Mir Naseem Ahmad vs State and Others

Muzaffar Hussain Attar, J.—Criminal Justice System forms bed-rock for having an orderly society. Goals of maintaining purity, preservation

of moral fabric and eradicating evil from the inhabitation can be attained only by having an effective Criminal Justice System.

""Socrates"" has said that reason for awarding punishment is maximization of building a welfare society. He has further said that punishment for

crime is the cure for evil, and justice leads to that punishment.

FIR No. 27 of 2008 of Police Station Vigilance Organization Kashmir Srinagar u/s 5(2) P. C. Act of 2006, read with Section 120-B, R. P. C.

came to be registered against the petitioner on the allegations that the petitioner was Chief Town Planner Kashmir in the year 1999 dishonestly and

fraudulently purchased land measuring 29 kanals and 13 marlas under survey Nos. 825, 827, 835 and 836 in planning sub-zone A-14 at Pahalgam

through gift deed by conducting allegedly dubious method of transferring of the said land in the name of his close trusted and confident subordinate

employees namely

Sh. Ishtiyaz Ahmed, Showket Ahmed sons of Mohammad Maqbool Ganaie R/o. Kalasoos Kupwara and Anr. person Ab. Rashid S/o. Ab.

Razaq Wani R/o. Hawal, Srinagar. It is further alleged in the FIR that after having fraudulently obtained the ownership of the land in the name of

proxy owners a plan was conceived by petitioner to arbitrarily change the land use so as to allow sharp increase in the value of the land in sub-

zone A-14 for conferring illegal gain upon himself. It is further alleged in the FIR that a surprise check was conducted which revealed that

committee comprising of petitioner, who was at the relevant point of time Chief Town Planner, Hamid Ahmed Wani the then Town Planner and

Nazir Ahmed Magray, the then Assistant Town Planner was constituted in the year 2004 to prepare Master Plan (2005-2025) of Pahalgam. In

pursuit of his criminal designs the committee resorted to misrepresentation, manipulations and distortions whereby it was inter alia proposed that

sub-zone A-14 be de-notified so as to allow the owners of the land to raise construction of the hutments and the other facilities. It is further alleged

that this effort was made with criminal intention to achieve personal benefits. It is further alleged that the area sub-zone A-14 is inaccessible and is

situated on the other side of Sheeshnag Nallah of river Udder. It is further alleged that as a part of criminal conspiracy the information related to

proposed de-notification of sub-zone A-14 was intentionally withheld by the members of drafting committee from the draft Master Plan which was

made available to public for filing of objections. It is further stated in the FIR that Government approved the Master Plan in the year 2006 after

having been mislead about the need for change of land use in sub-zone A-14 and by deceitfully depriving the public from raising objection about

the same. The other members of the Committee, it is alleged, also purchased land in sub-zone A-14 details whereof given in the FIR. It is on these

allegations that FIR No. 27 of 2008 was registered in police station VOK against the petitioner.

The petitioner has placed on record of the petition Govt, order No. 32-TSM of 2004 dated 27-1-2004 as also photo copy of the minutes of

meeting of Pahalgam Develpment Authority.

Learned Counsel for petitioner Mr. R.A. Jan vehemently argued that the FIR deserves to be quashed by this Court by exercising its inherent

powers because the petitioner is the innocent person and on the basis of the documents he has placed on the record of the petition it becomes

demonstratively clear that petitioner has not committed any offence. Learned Counsel for. petitioner further submitted that a case can, be

investigated only when the I. O. has reason to suspect about the commission of offence. To support his contention learned Counsel referred to a

judgment reported in State of Haryana and others Vs. Ch. Bhajan Lal and others, The Id. counsel while referring to the allegations contained in

FIR about the constitution of committee in the year 2004 has referred to Government order No. 34-TSM stating therein that besides the petitioner,

Divisional Commissioner, Kashmir, Chief Engineer R & B Kashmir, Chief Executive Engineer Pahalgam Dev. Authority were members of the said

committee and recommendations were made by the said Committee to develop the area as tourist village so petitioner cannot be said to have

committed any offence.

Learned Counsel for the respondent Mr. N.H. Shah, Dy. Advocate General submitted that the allegations contained in the FIR had disclose

commission of offence by the petitioner, which necessitated conducting of investigation and investigation in the case is proceeding. The Id. counsel

while controverting the argument of Mr. R.A. Jan with respect to constitution of Committee in the year 2004 has submitted that it is not the same

committee to which reference has been made by Id. counsel for petitioner. It was a different committee though constituted in the same year which

comprises of petitioner, Mr. Hamid Ahmed Wani and Nazir Ahmed Magray. The details whereof have been given in the FIR. The Id. counsel also

referred to some documents of the case diaries to demonstrate before the Court that petitioner prima facie has committed the offence as alleged in

the FIR. Ld. Counsel for the respondents in support of his contention referred to ""2006 Criminal Law Journal 4045"" and submitted that in view of

the law laid down by Hon'ble Supreme Court the investigation conducted by police agency cannot be interfered with. Ld. Counsel has further

referred to ""AIR 2000 SC 1301"" (sic) as also judgment reported in State of U.P. Vs. Virendra Prasad, to canvass the point that, when the matter

is under police investigation the material produced by other side cannot be considered.

Heard ld. counsellor parties. Considered the matter.

It is settled principle of law that the inherent powers can be exercised by the High Court to make such orders as are necessary to(give effect to

any order under the Code or to prevent the abuse of process of any Court or otherwise to secure the ends of justice. It is further settled position

in law that inherent powers to quash FIR or criminal proceedings should be exercised with great caution and circumspection and in the rarest of

rare cases. This power is not to be exercised to halt in its tracks a lawful-investigation.

The information given to police about the commission of cognizable offence is required to be reduced in writing u/s 154 of the Code of Criminal

Procedure. It is the statutory duty cast on the officer in-charge of the Police Station. The information received is to be then subjected to

investigation to find out truth or otherwise about the same. The FIR which is sought to be quashed in this petition, on the allegations contained

therein, prima facie commission of an offence u/s 5(2) of P. C. Act read with Section 120-B, Cr. P. C. are disclosed. The investigating officer gets

power to conduct investigation u/s 156 of the Code of Criminal Procedure when he has reason to suspect the commission of an offence. The

allegations as contained in the FIR do form ground to suspect commission of an offence. The very language of Section 1, 57 of Cr. P. C. in its

plain terms refers to ""reason to suspect"". A reasonable person who is trained in his job will obviously have reason to suspect commission of an

offence on the allegations like of which are disclosed' in the FIR, so gets clothed with power to investigate the same.

The legislatures in their wisdom have rightly used the expression ""reason to suspect"" which the Id. counsel for the petitioner by his argument wants

to be read as ""belief to suspect"". An FIR in law need not in all circumstances disclose all the ingredients of an offence, which, however, are

required to be proved at the trial of the case. Refer to Rajesh Bajaj Vs. State NCT of Delhi and Others, . The allegations contained in the FIR if

would disclose some ingredients of an offence would be sufficient in law to empower the investigating officer to embark upon the allegations made

therein. It would be statutory duty upon the investigating officer to conduct the investigation in the above referred circumstances. The allegations

made in the FIR in this case as already stated do disclose commission of an offence which would require thorough investigation. The contention of

the Id. counsel on this count fails. The Id. counsel for the petitioner with his enthusiasm tried to pursue the Court to consider the documents placed

by him on the record of the writ petition to record finding of innocence in favour of petitioner. Valiant effort of the learned Counsel for petitioner,

however, strong, it may be lacks conviction for the reason that authority is created under statute to investigate the offence. This Court on the basis

of the document produced in the proceedings cannot evaluate the same for declaring petitioner to be innocent. The investigating agency has

statutory duty and right to conduct the investigation and as long as allegations of mala fides are not alleged and prima facie proved, the investigation

cannot be ordered to halt in its tracks.

In the present case no allegations of mala fides have been made so neither FIR can be quashed nor investigating officer can be restrained from

proceeding with the investigation. This Court in the factual background of this case cannot pre-empt the investigating agency to proceed with the

investigation. Duty to weigh and sift evidence is ordinarily function of trial Court before whom report u/s 173, Cr. P. C. along with relevant material

is to be produced. This Court in exercise of its inherent jurisdiction cannot consider the documents produced by I petitioner and determine their

impact on the I investigation of the case which is being conducted by statutory authority.

This Court has already considered like submission in OWP 11/09 and has negatived the same vide judgment date 19-2-2009. The relevant

part of the judgment is reproduced as under:

The question arises whether this Court in its extra ordinary writ jurisdiction can declare the petitioner to be innocent and quash the proceedings and

FIR on the basis of documents which have been annexed by the petitioner with the writ petition. The evidence placed on record of the writ petition

cannot be looked into by this Court at this stage while exercising its extra ordinary jurisdiction and this Court cannot declare the petitioner to be an

innocent person. This view is supported by judgment of Hon'ble Supreme Court, in case titled State of Bihar and Another Vs. P.P. Sharma, IAS

and Another, . The Hon'ble Supreme Court at page 16 of the said judgment has qbserved as under:

It is thus obvious that 'the annexures' were neither part of the police reports nor were relied upon by the investigating officer. These documents

were produced, by the respondents before the High Court along with the writ petitions. By treating 'the annexures' and affidavits as evidence and

by converting itself into a trial Court the High Court pronounced the respondents to be innocent and quashed the proceedings. The least we can

say is that this was not at all a case where High Court should have interfered in the exercise of its inherent jurisdiction. This Court has repeatedly

held that the appreciation of evidence is the function of the criminal Courts. The High Court, under the circumstances, could not have assume

jurisdiction and put an end to the process of investigation and trial provided under the law. Since the High Court strongly relied upon the ""the

annexures"" in support of its findings, we may briefly examine these documents.

This is not the case of the petitioner that these documents were produced before investigating agency. Even in such eventuality, it is within the

powers of investigating agency, to accept or reject a document or even not to entertain the same.

The Hon'ble Supreme Court has expressed the opinion in plethora of cases about exercise of power u/s 561-A, Cr. P. C, and it has been the

consistent view of the Hon'ble Supreme Court that such power shall be exercised with great caution, very sparingly with circumspection, that too in

the rarest of rare cases. The Hon'ble Supreme Court in State of Haryana and others Vs. Ch. Bhajan Lal and others, , it is pointed out (para 109 of

AIR and Cri. L. J.):

Para 103 is reproduced as under:

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 the enquiry as to the reliability or

genuineness or otherwise of the allegations made in the FIR or the complaint and that the extra-ordinary or inherent powers do not confer any

arbitrary jurisdiction on the Court to act according to its whim or caprice.

The Hon'ble Supreme Court has further held in State of Bihar and Another Vs. J.A.C. Saldanha and Others, , and observed that unless

extraordinary case of gross abuse of power by those in charge of investigations is made out, the Courts should be quite loath to interfere at the

investigation stage.

Again the Hon'ble Supreme Court has further held in State of Bihar and Another Vs. P.P. Sharma, IAS and Another, Hon'ble K.

Ramaswamy, J. is on record to say (at p. 1462 of Cr. L. J.).

Para 68 is reproduced as under:

it has been observed by his Lordship's that quashing the charge-sheet even before cognizance is taken by a criminal Court amounts to ""killing a

stillborn child"". Till the criminal Court takes cognizance of the offence there is no criminal proceedings pending. I am not allowing the appeals on

the ground that alternative remedies provided by the code as a bar. It may be relevant in an appropriate case. My view is that entertaining the writ

petitions against charge-sheet and considering the matter on merit in the guise of prima facie evidence to stand an accused for trial amount to pre-

trial of a criminal trial under Articles 226 and 227 even before the competent Magistrate or the Sessions Court takes cognizance of the offence.

Once the proceedings are entertained the further proceedings get stayed. Expeditious, trial of a criminal case is the cardinal rule. Delay feeds

injustice to social order and entertaining writ petition would encourage to delay the trial by diverse tricks.

The Hon'ble Supreme Court in Sunita Jain Vs. Pawan Kumar Jain and Others, , has stated:

In exercising its jurisdiction u/s 561-A the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not.

That is the function of the trial Magistrate, and ordinarily it would not be open to any party to invoke the High Court's inherent jurisdiction and

contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained.

In view of the law laid down by the Hon'ble Supreme Court, and in view of the fact situation of this ease as discussed hereinabove this petition

being meritless is dismissed. The investigating agency shall conduct investigation with promptitude.

Record be returned to Mr. N.H. Shah.