Shang Din vs State Of Jammu & Kashmir

In the instant petition filed under Section 561-A Cr.P.C., the petitioner inter alia seeks quashment of FIR No.03/2014 dated 08.01.2014 under Sections 420, 467, 468 and 471 RPC, registered at Police Station, Gharota, Jammu against the petitioner.

Before assailing the impugned FIR on the grounds taken in the memo of petition, it is in the fitness of things to give a short resume of facts leading to the filing of this instant petition.

The petitioner belongs to Scheduled Tribe Category and passed 8th Class from Public Model School, Mishriwala (Jammu) and also remained student of Government Middle School, Kote (Zone Bhalwal). The petitioner was appointed in the J&K Fire Services, Jammu Range as Fireman. The petitioner is performing his duties quite efficiently, honestly and to the entire satisfaction of his superiors. There is no adverse entry in his service record. It is further stated that one Yaqoob Hussain has made a false complaint against the petitioner before the Director General Fire and Emergency Services J & K, Jammu wherein it is mentioned that the petitioner has changed his date of birth in School certificate as 20.05.1977 instead of 20.05.1974. Upon this, Director General Fire & Emergency Services, J&K, Jammu wrote a letter to the Principal, Public Model School, Mishriwalla for verification of the date of birth of the petitioner. The Vice Principal, Public Model School, Mishriwala, Jammu wrore a letter dated 18.06.2008 to the Director General wherein it was mentioned that Sh. Shang Din (petitioner) was student of his Institution during the period 01.05.1994 to 31.03.1995; the petitioner passed 8th class examination in March 1995 from the said School. The School Leaving Certificate issued in favour of the Petitioner is under Ad. No. 36 dated 31.03.1995 is true and genuine as per School record. The certificate was got counter signed by the Dy. Chief Education Officer, Jammu. It is further stated that the Head Master, Government Boys Middle School, Kote zone Bhalwal (Jammu) wrote a letter to the Director Fire & Emergency Services, J & K, Jammu vide No. MS Kote dated 03.09.2008 wherein it was mentioned that Shanga S/o Mr. Noor Hussain was reading in Middle School Kote in 8th Class under Admission No.691/622 and D.C. issued in 23.01.1993. The petitioner appeared in 8th Class and declared fail. The School leaving certificate Duplicate is under process and will be produced later on. His date of birth as per School record is 20.05.1974 (Twentieth of May, NH and Seventy Four).Correction in the name has also been made as Shanga instead of Changa. It is further stated that the Principal, Public Model School, Mishriwala Jammu wrote a letter to the Director, Fire and Emergency' Services, J & K, Jammu vide No. PMS-18 dated 04.10.2008 wherein it was mentioned Shang Din S/o Sh. Noor Hussain R/o Kote MorhaTawa has passed 8th Class examination from this school in March, 1995. As per the records of this School, his date of birth has been shown as 20.05.1974 as per School leaving certificate issued by Govt. Middle School Kote (8th fail) and as per result register of this School 1994-95 his date of birth has been shown as 20.05.1977. That thereafter the Director Fire & Emergency Services, J & K, Jammu wrote a letter to the Director General, Fire & Emergency Services, J & K, Jammu vide No. DF& ES/Estt/3481-84 dated 12.11.2008 wherein it is held that from the above, it is evident that the date of birth in figures in respect of Shri Shang Din has been erased/changed from 20.05.1974 to 20.05.1977 by the School Authorities of Public Model Middle School Mishriwala (when the actual date of birth in words has been mentioned same, i.e., 20.05.1974. However, it has-been already established by the concerned School Authorities that the petitioner has passed 8thClass examination from Public Middle School Mishriwala which is also evident from the Result Register. It seems that there is no fault on the part of the concerned official. As the petitioner was otherwise eligible to apply for the post of Fireman as per the Advertisement Notice after reckoning his age as on 01.01.1997 (the cut-off date for reckoning the age as per advertisement Notice), which comes to 22 years plus against the prescribed age of 28 years, as such, the petitioner was not required to get his age manipulated in order to derive any undue benefit for seeking Government job in the Department. It is accordingly recommended that the genuine date of birth i.e., 20.05.1974 as was verified from Government Middle School Kote (Zone Bhalwal) and duly attested by the Zonal Education Planning Officer Bhalwal may be adopted in order to set the service records right.

It is further stated that the petitioner has done nothing and a false and frivolous complaint has been lodged against the petitioner by one Yaqoob Hussain. Allegations leveled against the petitioner are baseless, false and concocted. The verification has been done by the Department and the School Authorities have verified the date of birth of the petitioner as 20.05.1974 and not 20.05.1977. So it is clear that the petitioner has been dragged without any reasonable cause and reason.

The petitioner being aggrieved of the registration of FIR bearing No.03/2014 dated 08.01.2014 registered at Police Station, Gharota, Jammu under Section 420,467,468 and 471 RPC, has challenged the said FIR on the following grounds

i) That the FIR is against law and facts. So the same is not sustainable.

ii) That a false and frivolous case has been registered against the petitioner and involved the petitioner in a false case.

iii) That from the verification conducted by the Department, it is verified that the actual date of birth of the petitioner is 20.05.1974 and not 20.05.1977 but due to mistake by the school authorities in the Result register it was written in words as 20.05.1977 but in the figures it was written as "Twentieth of May N.H.Seventy four" and therefore the Director Fire and Emergency services has held that it is not the fault of the official. The official has not manipulated inorder to get undue benefit for seeking Governmentjob as thepetitioner is otherwise eligible to apply for the post. So theFIR is not sustainable.

iv) That the police authority under no provisions of law can register ail FIR directly without conducting investigation and in the present case, FIR has been registered against the petitioner for commission of offence under Section 420 RPCwhile under Section 420, Cheating and dishonestly inducing delivery of property-whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person or to make, alter or destroy the whole or any part of a valuable security, or anything which assigned or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to file. In thepresent case, the petitioner has not done any of the abovementioned act for which such a case has been registered against him. On the complaint made against the petitioner, verification has been done by the concerned Education Authorities and the Director has held that the date of birth of the petitioner is genuine. So no ingredient of Section 420 has been made out in the FIR. Hence, the FIR is not sustainable.

v) That the FIR is not sustainable on the ground that FIR has been lodged for commission of offence under Section 467 RPC against the petitioner while in the FIR it was not mentioned that what forgery of valuable security, will etc has been made by the petitioner while the School authorities themselves admitted that it is due to mistake the date of birth of the petitioner was recorded in the result register in words as

"1977" but in figures it was written as "Seventy Four". So no ingredients have been made out under Section 467 RPC. So the Fir is not sustainable.

vi) That for proving Section 468 and 471 RPC, ingredients of "Forgery for purpose of cheating "and" Using as genuine a forged (document or electronic record) have to be proved and in the present case, in the FIR it was mentioned that the petitioner has changed his date of birth but on the complaint filed by YaqoobHussain, a detailed inquiry was held and verification was done and it was admitted by the School Authorities that the actual date of birth of the petitioner is20.05.1974 and not 20.05.1977 but due to mistake by theSchool authorities in the Result register it was written in words as 20.05.1977 but in figures it was written as"Twentieth of May N. H Seventy four"and therefore the Director Fire and Emergency services has held that it is not the fault of the official. The official has not manipulated in order to get undue benefit for seeking Government job as the petitioner is otherwise eligible to apply for the post. So FIR is not sustainable.

The respondent has filed objections wherein it is stated that the petition is without any force of law and as such deserves to be dismissed out rightly. It is further stated that since prima facie case was made out against the petitioner, as such, the said FIR came to be registered. It is further submitted that once FIR is registered, it becomes an obligation on the part of the Investigating Agency to investigate the matter to its logical end and bring the real facts before the Hon'ble Court for further action, as such, the petitioner cannot seek quashment of FIR. Perusal of the FIR clearly discloses the cognizable offence which has to be investigated under law; that mere registration of FIR does not cause any loss to the petitioner because he can prove himself innocent once challan is presented and if no case is made out against the petitioner, then the proceedings can be dropped against him but for that matter the petitioner should wait for presentation of the challan before the trial court.

In the status report, it has been stated on 08.01.2014 a written complaint of one Yaqoob Hussain s/o Noor Hussain R/o Kote Morha Tawa through superintendent of Police, Rural Jammu has been received in the police station Gharota. The complainant stated in his complaint that one Shang Din S/o Noor Hussain R/o Kote Morha Tawa serving in Fire and Emergency Service Department has produced fake Date of Birth Certificate to seek Government service. In this regard the Director General, Fire and Emergency Service Department has already submitted a report to IGP Crime J&K Jammu that after inquiry it has been established that the date of birth in respect of Shang Din has been tampered from 20.05.1974 to 20.05.1977. It is further stated that on receipt of this complaint a case FIR No.03/2014 under Section 420,467, 468,147 RPC came to be registered in Police Station Gharota and investigation was taken up by Sh. Jatinder Singh, Inspector, then SHO P/S Gharota; that during the course of investigation statement of complainant under section 161 Cr.P.C was recorded and date of birth certificate of the petitioner was obtained from Boys Middle School Kote in which the date of birth of the petitioner is shown to be 20th May,1974. The statement of the Headmistress, Govt. Boys Middle School Kote, namely Mrs. Neelam was recorded under section 161 Cr.P.C. The original school certificate of the petitioner was seized after obtaining it from the Fire and Emergency Service Department wherein the date of birth is recorded 20.05.1977, a seizure memo of the certificate was prepared and the statements of witnesses under section 161 Cr.P.C. were recorded. The school certificate was issued by the Principal Model School Mishriwala and countersigned by the Deputy Chief Education Officer, Jammu. That in order to obtain a certificate of date of birth of the petitioner from the office of Zonal Education Officer, Bhalwal, a letter was written to the ZEO and in reply thereof the ZEO has stated that private school namely Public Model School, Mishriwala stands closed since 7/8 years and as per the records maintained in his office there is no record as well as copy of recognition order of the aforesaid school is not available. Moreover, as per field information the owner of the school Sh. Sarwan Dass Gupta is missing since long. The statement of the ZEO Bhalwal was recorded under section 161 Cr.P.C. It is further stated that on 08.01.2014, the Hon'ble Court has passed an interim direction not to act upon FIR No.03/2014 under section 420, 467, 468, 147 RPC and thereafter further investigation could not be carried forward and the case is pending investigation.

Heard learned counsel for the parties and perused the case file. I have also gone through the law on the subject.

In 2008 (3) SCC 753 case titled Som Mittal v. Govt. of Karnataka, it has been held as under:-

"(10) In a catena of decisions this Court has deprecated the interference by the High Court in exercise of its inherent powers under Section 482 of the Code in a routine manner. It has been consistently held that the power under Section 482 must be exercised sparingly, with circumspection and in rarest of rare cases. Exercise of inherent power under Section 482 of the Code of Criminal Procedure is not the rule but it is an exception. The exception is applied only when it is brought to the notice of the Court that grave miscarriage of justice would be committed if the trial is allowed to proceed where the accused would be harassed unnecessarily if the trial is allowed to linger when prima facie it appears to Court that the trial would likely to be ended in acquittal. In other words, the inherent power of the Court under Section 482 of the Code of Criminal Procedure can be invoked by the High Court either to prevent abuse of process of any Court or otherwise to secure the ends of justice.

(11) This Court, in a catena of decisions, consistently gave a note of caution that inherent power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. This Court also held that the High Court will not be justified in embarking upon an inquiry as to the reliability or genuineness or otherwise of the allegations made in the F.I.R. or the complaint and that the extra-ordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whims and caprice.

(12) We now refer to a few decisions of this Court deprecating the exercise of extra ordinary or inherent powers by the High Court according to its whims and caprice.

(13) In State of Bihar v. J.A.C. Saldanha (1980) 1 SCC 554 this Court pointed out at SCC p. 574:

The High Court in exercise of the extraordinary jurisdiction committed a grave error by making observations on seriously disputed questions of facts taking its cue from affidavits which in such a situation would hardly provide any reliable material. In our opinion the High Court was clearly in error in giving the direction virtually amounting to a mandamus to close the case before the investigation is complete. We say no more.

(14) In Hazari Lal Gupta v. Rameshwar Prasad (1972) 1 SCC 452 this Court at SCC p. 455 pointed out:

In exercising jurisdiction under Section 561-A of the Criminal Procedure Code, the High Court can quash proceedings if there is no legal evidence or if there is any impediment to the institution or continuance of proceedings but the High Court does not ordinarily inquire as to whether the evidence is reliable or not. Where again, investigation into the circumstances of an alleged cognizable offence is carried on under the provisions of the Criminal Procedure Code, the High Court does not interfere with such investigation because it would then be the impeding investigation and jurisdiction of statutory authorities to exercise power in accordance with the provisions of the Criminal Procedure Code.

(15) In Jehan Singh v. Delhi Administration (1974) 4 SCC 522 the application filed by the accused under Section 561-A of the old Code for quashing the investigation was dismissed as being premature and incompetent on the finding that prima facie, the allegations in the FIR, if assumed to be correct, constitute a cognizable offence.

(16) In Kurukshetra University v. State of Haryana (1977) 4 SCC 451, this Court pointed out:

It surprises us in the extreme that the High Court thought that in the exercise of its inherent powers under Section 482 of the Code of Criminal Procedure, it could quash a first information report. The police had not even commenced investigation into the complaint filed by the Warden of the University and no proceeding at all was pending in any court in pursuance of the FIR. It ought to be realized that inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice. That statutory power has to be exercised sparingly, with circumspection and in the rarest of rare cases.(emphasis supplied)

(17) In State of Bihar v. Murad Ali Khan (1988) 4 SCC 655 this Court held that the jurisdiction under Section 482 of the Code has to be exercised sparingly and with circumspection and has given the working that in exercising that jurisdiction, the High Court should not embark upon an enquiry whether the allegations in the complaint are likely to be established by evidence or not."

It is thus settled law that FIR can only be quashed in order to prevent abuse of process of law or to otherwise secure the ends of justice. The expression 'ends of justice' and 'to prevent abuse of process of any court' are intended to work out either when an innocent person is unjustifiably subjected to an undeserving prosecution or if an ex-facie all merited prosecution is throttled at the threshold without allowing the material in support of it. 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 investigation. This is discretionary power vested in High Court to do substantial justice. High Court cannot act as an investigating officer.

In present case there is allegation that petitioner has tampered with his date of birth from 20.05.1974 to 20.05.1977. The I/O who was present on the date of hearing has stated at Bar, that this fact has been established so far investigation conducted; but due to stay granted by this court he could not proceed further. The perusal of C/D file and evidence collected so far; it supports the facts narrated by I/O in the open court.

The foremost argument of counsel for petitioner is that from perusal of departmental inquiry dated 12.11.2008 conducted by Director, Fire & Emergency Services J&K, Jammu; it is evident that genuine DOB of petitioner is 20.05.1974, so FIR was not required to be registered. This argument does not support the case of petitioner. Because from perusal of inquiry report, it would reveal that inquiry officer has not held that petitioner has not forged his DOB, but has given finding that petitioner was not required to manipulate his date of Birth in order to get undue benefit for seeking Govt. Job in the department. The relevant conclusion of inquiry report dated 12.11.2008 reads as under:

"..............From the above it is evident that the date of birth in figures in respect of Shri Shang Din has been erased/changed from 20.05.1974 to 20.05.1977 by the School Authorities of Public Model Middle School Mishriwalla when the actual date of birth in words has been mentioned as same i.e 20.05.1974. However, it is has been already established by the concerned school authorities that he has passed 8th class examination from the Result Register. It seems that there is no fault on the part of the concerned official. As he was otherwise eligible to apply for the post of Fireman as per the Advertisement Notice after reckoning his age as on 01.01.1997 (the cutoff date for reckoning the age as per Advertisement) which comes to 22 years plus against the prescribed age of 28 years. As such, he was not required to get his age manipulated in order to derive any undue benefit for seeking government job in the department. It is accordingly recommended that the genuine date of birth i.e 20.05.1974 as was verified from government Middle School Kote (Zone Balwal) and duly attested by the Zonal Education Planning Officer Balwal may kindly be adopted in order to set his service records right."

The legal position has been made clear by the Hon'ble Supreme Court in the decision State Bank of India and others v. R.B.Sharma reported in 2004 (7) Supreme Court Cases 27. In paragraph 8, the Supreme Court held as follows:-

"8.The purpose of departmental enquiry and of prosecution is two different and distinct aspects. Criminal prosecution is launched for an offence for violation of a duty the offender owes to the society, or for breach of which law has provided that the offender shall make satisfaction to the public. So crime is an act of commission in violation of law or of omission of public duty. The departmental enquiry is to maintain discipline in the service and efficiency of public service. It would, therefore, be expedient that the disciplinary proceedings are conducted and completed as expeditiously as possible. It is not, therefore, desirable to lay down any guidelines as inflexible rules in which the departmental proceedings may or may not be stayed pending trial in criminal case against the delinquent officer. Each case requires to be considered in the backdrop of its own facts and circumstances. There would be no bar to proceed simultaneously with departmental enquiry and trial of a criminal case unless the charge in the criminal trial is of grave nature involving complicated questions of fact and law. Offence generally implies infringement of public duty, as distinguished from mere private rights punishable under criminal law. When trial for criminal offence is conducted it should be in accordance with proof of the offence as per the evidence defined under the provisions of the Indian Evidence Act, 1872 (in short "the Evidence Act"). Converse is the case of departmental enquiry. The enquiry in a departmental proceeding relates to conduct or breach of duty of the delinquent officer, to punish him for his misconduct defined under the relevant statutory rules or law. That the strict standard of proof or applicability of the Evidence Act stands excluded is a settled legal position. Under these circumstances, what is required to be seen is whether the departmental enquiry would seriously prejudice the delinquent in his defence at the trial in a criminal case. It is always a question of fact to be considered in each case depending on its own facts and circumstances."

In view of above, this argument is not tenable. From perusal of FIR and investigation conducted so far, would reveal that cognizable case has been made out against petitioner. In every cognizable case, police has statutory authority to conduct the investigation as held by Supreme Court in Lalita Kumari v. Govt. of U.P [W.P.(Crl) No; 68/2008] reported in AIR 2012 SC 1515, has held that-registration of First Information Report is mandatory under Section 154 of the Code of Criminal Procedure, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation. If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.

All other pleas taken in the petition are pertaining to appreciation of facts. It is not case of petitioner 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 investigation.

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