Vijay Thappa vs Union Territory Of J&K
2023 Latest Caselaw 512 j&K

  HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                  AT JAMMU

                                               Reserved on    28.12.2022
                                               Pronounced on: 17.03.2023

                                               CRM(M) 830/2022
                                               CrlM No. 1719/2022

Vijay Thappa                                    .....Appellant(s)/Petitioner(s)


                       Through: Mr. G. S. Thakur, Advocate

               Vs

Union Territory of J&K                                     ..... Respondent(s)

                    Through: Ms. Monika Kohli, Sr. AAG

CORAM: HON'BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE
                        JUDGMENT

1. Petitioner through the medium of this petition filed under Section

482 Cr.P.C is seeking quashment of FIR bearing No. 06/2022 registered

with Police Station, Special Crime Wing, Jammu for commission of

offences punishable under Sections 420, 465, 466, 467, 468, 471, 120-B

IPC (for brevity 'impugned FIR'). Her case is that she has been falsely

implicated and she has not committed any such offence.

2. The factual matrix of the matter, as reflected from the complaint, is

that an anonymous complaint was lodged in the Crime Branch alleging

therein that petitioner herein, a lady, has managed her appointment as Lab.

Assistant on the basis of a fake matric diploma from Himachal Board of

Secondary Education in the year 2004. After appointment she was posted in 2 CRM(M) 830/2022

Government Girls Higher Secondary School, Canal Road, Jammu. In the

complaint, it was alleged that the petitioner was married to one Ashok

Thappa in the year 1978 who died in the year 1992 and in the year 1993,

the whole family was shifted to Jammu and that she had no relations in any

part of any village, town or any city of Himachal Pradesh, so question of

her acquiring education in Himachal Pradesh does not arise. It is further

alleged that the petitioner is going to complete 60 years of her age during

the current year, whereas her fake matriculation diploma indicates her age

as 45/46 years till date. It is further alleged that one Kishu Master Krishan

Koushal of Reasi who had been a comrade and a trade union leader having

vast contacts within and outside the State can be the mastermind behind the

arrangement of her fake diploma or one S. Jasbir Singh can also be an

instrument in the matter.

3. In the complaint, it is alleged that during the posting of the

petitioner in the Government Girls Higher Secondary School, Canal Road,

Jammu, the staff became suspicious about her appointment and started

questioning about her eligibility, however, she managed her transfer in the

Govt. Girls High School, Bhagwati Nagar, Jammu and subsequently

managed her promotion in the next cadre i.e. Class III employee.

4. Mr. Thakur, learned counsel appearing for the petitioner submits

that the impugned FIR has been registered on the basis of anonymous

complaint and as such, is against the Circular issued by the General

Administration Department vide No. 22-GAD (Vigilance) of 2015 which is 3 CRM(M) 830/2022

an abuse of process of law and prima facie does not constitute an offence. It

is stated that petitioner was selected on the basis of her basic qualification

and has superannuated from service.

5. The petitioner-herein challenges the impugned FIR No. 06/2022

on the following grounds:-

(i) That the impugned FIR is a complete abuse of process of law and in order to wreck vengeance against the petitioner an anonymous complainant has been filed and as per the Circular issued by the Government no action is required to be taken as the complaint contains vague allegations;

(ii) That the FIR is not sustainable in the eyes of law and from the perusal of the impugned FIR, it does not constitute an offence punishable under Sections 420, 465, 466, 467, 468, 471, 120-B IPC;

(iii) That the impugned FIR is otherwise not sustainable in the eyes of law in view of the fact that the petitioner who was selected on the basis of her basic qualification which she was possessing and has opted for volunteer retirement because of her ailments;

(iv) That the impugned FIR is otherwise illegal, perverse and based on non-application of mind, as such, is liable to be quashed;

6. It is contended by the learned counsel for the petitioner that

otherwise as well, the allegations made in the impugned FIR, if taken on

their face value and accepted in entirety, do not prima-facie constitute any 4 CRM(M) 830/2022

offence or else make out a case against the petitioner.

7. Status report has been filed by respondent No. 1, stating therein

that after receiving the anonymous complaint received through Crime

Headquarter, J&K on 24.08.2018, approval for initiating preliminary

verification into the allegations leveled against the petitioner was recorded

and, accordingly, during probe offences under Sections 420, 465, 466, 467,

468, 471, 120-B IPC were prima facie established. It is stated that an

anonymous complaint was lodged in Crime Branch alleging therein that

Mrs. Vijay Thapa-petitioner herein is a lady don and has managed/secured

her appointment as Lab Assistant by procuring and producing fake matric

diploma from the Himachal Board of Secondary Education. The petitioner

was married to Ashok Thapa in the year 1978 and her age at the time of

marriage if taken as minimum 20 years, would be of the age of

approximately 45 years in the year 2003/2004 and thus was ineligible for

any Govt. Job. It is further stated that it is beyond doubt that she has

managed her fake diploma after the death of her husband from the year

1995 onwards. After receipt of the complaint, a preliminary verification

was got conducted and during the course of enquiry, it came to fore that

Vijay Kumari Thappa-petitioner herein had submitted matriculation

certificate of Punjab School Education Board bearing No. 817 S. No.

238172. Thereafter, the genuineness of the said matriculation certificate

was taken up with the Joint Secretary Board of School Education, Punjab

and in this connection the Board (supra) communicated that Vijay Kumari 5 CRM(M) 830/2022

Thapa-petitioner herein had not appeared in matriculation examination held

in the year 1986-87 under Roll No. 4852. In the status report, it is further

stated that during the course of investigation petitioner herein was

summoned and during her examination, she produced original marks

certificate of class 8th for the year 1973-74 issued in her favour by the

Principal Govt. Girls Higher Secondary School, Udhampur. She also

produced age certificate wherein her date of birth as per academic school

record is 19.08.1959 and the same has been seized as evidence. Apart from

it, the matter was also taken up with the Chief Education Officer, Jammu

and the Principal Govt. Higher Sec. School, Canal Road, Jammu

wherefrom her service book/character roll has been obtained and on the

perusal of first page of service book, it is indicated that the date of birth of

Vijay Kumari Thapa-petitioner herein is 25.09.1970 as per her 10th Class

diploma duly issued in her favour from Punjab School Education Board in

the year 1987.

8. Learned counsel for the petitioner submits that in view of the

Circular No. 22-GAD (Vig) of 2015, no action is required to be taken on a

anonymous complaint filed against the petitioner.

8. Heard learned counsel for the parties and perused the record.

9. A perusal of the record tends to show that in the instant case, an

anonymous complaint was received making serious allegations against the

petitioner regarding managing/securing her appointment as Lab Assistant

by procuring and producing fake matric diploma from Himachal Board of 6 CRM(M) 830/2022

Secondary Education and in order to find out the truth or otherwise of the

information a preliminary verification was conducted before registering the

FIR. Accordingly, a preliminary enquiry was conducted by the respondent

and as the enquiry revealed the commission of cognizable offences against

the petitioner, impugned FIR has been registered against her. In order to

find the genuineness of the matriculation certificate secured by the

petitioner, matter was taken up with the Joint Secretary Board of School

Education, Punjab and in this connection, the said Board communicated

that Vijay Kumari Thapa-petitioner herein had not appeared in

matriculation examination held in the year 1986-87 under Roll No. 4852.

During the course of investigation, petitioner herein was also summoned

and during her examination she produced original marks certificate of Class

8th issued in her favour by the Principal Govt. Girls Higher Secondary

School, Udhampur. She also produced age certificate wherein her date of

birth as per academic school record is 19.08.1959. Apart from it, matter

was also taken up with the Chief Education Officer, Jammu and Principal

Govt. Higher Sec. School Canal Road Jammu and as per the respondent,

her service book/character roll has been obtained and on the perusal of first

page of service book, it is indicated that the date of birth of Vijay Kumari

Thapa-petitioner herein is 25.09.1970 as per her 10th Class diploma duly

issued in her favour from Punjab School Education Board in the year 1987.

9. It may not be out of place to mention here that the Supreme

Court in State of Telangana v. Habib Abdullah Jeelani, reported in 2017 7 CRM(M) 830/2022

(2) SCC 779, has held that the powers under Section 482 Cr.PC or

under Article 226 of the Constitution of India, to quash the FIR, is to be

exercised in a very sparing manner as is not to be used to choke or smother

the prosecution that is legitimate. Inherent powers do not confer an

arbitrary jurisdiction on the High Court to act according to whim or caprice.

Such power has to be exercised sparingly, with circumspection and in the

rarest of rare cases. Inherent powers in a matter of quashing FIR have to be

exercised sparingly and with caution and only when such exercise is

justified by the test specifically laid down in provision itself. Power

under Section 482 Cr.PC, is a very wide, but conferment of wide power

requires the Court to be more conscious. It casts an onerous and more

diligent duty on the Court.

10. The Supreme Court in the case of State of Haryana & ors v.

Bhajan Lal and others 1992 Suppl (1) SCC 335, has elaborately

considered scope and ambit of Section 482 Cr.P.C. and Article 226 of the

Constitution of India in the background of quashing the proceedings in

criminal investigation. After noticing various earlier pronouncements, the

Supreme Court enumerated certain categories of cases by way of

illustration, where the power under Section 482 Cr. P.C. can be exercised to

prevent abuse of the process of the Court or secure ends of justice.

Paragraph 102, which enumerates seven categories of cases where power

can be exercised under Section 482 Cr. P.C. are extracted as follows:

"102. In the backdrop of the interpretation of the various 8 CRM(M) 830/2022

relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

(1) Where the allegations made in the first information report or 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 a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155 (2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155 (2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the 9 CRM(M) 830/2022

accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

11. In another case State of Andhra Pradesh v. Golconda Linga

Swamy, reported in (2004) 6 SCC 522, while dealing with the inherent

powers of the High Court under Section 482 Cr. P.C. in paragraphs 5, 7 and

8 Hon'ble Supreme Court has held as under:

"Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The Section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the Section which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all 10 CRM(M) 830/2022

such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle quando lex aliquid alique concedit, conceditur et id sine quo res ipsa esse non potest (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the Section, the Court does not function as a court of appeal or revision.

Inherent jurisdiction under the Section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the Section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent such abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercises of the powers court would be justified to quash any proceeding if it finds that initiation or continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.

12. In the above backdrop, it may be added here that Section 482 of

the Code of Criminal Procedure, preserves inherent powers of the High

Court to prevent an abuse of process of any court or to secure ends of

justice. The provision does not confer new powers. It only recognizes and

preserves powers which inhere in the High Court. The High Court, while

forming an opinion, as to whether a criminal proceeding or complaint or

FIR should be quashed in exercise of its jurisdiction under Section 482 Cr.

                                     11                    CRM(M)
                             830/2022

P.C., must evaluate whether the ends of justice would justify the exercise of

the inherent power. While inherent power of the High Court has a wide

ambit and plenitude, it has to be exercised to secure ends of justice or to

prevent an abuse of the process of any court.

13. In the instant case, for ascertaining the truthfulness of the

allegations, the petitioner was summoned and during her examination she

has produced age certificate wherein her date of birth as per academic

school record is 19.08.1959, whereas in the 10th Class diploma obtained

from Punjab School Board of Education her date of birth is shown as

25.09.1970, which shows that she had hatched criminal conspiracy and by

means of cheat and fraud she had managed matriculation certificate on the

basis of which she was appointed as Lab Assistant in the year 2004 and

posted in Govt. Girls Higher Secondary School, Canal Road, Jammu. The

genuineness or credibility of the certificate in question cannot be gone into

at this stage. The registration of FIR cannot be said to be abuse of process of

law and further the allegations leveled in the impugned FIR regarding the

commission of the alleged offences are required to be proved during the

trial by adducing the evidence and the grounds taken by the petitioner in the

instant petition can be well taken in defence before the trial Court.

15. Resultantly, the interim order dated 20.10.2022 is vacated and

respondent is directed to proceed with the investigation and on completing

the same, produce the challan before the competent Court.

                                   12                       CRM(M)
                           830/2022

16. The instant petition is without any merit and is, accordingly,

dismissed along with connected CM(s).

(VINOD CHATTERJI KOUL) JUDGE

Jammu 17.03.2023 Bir

Whether approved for reporting? Yes/No