Ghulam Qadir Bhat And Others vs State Of J&K And Another
2021 Latest Caselaw 769 j&K/2

      IN THE HIGH COURT OF JAMMU AND KASHMIR
                    AT SRINAGAR

                                               Reserved on: 13.06.2021
                                             Pronounced on: 15.07.2021

                           CRMC No.11/2018

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


Ghulam Qadir Bhat and others                       ...PETITIONER(S)

          Through: Mr. F.A.Wani, Advocate

Vs.

State of J&K and another                         ....RESPONDENT(S)

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



CORAM:HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE

                                JUDGMENT

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

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 (Sub-

Judge), 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.

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:-

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.

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

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.

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

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.

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.

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.

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.

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.

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

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.

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

property by the accused person, whereas for commission of cheating,

dishonest intention is present at the inception of transaction.

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.

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.

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.

(Sanjeev Kumar) Judge Srinagar 15.07.2021 "Vinod, PS"

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




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