Dr. Sham Saroop Padha vs State Of J&K
2023 Latest Caselaw 1069 j&K

     HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT JAMMU

                                             Reserved on :        16.05.2023
                                             Pronounced on :      24.05.2023

                                             CRR No. 3/2007
                                             IA No. 3/2007


Dr. Sham Saroop Padha                            .....Appellant(s)/Petitioner(s)

q
                     Through: Mr. Navyug Sethi, Advocate.
                vs
State of J&K                                                ..... Respondent(s)
                     Through: Ms. Monika Kohli, Sr. AAG.
Coram: HON'BLE MR. JUSTICE MA CHOWDHARY, JUDGE

                               JUDGMENT

1. The petitioner, through the medium of present Criminal Revision

Petition, has assailed order dated 21.11.2006 (hereinafter to be referred

as the „impugned order‟) passed by the court of learned Chief Judicial

Magistrate, Jammu in criminal case No. 393 titled "State Vs. Gurdeep

Kour and others" for commission of offences under Sections 420 and

120-B RPC arising out of FIR No. 26/1998 registered at Crime Brach,

Jammu and in the alternative, petition under Section 561 A Cr.P.C. to

quash the proceedings aforementioned along with the order impugned.

2. The petitioner has assailed the impugned order on the following

grounds:

(i) That the offences under Sections 420/120-B RPC are not made

out against the petitioner and a bare perusal of the averments in

the challan does not make out any offence against the petitioner

at all.

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(ii) That the allegations in the FIR are that the accused Gurdeep

Kour is originally resident of Bandar Bagh, Srinagar and her

husband is posted as Inspector in the Police Department and in

the year 1985, the husband of Gurdeep Kour was allotted

quarter in Police Housing Complex, Gulshan Ground, Jammu

and she is residing in the said Government Quarter. The said

Gurdeep Kour, knowing fully well that her husband is a

Government employee fraudulently and with criminal intention

conspired to get herself registered as a migrant with Relief Zone

II Nanak Nagar, Jammu.

(iii) That there is no allegation in the challan which prima facie

involves the petitioner with commission of offence under

section 420/120-B as alleged conspiracy is against the petitioner

is not made out from any evidence attached with the challan.

(iv) That none of the prosecution witnesses under Section 161

Cr.P.C has made any statement against the petitioner.

(v) That the only allegation against the petitioner is that he has

attested "D" form and in fact Smt. Gurdeep Kour was registered

on the basis of verification made by the Relief Organization.

There was no overt or covert act attributed to the petitioner that

he conspired with the said Gurdeep Kour to get the relief from

the Relief Organization.

(vi) That the relief was granted to Smt. Gurdeep Kour after the

enquiry made by Relief Organization and not on the sole basis

of attestation of form "D" by the petitioner.

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(vii) That even otherwise, in order to constitute an offence under

section 420/120-B RPC mens rea is required to constitute an

offence as has been laid down by Hon‟ble Supreme Court of

India and by this Hon‟ble Court in various judgments, reference

whereof shall be made at the time of hearing.

(viii) That it is a settled position of law that in order to prove the

conspiracy, the necessary evidence is required which is totally

lacking in the present case.

(ix) That additional or alternate grounds of challenge may be

allowed to be urged at the time of hearing.

3. Pursuant to notice, the respondent/State through response filed by the

learned Additional Advocate General submitted the following

objections:

(a) That FIR No. 26/1998 was registered for commission of

offences under Sections 420/120-B by the Crime Branch,

Jammu and on investigation the petitioner was found guilty for

commission of aforementioned offences and a charge-sheet was

laid before the court of learned Chief Judicial Magistrate,

Jammu against the petitioner and one Gurdeep Kour on

07.08.2006 after obtaining approval from the Home

Department;

(b) That the trial court after going through the material on record,

documentary evidence and after hearing the counsels for the

parties found the petitioner and the co-accused prima facie

involved in commission of offences and rightly framed charges

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against them after applying its judicial mind vide impugned

order dated 21.11.2006;

(c) It was further submitted that in a petition seeking quashment of

charge, this Court cannot evaluate the evidence for the purpose

of determining the question as to whether the charge framed

against the accused is likely to succeed or not as this question

has to be considered by the trial court after recording the entire

evidence in the case. Finally, it was prayed that the petition be

dismissed.

4. Learned counsel for the petitioner has argued that the petitioner had

been accused of cheating and having committed a criminal conspiracy

with the co-accused while attesting "D" form of the co-accused

wherein she had claimed to be declared a migrant to be registered with

the Relief Department. It has been argued that the petitioner had

merely attested the "D" form as gazetted officer which was required at

the time for processing the case of the co-accused for seeking status of

a migrant and the petitioner was not concerned with the declaration

made by the co-accused as applicant, while applying for status of

migrant to seek relief. He has further argued that the petitioner had

neither been a beneficiary nor any favour had been extended to him

due to attestation of the "D" form of the co-accused, therefore, he

cannot be said to have committed any of the offences punishable

under Section 420/120-B RPC. He has further argued that the

prosecution had failed to prove any nexus between the petitioner and

the beneficiary so as to constitute criminal conspiracy. He has further

IA No. 3/2007

argued that as per the definition clause provided under Transfer of

Property Act, the attestation means to have seen the executant of an

instrument, while signing or affixing mark on such instrument. The

reference clause is extracted for ready reference as under:

["attested", in relation to any instrument, means attested by two or more witnesses each of whom has seen the executants sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by direction of the executants, or has received from the executants a personal acknowledgement of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executants, but it shall not be necessary that more than one of such witnesses shall have been present at the same time and no particular form of attestation shall be necessary;]

5. He further argued placing reliance on the law laid down by Hon‟ble

High Court of Bombay in a case titled "Bhupinder Pal Singh Vs.

Union of India & Ors" reported as 2022(1) SLJ 438 (Bombay), where

to a question phrased as "Should the disciplinary proceedings

initiated against the petitioner under Rule 14 of the Central Civil

Services (Classification, Control and Appeal) Rules by issuance of

Memorandum of Charges dated October 23, 2013 (hereafter "the

charge-sheet", for short), served on him on October 29, 2013, i.e.,

immediately preceding his retirement on superannuation on October

31, 2013 as Commissioner of Customs and Central Excise, be

interdicted and nullified on the ground of delay as well as subsequent

acquittal in judicial proceedings," replied in para 61, which is

extracted for ready reference as under:

"61. We are of the considered opinion that the reasons assigned by us while allowing Writ Petition No. 5764 of 2021, as above, would squarely apply on facts and in the circumstances of the present case and that there being no

IA No. 3/2007

valid and acceptable explanation for the delay of almost 6 (six) years in issuance of the charge-sheet coupled with the fact that the petitioner attained the age of superannuation on November 30, 2011, it would be just and proper and in the interest of justice to set aside not only the impugned judgment and order of the Tribunal dated March 1, 2019 but also the Memorandum of Charges dated December 4, 2009. It is ordered accordingly."

6. He has further argued that legally it is not correct to believe that

benefits were given to the co-accused merely on the basis of

attestation of "D" form of the co-accused by the petitioner and not

after conducting inquiry as was required by the Department concerned.

He further argued that the trial court had fallen in error to hold that the

petitioner had been found prima facie to have committed the offences

in absence of any evidence in this regard and prayed for the revision

petition to be allowed and the impugned order be set aside.

7. Learned counsel for the respondent on the other hand argued that the

co-accused-Gurdeep Kour had filled up the "D" form to seek relief as

a migrant with the averments that she had migrated from Budgam

District to Jammu in the year 1990 and had been residing at Nanak

Nagar, Jammu in a rented accommodation, whereas the fact of the

matter was that she had come to stay with her husband, who was a

Police Officer serving as Inspector in the J&K Police and having an

official accommodation at Gulshan Ground, Jammu, as such, the

averments that she had made in her "D" form were authenticated by

the petitioner herein as a gazetted officer and on the basis of that

authentication, the case of the co-accused was processed for treating

her as a migrant by the Relief Department and she was also provided

relief in the form of cash and ration, thereby cheating the State of its

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resources. She has further argued that it was not simply a case of

attestation of the signatures as projected by the learned counsel for the

petitioner, but it was a case of authentication of the fact stated in the

"D" form which could only be done on the basis of personal

knowledge, which was prerequisite. She has further argued that no

malafide can be attributed towards the Investigating Agency as the

Crime Brach of Police has nothing to do with the petitioner‟s service

or career so as to implicate him falsely, as has been alleged. She would

finally pray dismissal of instant revision petition, upholding the

impugned order.

8. Heard and considered.

9. Before appreciating the rival submissions, it will be beneficial to

advert to the factual matrix of the case. One Gurdeep Kour, originally

resident of Bandar Bagh, Budgam was residing with her husband who

had been posted as Inspector in the Police and in the year 1985 he had

been allotted official quarter in Police Housing Complex, Gulshan

Ground, Jammu; that the said Gurdeep Kour knowing fully well that

her husband is a Government employee, fraudulently and with

criminal intention conspired with the petitioner to get herself

registered as a migrant with the Relief Zone II, Nanak Nagar, Jammu.

10. The accused Gurdeep Kour alias Gurdeep at the time of her

registration as migrant had submitted a declaration in which she had

given certain particulars; that she migrated from Kashmir Valley due

to disturbed conditions along with her family members on 15.04.1990;

that she was residing in a rented accommodation at Nanak Nagar,

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Jammu and that the income of her family was Rs. 400/- per month and

she had given names of her six children as her family members. This

declaration form was certified at its foot by the petitioner herein as a

gazetted officer, certifying that he knew her personally and that the

contents of the form were true and correct.

11. The contention of the petitioner through his counsel is that he was not

involved in any criminal conspiracy with the said Gurdeep Kour, as he

had not obtained any benefit and had nothing to do with her

declaration except formally attesting the same as a gazetted officer. It

cannot be construed to be a mere formality for attestation without any

purpose. The attestation sought to be on the basis of personal

knowledge, gives credence to the declaration made by the applicant,

whereupon the Relief Organisation had registered the said Gurdeep

Kour as a migrant and she was stated to have received cash relief of

Rs. 51,000/-, besides 3,087 kilograms of rice, 686 kilograms of flour

and 49 kilograms of sugar during the period from 1990 to 1994, to

which she was not at all entitled.

12. The Apex Court in a case titled "State of Delhi Vs. Gyan Devi and

others" reported as 2000 0 SCC (Cri) 1486 in Para 7 of the judgment

which is extracted as under for reference has held that:

"The legal position is well-settled that at the stage of framing of charge the Trial Court is not to examine and assess in detail the materials placed on record by the prosecution nor is it for the Court to consider the sufficiency of the materials to establish the offence alleged against the accused persons. At the state of charge the Court is to examine the materials only with a view to be satisfied that a prima facie case of commission of offence alleged has been made out against the accused persons. It is also well settled that when the petition is filed by the accused under Section 482 Cr.P.C seeking for

IA No. 3/2007

the quashing of charge framed against them the Court should not interfere with the order unless there are strong reasons to hold that in the interest of justice and to avoid abuse of process of Court a charge framed against the accused needs to be quashed. Such an order can be passed only in exceptional cases and on rare occasions. It is to be kept in mind that once the Trial Court has framed a charge against an accused the trial must proceed without unnecessary interference by a superior court and the entire evidence from the prosecution side should be placed on record. Any attempt by an accused for quashing of a charge before the entire prosecution evidence has come on record should not be entertained sans exceptional cases."

13. The contention of the learned counsel for the petitioner that attestation

of any instrument as provided under Transfer of Property Act is mere

an attestation of having seen the executant, sign or affix his mark to

the instrument, in the considered opinion of this Court is of no

consequence, as the declaration which the petitioner had attested was

required to be made on the basis of the personal knowledge by a

gazetted officer with regard to declaration made by the applicant to

register herself as migrant for grant of relief through Relief

Organisation. The petitioner cannot take refuge of attesting the

declaration just for the sake of attestation and without any

consequence. The another contention which the learned counsel for the

petitioner has raised that since the petitioner had retired from service,

he should not be prosecuted for the criminal offence, which he has

been alleged to have committed in view of Bhupinder Pal Singh

judgment of the Hon'ble High Court of Bombay (Supra), I am afraid

that such a contention is acceptable, as that has been laid down by

Bombay High Court with regard to the disciplinary proceedings in

service matter and that cannot be stretched to the criminal prosecution

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of an employee. Both these contentions are, thus, not of any

consequence to form an opinion that the petitioner should not have

been charge-sheeted by the trial court.

14. The trial court has passed the impugned order framing charge against

both the accused including the petitioner by a reasoned order and the

same cannot be interfered with at this stage either by exercising

revisional jurisdiction or inherent jurisdiction by this Court. In view of

law laid down by the Apex Court and having regard to the factual

matrix of the case, it is held that the trial court has rightly passed the

impugned order, directing framing of charge against both the accused

including the petitioner for commission of offences under Sections

420 B and Section 120-B RPC and in the considered opinion of this

Court, the same does not warrant any interference by this Court. The

impugned order is, thus, upheld and accordingly, the instant

petition is dismissed.

15. Copy of this order be sent to the trial court for information and

compliance.

(MA CHOWDHARY) JUDGE

Jammu 24.05.2023 Sahil Padha Whether the order is speaking: Yes/No.

Whether the order is reportable: Yes/No.