainant, the statements of officers/officials associated with the recruitment process figuring in the list of witnesses have been recorded under Section 161 Cr.Р.С., but none of these witnesses of occurrence have stated anything except impersonation. It is submitted that the learned Trial Judge after hearing the arguments on charge from both the sides, did not appreciate the arguments advanced by the defense counsel and the law cited straight-way charged the petitioners by citing the judgments in the order dated 14.03.2014 only on the question of framing charge and not on the constitution of an offence when the ingredients to constitute an offence are missing.

I have considered the rival contentions. Operative part of the impugned judgment dated 14.03.2014 passed by learned Special Railway Magistrate (SJ) Jammu reads as under:-

"I have gone through these judgments, however the facts of the present case are totally different from the authorities cited by learned counsel for the accused persons because in both these authorities the accused persons have not been discharged but they have been acquitted by the Honorable Supreme Court. In Ram Jas Vs State of UP AIR 1974 SC 1811, it has been held in para 3 that not only was there no charge of cheating against the accused but the appellant when questioned under section 342 Cr.P.C was not asked to explain evidence relating to the charge of cheating. In Hari Sao & Anr Vs State of Bihar AIR 1970 SC 843 it has been held that there were 97 bags of chaff were found in the railway wagons and consignment was said to contain 251 bags of chilies, there is no question of cheating the railway Station master. On the other hand the allegations against the accused persons in the case in hand are that two accused persons had appeared in the Police recruitment test by impersonation on behalf of two other accused persons and they had passed three events but were caught in the fourth event. As such the accused persons were likely to cause damage to the other deserving candidates and also to the recruitment board for having selected undeserving candidates.

The allegations are serious and this court is of the humble opinion that the accused persons cannot be discharged at this stage and there is certainly a primafacie case against them to proceed further.

As such the accused persons 1.Gureet Kumar S/o Bhajan Ramand 2.Ashok Choudhary S/o Vijay Kumar, both R/O R.S.Pura Jammu shallbe charged for offences under section 419/34 RPC. Accused No.3 Ashwani Kumar S/o Ram Lal and 4. Vikrant Chowdhary S/O Puran Singh both R/o R.S.Pura, Jammu shall be charged for offences under section 420/34 RPC.

Accused No.1 Gurmeet Kumar and accused No.4 Vikrant Chowdhary are present with their counsel. Accused No.2 Ashok Chowdhary and accusedNo.3 Ashwani Kumar have been exempted for today on the applications moved by their respective Counsel. The Advocates for exempted accused persons are directed to produce them on the next date positively so that charges as aforementioned may be framed against them."

Law with regard to quashment of charge has now been well settled. In AIR 2014 SC 1106 in case titled Umesh Kumar Vs. State of AP, it is held as under:-

A) Code of criminal procedure -section 482 -instead of considering prima facie case-High court appreciating and weighing the materials on record -concluding that charge sheet could not have been filed against accused and further ,no charges could have been framed -virtually acting as an appellant court -approach illegal and erroneous.

A Constitution Bench of this Court reiterated a similar view in CBI & Ors. v. Keshub Mahindraetc., AIR 2011 SC 2037 observing that when the charges are framed, the court makes an endorsement till that stage. So charges are framed on the materials produced by the prosecution for framing the charges "at that stage". Such indication is necessary otherwise the provisions contained in Sections 216, 323, 386, 397, 399, 401 etc. Cr.P.C., would be rendered nugatory and denuded a competent court of the powers under those provisions. The court cannot be restrained from exercising its powers either under Section 323 or Section 216 Cr.P.C.

In 2015 (9) SCC 294 in case titled The State Rep. by the Inspector of Police, "Q' Branch CID., Tirunelveli Range, Tamil Nadu Vs. Mariya Anton Vijay, it is held as under:-

"85. The question as to how, in what manner and to what extent, the inherent powers of the High Court under section 482 of the Code are exercised for quashing the registration of FIR/final report/charge sheet/complaint etc. are no more res integra and settled by several decisions of this Court.

One leading case on this question is Bhajan Lal's case (supra) and the other is S.B.Johari's case (supra) apart from many others.

So far as the case of Bhajan Lal (supra) is concerned, following proposition of law is laid down:

"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

(1) Where the allegations made in the first information report or 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 a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice." (88) As far as S.B. Johari (Supra) case is concerned, following proposition of law is laid down:

"4. In our view, it is apparent that the entire approach of the High Court is illegal and erroneous. From the reasons recorded by the High Court, it appears that instead of considering the prima facie case, the High Court has appreciated and weighed the materials on record for coming to the conclusion that charge against the respondents could not have been framed. It is settled law that at the stage of framing the charge, the court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. If the court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. The charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross-examination or rebutted by defence evidence, if any, cannot show that the accused committed the particular offence. In such case, there would be no sufficient ground for proceeding with the trial. In Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjayya, (1990) 4 SCC 76, after considering the provisions of Sections 227 and 228 CrPC, the Court posed a question, whether at the stage of framing the charge, the trial court should marshal the materials on the record of the case as he would do on the conclusion of the trial. The Court held that at the stage of framing the charge inquiry must necessarily be limited to deciding if the facts emerging from such materials constitute the [pic]offence with which the accused could be charged. The court may peruse the records for that limited purpose, but it is not required to marshal it with a view to decide the reliability thereof. The Court referred to earlier decisions in State of Bihar v. Ramesh Singh, (1977) 4 SCC 39, Union of India v. Prafulla Kumar Samal,(1979) 3 SCC 4| and Supdt. & Remembrancer of Legal Affairs, W.B. v. Anil Kumar Bhunja,(1979) 4 SCC 274 and held thus: (SCC p. 85, para 7) "From the above discussion it seems well settled that at the Sections 227-228 stage the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging there from taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The court may for this limited purpose sift the evidence as it cannot be expected even at the initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case." (emphasis supplied)

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In our view the aforesaid exercise of appreciating the materials produced by the prosecution at the stage of framing of the charge is wholly unjustified. The entire approach of the High Court appears to be as if the Court was deciding the case as to whether the accused are guilty or not...................."

Keeping the aforementioned principles of law in mind and applying the same to the facts of the case in hand, I am of the considered opinion that order of framing of charge is well reasoned; and all the essential ingredients for framing of charges u/s 419/34 RPC against accused No.1 Gurmeet Kumar S/o Bhajan Ram and accused No.2 Ashok Choudhary S/o Vijay Kumar, both R/o R.S.Pura Jammu are made out as they both impersonated for other accused in police recruitment process; the offences under section 420/34 RPC are also made out against accused No.3 Ashwani Kumar S/o Ram Lal and accused No.4 Vikrant Chowdhary S/o Puran Singh both R/o R.S. Pura, Jammu, as these persons allowed first two accused to appear on their behalf in selection process.

Petitioner have raised disputed question of facts which cannot be appreciated in this petition. While framing charge, court is obliged to scan the evidence collected during investigation for limited purpose in order to satisfy itself as to whether there are sufficient grounds to presume that accused has committed offence as is alleged. For the purpose of framing of charge, therefore, the Judge has to consider judicially whether on consideration of the materials on record, it can be said that the accused has been reasonably connected with the offence alleged to have been committed and that on the basis of said materials there is a reasonable probability of chance of accused being found guilty of the offence alleged. If the answer is in the affirmative, the judge will be at liberty to presume "that the accused has committed an offence". Charge is first notice to the accused of an accusation made against him. It should be conveyed to him in sufficient clarity and certainty what the prosecution intends to prove and which case the accused is to meet. At the time of framing charge, the Court has to prima facie consider whether there is sufficient ground to proceed against the accused and Court is not required to appreciate whether the material produced is sufficient or not for convicting the accused.

This court while exercising the power under section 561-A Cr.P.C, does not function as court of trial, appeal or revision. Inherent jurisdiction has to be exercised sparingly, carefully and with great caution. These powers cannot be used to stifle the legitimate prosecution. This is discretionary power vested in High Court to do substantial justice. High Court cannot examine the evidence as to whether charge for alleged offence is made out or not. This is prerogative of trial court where challan is produced.

As already held, in present case all the pleas taken are pertaining to factual in nature and may be defense of accused/petitioners which they have to prove before court below by producing evidence or in cross examination of respondents and their witnesses. It is not case of petitioners that there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceeding.

In view of above discussion, this petition is dismissed. Interim stay, if any, is vacated.