Allowed

Javed Ahmad Dhar v. Honble High Court and Ors. (Hcourt)

J&K HC26 Dec 2022OWP/918/2008

Case brief

AI extract

What is this about?

The High Court held that Section 83 of the J&K Registration Act is permissive and does not bar private persons from filing complaints or FIRs. Declaring the petitioner's writ petition infructuous due to the civil suit's disposal, the Court directed the SHO to investigate FIR No. 13 of 2007 without delay.

What did the court decide?

The impugned order declared infructuous; SHO Police Station Maisuma, Srinagar, directed to investigate FIR No. 13 of 2007 and complete it without delay.

Javed Ahmad Dhar Vs Honble High Court and… — Constitutional and Fundamental Rights | J&K HC (2022)

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S. No. 08 Regular list

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IN THE HIGH C0URT 0F JAMMU & KASHMIR AND LADAKH AT SRINAGAR

OWP 918/2008

Javed Ahmad Dhar

…Petitioner(s)

Through: Mr. M.Y. Bhat, Advocate with,

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Mr. Hamza Prince, Advocate

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Vs.

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Honble High Court and Others

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...Respondent(s)

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Through: Mr. M.I. Qadri, Sr. Advocate with, Mr. Sajid A Bhat, Advocate for 1 to 3. Ms. Asifa Padroo, AAG for 4. Mr. S. N. Ratanpuri, for 5 and 6.

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CORAM:

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HON’BLE MR JUSTICE SANJEEV KUMAR, JUDGE HON’BLE MR JUSTICE MA CHOWDHARY, JUDGE

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ORDER

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26.12.2022

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Per Sanjeev Kumar-J,(Oral)

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In this petition, the petitioner is aggrieved of and has called in

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question the order dated 23.11.2007, passed by the Principal Secretary to Hon’ble the Chief Justice (Acting), whereby the permission earlier granted under Section 83 of the J&K Registration Act for launching of the prosecution against the respondents 5 to 9 (private respondents), was kept in abeyance till the disposal of the civil suit. The petitioner has also prayed in the alternative to direct the Police to investigate and take to the logical end FIR No. 13 of 2007, notwithstanding the issuance of the impugned order by the Principal Secretary to Hon’ble the then Chief Justice (Acting) of this Court. The impugned communication has been assailed by the petitioner primarily on the ground that

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having regard to the seriousness of allegations against the private respondents, the Principal Secretary to Hon’ble the Chief Justice (Acting) of this Court had rightly and after due application of mind, granted permission in terms of Section 83 of the J&K Registration Act for launching prosecution against the private respondents for the commission of offences punishable under Section 81 and sub section B and D of Section 83 of the J&K Registration Act read with Section 466 and 468 of R.P.C. in terms of its communication dated 1^st March 2007, and, therefore, there was no reason or occasion to keep that permission in abeyance that too without disclosing any good reasons.

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Mr. M.Y. Bhat, learned senior counsel appearing for the petitioner during the course of his arguments submits that notwithstanding the existence of impugned communication dated 23^rd November, 2007, the petitioner is not debarred by any provisions of law much less Section 83 of the J&K Registration Act, from filing a complaint or lodging an FIR against the private respondents for commission of aforesaid offences.

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Per Contra Mr. M.I. Qadri, learned senior counsel appearing for respondents 1 and 3 submits that the impugned communication was only with a view to keep the earlier communication dated 1st March, 2007, in abeyance and had nothing to do with the prosecution, if any, launched by the petitioner on the basis of a private complaint or by lodging of an FIR.

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Mr. S. N. Ratanpuri, learned counsel appearing for the private respondents 5 and 6, submits that the impugned communication

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has outlived its life, in that, the same was to remain in operation till the disposal of the civil suit. He submits that the civil suit in respect of the matter in issue stands disposed of, and, therefore, this petition is rendered infructuous.

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Having heard learned counsel for the parties and perused the material on record, we are of the view that this petition is though rendered infructuous due to the subsequent development i.e., the disposal of the civil suit, due to the pendency of which the earlier communication dated 1^st March, 2007, was kept in abeyance by the impugned order. We are also in agreement with Mr. M.Y. Bhat, learned senior counsel appearing for the petitioner that Section 83 of the J&K Registration Act is only permissive and not prohibitive in nature and that Section 83 of the J&K Registration Act provides that where it comes to the notice of Registering Officer in his official capacity that any offence under the Registration Act has been committed, it can commence the prosecution against the accused by or without the permission of Inspector General, Registrar or the Sub-Registrar in whose territory, district of subdistrict as the case may be, the offence has been committed. Section 83 of the J&K Registration Act, however, does not prohibit the launch of prosecution by the complainant, a private person.

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In the instant case, indisputably the prosecution against the private respondents is launched on the basis of the complaint filed by the petitioner. As a matter of fact, on the reluctance of Police to register the FIR, the petitioner approached the court of Chief

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Judicial Magistrate, Srinagar, in terms of Section 156 (3) Cr. P.C. and with the intervention of the learned Chief Judicial Magistrate, an FIR was registered in the Police Station Maisuma, Srinagar, for commission of offences under Sections 81 and 82 (B) of the J&K Registration Act, read with Section 466, 468 and 120B R.P.C. While the investigation in the aforesaid FIR was going on, the Principal Secretary to the Hon’ble Chief Justice (Acting), vide impugned order dated 23^rd November, 2007, kept in abeyance the permission for launching of prosecution earlier granted vide communication dated 1^st March, 2007. Though there was no direction from the Principal Secretary to the Hon’ble Chief Justice (Acting), who at the relevant point of time was exercising the powers of Inspector General of Registration under the J&K Registration Act, not to investigate the FIR. However, it appears that the Investigating Officer, investigating the FIR did not proceed in the matter in view of issuance of impugned communication which was perhaps taken by him as an impediment for proceeding ahead with the investigation.

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As is apparent from the plain reading of Section 83 of the J&K Registration Act, the permission to commence the prosecution against a person or persons guilty of committing offences under the Registration Act is required only when the commission of such offence comes to the knowledge of the Registering Officer in his official capacity, and he intends to launch the prosecution. Section 83 of the J&K Registration Act, as is taken note of hereinabove does not prohibit a private party from lodging an FIR or a private

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complaint as the case may be. The provisions of Section 83 have already been interpreted by the Supreme Court in the case of “Dharamdeo Rai vs. Ramnagina Rai AIR 1972 SC 928.” Para 3 of the judgment which is relevant for our purpose is reproduced hereunder:-

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“In this Court, the only point argued on behalf of the appellant was that the complaint was incompetent as it was filed by a person without obtaining the necessary permission under section 83 of the Act and, therefore, the conviction was bad and must be set aside. Section 83 of the Act provides :

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"83(1) A prosecution for any offence under this Act coming to the knowledge of a registering officer in his official capacity may be commenced by or with the permission of the Inspector General, the Registrar or the Sub-Registrar, in whose territories, district or sub district, as the case may be, the offence has been committed.

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(2) Offences punishable under this Act shall be triable by any Court or officer- exercising powers not less than those of a Magistrate of the second class."

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On a reading of the section, it would be clear that it deals only with prosecution for an offence under the Act coming to the knowledge of the Registering Officer in his official capacity. It, in effect, provides that where an offence comes to the knowledge of the Registering Officer in his official capacity, a prosecution may be commenced by or with the permission of any of the officers mentioned in the section. The section can possibly have no application to cases in which offences are committed under the Act, but the offences do not come to the knowledge of the Registering Officer in his official capacity. If the Registering Officer does not know in his official capacity that the document produced before him is a false document or that the person appearing before him is personating some other person, the section has no application. The section is not prohibitory in that it does not preclude a private person from commencing a prosecution. Even in a case where the commission of an offence comes to the knowledge of the Registering Officer in his official capacity, the section does not prohibit a private person from commencing a prosecution as the section is clearly permissive in its language and intent. In other words, the section is an enabling one. It enables the persons mentioned therein to commence a prosecution in cases where the commission of the offence under the Act comes to the knowledge of the Registering Officer in his official capacity. The Section enables the officers named to use 'their official position for the purpose of prosecution without personal risk.”

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It may be noted that the provisions of Section 83 of the Central Registration Act or Section 83 of the J&K Registration Act Svt. 1977 are in pari materia . That apart the Division Bench of this Court in the case of “Mst. Jana Vs. Mohd Akbar Alai and Ors” by relying upon the judgment of the Supreme Court in the case of “Dharamdeo Rai vs. Ramnagina Rai AIR 1972 SC 928.” has interpreted the provisions of the Section 83 of the J&K Registration Act in the similar manner. The observations of the Division Bench in Para 17 and 18 are appropriate and are therefore, reproduced hereunder:-

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17. “Dealing with the section in Dharamdeo Rai v. Ramnagina Rai , (AIR 1972 SC 928)= (1972 Cri LJ 632), their Lordships of the Supreme Court observed:

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“On a reading of the section, it would be clear that it deals only with prosecution for an offence under the Act coming to the knowledge of the Registering officer in his official capacity. It in effect, provides that where an offence comes to the knowledge of the Registering Officer in his official capacity, a prosecution may be commenced by or with the permission of any of the officers mentioned in the section. The section can possibly have no application to cases in which offences are committed under the Act, but the offences do not come to the knowledge of the Registering Officer in his official capacity. If the Registering Officer does not know in his official capacity that the document produced before him is a false document or that the person appearing before him is personating some other person, the section has no application. The section is not prohibitory in that it does not preclude a private person from commencing a prosecution. Even in a case where the commission of an offence comes to the knowledge of the Registering officer in his official capacity, the section does not prohibit a private person from commencing a prosecution as the section is clearly permissive in its language and intent. In other words, the section is an enabling one. It enables the persons mentioned therein to commence a prosecution in cases where the Commission of the offence under the Act comes to the knowledge of the Registering Officer in his official capacity. The section enables the officers named to use their official position for the purpose of prosecution without personal risk.”

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18. “On the authority of these observations the law must be treated to be well settled that in a case like the present where the offence comes to the notice of the Registering Officer this section does not prohibit a private person from commencing the prosecution directly or along with the cognizable offences, if any, through the agency of the police. In that view the argument must fail.”

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In view of the clear settled position of law we have no doubt in our mind that Section 83 of the Registration Act does not in any manner debar or prohibit a complainant other than the Registering Officer to launch a prosecution either by way of filing an FIR or a private complaint and that no permission from the Inspector General, Registrar, Sub-Registrar, in whose territory, district or sub-district, as the case may be, the offence has been committed, is required. As a matter of fact, from the impugned communication, we do not find that there was any such direction from the Principal Secretary to the Hon’ble Chief Justice (Acting) prohibiting or staying the investigation in the FIR.

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For the foregoing reasons, this petition is allowed. The impugned communication, as noted above is rendered infructuous with the disposal of the civil suit and, therefore, no certiorari needs to be issued to quash the same. We, however, direct the SHO Police Station Maisuma, Srinagar, to carry out the investigation in the FIR No. 13 of 2007 registered against the private respondents and take the same to the logical end without any further delay.

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Needless to say that investigation has already taken a long time to be completed and the same cannot brook any further delay. The Investigating Officer shall therefore take immediate steps to

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commence the investigation with all promptitude and take the

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same to the logical end.

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