Dr. Syed Sajad Nazir vs State Of J&K Th. Additional ...
2021 Latest Caselaw 353 j&K/2

        IN THE HIGH C0URT 0F JAMMU AND KASHMIR
                      AT SRINAGAR

                              CRMC No. 90/2018

                                               Reserved on 16.03.2021.
                                               Pronounced on 26.03.2021

Dr. Syed Sajad Nazir                                           ...Petitioner(s)

         Through: Mr. Salih Pirzada, Adv.

                                   Vs.

State of J&K Th. Additional Advocate General               ...Respondent(s)

         Through: Mr B. A. Dar, Sr. AAG with
                   Ms. Saba Gulzar, Assisting Counsel

Coram:      HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE

                             JUDGMENT

1. The present petition has been filed by the petitioner for quashing of proceedings under file No. 250/B titled State v. Dr. Syed Sajad Nazir arising out of FIR No. 71/2013 u/s 420R.P.C of Police Station Karan Nagar, Srinagar, pending before the court of Special Mobile Magistrate, Passenger Tax Electricity, Srinagar on the following grounds:-

a. That the learned Magistrate has taken cognizance of the offences under the impugned FIR in derogation to the bar contained in Section 197 Cr.P.C.

b. That no offence is made out from the contents of the complaint much less the offence of 420 RPC, as none of the ingredients of the offence are made out from the contents of the report or any other material brought on record. There is no element of deception, wrongful loss made out from the contents of FIR to make out a case for cheating.

c. That the petitioner has been put to severe harassment because of the commencement of the prosecution in absence of sanction from the administrative authority as the prosecution has been launched on mere trivialities which cannot be countenanced under criminal law. Mere taunt or expression of anger does not become reprehensible.

2. Mr Salih Pirzada, learned counsel for the petitioner has vehemently argued that the pendency of the criminal proceedings before the court of Special Mobile Magistrate, Passenger Tax Electricity, Srinagar is nothing but abuse of process of law as the bare perusal of the complaint pursuant to which FIR was lodged would reveal no offence under Section 420 RPC is made out and it is further urged that for prosecuting a government servant, the sanction from the Government is required particularly when there are allegations that offence was committed by the public servant while discharging his official duties.

3. Response stands filed by the respondents in which it is stated that SHO Police Station Karan Nagar, Srinagar received complaint from Naseer Ahmad Dar S/o Gh. Rasool Dar R/o Wagat Handwara that his mother was admitted at SMHS Hospital Srinagar under MRD No. 106252 for undergoing treatment on 10th September 2013 in SU-1 due to kidney problem and before admission in SMHS hospital, his mother was under treatment with the petitioner at Private Clinic Empire Urological clinic at Batamaloo where he was treating and prescribed her various tests which cost a lot. Due to unaffordable of high spending on tests they decided to go to SMHS Hospital where she was admitted under MRD No. 106252, where he gave the surgery date to the patient as 2nd October 2013 and told the attendants to purchase the surgical equipment from his private clinic. Later, they approached the private clinic and purchased the surgical equipment against proper receipt. The complainant further alleged that the said doctor compelled him for purchase of surgical equipment from the private clinic for illegitimate profits. On this complaint, FIR for commission of offence under Section 420 RPC was

registered against the petitioner in the Police Station concerned and after the conclusion of the investigation, the challan for commission of offence under Section 420 RPC was filed against the petitioner and the same is sub-judice before the court of Passenger Tax, Srinagar.

4. Per contra, Mr B. A. Dar, learned Sr. AAG submits that the offence of cheating is made out and the sanction to prosecute the petitioner is not at all required.

5. Heard and perused the record of the trial court.

6. Before appreciating the rival contentions of the parties, it would be appropriate to have a brief resume of the allegations against the petitioner.

7. This is admitted fact that the petitioner has been working as an Assistant Professor in the Discipline of Urology in Super Specialty Hospital, Government Medical College, Srinagar. The complainant Naseer Ahmad Dar S/o Gh. Rasool Dar R/o Wagat Handwara filed a written complaint with the SHO Police Station Karan Nagar, Srinagar on 10th October 2013. It is alleged that that the mother of the complainant was getting treatment from the petitioner from his private clinic and as the complainant could not afford the huge amount, so the complainant decided to get the treatment from SMHS Hospital and when the complainant approached the said hospital, his mother was admitted in SMHS Hospital under MRD No. 106252 on 10th July 2013 and the date of surgery was fixed for 2nd October 2013. The petitioner told the complainant to come to his clinic for taking the surgical equipment for the operation and when the complainant approached the private clinic on 16th July 2013, he gave the description of the equipments those were required to be purchased from his clinic. He also conveyed him that if the complainant had any MLA or any other high authorities for approach and when the complainant told him that he had no approach, then the petitioner tore the file of the mother of the complainant. These are the only allegations against the petitioner.

8. Now it is to be seen whether the allegations prima facie disclose commission of offence under Section 415 or not. Section 415 RPC defines the cheating and the same is reproduced hereunder:-

"Cheating.--Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat". Explanation.--A dishonest concealment of facts is a deception within the meaning of this section. Illustrations."

9. A bare perusal of Section 415 RPC reveals that there must be initial deception by the accused thereby inducing the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived.

10. There is no allegation in the complaint that the petitioner at any point of time by way of any deception induced the complainant to deliver any property to the petitioner. The complainant has raised the dispute with regard to the fact that he was made to purchase the surgical equipments from the clinic of the petitioner and these allegations do not at all constitute offence of cheating. The complainant in his statement recorded under Section 161 Cr.P.C has narrated the similar story and has further stated that the petitioner wanted to grab the money from him. Even if all the allegations in the complaint/FIR/charge sheet taken at the face value are true, the basic essential ingredients of cheating are missing.

11. Hon'ble the Apex Court in the case of "Indian Oil Corporation vs. NEPC India Ltd. And Ors", reported in (2006) 6 SCC 736, has held as under:-

12. The principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by this Court in several decisions.

To mention a few--Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre [(1988) 1 SCC 692 : 1988 SCC (Cri) 234] , State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] , Rupan Deol Bajaj v. Kanwar Pal Singh Gill [(1995) 6 SCC 194 : 1995 SCC (Cri) 1059] , Central Bureau of Investigation v. Duncans Agro Industries Ltd. [(1996) 5 SCC 591 : 1996 SCC (Cri) 1045] , State of Bihar v. Rajendra Agrawalla [(1996) 8 SCC 164 : 1996 SCC (Cri) 628] , Rajesh Bajaj v. State NCT of Delhi [(1999) 3 SCC 259 : 1999 SCC (Cri) 401] , Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. [(2000) 3 SCC 269 : 2000 SCC (Cri) 615] , Hridaya Ranjan Prasad Verma v. State of Bihar [(2000) 4 SCC 168 : 2000 SCC (Cri) 786] , M. Krishnan v. Vijay Singh [(2001) 8 SCC 645 : 2002 SCC (Cri) 19] and Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque [(2005) 1 SCC 122 : 2005 SCC (Cri) 283] .

The principles, relevant to our purpose are:

(i) A complaint can be quashed where the allegations made in the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out the case alleged against the accused.

For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint.

(ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable.

(iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution.

(iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence.

(v) A given set of facts may make out: (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not.

12. Thus, once it is evident that if the essential ingredients of offence are missing in FIR and the subsequent challan, the proceedings can be quashed and in the instant case, as already discussed above, no case under sec 420 R.P.C is made out.

13. Even for the sake of arguments, if any offence is made out, even then the same has been committed by the petitioner during the discharge of his official duties as whatsoever incident that took place, was while the petitioner was performing his official duties. This is admitted fact that no formal sanction has been obtained under Section 197 Cr.P.C for prosecuting the petitioner. Hon'ble Supreme Court in case reported in 2020 (7) SCC 695 Devaraja vs. Owais Sabeer Hussain has held that the appellant-public servant who was accused of offence under Sections 120- B, 220, 323,330,348,506-B read with section 342 of the Indian Penal Code was entitled to protection under Section 197 Cr.P.C. The relevant paragraphs of the judgment supra are reproduced as under:-

70. To decide whether sanction is necessary, the test is whether the act is totally unconnected with official duty or whether there is a reasonable connection with the official duty. In the case of an act of a policeman or any other public servant unconnected with the official duty there can be no question of sanction. However, if the act alleged against a policeman is reasonably connected with discharge of his official duty, it does not matter if the policeman has exceeded the scope of his powers and/or acted beyond the four corners of law.

14. In view of this, the petition is allowed and the proceedings under file No. 250/B titled State v. Dr. Syed Sajad Nazir, FIR No. 71/2013 u/s 420 R.P.C of Police Station Karan Nagar, Srinagar pending before Special Mobile Magistrate, Passenger Tax Electricity, Srinagar are quashed.

(RAJNESH OSWAL) JUDGE SRINAGAR 26.03.2021 Altaf

Whether the order is speaking: Yes

Whether the order is reportable: Yes