Jammu & Kashmir High Court - Srinagar Bench
Mohammad Najeeb Goni vs Ut Of J&K And Others on 6 May, 2025
Author: Sanjay Dhar
Bench: Sanjay Dhar
IN THE HIGH COURT OF JAMMU & KASHMIR AND
LADAKH AT SRINAGAR
Reserved on: 28.04.2025
Pronounced on:06.05.2025
CRM(M) No.106/2024
MOHAMMAD NAJEEB GONI ... PETITIONER(S)
Through: - Mr. R. A. Jan, Sr. Advocate, with
Mr. Adil Mushtaq, Advocate.
Vs.
UT OF J&K AND OTHERS ...RESPONDENT(S)
Through: - Mr. Mohsin-ul-Showkat Qadiri, Sr. AAG, with
Ms. Maha Majeed, Advocate.
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1) The petitioner has challenged charge sheet arising out
of FIR No.28/2018 for offences under Section 420, 447A and
120-B RPC and the proceedings emanating therefrom, which
are stated to be pending before the Court of Judicial
Magistrate, 1st Class, Tangmarg (hereinafter referred to as
"the trial court"). Challenge has also been thrown to order
dated 30.12.2023 passed by the trial court, whereby the
prayer for release of passport in favour of the petitioner has
been declined.
2) As per the impugned charge sheet, a complaint came to
be received by the Crime Branch, Kashmir, from the
inhabitants of Village Bangil Tangmarg, alleging therein that
the petitioner in connivance with land brokers, namely,
Ghulam Mohammad Bhat, Mohammad Ashraf Wani and
Mohammad Sultan Ganie, have trespassed and encroached
upon the State land measuring approximately 25 kanals
falling under Survey No.5444, 5447, 5449, 5490, 5452,
6460, 6439 and 5451 situated at Village Dhobiwan Kunzar.
It was also alleged that the aforesaid accused persons have
encroached upon the said land by erecting sign boards and
stone blocks and converted the same into plots so that the
same can be offered for sale to the interested persons. On
the basis of these allegations, FIR No.28/2018 for offences
under Section 420, 447-A and 120-B RPC came to be
registered and investigation was set into motion
3) After investigation of the case, it was found that the
petitioner and his relatives are in possession of
approximately 56 kanals of land under Survey Nos.5440,
5441, 5442, 5443, 5446, 5448, 5453, 5458, 5459, 5489,
5491 and 5510 at Mouza Dhobiwan Tehsil Kunzar. It was
also found that in the same vicinity, State land measuring
approximately 24 kanals under Survey Nos.5438, 5439,
5444, 5447, 5449, 5450, 5452, 5460, 5490, 5411 and 5451,
is scattered within the proprietary land of the petitioner. The
investigation revealed that the petitioner, with intention to
grab the scattered State land in connivance with co-accused
Ghulam Mohammad Bhat and Mohammad Ashraf Wani,
encroached upon the State land and erected sign boards on
the said land including the State land which was later on
demolished by the revenue authorities after registration of
the FIR.
4) The investigation further revealed that the petitioner
had also executed a Power of Attorney in favour of co-
accused Ghulam Mohammad Bhat with fraudulent and
dishonest intention by incorporating even the survey
numbers of the State land in the said Power of Attorney. In
pursuance of the said Power of Attorney, co-accused
Ghulam Mohammad Bhat had executed an agreement with
one Basharat Ahmad Mir for sale of 63 kanals of land. It was
found that said Basharat Ahmad Mir had paid an amount of
Rs.15.00 lacs by way of cheque and an amount of Rs.40.00
lacs in cash in three instalments to the petitioner. It was
further revealed that co-accused Ghulam Mohammad Bhat
had executed a notarized sale agreement in favour of one
Hilal Ahmad Teli on 07.08.2017 who had paid an amount of
Rs.30.00 lacs. The Investigating Agency further found that
total land which was in illegal occupation of the petitioner
was 25 kanals and 01 marla, which stands retrieved by the
revenue authorities.
5) After completion of investigation of the case, offences
under Section 420, 447-A, 467, 468, 471 and 120-B RPC
were found established against the petitioner and co-
accused. However, approval was granted by the Crime
Headquarters for producing challan against the petitioner
only in respect of offences under Section 420, 447-A and
120-B RPC. Accordingly, the challan was laid before the
learned trial court.
6) The petitioner has challenged the impugned challan on
the grounds that after verification conducted by the team
comprising of Crime Branch officials and revenue field staff,
a comprehensive report dated 15.09.2018 was prepared and
as per the said report, the State land was found vacant and
the complaint against the petitioner was found to be
baseless and in view of this finding, which is undisputed, it
cannot be stated that the petitioner has encroached upon
the State land. It has been further contended that the
ingredients of offences under Section 420, 447-A and 120-B
RPC are not fulfilled in the present case as there is no
allegation against the petitioner that he has defrauded any
person. It has been contended that once the State land, as
per own admission of the Investigating Agency, stands
retrieved, no case of criminal trespass can be lodged against
the petitioner. It has been averred that in the year 2017,
when the process for vesting of ownership rights in respect
of the State land which was in possession of the petitioner,
was pending in terms of ROSHNI Act, the revenue
authorities without following due process of law demolished
the boundary wall erected around the proprietary land of the
petitioner and took over forcible possession of the scattered
State land within the proprietary land of the petitioner. It is
being submitted that the aforesaid action of the authorities
was challenged by the petitioner by way of a writ petition
bearing OWP No.1776/2017, in which an order came to be
passed on 07.11.2017 directing the parties to treat the writ
petition as a representation on behalf of the petitioner and
to accord consideration to the same within a period of four
weeks and till then not to harass the petitioner by disturbing
his possession. On these grounds, it is being urged that no
offence of criminal trespass is made out against the
petitioner.
7) During the pendency of this petition, the petitioner
filed an application seeking a direction upon the Regional
Passport Officer, Srinagar, as also the official respondents to
facilitate re-issuance of passport in favour of the petitioner
so that he is able to resume his employment in Kingdom of
Saudi Arabia.
8) The respondent Investigating Agency has filed its
status report, in which the allegations made in the charge
sheet against the petitioner have been reiterated. It has been
contended that the investigation has clearly established that
the petitioner in connivance with other accused persons has
grabbed State land and also executed a Power of Attorney in
which he knowingly incorporated survey numbers pertaining
to the State land and thereafter proceeded to sell the State
land to gullible persons, in lieu whereof he grabbed huge
amount of money.
9) I have heard learned counsel for the parties and
perused record of the case. I have also gone through the trial
court record.
10) The star ground of the petitioner for assailing the
impugned charge sheet is that the respondent Investigating
Agency has itself admitted that the State land, which was in
possession of the petitioner, has been retrieved even before
the filing of charge sheet and, therefore, no offence of
criminal trespass is made out against the petitioner. In this
regard, heavy reliance has been placed by learned Senior
Counsel, appearing on behalf of the petitioner, on report
dated 15.09.2018 submitted by Tehsildar, Kunzar, to
Deputy Commissioner, Baramulla, with regard to the
complaint relating to demolition of construction raised in Abi
Awal land situated at Dhobiwan Tehsil Kunzar. In the said
report, it has been recorded that no encroachment has been
made by any person after its eviction in October, 2017. It
has been also recorded in the said report that the matter
pertaining to the complaint that the petitioner has sold State
land, upon its verification, was found to be baseless. In the
said report it is further recorded that even the complainants
did not support the allegations made in the complaint.
11) The question that falls for determination of this Court
is as to whether the offence of criminal trespass gets
obliterated once the possession of the State land is recovered
from the illegal occupants. The answer to this question has
to be in 'negative', because the moment a person illegally
occupies the State land with a view to insult or annoy any
person in possession of such property or with an intent to
commit an offence, the offence under Section 447-A RPC is
complete. An illegal occupier may be evicted later on but
that does not mean that no offence has been committed by
the said person. The argument of learned Senior Counsel
appearing for the petitioner is, therefore, without any
substance.
12) So far as the material collected by the Investigating
Agency in support of their allegation that the petitioner had
occupied the State land, is concerned, it is clear from a
perusal of the trial court record, particularly the revenue
extracts, that the petitioner is shown to be in illegal
occupation of State land comprised in survey Nos.5444,
5447, 5449, 5450, 5452, 5490 and 5511. Incidentally even
in Power of Attorney dated 30th December, 2016, executed
by the petitioner in favour of co-accused Ghulam
Mohammad Bhat, besides the khasra numbers of
proprietary land of the petitioner, the aforesaid khasra
numbers pertaining to State land are also mentioned. Vide
the said Power of Attorney, the petitioner has authorized his
agent, co-accused Ghulam Mohammad Bhat, to sign sale
deed, gift deed and to act or do anything with regard to
aforementioned property, meaning thereby that the
petitioner, by virtue of the aforesaid Power of Attorney,
intended to sell even the State land which was under his
occupation.
13) There is also material on record to show that money
has exchanged hands between the Attorney Holder of the
petitioner and some gullible buyers, which clearly goes on to
show that the petitioner had a fraudulent intention of
dealing in the State land for the purpose of its sale. Thus,
the ingredients of offence under Section 420 RPC are also
fulfilled.
14) There is overwhelming material on record, that has
been collected by the Investigating Agency during the
investigation of the case, to support the charge for offence
under Section 420, 447-A RPC against the petitioner and it
is for this reason only that the learned trial court has, vide
order dated 25.03.2024, framed charges for offences under
Section 420, 447-A and 120-B RPC against the petitioner,
which order has not been put to challenge by the petitioner in
the present case.
15) Apart from the above, there is yet another aspect of the
matter which is required to be noticed and which disentitles
the petitioner to claim the relief sought in the present
petition. Admittedly, the petitioner had invoked jurisdiction
of this Court under Section 482 of Cr. P. C for challenging
the FIR out of which the impugned challan has arisen. The
said petition bearing CRM(M) No.227/2023 has been
dismissed on merits by this Court in terms of order dated
01.09.2023. A perusal of the said order would reveal that at
the relevant time, investigation of the case was almost
complete and this Court had taken into consideration all the
material that was collected by the Investigating Agency
during investigation of the case. In fact, this Court had also
taken into account report of Tehsildar, Kunzar, dated
15.09.2018, whereafter it was specifically observed by the
court that the land, if occupied by the petitioner, has been
retrieved does not absolve him of his alleged illegal action of
16) In the face of the fact that almost all the grounds that
have been urged by the petitioner in the present petition
have been considered by this Court in the earlier round of
litigation, it was not open to the petitioner to challenge the
impugned challan by filing another petition. It appears to be
a case of abuse of process of the Court which needs to be
deprecated.
17) For the foregoing reasons, I do not find any merit in
this petition. The same is, accordingly, dismissed. It shall,
however, be open to the petitioner to approach the trial
court for grant of NOC in his favour for the purpose of
issuance/renewal of his passport.
18) The original record summoned from the trial court be
returned forthwith.
(Sanjay Dhar)
Judge
Srinagar,
06.05.2025
"Bhat Altaf-Secy"
Whether the order is reportable: Yes/No
