Pradeep Kumar Tandon vs Parveen Kumar Tandon
2023 Latest Caselaw 2216 j&K

                                                                 Sr. No. 20


HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                  AT JAMMU

Case:-   CRMC No. 147/2017
         IA No. 1/2017
         IA No. 3/2017

1. Pradeep Kumar Tandon, Age 62 years,                         .....Petitioner(s)
   S/o Sh. Brij Lal Tandon,
   R/o 111, Bakshi Nagar, Jammu.

2. Anju Tandon, Age 59 years,
   W/o Pardeep Kumar Tandon,
   R/o 111, Bakshi Nagar, Jammu.

3. Mohit Tandon, Age 32 years,
   S/o Pardeep Kumar Tandon,
   R/o 111, Bakshi Nagar, Jammu.

                      Through: Mr. Vasharan Thakur, Advocate

                 Vs

1. Parveen Kumar Tandon,                                    ..... Respondent(s)
   S/o Sh. Brij Lal Tandon, R/o 18, Steal Made
   Industrial Estate, Marol, Maroshi Road,
   Andheri (East), Mumbai - 400059.

2. Incharge Police Station, Bakshi Nagar,
   Jammu.

                      Through: Mr. R. S. Kotwal, Advocate for R-1.
                               None for R-2.

Coram: HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE

                                   ORDER

(09.10.2023)

(ORAL)

01. The petitioners have invoked the inherent power of this court

contained in Section 561-A Cr. P.C. (482 Cr. P.C.) for quashment of order dated

04.01.2016 passed by the Court of 1st Additional Forest Magistrate, Jammu (for

short, 'the Trial Court') as also order dated 10.01.2017 passed by the Court of

2nd Additional Sessions Judge, Jammu (for short, 'the Revisional Court').

02. The facts emanating from the petition would reveal that the

respondent 1 herein filed a complaint before the Court of Chief Judicial

Magistrate, Jammu (for short, 'the CJM, Jammu') against the petitioners herein

on 31.05.2010 alleging commission of offences under Section

451/454/457/461/342/380/406 RPC registered with the Police Station, Bakshi

Nagar, Jammu by the respondent 2 herein on the premise that after the death of

his father-Kanaiya Lal on 18.02.2010 at his residence being House No.111,

Bakshi Nagar, Jammu, the complainant/respondent 1 herein came to know on

07.03.2010 about the execution of a Gift-Deed by his father in favour of the

petitioner 3 herein, which Gift-Deed came to be challenged by the

complainant/respondent 1 herein in a civil suit, to which a written statement was

filed by the petitioner 3 herein along with a copy of birth certificate of the

complainant/respondent 1's son namely, Prabhat Tandon and a photocopy of the

original agreement of the complainant/respondent 1's father with the Govt. of

J&K with respect to the House No. 111, Bakshi Nagar, Jammu and that the said

documents along with other personal documents and articles of the complainant/

respondent 1 herein had been stolen by the accused persons/petitioners herein

from the room of the complainant/respondent 1 herein and of his father, located

in said House No.111, Bakshi Nagar, Jammu, by breaking open the lock and that

a twelve bore licenced gun belonging to the complainant/respondent 1's father

was also stolen by the accused persons/petitioners herein, which the accused

persons/petitioners herein may use for commission of heinous crime and that on

16.05.2010, when the complainant/respondent 1 herein tried to verify his and his

father's belongings lying in the said room situated in said House No. 111,

Bakshi Nagar, Jammu, the accused persons/petitioners herein threatened the

complainant/respondent 1 herein to kill him and also forcibly stopped him from

entering the room and since the matter pertains to the theft of valuable

belongings of the complainant/respondent 1's father, recoveries are required to

be effected by the Police.

03. An FIR bearing No. 95/2010 dated 25.06.2010 came to be registered

after the said complaint filed by the complainant/respondent 1 herein came to be

forwarded by the Court of CJM, Jammu to the Police Station, Bakshi Nagar,

Jammu, implicating the accused persons/petitioners herein for having committed

the offences mentioned in the complaint.

04. Upon completion of the investigation, the Investigating Agency filed a

final closure report in terms of Section 173 Cr.P.C. before the Court of 1 st

Additional Forest Magistrate, Jammu on 13.03.2013, after the said report had

been transferred for presentation of the same by the Court of CJM, Jammu.

05. The complainant/respondent 1 upon being summoned by the Trial

Court filed a protest petition against the final closure report before the Trial

Court alleging therein that the petitioners 2 & 3 herein committed a criminal act

by not providing necessary medical treatment to his father or getting him

admitted in a nearest Hospital as also for not informing the

complainant/respondent 1 herein about the ailment of his father as the

complainant/respondent 1's father was being taken care of by them. The

complainant/respondent 1 herein had further alleged in the protest petition that

the respondents 2 & 3/petitioners 2 & 3 in connivance with the respondent

1/petitioner 1 herein intentionally caused the death of his father by not providing

him necessary medical treatment and that the respondents 2 & 3/petitioners 2 &

3 herein in order to get rid of the father of the complainant/respondent 1 herein

had previously got a fictitious Gift-Deed executed in favour of respondent

3/petitioner 3 herein by the father of the complainant/ respondent 1 herein and

that upon being made available the said Gift-Deed on 07.03.2010, the

complainant/respondent 1 herein could smell the foul play on the part of the

accused persons/petitioners herein and that a Maruti 800 Car bearing No. DDC-

7858 and two fridges were entrusted by the complainant/respondent herein 1 to

the respondents/petitioners herein for the use of his father and that both, the

Maruti Car and the fridges, were misappropriated by the respondents/petitioners

herein and that the complainant/respondent 1 herein thus was cheated by the

respondents/petitioners herein and the offences committed by the

respondents/petitioners herein need a thorough Police investigation for recovery

of misappropriated articles as also for enquiry into the death of his father and

that the investigation of the case was carried out by the Police without recording

his statement and his witnesses and instead statements of such persons were

recorded who were having no knowledge about the case.

06. The Trial Court upon considering the closure report supra filed by the

Investigating Agency and the protest petition filed by the

complainant/respondent 1 herein passed the impugned order dated 04.01.2016,

while holding that there are some grey areas in the investigation, which require

re-investigation of the case and consequently directed re-investigation of the

case.

07. Aggrieved of the order dated 04.01.2016 passed by the Trial Court,

the petitioners herein preferred a revision petition before the Revisional Court,

which came to be decided vide order dated 10.01.2017, in terms whereof the

Revisional Court upheld the order of the Trial court and dismissed revision

petition of the petitioners herein.

08. The petitioners herein have questioned the aforesaid two impugned

orders in the instant petition on the grounds urged therein.

Heard learned counsel for the parties and perused the record.

09. Perusal of the record ex-facie suggests and demonstrates that the

allegations levelled in the initial complaint filed by the complainant/respondent

1 herein, which resulted into registration of FIR No. 95/2010 supra and setting

into motion investigation thereon, are distinct and different than the allegations

which came to be levelled by the complainant/respondent 1 herein against the

petitioners herein in the protest petition filed before the trial court. To be precise

in the initial complaint/FIR, the complainant/respondent 1 herein alleged the

breaking open of locks of the room being under his and the occupation of his

father, namely, Kanaiya Lal, located in House No. 111, Bakshi Nagar, Jammu

and stealing of various documents and valuable articles lying therein including

the twelve bore licenced gun belonging to the father of the

complainant/respondent 1 herein, besides alleging the extension of threat of

killing the complainant by the petitioners herein on 16.05.2010 and also

stopping him forcibly from entering the room in question, whereas in the protest

petition, however, the complainant/respondent 1 herein alleged that the

petitioners herein committed a criminal act by not providing timely and

adequate medical treatment to his father, as the respondents 2 & 3/petitioners 2

& 3 herein were taking care of his father and that the petitioners herein had been

entrusted by him with two fridges and a Maruti 800 Car for use and the benefit

of his father, who was residing with the petitioners 2 & 3 herein and that the said

fridges/car were sold by them and money received in lieu thereof

misappropriated.

10. Perusal of the charge-sheet/closure report filed by the Investigating

Agency before the Trial Court would reveal that upon taking over investigation

in the matter, the Investigating Officer, namely, Nazir Ahmed, SI, summoned

the complainant/respondent 1 herein, calling upon him to appear for recording of

his statement as also the statement of his witnesses and the Investigating Officer

have had summoned the complainant/respondent 1 herein multiple times after

recording his statement for producing his witnesses in support of his allegations

against the petitioners herein, as the complainant/respondent 1 herein had gone

back to Mumbai and did not turn up in this regard.

Further perusal of the charge-sheet/closure report would reveal that

upon transfer of the above named Investigating Officer, investigation of the case

had been handed over to ASI - Mr. Rajinder Sharma, who too telephonically

called upon the complainant/ respondent 1 herein to appear and produce his

witnesses in support of his case, which he did not produce, whereafter the

Investigating Officer in furtherance of the investigation interrogated the

petitioners herein and examined the close relatives of the

complainant/respondent 1 herein, whereafter the Investigating Officer found that

the complaint filed by the complainant/respondent 1 herein is baseless,

unfounded and without any substance for the multiple reasons recorded in the

final closure report, further observing that the complainant/respondent 1 herein

has been living in Mumbai for the last more than thirty five years along with his

family and whenever he would come to Jammu, he would stay with his brother,

namely, Pradeep Tandon-petitioner 1 herein and that as per the statement of the

witnesses the house in question bearing No. 111, Bakshi Nagar, Jammu had

been gifted by Late Sh. Kanaiya Lal, father of the complainant/respondent

therein to Mohit Tandon, petitioner 3 herein and that the

complainant/respondent 1 has been doing his business in Mumbai and living

therein along with family and for acquiring a share in House No. 111, Bakshi

Nagar, Jammu the complainant/respondent 1 herein filed the case against the

petitioners herein before the Police as also in the Court on unfounded and

baseless grounds and that the twelve bore rifle claimed to have been stolen by

the petitioners herein infact was found lying in the room and as such the

complainant/ respondent 1 herein in order to settle dispute with the petitioners in

respect of the residential house bearing No.111, Bakshi Nagar, Jammu, filed a

false and frivolous case before the Police and also in the Court.

11. Perusal of the record would also reveal that both the Trial Court as

well as the Revisional Court overlooked these fundamental aspects of the matter

and in a mechanical manner observed that the final report has some grey areas

which need re-investigation/ further investigation ironically having failed to

appreciate that the investigation was carried out by the Investigating Agency

qua the allegations which have had been levelled by the complainant/respondent

1 herein in the complaint/FIR and proceeded to direct re-investigation/further

investigation in the matter on the basis of the protest petition, wherein

admittedly a new set of distinct and different allegations have had been levelled

by the complainant/respondent 1 herein against the petitioners herein, thus, not

warranting under any circumstances further investigation in the matter, in that,

re-investigation upon presentation of a charge-sheet before the Magistrate is

forbidden by law, as has been laid down by the Apex Court in series of

judgments including the one passed in a case titled as "Dharam Pal Vs State of

Haryana" reported in (2016)4 SCC 160.

12. Viewed thus, what has been observed, considered and analyzed above,

the impugned orders dated 04.01.2016 and 10.01.2017 are not sustainable in

law. Resultantly the exercise of inherent power possessed by this Court under

and in terms of Section 482 Cr.P.C. is warranted having regard to the facts and

circumstances of the case. Accordingly, the petition succeeds and consequently

the impugned orders dated 04.01.2016 and 10.01.2017 are set aside.

13. Disposed of.

(JAVED IQBAL WANI) JUDGE JAMMU 09.10.2023 Shivalee

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