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IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Sanjay Kumar Gupta, J.
Sajjad Tariq - Petitioner
Versus
State of J&K and anr. – Respondents
CRMC No. 241 OF 2011 & IA No. 271 OF 2011
Decided On : 12-04-2019
Criminal Procedure Code1973 - Section 561-A - Rule 25(4) (a) of the J&K Co-operative Societies Rules 2001 – Investigation – FIR - Case of petitioner is that on written report one false case was registered in Police Station Bah Fort Jammu against deceased father of petitioner namely Tariq and petitioner herein with allegations that on November at about when said complainant came to attend his office as Chairman Cooperative Bank at Plaza Railway Road Jammu he found big crowd at gate of Bank and saw Tariq and petitioner breaking open lock his office room with an Ari Blade and when he objected to it he was man handled by said culprits and Tariq occupied his chair without any authority - Complainant requested Police Station Nagar Fort to oust said person from his room - On report case for commission offences Sections came to be registered in said Police Station - Police investigated case and during the investigation besides taking other steps statements of complainant Bark at Ali Peon in said Bank Parkas Sharma Secretary to Complainant and one Gout am Singh Section came to be recorded and after completing – Held, Applicable to those cases where information given to police is solely about non cognizable offence - Where information discloses cognizable as well as non cognizable offence police officer is not debarred from investigating any non cognizable offence which may arise out of same facts - He can include that non cognizable offence in charge-sheet which he presents for cognizable offence – Court entirely agree - Both offences if cognizable could be investigated together Chapter of Code and also if one them was non cognizable offence provision introduced for first time in Code - This was done to overcome controversy about investigation of non- Cognizable offences by police without leave Magistrate - Statutory provision is specific precise and clear and there is no ambiguity in language employed in sub section - It is apparent that if facts reported to police disclose both cognizable and non cognizable offences police would be acting within scope of its authority in investigating both offences as legal fiction enacted in Sub section provides that even non cognizable plea taken is that Chillan has been produced against dead person as one of accused has already died when Chillan was produced - This argument also does not hold good because from perusal of initial order on Chillan passed by court below on it is evident that it was produced in presence of one accused and it was reported that accused - Sharif Tariq has died and court below on same date deleted him from array of list of accused - Petition and those have been argued are pertaining to appreciation of facts which this court cannot do in this petition - All these pleas are defenses of accused which he has to establish during course of trial - It is not case of petitioner that there is an express legal bar engrafted in any of provisions of Code or concerned Act which criminal proceeding is instituted to institution and continuance proceeding – Petition dismissed
JUDGMENT :
1. Through the instant petition filed under Section 561-A of the Code of Criminal Procedure (hereinafter for short, Cr.P.C.) petitioner seeks quashment of criminal proceedings titled State vs. M. S. Tariq and another, pending against the petitioner in the court of Railway Magistrate, Jammu.
2. The case of the petitioner is that on a written report of one Mohinder Singh a false case was registered in Police Station Bahu Fort, Jammu against the deceased father of the petitioner, namely, Mohd Sharief Tariq and the petitioner herein with the allegations that on 12th November, 2009 at about 10.35 AM, when said complainant Mohinder Singh came to attend his office as a Chairman of J&K Cooperative Bank at Sekhari Bhawan, Bahu Plaza, Railway Road, Jammu, he found a big crowd at the gate of the Bank and saw Mohd Sharief Tariq and the petitioner breaking open the lock of his office room with an Ari (Blade) and when he objected to it, he was man handled by the said culprits and Mohd Sharief Tariq occupied his chair without any authority. The complainant requested SHO Police Station Trikuta Nagar/Bahu Fort to oust the said person from his room. On the said report, a case for commission of offences under Sections 451, 323 RPC came to be registered in said Police Station. The police investigated the case and during theinvestigation besides taking other steps, the statements of the complainant Mohinder Singh, Barkat Ali, Peon in the said Bank, Parkash Sharma-Secretary to the Complainant and one Goutam Singh under Section 161-Cr.P.C came to be recorded and after completing the investigation charge sheet against the deceased father of the petitioner, namely. Mohd Sharie Tariq and the petitioner under Sections 451, 323, 201 RPC was filed in the court of law which is now pending disposal in the court of learned Railway Magistrate, Jammu. It is further stated that father of the petitioner, who expired long before the charge was submitted in the court of law, has been arrayed as main accused in the charge sheet.
3. The petitioner seeks quashment of the aforesaid proceedings, on the following grounds:-
(b) That according to the prosecution case, the alleged occurrence took place at 10.35 AM and the office of the complainant was still under lock despite the fact that the peon of the bank was already present in the bank and the bank timing was 10.00 AM and the bank which is a busy place, cannot be believed to be closed even at 10.35 A.M. The story put forth by the prosecution that the office of the Chairman was broken open at 10.35 A.M. by the petitioner and his deceased father with an Ari (Blade) is not at all believable and is a bundle of lies.
(c) The said prosecution story of breaking open the lock by the deceased father of the petitioner and the petitioner is a cock-bull story. Had there been any truth in the said allegation, it was not difficult for the investigating officer to recover the lock and blade. Offence under Section 201 RPC has been added just to fill in the gap and to show that the occurrence had actually taken placed.
(d) That the reality is that the deceased father of the petitioner had been elected as Chairman of J&K Cooperative Societies Bank by majority of Board of Directors in the Bank itself at 10.00 AM on 12-11-2009 and has passed a resolution of no confidence against the complainant Mohinder Singh, who was left with no authority to sit on the chair of the Chairman of the said Bank. After the resolution was passed by the Board of Directors in majority and a resolution of no confidence against the complainant and after passing the resolution Mohd. Sharief Tariq, the decease
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