Allowed

Ghulam Qadir Bhat and Ors. v. State of Jk through SHO Police Station Budgam

J&K HC15 Jul 2021CRMC/11/2018

Case brief

AI extract

What is this about?

The High Court quashed an FIR registered by the police. The court held that registration was impermissible because the magistrate was already seized of the merits of the same allegations and had directed an inquiry under Section 202 Cr.P.C. Additionally, the court noted the allegations were essentially civil in nature and misconceived as both cheating and criminal breach of trust are mutually excl

What did the court decide?

Quashed the impugned FIR No.06/2018 registered in Police Station Magam.

Ghulam Qadir Bhat and Ors. Vs State of Jk through SHO… — Criminal Trial and Appeal | J&K HC (2021)

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IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR

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Reserved on: 13.06.2021 Pronounced on: 15.07.2021

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CRMC No.11/2018

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CrlM No.419/2019 & IA No.1/2018

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Ghulam Qadir Bhat and others

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…PETITIONER(S)

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Through: Mr. F.A.Wani, Advocate

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Vs.

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State of J&K and another

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….RESPONDENT(S)

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Through: Mr. Mir Suhail, AAG for R-1 Mr. Mir Majid Bashir, Advocate for R-2

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CORAM:HON’BLE MR. JUSTICE SANJEEV KUMAR, JUDGE JUDGMENT

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1) The petitioners, four in number i.e. father and his three sons,

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have jointly filed this petition under Section 561-A Cr.P.C. seeking quashment of FIR No.06/2018 under Sections 406, 420, 120-B and 506 (ii) RPC registered in Police Station Magam primarily on the ground that while the learned Judicial Magistrate 1^st Class (SubJudge), Pattan [“the Trial Magistrate”] had taken cognizance and was seized of the complaint filed by respondent No.2, the police of Police Station, Magam was not competent to register an FIR on the same facts and set in motion the investigation.

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2 CRMC No.11/2018

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2) With a view to appreciating the grounds taken by the petitioners to challenge the registration of impugned FIR, it is necessary to first set out material facts:-

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Respondent No.2 is brother of Mst. Asifa Rasool, who conducted nikah ceremony with petitioner No.2, Ghulam Rasool Bhat on 29.12.2016. Soon after the nikah ceremony and before the ruksati of Mst. Asifa Rasool, a dispute arose between the parties to marriage. It is allegation of respondent No.2 that the petitioners had concealed the factum of petitioner No.2 already having a wife and a subsisting marriage with her. As is usual, during nikah ceremony some cash amount and gold ornaments by way of mehar were handed over to Mst. Asifa Rasool. As is claimed, an effort was made to amicably resolve the dispute. It is the allegation of respondent No.2 that the petitioners called him along with Mehar items at their residence at Archanderhama on 26.012.2017 at 7.30 p.m where the petitioners by deceitful means made respondent NO.2 to deliver gold items, clothing and cash etc, which, as per the complainant, were retained by the petitioners with an intention to misappropriate the same.

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Be that as it may, it is in this background of allegations, respondent No.2 filed a complaint before the Trial Magistrate on 28.12.2017 for taking appropriate action against the petitioners herein. The Trial Magistrate after recording the statement of respondent No.2 and one of his witnesses, namely, Abdul Khaliq Dar, deferred the issuance of process and directed SDPO Magam for conducting inquiry

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under Section 202 of the Code of Criminal Procedure with a view to ascertain the truth and falsehood of the allegations made in the complaint. This was done by the Trial Magistrate vide its order dated 28.12.2017. While the matter was before the SDPO, Magam for conducting investigation in the matter, it transpires that on 08.01.2018, respondent No.2 launched parallel proceedings and filed a written complaint on same allegations before the Incharge Police Station, Magam seeking registration of FIR against the petitioners. Interestingly, while the Trial Magistrate was seized of the matter and awaiting inquiry report in terms of Section 202 Cr.P.C. from the SDPO, Magam, Police Station Magam registered FIR No.06/2018 under Sections 406, 420, 120-B and 506(ii) RPC and set the investigation in motion. It is this FIR the petitioners are aggrieved of and have challenged the same, inter alia , on the grounds noticed herein above.

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3) On being put on notice, S.H.O. Police Station, Magam has filed his status report. In the status report he has not dealt with the specific contention of the petitioners that the Trial Magistrate, Pattan was already seized of the complaint containing same allegations, as have been made the basis of registration of the impugned FIR. He, however, has tried to explain the circumstances under which the impugned FIR came to be registered in the Police Station, Magam. Respondent No.2 has also filed his objections and has claimed that, though, he had filed a criminal complaint before the Trial Magistrate

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4 CRMC No.11/2018

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but since the offences committed by the petitioners were cognizable, as such, he moved a written application before the S.H.O., Police Station, Magam on 08.01.2018 for registration of FIR under Section 154 Cr.P.C. After the FIR was registered, he withdrew the complaint, which was pending consideration of the learned Trial Magistrate.

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4) Having heard learned counsel for the parties and perused the record, I am of the view that registration of impugned FIR on 08.01.2018 by the police of Police Station, Magam was not only an act of grave impropriety but was also impermissible in law. Respondent No.2 was not entitled to launch two proceedings simultaneously, one by way of a complaint before the Trial Magistrate and the other by lodging an FIR with the Police Station, Magam.

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5) It is not disputed that the complaint and the FIR both were made on the basis of the same allegations. It is not correct to say that in the complaint filed by respondent No.2 before the Trial Magistrate, cognizance of the offence had not been taken by the Trial Magistrate. As is evident from order dated 28.12.2017, the Trial Magistrate had not only entertained the complaint but had also recorded the preliminary statement of the complainant and his witness Abdul Khaliq Dar. The Trial Magistrate, however, decided to defer issuance of process and get the truth and falsehood of the allegations made in the complaint ascertained through an inquiry to be conducted by the SDPO, Magam in terms of Section 202 Cr.P.C.

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5 CRMC No.11/2018

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6) The police instead of conducting inquiry in terms of Section 202 Cr.P.C. in compliance of the order of the Trial Magistrate dated 28.12.2017, received a written application containing the same allegations from respondent No.2 and registered an FIR on 08.01.2018. Respondent No.2, who is stated to be an Advocate played his skills and it was only after he succeeded in registering an FIR against the petitioner, he withdrew the complaint. It is evident from the response filed by respondent No.2 to oppose the instant petition. Respondent No.2 has, however, not placed on record the order, whereby he was permitted by the Trial Magistrate to withdraw his complaint.

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7) Be that as it may, the manner in which respondent No.2 has acted in the matter leaves one without any doubt that the FIR was lodged against the petitioners maliciously. Otherwise also, looking to the allegations made in the complaint as well as FIR, offences alleged in the complaint are not strictly made out. The dispute with regard to the return of Mehar and other valuables given to the petitioners at the time of Nikah ceremony, at the most can be a civil dispute, which can be resolved either by private negotiations or by having resort to civil litigation.

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8) The disputes, which are purely civil in nature, cannot be permitted to be resolved by abusing the process of Criminal Courts. Legal position in this regard is well settled. The offence of criminal breach of trust punishable under Section 406 RPC or offence of

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cheating punishable under Section 420 are the offences, which are mutually exclusive. If it is a case of breach of trust under Section 406 RPC, it cannot also constitute offence under Section 420 RPC and it is true vice versa.

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9) For commission of offence under Section 406 RPC, there must be entrustment of property to the accused in the first place. The accused after being entrusted with such property dishonestly misappropriates or converts to his own use that property or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged etc etc. So far as offence punishable under Section 420 is concerned, the offence is complete when accused cheats and thereby dishonestly induces a person deceived to deliver any property to any person or to make alteration or destroy the whole or any part of a valuable security etc etc. Section 420 and Section 406 IPC are antithesis of each other. Obviously, entrustment and deceiving cannot go together. It is, thus, trite law that a person cannot be charged with the offence of cheating and criminal breach of trust simultaneously for the same transaction because for the offence of cheating, it is a prerequisite that dishonest intention must exist at the inception of any transaction, whereas in a case of breach of trust, there must exist a relationship between the parties whereby one party entrusts another with property. Therefore, for commission of criminal breach of trust, the dishonest intention comes later i.e. after obtaining dominion over

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7 CRMC No.11/2018

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property by the accused person, whereas for commission of cheating, dishonest intention is present at the inception of transaction.

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10) Having regard to the nature of offence of cheating and misappropriation, same set of facts/allegations cannot make an offence of cheating and misappropriation simultaneously. The whole edifice of the FIR is built on a premise, which is legal impermissible.

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11) The registration of the impugned FIR on the basis of allegations, which were part of the complaint taken cognizance of by the Trial Magistrate, which at the time of registration of impugned FIR, was pending, was legally impermissible and an act of grave impropriety by the police. Subsequent withdrawal of the complaint, if any, made by respondent No.2 is of no consequence and would not lend any legitimacy to the illegal registration of the impugned FIR.

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12) For the foregoing reasons, I am inclined to accept this petition and by exercise of inherent powers vested in this Court by Section 561-A Cr.P.C. quash the impugned FIR.

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(Sanjeev Kumar) Judge

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Srinagar 15.07.2021

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“Vinod, PS”

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Whether the order is speaking: Yes Whether the order is reportable: Yes

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VINOD KUMAR 2021.07.15 16:52 I attest to the accuracy and integrity of this document

Ghulam Qadir Bhat and Ors. v. State of Jk through SHO Police Station Budgam

Case brief

What is this about?

What did the court decide?

Ghulam Qadir Bhat and Ors. v. State of Jk through SHO Police Station Budgam

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

Parties & counsel

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