Sunil Kumar vs State of JandK and Others

Janak Raj Kotwal, J.â€"This is a petition under section 561-A Cr.P.C., whereby petitioner geeks to invoke inherent jurisdiction of this Court

under section 561-A Cr.P.C. for quashing complaint No. 113 filed by respondent No. 2 against him in the court of learned Judicial Magistrate, 1st

Glass, Thanamandi and FIR No. 41/2014 registered on the basis of said complaint at Police Station, Thanamandi for offences u/ss. 166, 167,

468, 471, 470 and 109 RPC. Heard. I have perused the record.

I may, first state, briefly, the facts which are relevant and undisputed:

2.1 Respondent No. 2, Zenat Begum filed complaint against the petitioner and four others in the court of learned Judicial Magistrate, 1st Class,

Thanamandi. She stated that State land comprised in khasra No. 359 min measuring 2 marlas was mutated in the name of her husband, Munshi

Khan, under Mutation No. 723 in the year 1996. Her husband has constructed a house on the said land along with shops on its roof and is in

continuous possession thereof. She alleged that pursuant to a conspiracy hatched by Badar Hussain (accused No. 5) with Revenue Officials

(accused 1 to 4), revenue entry as regards the above mentioned land has been tampered and land measuring 1 marla has been shown as a shop

comprised in khasra No. 178 possessed by accused No. 5. In this complaint, petitioner, who at the relevant time was posted as Tehsildar,

Thanamandi, has been arraigned as accused No. 4.

2.2 Petitioner has produced a copy of order passed by the learned Magistrate on 01.04.2014. This order on perusal shows that the complaint was

filed on 29.03.2013 when the learned Magistrate on taking cognizance postponed issue of process and directed an inquiry in terms of section 202

Cr.P.C. by the police concerned. In compliance with the order of learned Magistrate, Sub Divisional Police Officer(SDPO), Thanamandi

submitted a detailed report to the Magistrate vide his No. Clt-U/S/202 Cr.PC/2013/2910/SDPO dated 03.08.2013. Learned Magistrate on

consideration of the report of inquiry officer, averments in the complaint and the initial statements of the complainant and witnesses recorded at the

time of filing of the complaint, stated in the order dated 01.04.2014 (supra) that ""there is material on record to proceed against the accused

persons under sections 166, 167, 468, 471, 470 and 109 RPC"". Learned Magistrate, however, instead of proceeding against the accused and

issuing process against them, directed SHO, Police Station, Thanamandi to register FIR against the accused persons as also all those who are

involved or beneficiaries for the commission of these offences. In that, learned Magistrate made an observation, which I reproduce verbatim:

So far taking of cognizance in the present case is concerned this court has power to take cognizance in the matter and proceed against the

accused persons. But in case this court take cognizance against the accused persons it will be very difficult to seize record in which accused person

has done the tampering. Beside this if investigation will be done by the police agency other persons who are behind the present nexus will be

brought on the record"".

2.3 Pursuant to the order passed by the learned Magistrate on 01.04.2014, police registered FIR No. 41/2014 dated 12.04.2014 under sections

166, 167, 468, 471, 470 and 109 RPC.

Quashing of the FIR as well as the basic complaint is sought by petitioner (accused No. 4) on the grounds that the complaint has been filed on

baseless grounds only to harass the petitioner, who is a senior officer of the Government and has acted in his official capacity."" It is contended that

the report of the SDPO makes it clear that Badar Hussain is in possession of land measuring 1 marla and has constructed a shop on it and the

petitioner therefore, was competent to direct attestation of mutation in his name. Attestation of mutation was directed by him after adopting due

course of law. The complaint has been filed, notwithstanding that remedy of approaching the competent authority for rectification of record is

available.

Petitioner has also questioned the legality of order directing registration of the FIR passed by the learned Magistrate. It is contended that learned

Magistrate had already taken cognizance in the complaint and directed inquiry in terms of section 202 Cr.P.C. so directing registration of FIR after

taking cognizance is illegal.

Mr. Sandeep Gupta, learned counsel for the petitioner submitted vehemently that the complaint on its bare reading did not disclose commission

of any offence by the petitioner or other the accused and that no offence was committed got confirmed from the report submitted by the inquiry

officer, that is, SDPO, Thanamandi. Mr. Gupta submitted that petitioner had ordered attestation of mutation in favour of Badar Hussain, who is

real brother of complainant's husband, after proper inquiry and correctness of his order was subject to available remedy before the competent

Revenue Authority. Respondent No. 2, however, deliberately in order to harass the petitioner and other accused has filed complaint and learned

Magistrate without application of mind first directed inquiry in terms of section 202 Cr.P.C., did not appreciate the report of the inquiry officer in

its right perspective and committed error of law by directing registration of FIR. Mr. Gupta raised a point of law that Magistrate is not competent

to order registration of the FIR after having taken cognizance on a complaint and ordered inquiry in terms of section 202 Cr.P.C.

Mr. Tariq Mughal, learned counsel for respondent No. 2, however, supported the allegations made in the complaint and the course of action

adopted by the learned Magistrate. Main stress of Mr. Mughal had been that given the allegations, accused could not have been put to trial without

investigation of the case and seizure of the relevant record.

Mr. Salim Malik, learned Dy. AG representing respondent No. 1 supported registration of the FIR mainly on the strength that the same has

been registered under direction of the court.

It needs to be noticed precisely that Munshi Khan, husband of respondent No. 2 (complainant) and accused, Badar Husain are real brothers.

Complainant's contention in the complaint is that mutation No. 723 had been attested in favour of her husband, Munshi Khan, in respect of 2

marlas of State land comprised in khasra No. 359 min and that, her husband has constructed house in this land comprising inter alia shops on its

roof and is in possession thereof. Complainant's allegations, however, is that Badar Hussain in conspiracy with the Revenue Officials including the

petitioner got the record manipulated in such a way that one marla of land out of khasra No. 359 min was shown as comprised in khasra No. 447

and in possession of Badar Hussain.

The inquiry report under section 202 Cr.P.C. submitted by the SDPO, Thanamandi to the learned Judicial Magistrate, copy whereof is available

on the file, on perusal would show that the SDPO executed the task meticulously and with sufficient deliberation. He examined the Patwari and the

revenue record and examined some locals also, whom he has named in the report. He found that two marlas of State land comprised in khasra

No. 359 min was allotted in favour of complainant's husband, Munshi Khan on which he raised construction comprising of one shop. Mutation No.

723 in regard to this land was attested in favour of Munshi Khan in the year 1996. At a later stage, Munshi Khan's brother, Badar Hussain, also

managed allotment of one marla of State land comprised in khasra No. 178 in his favour and constructed a shop on it. Mutation No. 1050 dated

28.07.2012 in regard to this land was attested in favour of Badar Hussain. Report submitted by the SDPO further reveals that both the brothers,

that is, Munshi Khan and Badar Hussain, are involved in multiple disputes about property including State land. Operative part of this report reads:

In my opinion, it came to the light that the land occupied by Munshi Khan and Badar Hussain is a State land whereas, mutation of one Marla land

bearing Khasra no. 178 done in the name of alleged person Badar Hussain with the conspiracy of Revenue official is not according to revenue act

because State land cannot be directly converted into ownership rights. However, mutation of land bearing Khasra No. 359 was firstly done under

LB 6 and 2ndly under S 432 in favour of Munshi Khan with the mutual conspiracy of then revenue authority is also not accordingly to the revenue

act, because the said area falls under Municipal committee Thanamandi and in Municipal area the SRO LP. 6 does not apply. There is no doubt

that one shop was constructed by Badar Hussain and one shop and a house was constructed by Munshi Khan. Both of them are fighting between

each other over the State land and both have prepared forged documents with the conspiracy of the Revenue officers and the original mutation

register have been seized during enquiry.

Complaint lodged by the complainant (respondent No. 2) read with the report of the SDPO sufficiently shows that the complaint involves a

dispute about one shop. Complainant claims that two shops were constructed by her husband in the two marlas of land comprised in khasra No.

359 min and her allegation is that the Revenue officials by tampering the revenue entries have shown one of these shops as comprised in khasra

No. 178 possessed by accused, Badar Hussain. As against this, the SDPO on the basis of the Revenue record and after examining the Patwari

and some locals found that one shop was constructed by complainant's husband in the land comprised in khasra No. 359 min and one was

constructed by his bother, accused, Badar Hussain in the land comprised in khasra No. 178.

It appears learned Judicial Magistrate either did not properly examine the SDPO's report or could not understand the same. It is no gainsaying

that purpose of inquiry or investigation in terms of section 202 Cr.P.C. is to ascertain truth or falsehood of a complaint filed before a Magistrate.

Report submitted by the SDPO clearly shows that there is a dispute between the two brothers as to who constructed the shop in dispute and

whether the said shop falls in the land bearing khasra No. 359 min. or in the land bearing khasra No. 178. Unless this dispute is resolved by

competent civil court or revenue authorities, prima facie case of tampering with revenue record cannot be said to have been made out and question

of deliberate tampering of the record neither would arise nor can be taken up for investigation. Directing investigation in regard to tampering of the

record or commencing criminal proceedings without deciding the basic dispute, which is purely of civil nature, amounts to the abuse of process of

the court.

I would thus, summarize and hold that no case for investigation or commencing criminal proceedings against the petitioner and other accused is

made out and directing investigation by the Magistrate is abuse of process of the court.

For aforementioned, FIR No. 41/2014 registered with Police Station, Thanamandi as also the basic complaint filed by respondent No. 2 are

quashed. Disposed of.