Vikram Bhardwaj vs State Of J&K & Ors
2023 Latest Caselaw 853 j&K/2

      IN THE HIGH COURT OF JAMMU & KASHMIR AND
                  LADAKH AT SRINAGAR
                                                   Reserved on: 07.06.2023
                                                   Pronounced on:02.08.2023

                          WP(C) No.2322/2019

VIKRAM BHARDWAJ                                     ...PETITIONER(S)
      Through: - Mr. Mohammad Shoeb Alam, Advocate.
Vs.

STATE OF J&K & ORS                                ...RESPONDENT(S)
      Through: - Mr. Mohsin S. Qadiri, Sr. AAG, with
                     Ms. Maha Majeed, Advocate.
                     Mr. Shakir Reyaz, Advocate.

CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE

                                 JUDGMENT

1) The petitioner has invoked the extraordinary writ jurisdiction of

this Court with the following prayers:

a) Issue a Writ of Mandamus commanding the respondents more particularly respondent No.1 and 2 to constitute a Special Investigation Team to be headed by a police officer not below the rank of Dy. Inspector General of Police to carry on and monitor the investigation of the case FIR No.69/2019 registered at Police Station Anantnag dated 13.05.2019 under Sections 420, 467 and 468 of RPC. In the alternative directions are sought for handing over the investigation of the case to the Central Bureau of Investigation (CBI) New Delhi in view of the seriousness of the offence and the expertise available with them for conducting such investigations.

b) Issue a Writ of Mandamus commanding the respondents to expedite the probe and conclude the investigation of the case registered pursuant to the FIR supra and consequently update this Court about the stage of investigation and the material evidence collected so far along with the relevant record of the case.

2) As per case of the petitioner, he is a reputed businessman

running a company M/S Topline Buildtech Pvt. Ltd. New Delhi. It has

been submitted that during the course of his business activities, the

petitioner came to know about the institution of a complaint under

Section 138 of Negotiable Instruments Act in respect of a cheque

bearing No. 997645 dated 21.08.2018 amounting to Rs.75.00 lacs, that

was instituted before the Court of Judicial Magistrate, 1st Class (Mobile

Magistrate) Anantnag. The complaint was lodged against the petitioner

by one Ms. Sania Fayaz, attorney holder of one Pankaj Jain. It is

submitted that the petitioner did have certain business transactions with

said Pankaj Jain but the cheque in question had been stolen way back in

the year 2014, as a consequence whereof, he had lodged a report with

the police on 1st October 2014, and the same was converted into formal

FIR bearing No.0732 dated 12th of November 2018. The petitioner is

stated to have challenged the proceedings initiated against him in

respect of the aforesaid cheque by way of a petition under Section 561-

A of J&K Cr. P. C bearing CRMC No.479/2018.

3) According to the petitioner, while defending the aforesaid case,

he came to know that a number of cases have been filed against non-

state subjects at the hands of some locals operating in Anantnag,

Kulgam and Qazigund and in most of the cases, complaints have been

preferred by attorney holders acting for and on behalf of a fraudulent

company known as "Host Finance & Investments Pvt. Ltd." It has been

submitted that in most of these cases, the complainants are Ms. Sania

Fayaz and Ms. Lubna Bashir. It has been submitted that upon enquiries,

the petitioner came to know that the aforenamed two persons were

working in tandem on the instructions of Pankaj Jain, Director of the

company M/S Host Finance. It was also learnt by the petitioner that

these persons work as a team in various districts of Kashmir Valley and

target well settled businessmen of the Country by instituting fake,

false and fictitious complaints so as to extort money from the

businessmen by taking advantage of the security situation in Kashmir

valley, particularly in South Kashmir. The petitioner is stated to have

lodged a complaint in this regard with respondent No. 3-Inspector

General of Police, Kashmir Zone, a copy whereof has been annexed to

the petition. A criminal complaint was also filed by the petitioner

before the Chief Judicial Magistrate, Srinagar, that was transferred to

the Court of Judicial Magistrate, 1st Class (3rd Additional Munsiff),

Srinagar, that is stated to be pending adjudication.

4) On the directions of respondent No.3, FIR No.69/2019 stands

registered at Police Station, Anantnag, for offences under Section 420,

467 and 468 of RPC and the investigation was entrusted to the Special

Investigation Team headed by Deputy Superintendent of Police. It has

been submitted by the petitioner that during investigation of the case it

has come to the fore that a well-knit racket is being run in the State of

Jammu and Kashmir, particularly in South Kashmir which has the

patronage of high-level police officers and other officers of the state

including the politicians. According to the petitioner the said racket is

being run by Pankaj Jain and his agents namely, Ajay Agarwal, Lubna

Bashir and Sania Fayaz, who claim to be the office bearers of the

company owned by Pankaj Jain, namely, M/S Host Finance and

Investment Pvt. Ltd. It has been alleged that the above named persons

in connivance with local lawyers and law enforcing agencies managed

to obtain orders from the courts by filing fake and fictitious cases in

order to reap the benefits by resorting to extortion by targeting non-

local businessmen compelling them to go for out of court settlements.

5) The petitioner has submitted that the SIT has not done its job

properly and the case has not been investigated in a manner warranted

under law. It has been submitted that respondents are not acting fairly

and they are acting under the influence of high-level officers involved

in the scam and are trying to hush up the investigation to shield the

culprits. On these grounds it has been submitted that the investigation

of the case be handed over to a Special Investigation Team headed by

an officer not below the rank of Deputy Inspector General of Police. It

has been submitted that the pace of investigation is going on very

slowly and despite approaching high ranking officers, no fruitful result

has emanated. It has been submitted that alternatively the case should

be transferred to the Central Bureau of Investigation for the purpose of

investigation.

6) A series of status reports have been filed by investigating agency

pursuant to the directions passed by this Court from time to time. It

appears that initially investigation of FIR No.69/2019 of Police Station,

Anantnag, was conducted by Special Investigation Team headed by

Dy.SP Headquarters Anantnag. The report submitted by SSP, Anantnag

on 01-08-2019 concludes as under:

➢ That the accused number one, namely Ajay Kumar Agarwal is involved in the offences of cheating U/S 420 RPC on the basis evidences collected by SIT headed by DY.Sp HQR, Anantnag during the course of investigation. The accused has been granted interim bail by the Hon'ble Court of JIMC, Anantnag. ➢ That on the basis of investigation so far carried out by SIT, evidence against Pankaj Jain in the Supra mentioned case is still being collected. In this regard, the expert opinion from FSL Srinagar is expected soon and the certified copies of alleged fake complaints have not been received so far. ➢ That the alleged accused namely Saniya Fayaz is alleged to have filed frivolous complaints in different courts on the directions of accused number one. The investigation carried out by SIT so far in this respect is subject to outcome of such complaints in the Hon'ble courts. The SIT has applied for their certified copies which shall be received. The investigation is also underway in that regard.

➢ The investigation of the case FIR No. 69/2019 U/S 420 RPC, of P/S Anantnag is in force. The final conclusion of the case will be drawn only after collection of evidence as stated above.

7) A subsequent report was filed by SSP Anantnag on 22-02-2023

in terms of order dated 14-12-2022 passed by this Court. In the said

report, it has been submitted that representation dated 15-03-2019 was

received from the petitioner by IGP, Kashmir, and on the basis of this

representation and in terms of communication dated 18-03-2019, issued

by IGP, Kashmir, FIR No.69/2019 came to be registered. It has been

further submitted that during investigation, it has surfaced that the

issuance of non-bailable warrant by Judicial Magistrate, 1st Class,

Qazigund, is a genuine document and in order to execute the same, a

team of police personnel comprising SI Suhail Mushtaq and Sg.Ct

Mohammad Yaseen, was deputed for its execution to Delhi. It has been

further submitted that the allegations with regard to demand or payment

of money to police party could not be established during investigation.

It has been further submitted that during investigation of the case and

after recording the statements of the witnesses including the statement

of the petitioner, offence under Section 420 RPC was found established

against Ajay Kumar Agarwal and Pankaj Jain and challan has been laid

before the Court of Chief Judicial Magistrate, Anantnag, on 14-09-2021

against these persons. The report goes on to submit that the petitioner

again approached the DIG, Anantnag, for re-investigation of the case

and on the instructions of the DIG, a SIT headed by Dy.SP

Headquarter, Anantnag, was constituted vide order dated 13-02-2022

and further investigation of the case in terms of Section 173(8) of

Cr.P.C was commenced. During further investigation of the case, the

investigation in terms of PHQ order dated 12-05-2022 was transferred

to Crime Branch, Kashmir.

8) Economic Offences Wing of Crime Branch, Kashmir, has filed

latest report dated 11th April, 2023. The concluding part thereof is

reproduced under:-

In view of the above it transpired that commission of offences U/s 209 RPC has been found made against accused persons r/w offences U?s 420, 384/511 RPC which are interlinked with court proceedings. The investigation has further revealed that there is a legal impediment for carrying out further investigation, which in absence of written order/direction from the Hon'ble Court where these false complaints were filed

cannot sustain judicial determination and is not legally sound. No such order/direction was sought from the Hon'ble Court before lodging of FIR or even during the investigation or prior to filing of charge sheet before CJM Anantnag.

The further investigation was conducted U/s 420 RPC and it is during the course of investigation it has revealed that actually a case U/s 209 RPC, 384, 420/511 RPC should have been registered after obtaining proper order form the competent authority. The commission of offences U?s 209 RPC has surfaced which requires complaint U?s 195 (1) (b) CRPC from the Hon'ble competent court and thus there is a legal impediment to proceed further into the matter. Further the investigation has also revealed that all these complaints were lodged before the various Hon'ble Courts of District Kulgam and investigation cannot be clubbed with the instant case in view of jurisdiction and also a separate case has been registered in P/s Kulgam in similar allegations under No. 86/2022 of P/s Kulgam. So far as the negligent and carelessness of Police officers/Officials is concerned, who have been found to have executed non-bailable warrant against Vikram Bardawaj, recommendations for initiating departmental action has been made.

Keeping in view the above, the further investigation into the matter has been closed in respect of case FIR No. 69/2019 P/s Anantnag and allegation with regard to District Kulgam cannot be investigation in the present case as separate FIR has been registered in Police Station Kulgam. Accordingly, a report into the matter has been filed before the Hon'ble Court of Chief Judicial Magistrate, Anantnag.

9) I have heard learned counsel for the parties and perused the

record of the case including the Case Diaries.

10) Learned counsel appearing for the petitioner has contended that

witnesses to the 40 fake cases filed before various courts of South

Kashmir have not been made as accused and no investigation has been

conducted by the investigating agency in this regard. It has been further

submitted that no Police Officer or Judicial Officer has been arraigned

as accused in the case. It has been contended that the investigation as

regards the presence of private persons accompanying the police team

to the residence of the petitioner has not been conducted and no action

has been taken against the police officials who had gone to execute the

warrant against the petitioner. According to the learned counsel, the

role of the lawyers has not been investigated and the police has not

investigated as to how non-bailable warrants came to be issued by

Judicial Magistrate, 1st Class, Qazigund, against the petitioner. It has

been submitted that the investigation conducted so far reveals that there

is an organized extortion racket of filing false complaints which

involves the members of criminal justice administration and this is a

ground good enough to handover the investigation of the case to an

outside agency like Central Bureau of Investigation. It has been

submitted that the investigating agency has misread the provisions of

Section 195(1) of Cr.P.C to scuttle the investigation and declare

further investigation untenable.

11) If we have a look at the final status report filed by Economic

Offences Wing of Crime Branch and the Case Diaries produced by the

official respondents, it comes to the fore that it is not a case where the

investigating agencies have just brushed the allegations levelled by the

petitioner under the carpet but it is a case where most of the allegations

made by the petitioner in his representation to IGP, Kashmir, have been

investigated by different investigating agencies including the Economic

Offences Wing of Crime Branch, Srinagar.

12) The record shows that the investigating agency after registration

of FIR bearing No.69/2019 of Police Station, Anantnag, immediately,

upon receipt of representation from the petitioner, swung into action

and formed a Special Investigation Team headed by Dy. SP. It was

revealed during investigation that accused Ajay Agarwal, a resident of

Calcutta, established an office under the name and style of Sri

Balmukand Polyplast Private Limited branch K.P. Road, Anantnag. He

selected local employees which included Shanu Mushtaq, Amir Nisar

Choda, Saniya Fayaz, Shaziya Akhter, Tajamul Ahmad, Zahoor

Ahmad, Moin-ul-Bashir, Lubna Bashir and Tanveera Mushtaq. These

employees prepared and signed the documents whereby fake and false

civil suits/complaints were filed before various courts of South

Kashmir, under the directions of accused Ajay Kumar Agarwal. The

investigation further revealed that the said accused exploited these

employees for instituting false complaints. Some of these employees

approached the local police and revealed the deceitful activities of

accused Ajay Kumar Agarwal. The investigating agency has

scrutinized the transactions in the bank accounts of some of these

employees and found no monetary transactions between them and the

defendants/non-complainants. It has been found during investigation

that these civil suits/complaints were later on withdrawn by

plaintiffs/complainants on the directions of Ajay Agarwal within the

period of 2/3 months. The investigation revealed that a huge amount

has been found transferred/credited to the account of Saniya Fayaz who

has actually lured other employees to file fake cases in different courts.

The investigation reveals that Saniya Fayaz was functioning as an

office clerk and was in close contact with Ajay Kumar Agarwal and

played an important role in filing fake cases against various local and

non-local persons.

13) Regarding filing of complaint under Section 138 of Negotiable

Instruments Act against the petitioner, the case has already been proved

against Ajay Kumar Agarwal and Pankaj Jain and the challan has been

filed before Chief Judicial Magistrate, Anantnag. As many as 40 false

cases are stated to have been filed against various persons and most of

these cases have been filed by Saniya Fayaz, Shanu Mushtaq and Amir

Nisar Choda.

14) Regarding role of the police, it has been submitted that on the

complaint filed by Lubna Bashir, against the petitioner and two more

persons the Judicial Magistrate, 1st Class, Qazigund, had issued non-

bailable warrants against the petitioner, Harish J. Darmani and Anil Pal

and, accordingly, District Police, Kulgam, deputed SI Suhail Mushtaq

and Sgct. Mohammad Yaseen for execution of the said warrant

pursuant to movement order issued from the office of DIG, SKR,

Anantnag. It has been found that no other warrant has been issued by

any other court. The investigating agency has found that the police

party had arrested the petitioner on the basis of the non-bailable warrant

issued by Judicial Magistrate, 1st Class, Qazigund but later on he was

set free after some time by the policemen on their own. One Mudasir

Ahmad Baba was accompanying the police party but the allegations of

demand of bribe or extortion from the petitioner by the police personnel

have not been substantiated during investigation of the case.

15) The report shows that there was some business transaction

between accused Pankaj Jain and petitioner Vikram Bhardwaj and

certain allegations were made by Pankaj Jain against the petitioner

which could not be substantiated as there was no transaction found

between petitioner and Sri Balmukand Polyplast Pvt. Ltd. The

investigation has revealed that there was no role of Pankaj Jain in

lodging of the complaints other than the one under Section 138 of

Negotiable Instruments Act before Judicial Magistrate, 1st Class,

Anantnag. The investigating agency has also recorded statements of

available persons at Delhi and Mumbai against whom false complaints

have been filed in various courts but no evidence of extortion has

surfaced. It has been found that no police party from UT of J&K has

ever approached them with regard to the execution of

warrants/summons but it has been found that all the cases filed against

these persons by the employees of Sri Balmukand Polyplast Pvt. Ltd

are false and baseless. The investigating agency has found that these

false complaints and cases have been filed at the behest of Ajay Kumar

Agarwal with the intention of extortion from non-locals but the same

was not possible because of the complaint made by the petitioner and it

is because of this that all these false cases/complaints have been

withdrawn before the various courts.

16) As per the report, the investigation conducted has revealed that

all the ingredients of the offence under Section 420 RPC were not

completed as no wrongful loss or wrongful gain was caused but it was

only an attempt to commit cheating. The investigating agency has also

found that offence under Section 209 RPC is established and that some

police officials have remained callous in executing the warrants issued

by JMIC, Qazigund, for which a regular departmental enquiry has been

initiated against them. It has been submitted that another FIR has been

lodged by SSP, Kulgam, with regard to the complaints lodged in

District Kulgam.

17) It has been submitted that it is established that accused Ajay

Agarwal has filed complaints before various courts through his

employees with the intention to cheat and extort money from non-

locals and investigation has revealed commission of offences under

Section 420, 384, 511 and 209 of RPC. However, there is no evidence

against accused Pankaj Jain in filing of these cases. The investigating

agency has, however, not proceeded further in the matter in view of the

observations made by the Crime Headquarters which relate to the

taking of cognizance for offence under Section 209 of RPC in the light

of Section 195(1)(b) of Cr. P. C.

18) From the above, it is clear that the report does reveal that during

further investigation of the case, certain other offences have been

established against the persons other than those who have been already

booked but due to the observations of the Crime Headquarter, the

investigation has been left midway. The observation of the Crime

Headquarter that because for taking cognizance of offence under

Section 209 RPC, the procedure prescribed under Section 195 and 340

of the Cr.P.C is to be followed, as such, the investigation should not be

conducted any further, appears to be legally not tenable. In this regard

the provisions contained in Section 195 of the J&K Cr.P.C are required

to be noticed. It reads as under:

195. (1) No Court shall take cognizance--

(a) Prosecution for contempt of lawful authority of public servants.-- Of any offence punishable under sections 172 to 188 of the Ranbir Penal Code, except on a complaint in writing of public servant concerned, or of some other public servant to whom he is subordinate;

(b) Prosecution for certain offences against public justice.--Of any offence punishable under any of the following sections of the same Code, namely, sections 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211 and 228 when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, except on the complaint in writing of that court or by such officer of the court as that court may authorise in writing in this behalf, or of some other court to which that court is subordinate; or

(c) Prosecution for certain offences relating to documents given in evidence.--Of any offence described in section 463 or punishable under section 471, section 475 or section 476 of the same Code, when such offence is alleged to have been committed by a party to any proceeding in any Court in respect of document produced or given in evidence in such proceeding, except on the complaint in writing of such Court, or of some other Court to which such Court is subordinate.

(2) In clauses (b) and (c) of sub-section (1), the term "Court" includes a civil, revenue or criminal Court, but does not include a Registrar or Sub-Registrar under the Registration Act, 1977.

(3) For the purposes of this section, a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies, to the principal Court having ordinary original Civil jurisdiction within the local limits of whose jurisdiction such Civil Court is situate:

Provided that,--

(a) where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate; and

(b) where appeals lie to a civil and also to a revenue Court, such Court shall be deemed to be subordinate to the civil or revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed.

(4) The provisions of sub-section (1), with reference to the offences named therein, apply also to criminal conspiracies to commit such offences and to the abetment of such officers, and attempts to commit them.

(5) Where a complaint has been made under sub- section (I), clause (a) by public servant, any authority to which such public servant is subordinate may order the withdrawal of the complaint and, if it does so, it shall forward a copy of such order to the Court and, upon receipt thereof by the Court, no further proceedings shall be taken on the complaint.

19) From a perusal of the aforesaid provision, it is clear that a Court

is barred from taking cognizance of any offence punishable under

Section 209 of the RPC except on the complaint in writing of that

Court or an authorized officer of the concerned Court.

20) In the instant case, only the investigation is underway. The stage

of cognizance would come when the charge sheet is filed before the

Court. What is prohibited by Section 195 of Cr.P.C is taking of

cognizance and not undertaking the investigation. A similar question

arose before the Supreme Court in the case of State of Punjab vs Raj

Singh and anr, (1998)2 SCC 391. While dealing with this question,

the Supreme Court observed as under:

2. We are unable to sustain the impugned order of the High Court quashing the FIR lodged against the respondents alleging commission of offences under Sections 419, 420, 467 and 468 IPC by them in course of the proceeding of a civil suit, on the ground that Section 195(1)(b)(ii) CrPC prohibited entertainment of and investigation into the same by the police. From a plain reading of Section 195 CrPC it is manifest that it comes into operation at the stage when the court intends to take cognizance of an offence under Section 190(1) CrPC; and it has nothing to do with the statutory power of the police to investigate into an FIR which discloses a cognizable offence, in accordance with Chapter XII of the Code even if the offence is alleged to have been committed in, or in relation to, any proceeding in court. In other words, the statutory power of the police to investigate under the Code is not in any way controlled or circumscribed by Section 195 CrPC. It is of course true that upon the charge-sheet (challan), if any, filed on completion of the investigation into such an offence the court would not be competent to take cognizance thereof in view of the embargo of Section 195(1)(b) CrPC, but nothing therein deters the court from filing a complaint for the offence on the basis of the FIR (filed by the aggrieved private party) and the materials collected during investigation, provided it forms the requisite opinion and follows the procedure laid down in Section 340 CrPC. The judgment of this Court in Gopalakrishna Menon v. D. Raja, on which the High Court relied, has no manner of application to the facts of the instant case for their cognizance was taken on a private complaint even though the offence of forgery was committed in respect of a money receipt produced in the civil court and hence it was held that the court could not take cognizance on such a complaint in view of Section 195 CrPC.

21) The aforesaid judgment was followed by the Supreme Court in

its later judgment in the case of M. Narayandas vs. State of Karnataka

and others, (2003) 11 SCC 251. In view of the aforesaid law laid down

by the Supreme Court, it is clear that Sections 195 and 340 of Cr. P. C

do not control or circumscribe the power of the police to investigate

under the Criminal Procedure Code. Once investigation is completed,

then the embargo or bar under Section 195 of Cr.P.C would come into

play and in that event, on the basis of charge sheet submitted by the

police, the court would not be competent to take cognizance. However,

the court concerned could file a complaint taking into account the facts

stated in the FIR and the material collected during investigation but

before doing so, the court concerned is required to follow the procedure

laid under Section 340 of the Code of Criminal Procedure.

22) In view of the above, the observation of the investigating agency

that it could not undertake further investigation of the case because the

offence under Section 209 of RPC has also been disclosed, is without

any substance. It is a fact that offence under Section 209 of RPC is non-

cognizable in nature but then a non-cognizable offence can be

investigated along with cognizable offences in view of the ratio laid

down by the Supreme Court in the case of State vs. Dr. Saleem-ur-

Rehman, 2021 SCC Online SC 1014. Therefore, there is no legal or

statutory bar for the respondent investigating agency to undertake

further investigation of the case even if offence under Section 209 RPC

is disclosed during investigation of the case.

23) Another aspect of the matter which the investigating agency has

not adverted itself to is the fact that the complainants/plaintiffs of the

cases, particularly those who have actively participated in filing of false

cases and have even received consideration in lieu thereof from the

main accused, should have been booked as accused in the case, which

has not been done. The investigating agency has to look into this aspect

of the matter and undertake proper investigation in this regard and book

all those persons who have intentionally aided and abetted the main

accused in filing of these false cases.

24) So far as role of the police officers/officials is concerned, the

investigating agency has thoroughly investigated this aspect of the

matter and it has been found that only one non-bailable warrant has

been issued by Judicial Magistrate, 1st Class, Qazigund, in a complaint

filed against the petitioner. The warrant has been found to be genuine

and it has been addressed to the police for its execution. Therefore, it

was the duty of the police to execute the warrant without going into the

question whether the same has been issued in a false or a genuine case.

The police while executing the process of a court is not expected to

ascertain merits and veracity of the case in which the process has been

issued. The police officials have, under valid orders of the court

coupled with the valid permission from the police officer of the rank of

DIG, proceeded to Delhi to execute the warrant. Therefore, it cannot

be stated that the police officials have exceeded their powers, or that

they were in league with the accused. In the cases instituted on the

basis of private complaints and plaints, police has no role to play. It is

not a case where false FIRs have been filed on the basis of which the

petitioner has been harassed. Had it been so, the role of police would

have come under scanner. But in the instant case the police has not

played any role, directly or indirectly, excepting in one case where it

has done its lawful duty of executing the warrant issued by a competent

court. Therefore, contention of learned counsel for the petitioner that

the role of the police officers/officials also comes under scanner,

appears to be without any substance.

25) Similarly, there is no material available on record to even

remotely suggest that any judicial officer was involved in the alleged

conspiracy of filing false cases. Even otherwise, at least proceedings in

two cases are under challenge before this Court. This is clear from the

annexures annexed with the writ petition. The role of the judicial

officers would come under scrutiny of this Court while deciding those

cases on judicial side after examining the record of the trial court. If

the situation warrants, appropriate orders would follow in those cases.

26) So far as the role of lawyers in filing of false cases is concerned,

the investigating agency appears to have done nothing in that regard

and the same is required to be investigated.

27) Learned counsel for the petitioner has vehemently argued that

having regard to the lapses in the investigation, the investigation of the

case needs to be handed over to the Central Bureau of Investigation. In

this regard it is to be noted that power to transfer investigation is an

extraordinary power which is to be used very sparingly and in an

exceptional circumstance where the Court on appreciating the facts and

circumstances arrives at the conclusion that there is no other option of

securing a fair trial without the intervention and investigation by the

CBI. I am supported in my aforesaid view by the judgment of the

Supreme Court in the case of Royden Harold Buthello & anr. vs.

State of Chhattisgarh & Ors. 2023 LiveLaw (SC) 154.

28) In the instant case, the investigating agency has done fairly a

good job in investigating most of the aspects of the matter and the

investigation has already been handed over to a specialized agency like

Economic Offences Wing of Crime Branch, Kashmir. No such glaring

and exceptional circumstances have been brought to the notice of this

Court that would warrant transfer of investigation to any other agency.

Therefore, prayer of the learned counsel for the petitioner in this regard

merits to be rejected.

29) For the foregoing reasons, the writ petition is disposed of with

the following directions:

(I) The respondent Economic Offences Wing of Crime Branch, Kashmir, shall undertake further investigation of the case with regard to the role of the complainants/plaintiffs /lawyers who had filed false complaints/cases before various courts and on the basis of the material that may be collected during investigation, appropriate action be taken against those found to be actively involved with the main accused, namely, Ajay Agarwal and Pankaj Jain.

(II) The investigation of FIR No.84/2022 of Police Station, Kulgam, be transferred to Economic Offences Wing of Crime Branch, Kashmir, for undertaking investigation in accordance with the law.

(III) Investigation as regards offence under Section 209 of RPC be taken to its logical conclusion and if found established, the material collected during investigation be placed before the respective courts for taking further action in the matter in accordance with law.

(Sanjay Dhar) Judge Srinagar, 02.08.2023 "Bhat Altaf, PS"

                   Whether the order is speaking:        Yes/No
                   Whether the order is reportable:      Yes/No