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IN THE HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT SRINAGAR
Javed Iqbal Wani, J.
Parwez Sumuel Koul and others – Petitioners
Versus
Union Territory of J & K and others - Respondents
WP(C) No. 803 of 2020, CM No. 1763 of 2020, WP(C) No. 901 of 2020
Decided On : 09-09-2021
Jammu and Kashmir Education Act 2002 - Criminal Procedure Code, 1973 - Section 482 - Societies Registration Act, 1960 - Blackmailing - Corrupt practice - Allegations against petitioners for having resorted to corrupt practices qua society and its properties and educational institutions established there under - Whether respondents 2 and 4 (in WP(C)), could have entertained similar complaints as had been filed by respondents 5 and 6 for alleged acts of embezzlement, fraud and corrupt practices against petitioners before CJM, Srinagar having been entrusted to Crime Branch for enquiry/investigation and also said respondents also have entertained said complaints and initiated proceedings thereupon - Whether respondent- Divisional Commissioner is possessed of any power, competence, jurisdiction and authority in admitting and entertaining complaint filed by respondents 5 and 6 against petitioners for having committed alleged acts of omissions and commissions including embezzlement, fraud, corrupt practices educational institutions and in process could have passed impugned order.
Finding of the court : Educational institutions which petitioners are running, operating and regulated under Act 2002 and are being run under the umbrella of Society supra - Admittedly, complainants-respondents 4 and 5 have leveled allegations against petitioners for having resorted to corrupt practices qua society and its properties and educational institutions established there under - Wherein though a stay order has been passed by this Court, yet said stay order cannot per se be said to have decided the fate of the complaints and proceedings initiated thereupon. The stay order has merely eclipsed complaints and the proceedings initiated thereupon. In presence of said complaints and proceedings initiated thereupon, there was no occasion in law for complainants-Respondents 4 and 5 to file a complaint one after another on same set of allegations before respondent No. 2 (in WP(C)) and respondents 2 and 4 ( in WP(C)). Said respondents under name of Act of 1998 or Act of 2002 are no entities or authorities to undertake an enquiry into corrupt practices alleged to have been taken recourse to by petitioners. The respondent No. 2-Divisional Commissioners, Kashmir ( in WP(C)) as also the respondent No. 2- Director, Industries & Commerce Department, Srinagar and respondent No. 4- Assistant Commissioner, [in WP(C)] thus, have acted without any competence and jurisdiction in matter.
Result : Writ Petitions allowed
ORDER :
Writ petition bearing WP(C) 803/2020 came to be directed to be listed along with WP(C) 901/2020, in terms of order dated 10.06.2020 passed by this Court in the said petition.
These writ petitions raise common issues for consideration, therefore, both are being disposed of by this common order at this stage with the consent of the appearing counsel for the parties
WP(C) No. 803/2020
1. In this petition the petitioners on the foundation of the case set up, implores for the following reliefs:-
(a) An appropriate writ, order of direction in the nature of writ of certiorari quashing order issued by respondent No. 2 under endorsement no. Div.Com./Dev/41/2020/118 dated 06.03.2020 whereby cognizance of highly motivated, vexatious and baseless complaints filed by the respondents 4 and 5 against the petitioners has been taken and respondent no. 3 has been appointed as Enquiry Officer, being totally illegal, arbitrary and contrary to the provisions of law.
(b) An appropriate writ, order or direction in the nature of writ of mandamus commanding the respondents to dismiss/reject the complaints filed by respondents 4 and 5 against the petitioners being outcome of wreck vengeance and bias entertained by respondents 4 and 5 against the petitioners who are hell bent upon to harass, victimize and blackmail the petitioners under the garb of the similar complaints being filed by them before different authorities.
(c) An appropriate writ, order or direction in the nature of writ of prohibition restraining the respondents from harassing and victimizing the petitioners on the basis of the highly motivated and baseless complaints filed by the respondents 4 and 5.
2. The facts set up in the petition on the basis of which the aforesaid reliefs are being prayed by the petitioners reveal that the Tyndale Biscoe and Mallinson Society (for short the Society) registered under the provisions of Societies Registration Act, 1960 are running various prestigious educational institutions in Kashmir valley. The Society is stated to be under the control of “Diocese of Amritsar, Church of North India”. Petitioner No. 1 is stated to be the Principle of Tyndale Biscoe School and petitioner No. 2 is stated to be his wife. Petitioner No. 3 is stated to be the Administrator of the Tyndale Biscoe and Mallinson Society, Srinagar.
3. The respondent No. 4 is stated to be an ex-employee of Tyndale Biscoe, School having resigned in February, 2018 and after leaving the school is stated to have started harassing, victimizing and blackmailing the petitioners by filing vexatious and baseless complaints against them before the different authorities.
4. A baseless, concocted and vexatious criminal complaint is stated to have been filed by the respondents 4 and 5 herein against the petitioners before the Court of Chief Judicial Magistrate, Srinagar on 12.12.2018, seeking a direction to the crime branch for an in-depth investigation into the allegations leveled in the said criminal complaint. The said complaint is stated to have been forwarded on 12.12.2018, itself by the Court of Chief Judicial Magistrate, Srinagar to SHO Police Station, Crime Branch, Kashmir for necessary action, notwithstanding the fact that the Crime Branch had no jurisdiction to direct investigation into such complaint. Initially a compliance report is stated to have been filed by the Senior Superintendent of Police, Crime Branch, Kashmir on 28.12.2018, in respect of the said complaint before CJM, Srinagar and subsequently, a second status report is stated to have been filed on 04.06.2019, indicating therein that the statements of the petitioners as also few other persons were recorded and during the course of enquiry the petitioners are stated to have provided documentary proof against the allegations leveled in the complaint. The learned Court of CJM, Srinagar on 14.10.2019, is stated to have dismissed the said compliant by consigning the same to records after noticing that none appeared for the complainants-res
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