Pranav Gupta (Age: 29 Years) vs State Of Jammu & Kashmir Through
2024 Latest Caselaw 1558 j&K/2

Jammu & Kashmir High Court - Srinagar Bench

Pranav Gupta (Age: 29 Years) vs State Of Jammu & Kashmir Through on 11 October, 2024

Author: Wasim Sadiq Nargal

Bench: Wasim Sadiq Nargal

                                                     Serial No. 22
                                                  Regular Cause List

         HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                         AT SRINAGAR

                              CRMC 456/2018
                                IA(1/2018)

Pranav Gupta (Age: 29 years)                                     ...Petitioner(s)
S/O Sh. Satish Gupta
R/O Gandhi Nagar, Jammu.

Through: Mr. A. H. Naik, Senior Advocate with
         Mr. Zia Ahmad, Advocate.

                                       Vs.


1.    State of Jammu & Kashmir through
      Commissioner Secretary to Government
      Home Department Civil Secretariat
      Srinagar/Jammu.

2.    Director General of Police, Srinagar.

3.    Sr. Superintendent of Police Crime
      Branch, Srinagar.

4.    Dy. Superintendent of Police, Crime
      Branch Srinagar.                                         ...Respondent(s)

5.    Nazir Ahmad Dar S/O Ghulam Qadir
      Dar R/O Zafarn Colony, Sampora,
                                                     ...Private Respondent(s)
      Srinagar.

Through: Mr. Jehangir Ahmad Dar, GA for R-1 to 4.
         Ms. Heena Baqal, Advocate for R-5.

CORAM:
              HON'BLE MR. JUSTICE WASIM SADIQ NARGAL, JUDGE.
                                JUDGMENT

11.10.2024

1. The petitioner through the medium of the instant petition filed under Section 561-A of the Code of Criminal Procedure, has called in question PV No. 43 of 2016 registered in the police station Crime Branch, Kashmir, as also the communication bearing No. CBK/JM/PV- 43/16-19024 dated 6th November, 2018, with a further prayer for

commanding the respondents not to harass the petitioner or any of the employees with respect to the allegation and not to proceed ahead in the said proceedings.

2. The specific case of the petitioner is that, in the year 2014 M/S ABS Infrastructure of which the petitioner is one of the partners, has entered into lease agreement with respect to the land falling under Survey Nos. 2749/2596 min; 2660/2596 min; 2873/2596 min and survey No. 2156 min situate at Khonmoh, Srinagar. The said land according to the petitioner was leased out in favour of the petitioner and the petitioner at the time of negotiating and executing the lease deed, had informed the owners of the said land that the land is required for construction of godown(s) for the purpose of storage of food grains and accordingly, lease deed was executed between the petitioner and owners of the land and the same was duly registered before court of learned Sub-Registrar, Srinagar.

3. The further case of the petitioner is that in pursuance to the aforesaid lease, he got the possession of the land and started the construction of godown(s). The further case of the petitioner is that the land measuring 91-kanals 8-marlas have been leased in favour of the petitioner and out of the same, a portion of land not more than 3 or 4- kanals belongs to the respondent No. 5, which fact has been admitted by the petitioner while filing the instant petition. It has been further averred in the petition that in pursuance of the said agreement, respondent No. 5 along with other co-owners of the aforesaid property, had received payments/rentals from petitioner. However, the respondent No. 5 started interfering into the possession of petitioner with respect to the leased land.

4. The further case of the petitioner is that on one hand, the private respondent was illegally and unlawfully interfering into the possession of the land in question and disturbing peace and on the other hand, was receiving rentals from the petitioner in pursuance to the lease agreement.

5. Feeling aggrieved of the same, it is the specific case of the petitioner that the respondent No. 5 thereafter had approached the court of learned Sub-Judge, (Forest Magistrate), Srinagar, and by misrepresenting the facts¸ got an order of status quo with respect to the operation of lease deed and with respect to the raising of any sort of construction over the suit land.

6. The further case of the petitioner is that after passing of the aforesaid order, the learned court of Forest Magistrate without prior notice to the petitioner, had directed the SHO, Police Station concerned to implement the order by reporting compliance of the said order. It is stated that as and when the petitioner got notice and knowledge of the suit pending disposal mentioned supra, the petitioner immediately appeared before the said court to place on record the relevant material to show that the suit filed by the private respondent was to harass the petitioner. The further case of the petitioner is that, the Respondent No. 5 in order to frustrate the proceedings pending before the Civil Court and in order to harass the petitioner, has lodged a false and frivolous complaint against the petitioner. However, it was the specific case of the petitioner before the Crime Branch, Srinagar, that lease deed on the basis of which the petitioner was in possession, was genuine and was duly registered before the court of Sub-Registrar, Srinagar and thus, the complaint preferred by the private respondent was required to be dismissed. Thereafter a notice dated 7th May, 2016 was issued to the petitioner, whereby the petitioner was asked to produce some documents with respect to which a civil suit was already pending before the Court of Sub-Judge, Srinagar (Forest Magistrate).

7. According to the learned Senior counsel appearing on behalf of the petitioner, it was not proper for the Crime Branch to have embarked into an enquiry over the said document which was being investigated and the proceedings initiated against the petitioner and was pending adjudication before the civil court. It is submitted that the proceedings initiated by the official respondents are unwarranted, illegal and without any legal justification and was aimed at harassing the petitioner and its employees.

8. Mr. A.H. Naik, the learned Senior counsel has vehemently argued that since the issue with respect to the same cause of action is pending adjudication before the civil court, that too at the behest of the private respondent, which is yet to decide the authenticity of the lease deed, it was improper on part of the Crime Branch to have conducted the said preliminary inquiry, which is subject matter of challenge in the instant petition, as according to the learned Senior counsel, Crime Branch does not have the jurisdiction to inquiry the case in hand, more particularly when the issue was pending before the civil court.

9. Feeling aggrieved of the same, the petitioner has filed the instant petition and has sought the following reliefs:

"IN THE PREMISES:

It is, therefore, prayed that this Hon'ble Court may be pleased to issue an order or direction thereby:

i. Quashing the PV No. 43 of 2016 registered in the police Station Crime branch, Kashmir and letter No CBK/JM/PV- 43/16-19024 dated 06/11/2018;

ii. Direction commanding the respondents not to harass the petitioner or any of employees with respect to the aforesaid allegation and not to proceed ahead in the said proceeding; and

iii. Any other order, direction which the Hon'ble Court deems fit and proper in the interests of justice.

10. Mr. Naik, learned Senior counsel has drawn attention of this Court to the civil suit which has been preferred by the private respondent, in which following reliefs have been sought:

"In the premises, it is therefore prayed that the Hon'ble Court may be pleased to declare the lease deed dated 14th day of June, 2014 as fraud, null and void and the defendants be directed to deliver the same to court and the court may then cancel the same as well

The court may be pleased to pass a decree of possession in her favour of the plaintiff and against the defendants directing the defendants 14 to restore the possession of the plaintiff land to the extent of his share

Any other order or relief which the Hon'ble Court may deem proper may also be passed in favour of the plaintiff."

11. According the learned Senior counsel for the petitioner, the said suit is pending adjudication before the civil court as on date. With a view to fortify his claim, the learned Senior counsel for the petitioner has placed reliance upon the judgment passed by the Hon'ble Supreme Court in case titled "Sardool Singh & Anr vs Smt. Nasib Kaur", wherein the validity of Will was subject matter of challenge before the civil court and the Apex Court held that at that juncture when the subject matter of Will was pending adjudication before the civil court, the respondent cannot be permitted to institute a criminal prosecution on the same set of allegation(s) that the Will is a forged one. The Apex Court further was of the view that the question has to be decided at the first instance by the civil court after recording the evidence and hearing the parties in accordance with law by holding that it would not be proper to permit the respondent to prosecute the appellants on this allegation when the validity of the Will was being tested before a civil court. In the aforesaid backdrop, the appeal was allowed and the order of the High Court was quashed and the criminal proceedings which were pending in the court of Judicial Magistrate, were also quashed. While parting with the judgment, the Apex Court has held that the said order will not come in the way of instituting appropriate proceedings in future in case the civil court comes to the conclusion that the Will is not a forged one and accordingly, the Apex Court refrained from expressing any opinion as regards the genuineness or otherwise of the will.

12. According to Mr. Naik, learned Senior Counsel, the law laid down by the Apex Court in the aforesaid judgment is fully applicable to the case in hand.

13. Per contra, reply affidavit has been filed on behalf of the official respondents wherein a specific stand has been taken in Para 2, that the complainant/ respondent No. 5 herein, moved an application before the court of learned 2nd Additional Munsiff (Judicial Magistrate 1st Class), Srinagar, alleging therein that the non-applicant/authorized representative of M/S ABS infrastructure, Treth Mohr Bari Brahamana Jammu (petitioner herein) have encroached upon his land at Khonmoh and started illegal construction on the said land. it has been further alleged in the complaint that the lease deed has been prepared by the petitioner by forging the signatures of the complainant (Nazir Ahmad Dar) over it and his property has been forcibly occupied by the petitioner.

14. The further stand of the respondents in the reply affidavit, is that, the court of learned 2nd Additional Munsiff (Judicial Magistrate 1st Class), Srinagar, endorsed the application of the complainant/ private respondent to the Crime Branch Kashmir, Srinagar, for further action under law vide order dated 31st March, 2016 and complying with the directions of the court below, the Crime Headquarters, J&K, vide communication bearing No.CHQ/Clt/K- 2008/16/7009 dated 9th April, accorded approval for initiating preliminary enquiry/verification into the matter.

15. In the aforesaid backdrop, a preliminary verification vide No. 43/2016 was initiated, which is the subject matter of the instant petition.

16. The further stand of the respondents is that, during the course of the enquiry, statements of witnesses who were acquainted with the facts and circumstances of the matter, were recorded and the certified copy of the lease deed was also obtained from the court. However, the denial of the complainant regarding his signatures on the said lease deed required the examination by the Forensic expert and since the lease deed was lying with the petitioner who was requested number of times to hand over the same for FSL, the petitioner, as such, was adopting the delaying tactics and not cooperating with the investigating agency to take the probe to its logical conclusion.

17. The further stand of the respondents is that they have initiated inquiry against the petitioner in compliance to the direction passed by the court of learned 2nd Additional Munsiff (Judicial Magistrate 1st Class), Srinagar, and not otherwise.

18. The record reveals that this Court vide order dated 1st December, 2018 has been pleased to issue notice to the respondents and subject to objections from the other side, the operation of the communication No. CBK/JM/PV-43/16-19024 dated 6th November, 2018, was stayed. The record further reveals that this Court vide order dated 12th August, 2024, has directed the concerned Inquiry Officer to remain present along with record in terms of order dated 10th July, 2024 and in compliance to the said order, Mr. Shoaket Ahmad Bukhari (Dy.SP Crime Branch), is present in person along with record.

19. Heard learned counsel for the parties at length and perused the material on record.

20. Since the official respondents have taken a specific stand in the reply affidavit that the preliminary inquiry has been conducted in pursuance to the order passed by the court of learned 2nd Additional Munsiff (Judicial Magistrate 1st Class), Srinagar, on 31st March, 2016 and in compliance to the said order, Crime Headquarters J&K, vide communication No.CHQ/Clt/K- 2008/16/7009 dated 9th April, 2016, accorded approval for initiating the said preliminary enquiry/ verification into the matter and this is how the preliminary inquiry was initiated. This aspect of the mater has not been pleaded by the petitioner in the instant petition. Photocopy of order dated 31st March, 2016 is taken on record.

21. The record has been supplied to this Court by the concerned Inquiry Officer, a perusal whereof reveals that an application was preferred by the complainant/Nazir Ahmad Dar/Respondent No. 5 herein under Section 156 (3) of the Code of Criminal Procedure before the court of learned 2nd Additional Munsif (Judicial Magistrate 1st

Class), Srinagar, against the accused including the petitioner, wherein certain allegations were levelled against the petitioner.

22. The record further reveals that the aforesaid application was disposed of on the same day after it was diarized and accordingly, the same was forwarded to the Station House Officer, Police Station, Crime Branch, for investigation and necessary action under law, with a further direction to the Station House Officer, to submit its report on 18th April, 2016.

23. The learned Senior counsel appearing on behalf of the petitioner submits that the petitioner was not aware of the passing of the aforesaid order, as no notice whatsoever was issued to him and this precisely was the reason that the petitioner could not plead about the factum of the filing of the said application or for that matter, passing of the said order. Had it been in the knowledge of the petitioner, then perhaps the petitioner would have challenged the aforesaid order.

24. At this stage, Mr. Jehangir Ahmad Dar, learned Government Advocate submits that pursuant to the verification conducted by the Crime Branch, an FIR bearing No. 29/2022 has been registered, a copy whereof has been provided to the learned Senior counsel for the

25. Confronted with the above position, Mr. A. H. Naik, learned Senior counsel appearing on behalf of the petitioner fairly submits that since he was not aware of the passing of order by the 2nd Additional Munsif (Judicial Magistrate 1st Class), Srinagar, dated 31st March, 2016, pursuant to which a NOD was given to the Crime Branch to conduct inquiry, which ultimately culminated into registration of an FIR, he seeks withdrawal of the instant petition, with a liberty to challenge the FIR No. 29/2022, by way of appropriate proceedings.

26. In the aforesaid backdrop, the learned Senior counsel appearing on behalf of the petitioner seeks withdrawal of the instant petition with liberty to challenge the FIR supra by way of appropriate

proceedings as nothing remains to be adjudicated upon in the instant petition.

27. Accordingly, the instant petition is disposed of with a liberty to the petitioner to challenge the aforesaid FIR by way of appropriate proceedings, if so advised. However, it is made clear that any observation made hereinabove shall not come in the way of the petitioner to agitate his cause afresh by way of appropriate proceedings. The observation made in this order is only for the purpose of deciding the controversy raised in the instant petition.

28. Disposed of.

(WASIM SADIQ NARGAL) JUDGE SRINAGAR:

11.10.2024 "HAMID"