Jammu & Kashmir High Court
Pawan Shastri vs Ut Of J&K Through Senior Superintendent ... on 27 February, 2024
Author: Vinod Chatterji Koul
Bench: Vinod Chatterji Koul
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
...
CRM(M) no.240/2020
Pronounced on: 27.02.2024
1. Pawan Shastri, aged 70 years S/o Late Sh. Baldev Dass R/o H.no.3
Shakti Nagar, Jammu
2. Anil Magotra aged 52 years S/o Late Sh. Sudershan Kumar Sharma
R/o 284-A Gole Market Gandhi Nagar Jammu
3. Mohd Razak aged 42 years S/o Jateem Ali R/o Green Hill Colony,
Bathindi, Jammu
4. Mushtaq Hussain aged 65 years S/o Mohd. Shafi R/o Sector 9 Vikas
Nagar, Sarwal, Jammu
5. Fida Hussain aged 57 years S/o Syed Abul Qasim R/o Kargil Vihar
Bhatindi, Jammu
.......Petitioner(s)
Through: Mr P.N.Raina, Senior Advocate
with Mr J.A.Hamal, Advocate
Versus
1. UT of J&K through Senior Superintendent of Police, Anticorruption
Bureau, Jammu
2. S.K. Bhalla, S/o Late K.L.Bhalla R/o H.No.386, Rehari Colony,
Jammu
......Respondent(s)
Through: Ms. Monika Kohli, Sr.AAG
CORAM:
HON'BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE
JUDGEMENT
1. Through the medium of this petition preferred under Section 482 of
the Code of Criminal Procedure, petitioners seek quashment of Order
dated 23rd October 2019, passed by Special Judge (Anticorruption,)
Jammu, for short "court below", in File no.03/2019/Ikhtami in FIR
Page 1
no.09/2014, on the grounds made mention of therein. They also pray
to declare FIR no.09/2014 police station VOJ (now Anticorruption
Bureau) Jammu as illegal and abuse of powers of investigation since
neither respondent no.2 could be accepted to be a person competent or
aggrieved of lodging complaint nor could such a complaint after a
delay of more than 18 years have been entertained.
2. I have heard learned counsel for parties. I have gone through the
record on the file and considered the matter.
3. FIR no.09/2014 under Sections 5(1)(d), 5(2) of J&K P. C. Act and
Section 120-B RPC, on a complaint of one Prof. S. K. Bhalla, who is
respondent no.2 herein, was lodged by the then police station
Vigilance Organization, Jammu, now Anticorruption Bureau (ACB).
Consequently, investigation was set in motion by ACB. This
concluded in closure of the case as not proved. Report to this extent
was filed. However, court below held findings of investigating agency
devoid of any reason and did not accept it. The court below returned
the final report, directing SSP ACB Jammu to carry out further
investigation.
4. Learned senior counsel appearing for petitioners, at the first instance,
has detailed out factual background of the case and then stated that
impugned order is a complete misreading of final investigation report
as also misunderstanding of law and misreading its powers which are
available to the court of Magistrate under Section 173 Cr.P.C. He
would say that plain reading of final report would show that ACB had
thoroughly investigated every angle of allegation levelled in the
complaint, which became subject of investigation because of
Page 2
registration of FIR. The facts had been noticed by investigating
agency, which pertain to rights of tenants under Agrarian Reforms
Act, 1976, (for short the "Act") correction of Girdawari, attestation of
mutations under Section 4, 7&8 of the Act.
It is vehemently stated by learned senior counsel that the court
below has confused the entire issue by reading into the Act and that
Section 28A of the Act being one which was applicable to allegations
made in the complaint and that the court below did not even notice the
fact that investigating agency had referred to Section 28-A of the Act
and after marshalling facts found that since mutations, both under
Section 4&8, were attested in favour of Anant Ram son of Divya, well
before Section 28A got engrafted in the Act in the year 1989 and as
Anant Ram got proprietary rights under the Act under Section 8 in the
year 1982, he was, thus, competent to sell the property which he had
done in the year 1982 itself. There was, thus, no question of any ban
in existence in 1982 against rights of a tenant who got ownership
rights under Section 8 of the Act up to 1989.
As said by learned senior counsel that court below did not
appreciate distinction between Section 28 as was existing in the Act
when Anant Ram was conferred with rights under Sections 4&8 and
his transferring the land in favour of third parties. After saying this, he
would contend that court below has proceeded on a presumption as if
Anant Ram was only a prospective owner, i.e., Mutation under
Section 4 alone had been attested in his favour, declaring him to be
prospective owner and immediately thereafter without he having been
further clothed with propriety rights under Section 8, had transferred
Page 3
the land. There was an error in reading of the final investigation report
by court below inasmuch as investigation carried was definite and
conclusive of the fact, that mutation under Section 8 also stood
attested in favour of Anant Ram when he had transferred the land in
favour of third persons in the year 1982. Anant Ram, thus, was not a
prospective owner only but was a full-fledged owner at the time he
had transferred his land and since the court below has proceeded on
the presumption as if Anant Ram was only prospective owner and
secondly has proceeded on the presumption as if the ban which got
incorporated in the Act under Section 28-A was in existence when the
land was transferred by said Anant Ram in recording its finding in
impugned order.
He also states that all the findings recorded by the court below
showing disagreement with the final investigation report of
respondent no.1 are perverse.
It is also stated by learned senior counsel for petitioners that
court below has not at all taken notice of important facts that
procedure applicable for any such correction and incorporation of
rights of a tenant who would get rights if he is so found to be a tenant,
of the land, on first day of September 1971, were followed in the case.
According to learned senior counsel, the Act is a complete code
by itself and provides procedure for implementing the same. Once
mutation under Section 4 had been attested relating to land in which
Anant Ram was found to be tenant, the enquiry had been done by
taking up the entire village for attestation of Section 4 mutation, there
being no special procedure followed for taking claim of Anant Ram, it
Page 4
was but natural as were the rights of Anant Ram that after mutation
under Section 4 was attested in his favour declaring him to be
prospective owner. Attestation of Section 8 mutation in favour of
Anant Ram was dependent only on the claim of ex-owner, which an
ex-owner could put forward for resumption of the portion of land if
under law he was entitled to claim resumption.
His further submission is that minor under the Act is no
exception. Respondent no.2 is said to have no locus to make such a
complaint which related to civil rights of parties whether it was
relating to Anant Ram and his ex-owner or it was a matter relating to
the transfer rights which were exercised by Anant Ram in favour of
persons who purchased the land not only from him but subsequent
transfers which had been effected.
It is also contended that court below has proceeded on a
presumption as if the property which had come under the purview of
court of Wards somewhere in the year 1950, was still a property
which was under the care and protection of Court of Wards.
Petitioners would not in the least like to make any argument
pertaining to the record relating to what had happened in the Court of
Wards and with respect the rights of the ex-owner as they may not be
so needed for challenging impugned order, yet petitioners would plead
that court below proceeded in the matter as if there was a provision in
the Act that a minor or a person, who was under the care of Court of
Wards, would not be subject to the provisions of the Act. According
to learned senior counsel, the court below was completely wrong as
far as the Act is concerned. There being no provision making any
Page 5
exception for implementation of the Act in favour of lands, which are
recorded in the ownership of a minor or recorded in the ownership of
a person who has come whether by his person or by his property
under the care of Court of Wards; it was immaterial for a tenant and
agencies under the Act as to whether land was owned by a minor or
was under the care of Court of Wards; if a tenant was found to be in
possession of land as tenant on first day of September 1971 and
mutation under Section 4 of the Act was found by reference to the
enquiry which was done on spot taking the entire village for
attestation of mutation under Section 4. There was nothing in the Act
that would have resulted in refusing Anant Ram his rights as tenant.
Anant Ram was entitled to attestation of mutation under Section 4 and
8 of the Act, which had been done in the year 1982; the emphasis laid
by the court below repeatedly on the question that since property was
governed by the Court of Wards and in which a manager had been
appointed, as such, no mutation could have been attested nor the Act
would apply which is contrary to the Act. While the investigating
agency sufficiently show that there was no case made out against
persons which they had named in the FIR, yet the court below
wrongly reading the Act and its scheme, has found a justification
which is not at all supported by any facts or law in recording its
disagreement with the final report. The finding of the court below is
vitiated by complete misapplication rather non-application of mind
and is a finding in excess of jurisdiction as is vested in the court below
relating to the matters bound by Section 173 Cr.P.C.
Page 6
Learned senior counsel also contends that while the
investigating agency had found that the land on spot had come under
construction and there was/were the buildings constructed, it is not
known how the court below has come to conclusion that Anant Ram
was not in possession of the land. Thus, court below has completely
missed out on noticing and appreciating that had been a case of ex-
owner, having been in possession of the land, it would have been ex-
owner who would have made grievance about the attestation of
mutation under Section 4&8 of the Act in favour of Anant Ram or
would have challenged mutation attested under Section 7 of the Act.
Only because somebody had lodged a false claim and got an order of
lease in his favour with respect to the part of the land from Deputy
Commissioner, it was a clear-cut case of persons who were never in
possession nor got possession of the land with respect whereof they
managed to have lease orders in their favour after waiting for a pretty
long time, i.e., almost 18 years, have managed to make a complaint
through respondent no.2 before vigilance organisation. There would
be nothing on record to suggest that respondent no.2 was or could
have been alleged to be an aggrieved person or an interested person to
lodge a complaint with vigilance organisation except for persons, like
Som Nath, who had particularly lease order for a small portion of land
in his favour and of which he was not getting any possession, was the
driving force in lodging the complaint through respondent no.1.
Learned senior counsel would also urge that the court below
again committed an error of huge magnitude by not considering the
report of investigating agency, particularly pertaining to the land
Page 7
having come under construction inasmuch as court below has also
missed out to notice from the Act that an area up to 04 Kanals was
exempted even for purposes of transfer if the same was meant for
residential purposes. The court below also missed out to notice the
effect of Top Sherkhania having become part of Jammu Municipality
and consequent effect on the land which according to complainant
was Agrarian Reforms Land and its conversion was contrary to law
and was resulting in the agrarian cover getting diminished in the
District of Jammu. Since the finding as is recorded by the court below
is not supported by any fact which is contrary to the report of
investigation nor is supported by any law, the disagreement, as such,
recorded by court below and its order of further investigation, is per se
an order for re-investigation.
It is assertion of learned senior counsel for petitioners that court
below has completely misappreciated rather wrongly read from the
police investigation report as if petitioners were the persons, who
were responsible for issuing or for attesting mutations by alleged
abuse of their office.
Learned senior counsel also submits that registration of an FIR
is not an idle formality and has not to be done at the asking of anyone
who may like police to register FIR so as to subject innocent people to
harassment and further adverse effects of the same. It was a fact that
the matter related to mutations under Section 4&8 of the Act, besides
related to orders passed by appellate and revisional authorities under
Agrarian Reforms Act and thus the subject-matter was civil in nature,
yet without ascertaining or recording any satisfaction as to how
Page 8
complainant-respondent no.2 could be considered to be an aggrieved
person or could be heard as a complainant relating to the matter which
had been decided by the authorities exercising appellate and revisional
jurisdiction under the Act to plead that an FIR should be registered 18
years after the initial orders of mutation and litigations ensuing thereto
had come into existence. The very fact that FIR was registered 18
years after alleged attestation of mutations and orders passed by the
authorities, the power of registration of FIR and entering into
investigation was, thus, an abuse of powers of registration of FIR and
investigation.
It is being also stated that Shri Anil Magotra was not even in
service in the year 1982; he joined on the basis of his appointment in
the year 2000, yet the court below has attributed to the final report
rather the final report as if the said Anil Magotra was the person who
had attested the mutation.
Likewise, Fida Hussain, who has also been referred to by the
Trial Court, was not anywhere in government service in the year 1982
and got appointed as Patwari in the year 1991. Similarly, Musthaq
Hussain was appointed in 1984; Mohd Raza, another Patwari, got
appointed in 2002.
In continuation to above it is also contended by learned senior
counsel that there was no allegation as could be construed as
allegation attracting Sections 5(1)(d) or 5(2) of the P.C. Act. There
could have never been nor had there been any such allegation of
corruption made.
Page 9
5. Per contra, it is submission of learned counsel for respondent no.1 that
respondent no.2 filed a complaint, on which verification was
conducted and enquiry officer recommended registration of case and,
accordingly, FIR was registered. It is also stated that in terms of
Section 28A of the Act, the property in question could not have been
alienated or transferred. The court below while disagreeing with
investigation has clearly mentioned that Section 28(b) of the Act as
existed since 1981, which barred prospective owner to alienate the
land even prior to introduction of Section 28-A and that Anant Ram
was prospective owner vested with the ownership rights under Section
8 in the year 1982, who further sold the land in question in violation
of Agrarian Reforms Act. Besides, the Tribunal has set-aside the
orders of Commissioner Agrarian Reforms, Naib Tehsildar on
mutation no.3095 of Estate Toph Sherkhania, the then Probationer
Tehsildar on mutation no.3146 and that the Tribunal order was duly
communicated to revenue authorities as the then Deputy
Commissioner, Jammu, was party in the petition and duly entered in
revenue record but despite that neither any appeal was preferred
against the said order nor was the said order implemented by
cancelling two mutations. The revenue officers from time to time by
abusing their official position and for conferring undue benefit upon
Anant Ram continued to reflect ownership of the said land in his
name and thereafter the said land became subject matter of different
sale deeds which were facilitated by revenue officers/officials of the
time by issuing revenue extracts based on mutation nos.3145 and
3146, which were already set-aside and were also in contravention of
Page 10
Section 28-A of the Act. The said commission/omission on the part of
S/Shri Nariyan Singh, then Tehsildar, Jammu; Anil Mangotra, then
Naib Tehsildar, Jammu, Khas; Fida Hussain, then Patwari; Mushtaq
Hussain, then Girdawar; and Razak Hussain, then Patwari, Digiana
and other officers/official of revenue department and others disclose
commission of offences under Section 5(1) (d) read with Section 5(2)
of P.C. Act, and 120-B, 420, 467, 468, 471 RPC.
6. As we can see the genesis of the instant case originates from a written
complaint filed by Shri Prof. S. K. Bhalla - respondent no.2 herein,
alleging therein:
1- That through the medium of the instant complaint, the
complainant is drawing the attention of the SVO towards the
gross abuse of the official position by the functionaries of the
Revenue Department who in utter disregard to the mandate of
Section 28-A of J&K Agrarian Reforms Act, 1976 have been
issuing the Fard-e-Intikhab/Revenue extracts of the agricultural
land purely on extraneous consideration and which is shrinking
the agricultural cover in the State of Jammu and Kashmir.
Whatever is stated herein is not hearsay as the complainant is
pointing out a specific case of violation of Section 28-A of J&K
Agrarian Reforms Act, 1976, wherein the officials of the
Revenue Department for extraneous consideration and by issuing
their official position have issued the Fard-e-Intikhab of
agricultural land comprised in Khasra No.698 min situated art
Toph Sherkhanian Tehsil & District Jammu.
2- That as a matter of fact the ownership rights for the aforesaid
land had been conferred upon the prospective owner namely
Anant Ream S/o Divya Caste Bhagat by virtue of mutation Nos.
3145 and 3146 attested under section 7 and 8 of Agrarian
Reforms Act 1976....
3- That vide Sale Deed dated 30.01.2007 (Annexure B) one Suman
Rohmetra W/o Late Sh. Surinder Rohmetra R/o 433, Shastri
Nagar, Jammu had alienated land measuring 1 Kanal comprised
in Khasra No.698 min, Khata No.551 min and Khewat No.72 in
favour of one Sh. Pawan Kumar S/o Sh. Sat Pal Gupta R/o
107/A, Gandhi Nagar, Jammu. In the Fard-e-Intikhab dated
16.08.2006 (Annexure C) issued by Patwari Halqa Toph
Sherkhania and countersigned by the Naib-Tehsildar and
Tehsildar, Jammu it was mentioned that the land in question is
not hit by the provisions of J&K Agrarian Reforms Act, 1976
when fact remains that the said land was hit by Section 28-A of
Agrarian Reforms Act and the Fard-e-Intikhab was issued for
extraneous reasons by abusing the official position.
Page 11
4- That the illegal action of the field revenue agency did not stop
here as in the Faard-e-Intikhab dated 16.01.2013 (Annexure D)
duly countersigned by Naib-Tehsildar, Jammu (Khas) on
23.01.2013 it was again illegally incorporated in the Fard-e-
Intikhab Jamabandi that the land measuring 1 Kanal falling in
Khasra No.698 min, Khata No.551 min and Khewat No.72
situated at Toph Sherkhania, Tehsil and District Jammu is
outside the purview of Agrarian Reforms Act and on the basis of
the said illegal Fard-e-Intikhab Sh. Pawan Kumar S/o Sh. Sat Pal
Gupta R/o 107/A, Gandhi Nagar, Jammu, sold the land vide Sale
Deed dated 08.02.2013 (Annexure E) in favour of Pawan Kumar
S/o Sh. Baldev Dass R/o Village Karwanda at present H.No.69
Mohalla Raghunath Chowk, Jammu. Similarly, Sh. Pawan
Kumar also alienated land measuring 1 Kanal 2 Marlas falling
under Khasra No.698 min, Khata No.551 min and Khewat No.72
situated at Revenue Village Toph Sherkhania, Tehsil and District
Jammu vide Sale Deed dated 13.02.2013 (Annexure F) in favour
of Pawan Kumar Gupta S/o Sh. Baldev Dass R/o Karwanda at
present H.NO.69, Mohalla Raghunath Chowk, Jammu. In this
transaction also the Patwari Halqa, Toph Sherkhania in the Fard-
e-Intikhab dated 16.01.2013 (Annexure G) categorically
mentioned that the land in question is not hit by J&K Agrarian
Reforms Act, 1976, J&K Big Landed Estates Abolition Act and
J&K State Land (Vesting of Ownership) to the Unauthorised
Occupants Act.
5- That similarly vide sale deed dated 04.02.2013 (Annexure H) one
Sh. Sardari Lal Gupta S/o Sh. Parmanand Gupta R/o 191-A,
Gandhi Nagar, Jammu, alienated land measuring 15 Marlas
comprised in Khasra No.698 min, Khata No.551 min and Khewat
No.72 situated at Toph Sherkhania, Jammu in favour of Sh.
Pawan Kumar S/o Sh. Baldev Dass R/o Village Karwanda at
present H.No.69, Mohalla Raghunath Chowk, Jammu and in the
Fard-e-Intikhab dated 17.01.2013 (Annexure J) it was again
mysteriously mentioned that the land in question is not hit by
Agrarian Reforms Act, 1976, Big Landed Estates Abolition Act
and J&K State Land (Vesting of ownership) to the Unauthorised
Occupants Act.
6- That in similar manner one Ms. Pooja Gupta D/o Sh. Nek Raj
R/o Rehari Colony, Jammu alienated land measuring 12 Marlas
falling under Khasra No.698 min Khata No.551 min and Khewat
No.72 situated at Toph Sherkhania, Jammu in favour of Pawan
Kumar S/o Sh. Baldev Dass R/o Village Karwanda at present
Mohalla Raghunath Chowk, Jammu vide Sale Deed dated
04.02.2013 (Annexure K) and in the Fard-e-Intikhab Jamabandi
dated 17.01.2013 (Annexure M) it was mentioned that the land is
outside the purview of Agrarian Reforms Act, Big Landed
Estates Abolition Act and J&K State Land (Vesting of
ownership) to the Unauthorised Occupants Act.
7- That the aforesaid case exhibits the brazen abuse of official
position by the functionaries of the Revenue Department and the
revenue extracts as already submitted were issued solely on
extraneous considerations by throwing the provisions of Agrarian
Reforms Act, 1976 to winds particularly Section 28-A which
prohibits transfer of agricultural land.
Page 12
8- That the revenue officers viz Patwari Halqa, Girdawar, Haib
Tehsildar and the concerned Tehsildar who violated Section 28-
A of J&K Agrarian Reforms Act, 1976 for extraneous
considerations are required to be booked under Section 5(2)
Prevention of Corruption Act as they issued the revenue extracts
solely by abusing their official position.
You are accordingly, requested to register an FIR under
Section 5(2) Prevention of Corruption Act, 2006 BK against the
officials of the Revenue Department who issued false/fraudulent
Fard-e-Intikhabs of Agricultural land comprised in Khasra No.
698 min situated at Toph Sherkhania, Tehsil and District
Jammu."
7. When complaint was received, an FIR no.09/2014 was registered by
police station Vigilance Organisation, Jammu, (ACB) on 4th April
2014 on the recommendation of enquiry officer. Consequently,
investigation was set into motion. Relevant portions of the final report
filed by Senior Superintendent of Police, ACB, Jammu, before court
below, are reproduced hereunder:
"During the course of investigation Revenue Authorities were
approached and revenue record was seized on different occasions.
Statements of witnesses were recorded and accused persons were
examined. The complaint filed by an RTI activist Prof. S.K.Bhalla,
who was called in this office for recording his statement but he
stated that his complaint may be treated as his statement. After
conducting thorough investigation into the matter, obtaining all the
relevant records and examining all possible aspects of the case it was
found that land measuring 5 Kanal 14 Marlas under Khasra no.698
situated at Top Sher Khaniya, Jammu, owned by Bhagat Ram's
Grandson namely Ashu was under Court of Wards. As per Khasra
Girdawari, the land was under occupation of Lt Sh. Anant Ram S/o
Dewa R/o Top Sher Khania, Jammu. On the basis of the report of
Additional Tehsildar, who was Manager of Court of Wards
submitted vide No.196/ATJ dated 21.05.1979 to the Deputy
Commissioner, Jammu (through whom the Revenue Minister acts as
court of wards) that Sh. Som Nath and others had applied to Sh.
Bhagat Ram in Khasra no.698 at Top Sher Khania, Jammu to them
for commercial purposes. On this, as per revenue records Dy.
Commissioner Jammu vide No.468/Actt dated 4.2.1978 leased out 2
Kanal 8 Marla land out of Khasra No.698 to Lt. Som Nath S/O Hans
Raj and 1 Kanal 10 Marla land to Sh. Kuldeep Singh S/O Maru
Singh on annual rent of Rs.500/ and 200/- respectively, for a period
of 5 years. The lease was to expire on 3.2.1983, meanwhile on
18.03.1982 Naib Tehsildar Khas Jammu attested the Mutation of the
said land under section 4 Agrarian Reforms Act along with large
number of other Khasras belonging to the afore mentioned Bhagat
Ram. The then Probationer Tehsildar, thereafter, attested the
mutation under section 8 of Agrarian Reforms Act on 10.06.1982 in
Page 13
favour of Sh. Anant Ram S/O Deva for 4 Kanal and 5 Marlas in
Khasra No.698. However, 1 Kanal and 09 Marlas was
reverted/mutated back to the original owner Sh. Bhagat Ram u/s 7 of
Agrarian Reforms Act. Thus both the Mutations under Sec 4 and 8
of Agrarian Reforms Act were attested during the existence of two
lease deeds granted by Dy. Commissioner Jammu to the above
mentioned persons.
One of the lease holders Lt. Som Dutt approached Ld.
Agrarian Reforms Commissioner against the attestation of above
mentioned Mutations but his appeal was dismissed. On this the lease
holder Lt. Som Dutt approached the J&K Special Tribunal, Jammu
which set aside the Mutation No.3095 dated 18.03.1982 and
Mutation No.3146 dated 10.06.1982, in question attested U/S 4 and
8 of Agrarian Reforms Act. The Judgment was announced on
13.10.1989, however, during the pendency of the above titled case
the land in question 4 Kanals was disposed off by Sh. Anant Ram
S/O Devia to Sh. Prem Nath S/o Sh. Glodu Ram and his son Sh.
Vashesh Kumar. A direction was also issued in the above
mentioned Judgment that competent Revenue Authorities shall,
however, be at liberty to, after due enquiry, get fresh mutation under
section 4 of the Agrarian Reforms Act entered on which orders shall
be passed only after notice is served on the court of wards (Revenue
Minister) and Deputy Commissioner, Jammu and the copy of the
instant order along with record was sent to Commissioner Agrarian
Reforms, J&K for implementation.
The suit file No.ST/953/90 dated 20.06.1983 (date of
institution) titled Som Dutt S/O Hans Raj R/o Canal Road Jammu
V/S Anant Ram S/O Deva R/o Toph Sher Khaniya, Jammu
mentioned above was obtained and facts were verified. Joint
Financial Commissioner, Revenue was asked intimate the action
taken into the above mentioned file vide his letter
No.58/FC/ARC/AP dated 08.11.2016. Joint Financial Commissioner
intimated that action taken is not discernible from the records as the
order referred to above has been marked as "SEEN" by then
Agrarian Reforms Commissioner. It shows that no action was taken
on the order enumerated from the above mentioned Judgment of
J&K Special Tribunal. But the most important fact of the case was
that an entry regarding the setting aside of the Mutations, attested
under section 4 and 8 of Agrarian Reforms Act was found made on
the mutation No.3146 attested under Section 8 of Agrarian Reforms
Act. The presence of this entry would mean that no Fard-i-Intikhab,
Mutations whatsoever and Girdwaries could be issued/attested/made
in the records of the relevant property unless and until fresh
mutations/orders in the light of the Judgment were attested/issued by
the competent authority.
Under rules and directions of the Judgment of Special
Tribunal a fresh process was required to be started for the attestation
of mutations as per norms etc. But on the name of the fresh process
ordered in the Judgment only an entry regarding the setting-aside the
mut4ations in question was found in the relevant mutation page and
the matter was left unattended. The person who made the entry could
not be identified during the course of investigation. Neither, it could
have been ascertained whether any correspondence with regard to
the Judgment/fresh process in question and setting-asie the
mutations was made with the field staff i.e. Naib Tehsildar, Girdwar
Page 14
or Patwari. As per the communication of Addl. Deputy
Commissioner, Jammu vide No.DCJ/Comp-VOJ/TNJ/4566/11/2016
dated 10.09.2016 no record with regard to the Judgment mentioned
above could be traced in the office nor any entry regarding the said
Judgment was found made in records of Khasra Girdwari register of
the said property. Even the then the Dy. Commissioner Jammu Ltd.
Swami Raj Sharma (Rtd. Div. Comm.) on being examined stated
that he does not know anything about the issue or the Judgment. The
then Tehsildar Lt. Rattan Chand Khajuria during whose period the
entry was apparently made has also died.
During the course of investigation the violation of Section 28-
A of Agrarian Reforms Act was also probed. Sec. 28-A of Agrarian
reforms act states that a person who attains the ownership of the land
under section 8 of Agrarian Reforms and shall not sell the land in
question and in the event of such sale the property shall revert back
to the "Sarkar". But the fact remains that Section 28-A was
introduced in the year 1989, whereas the instant land was sold by the
owner (who attained the ownership rights of the property u/s 8 of
Agrarian Reforms Act) on 8/1982. So the instant sale was found not
hit by the provisions of section 28-A of Agrarian Reforms Act.
Perusal of the seized revenue records revealed that after the
entry of the setting-aside of the mutations attested U/S 4 and 8 of
Agrarian Reforms Act was made in the records the matter was left
unattended for 15 years. The entry was made in 1990 and thereby the
said entry was erased by the revenue officials at the helm of affairs
and it was also mentioned above the erased entry that "the entry in
question was made by mistake". During the course of investigation
of the case the specimen/admitted writing of the revenue official the
particular period were obtained and sent to FSL along with the
mutation register on which the cuttings were made for comparison.
But as per the FSL report of the writings sent to them for comparison
did not match. Hence the persons/officials responsible for the
cutting could not be identified.
Thereafter on 22.10.2005 then Patwaris Sh Sukhdev Singh
entered to the Warasty Intaqal for land (acquired by Lt. Prem Nath)
measuring 01 Kanal 16 Marlas vide Mutation No.9340 dated
2.10.2005 in Khasra No.698 of property situated at Top
Sherkhanian, Jammu in favour of Vashesh Kumar, Ashok Kumar
and Atul Kumar S's/o late Prem Nath R/O Dogra Hall Jammu. This
piece of land out of total land measuring 4 Kanal 5 Marlas (out of
mutated land vide Mutation NO.3146) was purchased by Ltd. Prem
Nath S/o Glodu which on his death was due to be acquired by his
sons but because of the fact that the basic mutations mentioned
above were set aside, this transfer of land by way of Warasty Intaqal
could not have been attested unless and until the fresh course was
adopted. However, after the entries of Court order were erased the
then Halqa Patwari Sh. Sukhdev Singh entered the mutation
No.9320 thereby transferring the ownership of the land measuring
01 Kanal 06 Marlas in Khasra No.698 of Top Sherkhanian to
Vashesh Kumar, Ashok Kumar and Tul Kumar Ss/o Late Sh. Prem
Nath R/o Jammu. The said Patwari was served with the
questionnaire, to which he replied that "Had the factum of the earlier
mutation of its being set-aside brought to the notice of undersigned
or otherwise reflected in the record, i.e., the concerned Kashar
Girdwaris as well as Jamabandi the said mutation could not have
Page 15
been entered". Similar replies were also submitted by concerned
Girdwar and Naib Tehsildar. The replies of the concerned revenue
officials were found genuine on the ground that no such entry was
available in any other records i.e. Khasra Girdawari or Jamabandi
etc.
After the mutation mentioned above was attested the
beneficiary namely Vaishesh Kumar, Ashok Kumar and Atul Kumar
of Late Prem Nath became owners of land measuring 1 Kanal 16
Marlas purchased by their father (mutated on their names by way of
Warasty Intaqal) and 2 Kanal 4 Marlas of land directly purchased on
their names in the year 1982. The above mentioned beneficiary sons
of Lt. Prem Nath mentioned above thereafter sold the acquired 4
Kanal and 5 Marlas of land under Khasra No.698 in question to
below mentioned persons.............
The Patwari mentioned in the table issued the Fard-e-
Intikhabs to the private individuals mentioned above and was also
compared with the records by the concerned Girdwars, attested by
Naib Tehsildars and countersigned by the Tehsildars. The names of
officials along with their individual role in the purchase are
mentioned in the table.
The investigation further reveals that out of 5 Kanal 14
Marlas of land in Khasra No.698 of Top Sher Khaniya Jammu 1
Kanl and 9 Marlas was mutated back under Section 7 of Agg.
Reforms Act on the name of Bhagat Ram (Basic owner of land)
himself and 4 Kanal 5 Marlas on the name of tillerLt. Anant Ram
S/O Devia. The instant case pertains to the land acquired by said
Anant Ram under Section 8 of Agg. Reforms Act. After the above
mentioned land was sold by the private persons in connivance with
revenue officials the sale deeds were entered in the revenue records
and mutations attested on different occasions. The property
mentioned above thereafter became subject matter of different sale
deeds again and again.
To sum up the investigation it is submitted that Sh. Anant
Ram S/O Devia acquired 4 Kanal 5 Marlas of land by way of
attestation of mutations under Sec 4/8 of Agrarian Reforms Act in
1982. He, thereafter sold the acquired land in Khasra No.698 at Top
Sherkhaniya, Jammu through two sale deeds in the year 1983 to Lt.
Prem Nath and his son Sh. Vishash Kumar R/O Dogra Hall Jammu.
In the year 1989 basic mutations of the land in question were
challenged and set-aside by Spl. Tribunal Jammu and an entry made
in the revenue records i.e., basic Mutation. The entry made in the
revenue record was erased by some revenue official in between 1990
and 2005 who could not be identified. In 2005 the Varasty Intaqal
for 1 Kanal and 16 Marlas of land was entered by the revenue
officials on the names of the descendants of the purchaser Sh. Prem
Nath. The above said mutation further facilitated the sale of 1 Kanal
and 16 marlas and 2 Kanal and 4 Marlas of land directly purchased
by the above mentioned Vashesh Kumar, Ashok Kumar and Atul
Kumar S's/o of Lt. Prem Nath after issuing the Fard-e-Intihkabs by
revenue officials without adopting the fresh process as per the
Judgment of Special Tribunal. The fate of remaining 5 Marlas of
land was not mentioned in the revenue records which might have
been used for roads/path ways etc. Though the land in question
became the subject matter of some more sale deeds after wards but
the revenue officials issued the Fard-e-Intakhas on the basis of latest
Page 16
mutations which were neither set-a-side nor any entry of earlier
judgment mentioned above was available in the records for their
reference.
During the course of investigation the specimen writing of the
revenue official who attested the inheritance mutation in 2005 were
obtain to identify the accused responsible for making the cutting of
the mutation no.3146 but the handwriting did not match. The
Investigation also revealed that the entry of setting-a-side of the
mutations in question was made on 30.06.1990. During this period
Sh. Shamsher Singh, who was posted as Patwari halqa Top Sher
Khaniya Jammu was also examined and his Specimen Hand writings
were obtained which also did not match. He also expressed his
ignorance with regard to the entry made in the revenue records. The
investigation revealed that the facts of the setting-a-side of the said
mutations and judgment were not communicated to the lower/field
officials of Revenue Department. Moreover, the reply of Dy.
Commissioner, Jammu and Joint Financial Commissioner, Revenue
has revealed that Judgment and its record was not communicated to
the field staff of Revenue Department for action in light of the Court
orders nor any action was taken by the Higher Authorities
themselves which itself exonerate the field officials though the
presence of entry of Setting-a-side the basic mutation and Mutation
register and its cutting thereafter and subsequent issuance of fards
and Varasty Intaqal was found in records.
During the course of investigation the opinion of the Joint
Financial Commissioner J&K Jammu vide letter No.533/Jt-FC/AP/
2018 dated 23.4.2018 was sought who opined:
That Mutation No.3095 of village Top Sherkhania related to
conferment of prospective ownership rights on number of persons as
tillers who were cultivating different parts of the land of the village
as tiller in Kharif 1971 and other crops.
It may be noted here that one Anant Ram S/o Devia was also one of
the beneficiary and he too stood declared as prospected owner of 05
Kanals and 14 Marlas of land forming part of Khasra No.698 min of
the village. Subsequently, he was declared as absolute owner also for
04 Kanals and 05 Marlas of land bearing Khasra No.698 min of the
village under Section 08 of the Act. As per revenue record, this land
was falling in the ownership of Bagat Ram and had already been
declared as Court-of Ward property of Bhagat Ram. As regards
mutation No.3095, it was attested on 18.03.1982 and as reported by
the Tehsildar, an entry was made on the Mutation on 30.06.1990
which stood crossed extensively with justification by drawing a
spiral line on entry indicating "Amal Sehwan Hua Hai". But it
appears that entry of 30.05.1990 had been made with reference to
some judgement passed by the Joint Financial Commissioner on
13.10.1989. But as per the present position, mutation No.3146 is
intact and operational.
Till the order passed on these mutations are not altered by a
competent order passed by the Revenue Court or Revenue Officer,
these orders shall be termed as valid orders and there may not,
therefore, be any objection in issuing the Fard-e-Intakhab of the land
covered by the mutation and setting futher mutation of inheritance
under due process of law. The order of Ld. Special Tribunal J&K
along with the concerned file of the lower Court was shown to have
been sent to Commissioner Agrarian Reforms J&K, Jammu for
Page 17
necessary action in the light of the observations made in the order.
The Agrarian Reforms Commissioner was supposed to send the copy
of the order of Special Tribunal to the concerned Tehsildar
Territorial or Agrarian Reforms within whose jurisdiction village
Top Sheirkhani was falling. The concerned Tehsildar was required
to make note of cancellation on both the Parats of mutation i.e. Parat
Sarkar and Parat Patwar. However, Parat Sarkar mutation is said to
have been deposited in the Tehsil Record Room. But as the things
stand non-induction of entry on a Parat Patwar of the mutation
would reveal that needful was not done by the officer concerned who
received the copy of the order of the Special Tribunal. It was further
intimated that particulars of the Commissioner Agrarian Reforms
who was working as such on 13.10.1989 are not readily available in
the office and possibility is that that officer might have retired long
back. On the other hand, even separate office of the Agrarian
Reforms Commissioner were conferred on Financial Commissioner
(Revenue) for proceeding with the pending court cases or those
which were filed subsequently.
The Joint Financial Commissioner Revenue and Tehsildar
ACBJ also opined that as the Mutations in question were still
operational and the issuance of Fard-i-Intakhabs was therefore
unavoidable and nothing incriminating could be attributed to the
Revenue officials who have issued the Fard-i-Intakhabs of the land
in question. The investigation has further revealed that Revenue
officials have issued the Fard-i-Intikhabs and entered the inheritance
mutation on the basis of operational Mutation and valid grounds.
Since the judgment along with the file was sent to Commissioner
Agrarian Reforms, J&K for further course of action in light of the
judgment who in turn did not take any action into the matter and
consigned the record therefore the lower subordinate revenue
officers/officials could not be blamed and this inaction on the part of
the senior officers who at that time have retired since long. In these
circumstances fixing the liability on these revenue officials shall not
serve the purpose of .......and in question at present is under the
possession/occupation of last purchaser who has constructed a
building over the land and running a business there. Neither the
occupants at present nor the owner of land has made any complaint
in to the matter. The owner on whose name the mutation was entered
in the revenue records has sold the land and also nobody else is
aggrieved of the inaction on the part of revenue officers except that
course of law has not been followed in the instant case for the
reasons not known at this stage. Moreover, the then Commissioner,
Agrarian J&K has also retired. The complainant Prof. S.K.Bhalla
was requested to attend this office on various occasions both in
writing as well as telephonically but he did not attend this office. He
once visited the office of SSP ACBJ and when was requested to give
his statement he replied that his complaint may be treated as his
statement.
Keeping in view the revenue records, statements of witnesses
and overall facts of the case which emerged during the course of
investigation the criminal allegations could not be proved however,
it was deemed fit to recommend that an advisory may be sent to
Government to issue directions to Financial Commissioner Revenue
to take appropriate action into the matter to settle the issue, keeping
in view the judgment and present situation on spot. The Central
Page 18
Office Anti-Corruption Bureau, J&K, Jammu after thorough
examination of the file and scrutiny of the seized records, with the
concurrence of the J&K State Vigilance Commission, conveyed its
approval for closure of the case as Not proved vide letter No.VO-
FIR-09/2014-J-313 dated 04.1.2019. As such Final Report
(Ikhtatami) of the case u/s 173 Cr.PC is hereby submitted for favour
of kind perusal and further orders.."
8. When Final Report was received by the court below, impugned order
came to be passed by it, directing further investigation, of which
petitioners are aggrieved.
9. Learned senior counsel for petitioners has invited attention of this
Court to various provisions of the Agrarian Reforms Act so as to urge
that the court below has wrongly interpreted the provisions the Act
while dealing with the Final Report. According to him, impugned
order is a complete misreading of final investigation report as also
misunderstanding of law and misreading its powers which are
available to the court of Magistrate under Section 173 Cr.P.C. He
would say that plain reading of final report would show that ACB had
thoroughly investigated every angle of allegations levelled in the
complaint, which became subject of investigation because of
registration of FIR. He would contend that the incident with respect
whereof
While the investigating agency sufficiently show that there was
no case made out against persons which they had named in the FIR,
yet the court below wrongly reading the Act and its scheme, has found
a justification which is not at all supported by any facts or law in
recording its disagreement with the final report. The finding of the
court below is vitiated by complete misapplication rather non-
Page 19
application of mind and is a finding in excess of jurisdiction as is
vested in the court below relating to the matters bound by Section 173
Cr.P.C.
It is also vehement contention of learned senior counsel that the
subject-matter of the case was civil in nature and respondent no.2 has
no right, interest or title in the land in question, yet without
consideration of the said fact that how he could be an aggrieved
person or could be heard as a complainant relating to the matter which
had been decided by the authorities exercising appellate and revisional
jurisdiction under the Act to plead that an FIR should be registered
that too 18 years after the initial orders of mutation and litigations
ensuing thereto had come into existence. The very fact that FIR was
registered 18 years after alleged attestation of mutations and orders
passed by the authorities, the power of registration of FIR and
entering into investigation was, thus, an abuse of powers of
registration of FIR and investigation.
He also states that when the alleged mutations were effected,
petitioners were nowhere in the picture as they were not in the job at
that relevant point of time. To elaborate he states that that Shri Anil
Magotra (petitioner no.2) was not even in service in the year 1982; he
joined on the basis of his appointment in the year 2000, yet the court
below has attributed to the final report rather the final report as if the
said Anil Magotra was the person who had attested the mutation.
Likewise, Fida Hussain (petitioner no.5) who has been referred to as
per trial also was not anywhere in government service in the year
1982 and got appointed as Patwari in the year 1991. Likewise,
Page 20
Musthaq Hussain (petitioner no.4) was appointed in 1984; Mohd
Razak (petitioner no.3), another Patwari, got appointed in 2002.
In continuation to above it is also contended by learned senior
counsel that there was no allegation as could be construed as
allegation attracting Sections 5(1)(d) or 5(2) of the P.C. Act. There
could have never been nor had there been any such allegation of
corruption made.
10.Section 173 Cr.P.C. lays down the rules and procedures for
investigating agencies to file a report upon conclusion of an
investigation. It deals with those offences where the Magistrate is
empowered to take cognizance of an offence. This provision mandates
that police authorities, on completion of investigation, make a report
on it and submit it to the court, which is thereafter sent to Magistrate
to proceed with the case. It should be made in the format prescribed
by the State Government.
11.Section 173 also deals with the powers of police for further
investigation. Section 2 (r) of the Code of Criminal Procedure, 1973,
provides meaning of a police report. It is defined as a report that is
forwarded to the Magistrate by the police officer under Section
173(2). This is the report which includes final conclusion of
investigation. The charge-sheet submitted to the court is considered as
End Report. The police report will include information relating to the
facts of the case and the final conclusion drawn by the investigating
officer. It consists of both oral and documentary evidence. The
Magistrate, after going through this report, will decide whether to take
cognizance of a case or not. The Magistrate is obligated to examine
Page 21
the report thoroughly and see whether it is accompanied by
appropriate documents and materials required for the court to start the
trial.
12.It is pertinent to mention here that the police start to investigate a case
when a complaint is filed at the police station for cognizable offences
only. The investigation is assumed to be ongoing unless a police
report, also known as a charge sheet, is filed by police officer. This
provision directs the police to investigate without unnecessary delay
and then hand over the report to the Magistrate. The police cannot be
compelled by the magistrate to submit the charge-sheet within a fixed
period. After the filing of the charge-sheet following the completion
of an investigation, the trial begins. The Magistrate can, at his own
discretion, accept or reject the report filed by the police authorities.
13.Section 173 (1) This subsection states that an investigation of a matter
must be completed by the police officer without any kind of
unnecessary delay. In other words, it means that an investigation in a
case under this section should not be delayed without reasonable
grounds.
14.Section 173(1A) states that the date for any investigation regarding
the offences mentioned below shall be counted from the starting day
when the police officer or the investigating officer of the police
station recorded the information. The phrase rape of a child may be
completed within three months under this subsection shall be replaced
with the words, letters, and figures "an offence under sections 376,
376A, 376AB, 376B, 376C, 376D, 376DA, 376DB, or 376E of the
Indian Penal Code shall be completed within two months.
Page 22
15.Section 173 (2) provides that the police authorities, after having
completed the investigation, should submit the report to the
Magistrate, who has been empowered to take cognizance of the
offence. The report must be submitted in a way that is already
prescribed by the State Government. It shall contain the following
things:
a) The names of all those parties involved in the case;
b) The nature of the information regarding the matter;
c) The names of those persons who are familiar with the facts and
circumstances of the case;
d) If an offence seems to have been committed, and if so, then details of
those who might have committed the said offence;
e) If the person accused of committing the offence has been arrested;
f) If the accused has been released on bond, with or without sureties;
g) If the accused has been forwarded into custody as per Section 170;
h) If it relates to any offence under Sections 376, 376A, 376B, 376C,
376D, 376DA, 376DB, 376E of the Indian Penal Code, then whether
the medical examination report of the victim has been attached or not.
16.Section 173 (2) Cr.P.C. also provides that the police officer must
inform the person, if any, who had initially given the information
about the occurrence of an offence, about actions taken by him
regarding the information, in such a way that the State Government
may specify.
17.Section 173(3) provides that if a superior official of the Police has
been appointed for a case under Section 158, the report must be
submitted by such official to the Court, if the State Government has
directed so by general or special direction. If there is no direction
from the State Government, the Investigating Officer may submit the
Page 23
report. The superior officer of police is empowered to direct the
Investigating Officer for further investigation, even if such an order is
not passed by the Magistrate.
18.Section 173 (4) provides that in case the magistrate finds from the
report that the accused has been released on his bond, the Magistrate
can make such a discharge order of that bond, if he deems fit.
19.Section 173 (5) provides procedure for preparing reports in cases that
come under the purview of Section 170. It is the duty of the police
officer to give the following details to the Magistrate along with the
report:
a) All other documents or relevant facts and evidence on which the
prosecution proposes to rely on apart from all the information
that has already been sent to the Magistrate previously at the time
of investigation;
b) When the police have recorded statements of people under
Section 161 and the prosecution is willing to examine those
people. The police must forward those statements to the
magistrate.
20.The types of documents this provision anticipates are usually reports
on post-mortem examinations, handwriting experts, chemical
examiners, fingerprint experts, etc. The accused is also allowed to ask
for the recordings of the statements of those persons from the police
officer who were questioned during the investigation and use relevant
information as his defence.
21.Section 173 (6) deals with those matters where the police officer does
not disclose any part of a statement made by those who are examined
during the investigation because it is immaterial to the subject matter
Page 24
of the case or disclosing it to the accused is not necessary in the
interests of justice and is detrimental to the public interest. In such a
situation, the police officer shall specify the portion and attach a note
requesting the Magistrate not to include those portions in the copies to
be given to the accused and expressing his reasons for such a request.
22.Section 173 (7) provides that if the police officer, while investigating
a case, thinks it appropriate to do so, he can provide the accused with
copies of all or any documents that are mentioned in sub-section (5) of
Section 173.
23.Section 173 (8) provides that if the police submit a police report or a
charge-sheet to the Magistrate under sub-section (2) of this Section, it
will not prevent them from investigating further into that matter.
While investigating further, if the police officer gets any new oral or
documentary evidence, he shall make a report on it in the prescribed
format and send it to the Magistrate. That report can be stated as a
supplementary report or supplementary charge sheet or additional
challan.
24.In the case of Luckose Zachariah v. Joseph Joseph, 2022 SCC Online
SC 241, it was observed by the Supreme Court that the Magistrate,
while deciding whether the accused person has committed a particular
offence or not for which he was taken into custody, must take into
consideration the police report filed before him under Section 173(2)
and at the same time go through the supplementary charge-sheet. The
supplementary charge-sheet is also known as additional challan. The
Magistrate needs to take into account the evidence that was submitted
along with or before the charge-sheet (challan) as well as the evidence
Page 25
submitted along with the supplementary report (additional challan) of
the further investigation.
25.In the case of CBI v. Hemendhra Reddy, 2023 SCC Online SC 515,
the Supreme Court observed that nothing bars the conduct of further
investigation into a matter under Section 173(8) after the submission
of the final report under Section 173(2) that the court has already
accepted. It was also made clear that the principle of double jeopardy
will not be applicable for further investigation as it is a mere
continuation of the initial investigation. Double jeopardy means that a
person cannot be prosecuted twice for the same offence. It does not
mean that the accused is investigated twice for the same offence.
Investigation is totally different from prosecution and punishment.
Hence, it is not on par with prosecution.
26.It is worthwhile to mention here that Subsection (8) to Section 173
Cr.P.C. was incorporated to uphold justice and protect innocent
people from getting punished. It happens at times that after the
submission of the police report, they get new evidence that shows the
accused person is not guilty. So, to avoid injustice for innocent
accused, subsection (8) is used to reopen an investigation if it seems
that the accused is innocent. It gives the police the power to further
investigate a matter for the collection of new evidence and then hand
it over to the court so as to avoid unfair prosecution. It deals with the
power of the police for further investigation only. No power to a fresh
investigation or re-investigation is given to the police officer. Further
investigation means the continuation of a previous investigation, not a
new or fresh one. It means getting more evidence in addition to the
Page 26
previous ones. After conducting further investigation, a further report
is forwarded to the Magistrate, not a new one. The police start to
investigate further in case they find something new in connection with
the offence that has been committed, on the basis of which a police
report was made.
27.When a charge-sheet is submitted stating a crime has been committed,
the Magistrate can proceed in the following three ways. Firstly,
Magistrate can accept charge-sheet and take cognizance of offence.
Section 190 Cr.P.C. provides that any First Cass Magistrate and only
those of the Second-Class Magistrate who are specially empowered
by the Chief Judicial Magistrate to deal with such cases, can take
cognizance of any offence upon receiving a complaint of facts which
constitute such office; upon a police report of such facts; and upon
information received from any person other than a police officer or
upon his knowledge that such offence has been committed. Under
subsection (2) Chief Judicial Magistrate may empower Magistrate of
second class to take cognizance under subsection (1) of such offences
as are within his competence to inquiry into or try.
Secondly, Magistrate can reject charge-sheet and drop
proceeding. In such a situation, the aggrieved party or the complainant
may submit a protest petition before concerned Magistrate if police
report does not seem satisfactory to him. Aggrieved party may state
reasons in the protest petition which he is dissatisfied with the police
report; he may pray for furth investigation under the supervision of
the Magistrate; he may also pray for further proceedings under
Section 200 and Section 202 Cr.P.C.
Page 27
Thirdly, Magistrate is given authority to direct any investigation
of a cognizable offence under Section 156 (3) after taking cognizance
of a matter under Section 190 Cr.P.C. If a police officer fails to
properly investigate a matter, then the Magistrate who has the
competency to take cognizance of that case can direct the
investigation. The Judicial Magistrates are empowered to take
cognizance of cognizable offences, not the Executive Magistrates.
28.When a final report is submitted stating no offence seems to have
been committed, the Magistrate can accept the final report. If the
Magistrate agrees with the final report of the police officer and
its conclusion, he can drop the proceeding.When the investigating
officer submits the final report under Section 173, the Magistrate can
reject the final report presented to him and take cognizance of the
offence under Section 190(1)(b) of the Code of Criminal Procedure. If
the Magistrate is not satisfied with the conclusion of the investigation,
he is not bound to accept it. If the Magistrate is satisfied with the facts
of the case and sees sufficient grounds to take cognizance of the case,
he can proceed further to the trial stage. It is within the discretionary
power of the Magistrate to accept or reject the final report submitted
to him by the police officer. The Magistrate, at his discretion, can
disagree with the report and reject it and may take cognizance of an
offence based on other documents and evidence submitted to him or
annexed to the police report. The Magistrate can direct the
investigating officer to further investigate the matter if he is satisfied
that the investigation was made in a casual manner and that it needs
thorough and proper investigation. The Magistrate may direct further
Page 28
investigation under Section 156(3). The Magistrate is empowered to
exercise his power to investigate further into a matter under this
section even after the final report is filed by the investigating officer.
In short, the Magistrate may not agree with the conclusion made by
the investigating officer in the final report and order for further
investigation.
29.In the case of Samaj Parivartana Samudaya v. State of Kerala (2012) 7
SCC 407, the Supreme Court of India held that if the police officer
who is in charge of an investigation of a case gets further information
or evidence, it is obligatory for him to forward it to the Magistrate
with a supplementary report in the prescribed format. It was also
observed that re-investigation is not permissible, but further
investigation is not prohibited. The police officer can investigate
further after filing the charge sheet. Further investigation is necessary
for discovering the truth and serving effective justice to the public. It
won't be stopped just because it is delaying the process of concluding
the trial. The police officer has a statutory right to further investigate a
matter under Section 173(8), though it's up to the Magistrate whether
to agree or disagree with the report presented to him.
30.In the case of Sri Desaraju Venugopal v. CBI, 2021 SCC Online Delhi
1497, the Delhi High Court observed that Section 173(8) of the Code
of Criminal Procedure gives the investigating agency or police officer
who is in charge of a particular case an unfettered power to investigate
in a matter even after submission of the charge-sheet or the report
without any conditions or restrictions. It is not compulsory for the
investigating agency to obtain previous permission from the
Page 29
Magistrate for further investigation. It was also stated that just
because any evidence is filed at the trial stage (i.e., after the
submission of the police report) does not mean that it can be rejected.
The power to further investigation is a statutory right of the officer-in-
charge of a case.
31.In the case of Bhagwant Singh v. Commissioner of Police and
another (1985) 2 SCC 537, it was observed that notwithstanding the
First Information Report (FIR), in case the police officer decides not
to investigate the matter because it seems to him that sufficient
grounds are not available for investigating, he is required to inform
the complainant under Section 157(2). It is his duty to communicate
his actions about the matter to the complainant, and the report that he
has submitted to the Magistrate must be given to the complainant.
After getting the report from the police officer, where it is concluded
that a crime has been committed, the Magistrate can either approve
the report and take cognizance of the case, reject the report and drop
the proceeding, or order further investigation under Section 156(3)
and submit the further report to him. If, on the other hand, the report
states no offence has been committed, the Magistrate can either
approve the report and drop the proceeding, or may disagree with the
report and take cognizance of the matter and proceed further on the
availability of sufficient grounds, or order to investigate further under
Section 156(3). The Supreme Court stated that the complainant must
be given an opportunity to be heard by the Magistrate while
considering the report.
Page 30
32.Any case begins on the basis of the police report filed under Section
173 Cr.P.C., which deals with all the evidence and information that
have been discovered by the police while investigating a matter. It
contains all the facts and list of evidence that are forwarded to the
Magistrate for a particular proceeding. It also states what the police
concluded was the end result of the investigation. The report is
transferred to the Magistrate who has the jurisdiction to proceed with
the case and discretion to dismiss it after going through the police
report.
33.In view of the above backdrop of legal position and also in view of the
facts and circumstances of the present case, if the police, after
concluding in-depth investigation, filed a closure report, this Court is
of a considered opinion that the Trial Court by ignoring the
comprehensive facts given in the closure report that petitioners herein
had not been in service when disputed mutation(s) were attested, has
directed in terms of impugned order for further investigation, which in
essence and core, is a direction for fresh investigation. Therefore, the
Trial Court has not applied its mind in its entirety in rejecting the
closure report filed by the police. Order impugned, on its plain
reading and perusal, would show and suggest that the Trial Court has
travelled beyond its jurisdiction. The Trial Court has mentioned that
the revenue officers/authorities have "reduced their public office into
their private business place". By such a comment, the Trial Court has
generalized the whole revenue department indulging in acts which
attract the provisions of the Prevention of Corruption Act and
simultaneously as if the revenue department and officers working
Page 31
there have reduced their public office into their private business place.
The Trial Court ought not to have made such comments more
particularly when there was no proof available before it to make such
view and opinion. Not only this, such a view and opinion will
ostensibly influence the investigating agency/officer to make the
report on and in accordance with those lines which have been made by
the Trial Court in impugned order. And at the same time, the Trial
Court, without entering into the arena of full-fledged trial and without
recording statements of the witnesses, without their cross-examination
and without proving the case, has virtually punished and convicted the
petitioners.
Learned senior counsel for petitioner is, thus, correct in saying
that the complaint had been made by a person, who is not an
aggrieved person and who has nothing to do with the subject-matter of
the case, more particularly when it was pending before different
courts/forums and that lodging of FIR by respondent no.2 was aiming
at getting the fame and simultaneously defaming petitioners.
34.The Supreme Court in the case of D. P. Gulati, Manager Accounts,
M/s. Jeking Infotrain v. State of Uttar Pradesh and another, reported
in AIR 2015 SC 3760, has held as under:
"7. We have carefully considered the rival submissions made before
us. Plain reading of Section 482 of the Code of Criminal procedure
provides that that the object of exercise of power thereunder is to
prevent abuse of process of law, and to secure ends of justice. In
Rajiv Thapar and others v. Madan Lal Kapoor, (2013) 3 SCC 330,
this Court has enumerated the steps required to be followed before
invoking inherent jurisdiction by the High Court under Section 482
of the Code as under:-
"30. Based on the factors canvassed in the foregoing paragraphs,
we would delineate the following steps to determine the veracity
of a prayer for quashment raised by an accused by invoking the
power vested in the High Court under Section 482, Cr P C:
Page 32
30.1. Step one : whether the material relied upon by the accused
is sound, reasonable, and indubitable i.e. the material is of
sterling and impeccable quality?
30.2. Step two : whether the material relied upon by the accused
would rule out the assertions contained in the charges levelled
against the accused i.e. the material is sufficient to reject and
overrule the factual assertions contained in the complaint i.e. the
material is such as would persuade a reasonable person to
dismiss and condemn the factual basis of the accusations as
false?
30.4. Step four whether proceeding with the trial would result in
an abuse of process of the court, and would not serve the ends of
justice?
30.5. If the answer to all the steps is in the affirmative, the
judicial conscience of the High Court should persuade it to quash
such criminal proceedings in exercise of power vested in it under
Section 482 CrPC. Such exercise of power, besides doing justice
to the accused, would save precious court time, which would
otherwise be wasted in holding such a trial (as well as
proceedings arising therefrom) specially when it is clear that the
same would not conclude in the conviction of the accused."
35.The Supreme Court in the case of Rishipal v. State of U.P. and
another, AIR 2014 SC 2567 has held that it is no doubt true that the
Courts have to be very careful while exercising the power under
Section 482 Cr.P.C. At the same time, the Courts should not allow a
litigant to file vexatious complaints to otherwise settle their scores by
setting the criminal law into motion, which is a pure abuse of process
of law and it has to be interdicted at the threshold.
36.The Supreme Court in the case of State of Haryana and others v. Ch.
Bhajanlal and others, AIR 1992 SC 604, has held as under:-
"Though the scope for interference while exercising jurisdiction
under Section 482 Cr.P.C. is limited and illustrative examples laid
down are as follows:
(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 Sec.
156(1) of the Code except under an order of a Magistrate within the
purview of Sec. 155(2) of the Code.
Page 33
(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 Sec. 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 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."
37.A three-Judge Bench of the Supreme Court in State of Karnataka v.
M. Devenderappa and another, 2002 (3) SCC 89, had an occasion to
consider the ambit of Section 482 Cr.P.C. By analysing the scope of
Section 482 Cr.P.C., the Supreme Court has laid down that the
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 abuse. It further held that the Court would
be justified to quash any proceeding if it finds that the initiation/
continuance thereof amounts to the abuse of the process of the Court
or quashing of these proceedings would otherwise serve the ends of
justice. Following was laid down in paragraph 6:
"6......All courts, whether civil or criminal possess, in the absence
of any express provision, as inherent in their constitution, all
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 alicui concedit, concedere videtur et id sine quo res ipsae
esse non potest (when the law gives a person anything it gives
him that without which it cannot exist). While exercising powers
Page 34
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 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
exercise of the powers court would be justified to quash any
proceeding if it finds that initiation/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."
38. Further in paragraph 8 following was stated:
"8.....Judicial process should not be an instrument of oppression,
or, needless harassment. Court should be circumspect and
judicious in exercising discretion and should take all relevant facts
and circumstances into consideration before issuing process, lest it
would be an instrument in the hands of a private complainant to
unleash vendetta to harass any person needlessly. At the same time
the section is not an instrument handed over to an accused to short-
circuit a prosecution and bring about its sudden death. The scope
of exercise of power under Section 482 of the Code and the
categories of cases where the High Court may exercise its power
under it relating to cognizable offences to prevent abuse of process
of any court or otherwise to secure the ends of justice were set out
in some detail by this Court in State of Haryana v. Bhajan Lal."
39.The Supreme Court in the case of Sunder Babu v. State of Tamil
Nadu, AIR 2009 SC (Supp) 2087 has held as under: -
"The parameters for exercise of power under Sec.482 have been
laid down by this Court in several cases.
The Section does not confer any new power 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
Page 35
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 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 alicui concedit,
concedere videtur et id sine quo res ipsae 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 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
exercise of the powers court would be justified to quash any
proceeding if it finds that initiation/continuance of it amounts to
abuse of the process of court or quashing of these proceedings
would otherwise serve the ends of justice."
40.It is worthwhile to mention here that undoubtedly the judicial process
should not be an instrument of oppression or needless harassment.
The court should be circumspect and judicious in exercising discretion
and should take all the relevant facts and circumstances into
consideration before issuing the process or proceeding in a matter, lest
it would be an instrument in the hands of initiators as vendetta to
harass the persons needlessly.
41.In another case of Priya Vrat Singh and others v. Shyam Ji Sahai 2008
(8) SCC 232, the Supreme Court relied on Category 07 as laid down
in Bhajan Lal's case (supra). In the above case the Allahabad High
Court had dismissed an Application filed under Section 482 Cr.P.C. to
quash the proceedings under Section 494, 120-B, and 109 IPC and
Section 3 and 4 of the Dowry Prohibition Act. After noticing the
Page 36
background facts and parameters for exercise of the power under
Section 482 Cr.P.C., the Supreme Court has held that Section 482 Cr.
P.C. does not confer any new power on the High Court. It only saves
the inherent power which the Court possessed before enactment of the
Code. It envisages three circumstances under which 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. The
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 recognises and preserves
inherent powers of the High Courts. All courts, whether the civil or
criminal, possess, in the absence of any express provision, as inherent
in their constitution, all such powers as are necessary to do the right
and to undo a wrong in the course of the administration of justice on
the principle quando lex aliquid alicui concedit, concedere videtur 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 section 482 Cr.P.C., the Court does not
function as a court of appeal or revision. Inherent jurisdiction under
Section 482 Cr.P.C. though wide has to be exercised sparingly,
carefully and with caution and only when such exercise is justified by
Page 37
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 the courts exist. Authority of the court
exists for advancement of the justice and if any attempt is made to
abuse that authority so as to produce injustice, the court has power to
prevent 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 exercise of the powers, the court would be justified to quash
any proceeding if it finds that the initiation / continuance of it amounts
to abuse of the process of court or quashing of these proceedings
would otherwise serve the ends of justice.
42.The powers, as noticed above, possessed by the High Court under
Section 561-A of the Code, are very wide and the very plenitude of
the power requires great caution in its exercise. Court must be careful
to see that its decision in exercise of this power is based on sound
principles. The inherent power should not be exercised to stifle a
legitimate prosecution. The High Court being the highest court of a
State should normally refrain from giving a prima facie decision in a
case where the entire facts are incomplete and hazy, more so when the
evidence has not been collected and produced before the Court and
the issues involved, whether factual or legal, are of magnitude and
cannot be seen in their true perspective without sufficient material. Of
course, no hard-and-fast rule can be laid down in regard to cases in
which the High Court will exercise its extraordinary jurisdiction of
quashing the proceeding at any stage. Reference in this regard is made
to Janata Dal v. H.S.Chowdhary, AIR 1993 SC 892; Raghubir Saran
Page 38
(Dr.) v. State of Bihar, AIR 1964 SC 1; and Minu Kumari v. State of
Bihar, AIR 2006 SC 1937.
43.Inherent power, given the above discourse, given to the High Court
under Section 482 Cr. P.C. is with the purpose and the object of the
advancement of the justice. In case the solemn process of the Court is
sought to be abused by a person with some oblique motive, the Court
has to thwart the attempt at the very threshold. 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 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 exercise of the powers, the Court would be justified to
quash any proceeding if it finds that initiation/continuance of it
amounts to abuse of the process of court or quashing of these
proceedings would otherwise serve the ends of justice.
44.For the reasons discussed above, the instant petition is allowed and
order 23rd October 2019, passed by Special Judge (Anticorruption,)
Jammu, in File no.03/2019/Ikhtami in FIR no.09/2014, is set-aside.
The closure report filed by the police is hereby accepted. As a
consequence of which, all the criminal proceedings arising out of FIR
no.09/2014 against petitioners are hereby quashed.
45.Disposed of.
(Vinod Chatterji Koul)
Judge
Jammu
27.02.2024
Ajaz Ahmad, Secy.
Whether approved for reporting? No.
Page 39
