Jan Mohammad and Mohammad Ismail Bhat. vs State and Others

Several officials including the petitioners have allegedly misused and abused their official positions resulting in attestation of a mutation, having the

effect of divesting the actual owners of their proprietary and possessory rights. Upon such information, FIR 51 was registered on 28/10/1987 by

the respondents and Naib Tehsildar and two Partwaris ( Petitioners ) have been booked for the offence under section 5(2)P .C. Act 2006.'

Three writ petitions bearing Nos. OWP 200/94. OWP 431/94 and OWP 1255/94 came to be filed on different dates challenging the

aforementioned FIR . Writ petition No. OWP 200/94 was considered on 27/02/1994. Respondents were put on notice and the proceedings in

respect of FIR 51 were stayed. OWP 431/94 came to be considered on 04/03/1994. Interim direction was granted and both the petitions were

directed to be clubbed. Third writ petition No. OWP 1255/94 was considered on 03/06/ 1994 and the interim direction was reiterated.

OWP 431/94 was listed before the court on 03/04/1998, arguments were heard and was dismissed. OWP 200/94 was not listed

notwithstanding the directions of the court. That is how OWP 200/94 is surviving and in this backdrop the said petition is clubbed with petition No.

1255/94.

OWP 1255/94 and OWP 200/94 came up for consideration before this court. No one chose to appear in OWP 200/94, whereas Mr. Khan

caused appearance in OWP 1255/9'4 who has been heard at length. It is releveant to mention here that FIR 51 is called in question through the

medium of these petitions, therefore, both these petitions are being disposed of by this common judgment. The FIR is assailed mainly on the

ground that a statutory remedy by way of appeal is provided against the mutation, therefore, prosecution cannot lie. It is also contended that if the

Naib Tehsildar has transgressed his jurisdiction, the petitioners can not be held responsible for it and the petitioners have also disputed their

involvement in the crime and the petitioner of OWP 1255/94 has further stated that he was appointed subsequent to the attestation of the mutation.

Mr. MH. Attar, Ld. AAG, as filed objections supported by an affidavit and has specifically stated that the mutation has been brought into being

illegally and fraudulently by the petitioners in connivance with each other. It is also stated that the investigation has been completed and sanction has

been obtained from the competent authority for prosecuting the petitioners. Mr. Attar has submitted that the petitioners have obtained the interim

direction by suppression of material facts and by dint of misrepresentation , they have successfully stalled the process of administration of justice. It

is also canvassed that the petitioners have misused their official positions in lieu of illegal gratification. He has further submitted that there is a prima

facie evidence against the petitioners and has also disputed the averment of the petitioner of OWP 1255/94 that the mutation was at tested prior to

his appointment. Mr. Attar has also argued that neither constitutional, legal nor statutory rights of the petitioners have been infringed by registration

of HR and submits that investigation of a cognizable offence falls within the domain of respondents. He, therefore, submits that the respondents are

within their rights to investigate and present the challan before the court.

During the course of arguments, LC for the petitioner has drawn my attention to the sanction granted by the Government and has submitted that

the sanction has been accorded by an incompetent authority, but perusal of the sanction reveals otherwise and it is clear in unambiguous terms that

the sanction has been granted under the orders of the government, this argument of LC for the petitioners is not sustainable. The contention of the

LC for the petitioners that the order of mutation is an appealable order is not disputed, but challange to the FIR on this ground is devoid of any

substance. Undoubtedly, the order of mutation is appealable, but availability of such remedy does not debar the respondents to deal under the

penal law and what is required to be noticed is that statute obligates the State to take recourse to the provisions of the prevention Act and Ranbir

Penal Code.

The petitioners have also contended that they have neither attested the mutation nor facilitated its attestation and seek a finding of innocence in

their favour from this court. It is apt to mention here that the respondents are charged with a duty under the Statute to investigate into congnisable

offences, provided there is a reason to suspect the commission of an offence and they are not required to see whether adequate proof of facts is

available or not, however, this order will not debar the petitioners of an opportunity of hearing at an appropriate stage to address the competent

court of jurisdiction which is likely to be seized of the case after presentation of the challan and this court cannot afford to make any abservation in

respects of the merits of the case because any expression made at this state may prejudice the rights of the parties, moreso, this court is not dealing

with the matter as an appellate court.

Here it is relevaent to notice that extraordinary jurisdiction under Article 226 of the Constitution can undoubtedly be exercised by this court to

prevent abuse of the process of law, or otherwise to secure the ends of justice and examining the case of the petitioners on the touch stone of this

principle of law. I am of the opinion that the respondents have taken the congnisance of the offence legitimately and have not transgressed their

limits. Obviously, not guilty of breach of any statutory provisions, thus no indulgence on the part of this court is warranted. It also requires to be

noticed that the FIR which has been impugned through this petition has simply set the authorities concerned in motion and by registering a case, the

respondents have discharged a duty cast upon them by the Statute and such lawfull action of the respondents has in no way violated any of the

rights of the petitioners, so also the writ petitions are not maintainable.

For the aforesaid 'reasons, the writ petitions are held to be misconceived, accordingly, dismissed. Interim directions shall stand vacated.

No order as to costs.