Mohammad Mehraj-Ud-Din Khan @APPELLANT@Hash Investigating Officer & Ors

By the medium of this petition, the petitioner has sought indulgence of this Court under Section 561-A Cr. PC for quashing the prosecution launched against the petitioner in FIR No 37/2018, Police Station, Crime Branch, Kashmir Srinagar.

To appreciate the substance of prayer made, at this preliminary stage, it would be fruitful to summarize the facts of the case as put forth in the petition along with grounds taken therein for quashment as:-

A case was registered against the petitioner in Police Station, Crime Branch, Kashmir, for commission of offence punishable under Sections 420, 468 and 471 RPC and during the investigation the offence under Section 5(2) Prevention of Corruption Act was also added. The investigation was entrusted to Inspector, Crime Branch. The allegations levelled in the impugned FIR are that the petitioner has made insertions in the service book to alter his date of birth which would in turn extend the date of retirement. The impugned FIR has been registered without any preliminary enquiry which would have revealed that the changes in the service book pertaining the date of birth were made in pursuance of Cabinet Decision No. 175 dated 12-09-1988 reflected in Government order No. 521-RD of 1996 dated 21-08-1996 and a corrigendum to the said government order also dated 23-08-1996. The erroneous entry of date of birth was replaced by the original year i.e, 1961 and the same can be verified from University and other institutional records. The investigating officer has enquired the credentials from the college the petitioner was enrolled in during the year 1976 to which the college has reiterated the year of birth to be 1961 as against what is alleged in the impugned FIR. There is no order of the Magistrate under the PC Act authorizing the investigation under the impugned FIR. The sine qua non for the commencement of investigation is the permission by the Magistrate and in absence of which the investigation is rendered void ab initio. In absence of valid permission by a Magistrate, the investigation is in violation of the procedure under the Act, therefore liable to be set aside. The PC Act disables all Police officers below the rank of Deputy Superintendent of Police to investigate, but the Dy. SP even though a designated officer also cannot investigate suo moto after the registration of the FIR without the order of the Magistrate. A non-designated police officer of the Vigilance organization can only investigate in case there is a separate and a reasoned order conferring him the authority. To utilize the exceptional circumstances a magistrate has to pass a reasoned order permitting a non-designated police officer to investigate. In the instant case, the investigation has been entrusted to an inspector in absence of a valid entrustment order and the permission of a Magistrate. It is further contended that none of the ingredients of Section 420 RPC are made out since there are no circumstances to construe wrongful gain or loss nor there is any element of deception thereby putting the department to loss. Since none of the ingredients of offence under Section 420 RPC is made out from the contents of FIR as such, the investigation is unwarranted under law. Similarly there are no facts or allegations to suggest the making of forged document attributable to the petitioner. The expert opinion referred to in the FIR does not establish the act of forgery against the petitioner neither any incriminating material is available with the investigating agency to connect the petitioner with making of a forged document or record. Therefore the registration of FIR for the offence under Section 468 RPC is without any legal sanctity but a manifestation of misuse of powers and police padding, as such, the FIR and investigation thereunder is liable to be quashed.

The petitioner has annexed with this petition following documents:

i) Copy of the FIR bearing No. 37/2018 lodged against the petitioner in police Station Crime Branch, Kashmir for offence punishable under Section 420, 468, 471 RPC.

ii) Copy of the report filed by the investigating agency before the court of Chief Judicial Magistrate, Srinagar.

iii) Copy of the communication dated 01-10-2018 addressed by Inspector Feroz Ahmad, Investigating office, Crime Branch Kashmir to Principal SKIMS Medical College, Bemina Srinagar.

iv) Copy of the Cabinet Decision No. 175 dated 12-09-1988 reflecting in Government Order No. 521-RD of 1996 dated 21-08-1996.

v) Copy of the corrigendum dated 23-08-1996.

vi) Copy of the provisional certificate issued by Jamia College, Srinagar in favour of the petitioner.

vii) Copy of the communication addressed by Jamia College to the Investigating Officer, Crime Branch Srinagar.

Copy of the status report referred above at S. No. (II) gives narration of the case as registered against the petitioner on 31.08.2018 :

That on 31-08-2018 Crime Branch, Kashmir Srinagar, received a communication from Additional; Secretary to Government GAD Civil Secretariat J&K Srinagar stating therein that as per the records (photo state copy of the service Book and APR's) available with the General Administration Department, the date of birth of Mr. Mohamad Mehrajudin Khan, KAS Commissioner/Secretary to Government, ARI and Training Department is 09-11-1958 (Ninth November, Nineteenth hundred Fifty eight) Since the officer was due to retire in November 2018. The government had to issue a notification with regard to his date of retirement for the said purpose. Accordingly the officer was requested to furnish the original service book and matriculation date of birth certificate vide department O. M dated 26-12-2017 followed by reminders but despite multiple reminders the officer did not furnish the record. Based on the available record, the competent authority has approved notification of his date of retirement as 30-11-2018.

However, before his date of retirement could be notified, the officer vide O. M NO. PS/C/Secy/APD/2018/1106 dated 19-07-2018 submitted the original service book in response to GAD communication No. GAD9Legal) F-78/2017 dated 08-03-2018. Perusal of the service book would reveal his date of birth as 09-11-1961. In view of the contradictory DOB's of the officer the matter was referred to Director Forensic science laboratory J&K for examination of the service book vide communication dated 20-08-2018. The FSL expert had vide its report No. 148-Doc dated 27-08-2018 opined that the first page of the original service book has been inserted at a later stage and the provisional certificate in the original service book has been pasted on the typed certificate of Sheri-a-Kashmir University of Agricultural Sciences and Technology. The accused dishonestly and fraudulently has thus resorted to change of his date of birth and the records of service book therefore, with the malafide intentions to enhance his service by about three years by the production of fake certificate to support his claim. The acts of commission and omission on the part of the accused person prima facie disclosed the commission of offences punishable under Section 468, 420, 471 RPC. Accordingly a case FIR No. 37/2018 under Section 468, 420, 471 RPC was registered in P/s Crime Branch Kashmir on 31-08-2018.

Learned counsel for the petitioner has submitted that Coordinate Benches have granted relief in similar circumstances. It is also his submission that power under section 561-A Cr. PC, is to be exercised to prevent abuse of process of law and in furtherance of the cause of justice. The Investigating Officer according to him cannot embark upon the enquiry into the matter. Furthermore, in the light of facts pleaded in the petition, the proceedings initiated against the petitioner are manifestly uncalled.

Heard learned counsel for the parties and have gone through the averments made in the petition and material placed on record. It needs to be underscored here that the power under Section 561_A Cr. PC, is to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid in the Section itself. By its very nature, exercise of powers under said section is the exception and not a rule.

The Apex Court in the case of Janta Dal v. H. S. Chowdhary, reported in AIR 1993 SC 892, 1993 CriLJ 600, while summarizing the principles in the light of which inherent powers can be exercised has observed:

The criminal Courts are clothed with inherent power to make such orders as may be necessary for the ends of justice. Such power though unrestricted and undefined should not be capriciously or arbitrarily exercised, but should be exercised in appropriate cases, ex debito justitiae to do real and substantial justice for the administration of which alone the Courts exist. The powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Courts must be careful to see that its decision in exercise of this power is based on sound principles.

The Judicial Committee in (1) Emperor v. Nazir Ahmad and (2) Lala Jai Ram Das v. Emperor has taken the view that Section 561-A of the old Code gave no new powers but only provided that those which the Court already inherently possessed should be preserved. This view holds the field till date.

This Court in Dr. Raghubir Sharon v. The State of Bihar had an occasion to examine the extent of inherent power of the High Court and its jurisdiction when to be exercised. Mudholkar, J speaking for himself and Raghubar Dayal, J after referring a series of decisions of the Privy Council and of the various High Courts held thus:

...every High Court as the highest court exercising criminal jurisdiction in a State has inherent power to make any order for the purpose of securing the ends of justice.... Being an extraordinary power it will, however, not be pressed in aid except for remedying a flagrant abuse by a subordinate Court to is powers....

See Talab Hazi Hussain v. Madhukar Purshottam Mondkar and Anr. [1958] SCR 1226 and Pampapathy v. State of Mysore [1966] (Supp.) SCR 477.

Thus, the inherent power under this Section can be exercised by the High Court (1) to give effect to any order passed under the Code; or (2) to prevent abuse of the process of any Court; or (3) otherwise to secure the ends of justice. In relation to exercise of inherent powers of the High Court, it has been observed in Madhu Limaye v. State of Maharashtra that the power in not to be resorted to if there is a specific provision in the Code for the redress of grievance of the aggrieved party and that it should be exercised very sparingly to prevent abuse of process of any Court or otherwise to secure the ends of justice and that it should not be exercised as against the express bar of law engrafted in any other provision of the Code. Vide (1) Talab Hazi Hussain v. Madhukar Purshottam ; (2) Khushi Ram v. Hashim and Ors. AIR 1959 SC 542; and (3) State of Orissa v. Ram Chander Agarwala .

This inherent power conferred by Section 482 of the Code should not be exercised to stifle a legitimate prosecution. The High Court being the highest Court of a State should normally retrain from giving a premature decision in a case wherein the entire facts are extremely incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved whether factual or legal are of great magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to the cases in which the High Court will exercise its extraordinary jurisdiction to quashing the proceedings at any stage. This Court in State of Haryana and Ors. v. Ch. Bhajan Lal and Ors. [1990] 3 Supp. SCR 256 to which both of us were parties have dealt with this question at length and enunciated the law listing out the circumstances under which the High Court can exercise its jurisdiction in quashing proceedings. We do not, therefore, think it necessary in the present case to extensively deal with the import and intendment of the powers under Sections 397, 401 and 482 of the Code.

It is to be noted herein that the petitioner is making an endeavor to believe version as projected by him and to treat the facts as pleaded by the Investigating Agency are vexatious and untrue. I am afraid to accept such a submission at preliminary stage of the investigation when the facts are hazy and Investigating Agency is yet to come up with its definite finding as required in terms of Section 173 Cr. PC.

Hon'ble Apex Court in State of Orissa v. Suraj Kumar Sahoo, reported in (2005) 13 SCC 540, has sounded a note of caution regarding the power of High Court to be exercised in terms of Section 561-A Cr. PC, corresponding to Section 482 of Central Code. Their lordships enunciated that the High Court being the highest Court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so, when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, being of magnitude and cannot be seen in their true perspective without sufficient material before the Court. While exercising inherent jurisdiction, as observed their lordships, it is not permissible for the Court to act as if it was a trial Court. It would be none of the duties of the High Court to appreciate the evidence to conclude whether the material produced is sufficient or not for holding the accused guilty.

It is also required to be underlined herein that the Investigating Agency has a statutory power to go ahead with the investigation. Their lordships of Hon'ble Apex Court in State of Karnatka v. Paster P. Raju, reported in AIR 2006 SC 2825, have enunciated that the power under Section 482 cannot be exercised to interfere with the statutory power of the police to conduct investigation in cognizable offence. The merit of the plea about the lack of power of the investigating Officer, if any, as raised in the petition can be considered even on conclusion of the investigation, provided ground is made out for same. At this preliminary stage thwarting the investigation on the premise that the Investigating Officer has not obtained permission would not in my opinion be sufficient to scuttle the statutory power of the police to investigate the case.

In Eastern Spinning Mills v. Raju Poddar, reported in AIR 1985 SC 1668, their lordships commenting this aspect of the case observed as follows:

"We consider it absolutely unnecessary to make reference to the decisions of this Court and they are legion which have laid down that save in exceptional case where noninterference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offence. And frankly such is not the case here."

Having regard to what has been stated above, I am of the opinion that no case is made out for exercise of power under Section 561_A Cr. PC. Accordingly, there appears to be no merit and substance in the petition of the petitioner. The same entails dismissal and is, accordingly, dismissed.