M.K. Hanjura ORDER
M.K. Hanjura, J.
1. In this petition, filed under Section 561-A of the Code of Criminal Procedure, the petitioners seek the indulgence of this Court in quashing the FIR bearing No. 78 of the year 2013, registered against them at Police Station Gandhi Nagar, Jammu, for the commission of offences under Sections 426, 420, 467, 468, 471, 406 of the RPC.
2. Before appreciating and looking into the merits of the petition, it will be profitable to give a brief account of the facts and the grounds that forced the petitioners to file this petition. It has been pleaded in the petition that the petitioner No. 1 and the petitioner No. 3 are in possession of a house bearing No. 20 situate at 2nd Extn. Gandhi Nagar, Jammu. The land underneath and appurtenant to the house, measures one Kanal approximately. The petitioner No. 1 is legally competent to sell the said house for being the lawful attorney of the owner, named, Pardeep Jain. The respondent No. 3 who is a businessman approached the petitioner Nos. 1 and 3 for the purchase of the aforesaid house. The petitioner No. 1 agreed to sell it for a consideration of Rs. 2.60 Crores. It was further decided on 01.04.2012 that the amount of Rs. 2.60 Crore will be paid within a period of three months from the said date. The respondent No. 3 issued a cheque dated 03.04.2012 amounting to Rs. 10.00 Lac in favour of the petitioner No. 1 and two cheques dated 03.04.2012 and 11.06.2012 amounting to Rs. 10.00 Lac and Rs. 13.00 Lac respectively in favour of Champa Devi, i.e., the petitioner No. 3. The cheques given to the petitioner No. 3, were encashed but the respondent No. 3 stopped the payment of the cheques delivered to the petitioner No. 1. Subsequently, the parties decided that if the payment as decided is not made within the stipulated time, the advance so paid shall be forfeited. The respondent No. 3 did not make the payment thereafter owing to some financial crunch. He avoided the execution of the deed and the deal on one pretext or the other. The petitioner No. 1 requested the respondent No. 3 a number of times to pay him the balance amount of Rs. 2.37 Crore and get the sale deed executed but the respondent No. 3 did not pay any heed to him and the petitioner No. 1 thought that the respondent No. 3 has lost interest in the property. The respondent No. 2 working as Station House Officer, Police Station Gandhi Nagar, Jammu, threatened the petitioner No. 1 to return the advance money to the respondent No. 3. The respondent No. 2 illegally confined the petitioner No. 1 in the police Station for a period of three days without lodging any F.I.R. The petitioner No. 1 was taken into the custody on 06.02.2013 and was released from the custody on 08.02.2013. Thereafter, the petitioner No. 1 received continuous threats from the respondent Nos. 2 and 3. However, the petitioner did not succumb to these threats. He moved a representation (Annexure-A attached to the petition) before the IGP Jammu on 22.02.2013 in which he detailed the illegalities committed by the respondent Nos. 2 and 3. The IGP Jammu Zone took cognizance of the issue and transferred the investigation of the case to SDPO Gandhi Nagar Jammu. The SDPO, Gandhi Nagar, Jammu, conducted a detailed enquiry into the matter. In addition to recording the statement of the petitioner No. 1, he recorded the statements of Romesh Lal Additional SHO Gandhi Nagar, Jammu, and those of a few police officers posted at Gandhi Nagar Police Station. He found that the case is of civil nature and the police cannot investigate the same. He also recommended that a criminal case be lodged against the respondent No. 2 for having illegally confined the petitioner No. 1 in police custody. The contents of the report so laid are known to the police authorities. It is a clear case of the abuse of the official position by the respondent No. 2 and the violation of the judgment passed by Hon'ble Supreme Court in the case of "D.K. Basu vs. State of West Bengal" (MANU/SC/0157/1997 : AIR 1997 SC 610). It is also contended that to the utter dismay of the petitioners it was on 02.04.2013 that they came to know that an FIR bearing No. 78/2013 has been registered against them at Police Station Gandhi Nagar Jammu, on 02.04.2013for the commission of offences under Sections 426, 420, 467, 468, 471 & 406 of RPC.
3. Aggrieved by the registration of the aforesaid FIR bearing No. 78/2012 dated 02.04.2013, the petitioners have assailed the same on the grounds, inter alia, that even if the contents of the F.I.R. are read against them in their entirety, no prudent man can conclude that the offences under Sections 426, 420, 467, 468, 471 & 406 of the RPC are made out. S.H.O. Police Station Gandhi Nagar, Jammu, had no authority to register the FIR against the petitioners in view of the fact that SDPO Gandhi Nagar, Jammu, had already returned a finding in the matter to the effect that the case is of a civil nature and the police authorities cannot investigate the same. The SHO Police Station, Gandhi Nagar, Jammu, that is, the respondent No. 2 is personally interested in the case. He has been bribed by the respondent No. 3. Although he is tainted with the allegations of confining the petitioner No. 1 illegally, yet he is showing an extraordinary interest in the case. The present FIR is manifestly attended with mala fides and malice. It has been lodged with an ulterior motive to wreak vengeance against the petitioners and with a view to spite the petitioners due to the grudge that the petitioner No. 1 stood against him; got the enquiry initiated and conducted against him in which adverse remarks were passed against him. The allegation made in the first information report even if taken on their face value do not constitute the offences under Sections 426, 420, 467, 468, 471 & 406 of the RPC. There is no allegation against the petitioner No. 2 and no document has been forged. The respondent No. 3 has himself admitted that the documents are genuine.
4. It is further contended that the petitioner No. 1 filed a complaint in the Court of the learned Chief Judicial Magistrate, Jammu, against the respondent No. 2 which was transferred to the Court of the City Judge, Jammu, and the learned Judge directed SSP Jammu to register a case against the respondent No. 2. In this scenario, the fairness of the investigation in the hands of respondent No. 2 can be seriously doubted. The respondent No. 2 is tainted with the allegation of favoritism and this will severely prejudice the interest of the petitioners. The 2nd Additional Sessions Judge, Jammu, has also recorded a finding in the bail petition of the petitioner No. 1 that the case is civil of a nature and the respondent No. 2 is hobnobbing with the respondent No. 3 in order to harass the petitioners. The allegation in the FIR, that the petitioners have cheated the respondent No. 3 has no substance in it. The respondent No. 3 issued the cheques in favour of the petitioner Nos. 1 and 3. It shows that the respondent No. 3 was well aware of the fact that the petitioner No. 1 and the petitioner No. 3 are in the joint possession of the house. The petitioner No. 1 is also the lawful attorney of the last owner of the house, i.e., Pardeep Jain. He has not committed any fraud on the respondent No. 3. He is ready and willing to sell the house in favour of the respondent No. 3, if he pays the remaining amount.
5. Before looking into the areas of concern that the petitioners have projected in this petition, the contents of the FIR require to be examined. The complainant, Kuldeep Wahi, (respondent No. 3 herein), moved a complaint before the Court of Chief Judicial Magistrate, Jammu, against Sh. Rakesh Kumar Gupta S/o. Sh. Suraj Prakash Gupta R/o. Flat No. 4, Trikuat Nagar Jammu, S. Pritpal Singh S/o. S. Baldev Singh R/o. Paul Katel Below Gumat Jammu, Smt. Champa Devi D/o. Sh. Khazan Chand R/o. H. No. 3, Rajinder Nagar, Canal Road, Jammu and Anil Kumar S/o. Sh. Kapil Muni R/o. Sector 4, Trikuat Nagar, Jammu, under Section 156(3) of the Code of Criminal Procedure, for directing the Incharge Police Station concerned to lodge an FIR against them under the relevant provisions of law. In the complaint, the complainant, delineated that the accused persons approached him with the proposal of selling a house bearing No. 20-C, situate at Gandhi Nagar, Extn. Jammu, for a total sale consideration of Rs. 260 Lacs. After making this proposal, the respondent No. 3 inspected the said house. It was at the behest of the accused Rakesh Kumar and Pritipal Singh that on 20.03.2012 they executed an agreement to sell in his favour despite the fact that the property did not belong to accused No. 4 and he had already sold it to the accused No. 3 vide an agreement to sell dated 28.02.2010. Accused Nos. 1 and 2 fraudulently received an amount of Rs. 1.00 Lac and the accused No. 3 & 4 received Rs. 10.00 Lac through Cheques from him at the time of the execution of the agreement dated 28.03.2012. After the execution of the agreement he approached the accused a number of times requesting them to adhere to the terms and conditions of the agreement to sell dated 20.03.2012, but they avoided him under one or the other pretext. It is also stated that the aforesaid property was originally allotted to Sh. P.C. Bhardwaj and subsequently permission to raise a construction on it was granted in his favour on 07.01.2006. The wife, namely, Smt. Asha Bhardwaj and the Son, namely, Manu Bhardwaj of Sh. P.C. Bhardwaj sold the above said property to Sh. Pardeep Jain at a time when their names had not been recorded in the register of the Housing Board. Pardeep Jain in turn sold the same to Mr. Anil Kumar and a power of attorney was executed by Pardeep Jain in favour of Anil Kumar before the Sub-Registrar, Jammu, on 15.02.2010. The complainant also came to know that on 28.02.2012 the accused No. 4 (Anil Kumar) had executed an agreement to sell in favour of the accused No. 3 (Champa Devi). Thus, the accused No. 4 (Anil Kumar) had no authority to execute the agreement to sell dated 20.03.2012 with the complainant. This shows that the accused had a criminal intent at the time of the execution of the agreement to sell dated 20.03.2012 itself. More over it had also come to the knowledge of the complainant that the accused No. 4 had executed a power of attorney in favour of accused No. 3 on 20.03.2012, which was registered by the Sub-Registrar, Jammu. This means that all the accused persons jointly defrauded the complainant. After all this the complainant again approached the accused persons and requested them to return the money fraudulently taken by them but the accused persons instead of returning the money assured the complainant that the accused No. 3 (Champa Devi) will execute the requisite document in his favour after the above said property is transferred in her name. On this assurance the complainant issued two cheques in favour of the accused No. 3 in an amount of Rs. Thirteen lacs bearing No. 496886 and Rs. Seven lacs bearing No. 630824. The accused No. 1 & 2 fraudulently received rupees one lac cash from the complainant. Accused No. 3 namely, Champa Devi, who is also the mother-in-law of accused No. 1 namely Rakesh Kumar Gupta fraudulently received rupees twenty three lacs from him vide two cheques numbered above and the accused No. 4 namely, Anil Kumar, fraudulently received a cheque of rupees ten lacs the payment of which was later stopped by the complainant. The accused persons have thus fraudulently duped him of his hard earned money by playing fraud. The complaint repeatedly requested the accused persons and even called Sh. Rakesh Kumar who is son-in-law of accused No. 3 on telephone as well through SMS dated 30.06.2012 for getting the sale deed executed in the name of Champa Devi (Mother-in-law of Rakesh Kumar) and for the onward transfer of the same in the name of complainant but the accused persons did not do so. That recently the complainant came to know that Chama Devi has entered into another agreement to sell for the same property with one Sardari Lal Gupta of Jammu without the knowledge of the complainant and has thus committed fraud with the complainant. In the premises, it has been prayed that the Incharge Police Station Gandhi Nagar, Jammu be directed to lodge an FIR against the accused persons under sections 426, 420, 467, 468, 471, 406 of RPC. On this complaint, the learned chief Judicial Magistrate directed the S.H.O. Police Station Gandhi Nagar, Jammu, to investigate the matter under law if cognizable offences are committed.
6. It requires to be added that the petitioner No. 1 moved a representation before the Inspector General of Police Jammu Zone, alleging harassment at the hands of the SHO, Police Station, Gandhi Nagar, and the Inspector General of Police directed the SDPO, South to look into the matter personally and to take necessary action under law and report. In the said representation, the petitioner No. 1 stated that he was illegally confined by the SHO, Police Station, Gandhi Nagar, at the behest of one Kuldeep Wahi who had agreed to purchase a house located at Gandhi Nagar, Jammu, from him, but he backed out subsequently. The SDPO conducted an inquiry into the matter and forwarded his report to the IGP, Jammu, the sum and substance of which is that besides recording the statement of the petitioner No. 1 the statements of SI Ramesh Lal, SI Mohinder Singh, ASI, Rahul Dogra all working in Police Station Gandhi Nagar, Jammu and Balbir Chander were recorded by him and from the enquiry so conducted what surfaced is that the complainant Anil Kumar S/o. Kapil Muni R/o. Sector-4 Extn Trikuta Nagar, Jammu was called by Inspr. Gurmeet Singh SHO P/S. Gandhi Nagar Jammu in the matter which is purely civil in nature after hobnobbing with Kuldeep Wahi and kept him (the Complainant Anil Kumar) in illegal confinement for a period of three days without any justification. During the course of enquiry it also came to the fore that on his illegal detention, the complainant approached the Court through his counsel for seeking bail in which a report was accordingly called from SHO P/S. Gandhi Nagar, Jammu, regarding the arrest of the complaint but the SHO Gandhi Nagar did not bother to submit the report before the court of law. Upon this contempt proceedings were initiated against him (SHO) in the court of law and a commissioner was appointed for conducting the physical inspection of Police Station Gandhi Nagar, Jammu to ascertain whether, or not, the complainant has been lodged in the lock up but on coming to know about it the SHO set him free before the commissioner could reach there. Inspr. Gurmeet Singh, SHO Police Station Gandhi Nagar, by doing so has degraded the image of the police for which a criminal case under the relevant sections of law is needed to be registered against him in police station Gandhi Nagar, Jammu and accordingly necessary directions are solicited on that count.
7. It needs must be said that the petitioner No. 1 i.e. Anil Kumar filed a complaint before Chief Judicial Magistrate, Jammu against Sr. Superintendant of Police, Jammu stating therein that he was called by the SHO Police Station Gandhi Nagar, Jammu named Gurmeet Singh to the Police Station on 06.02.2013 at about 1030 am and he lodged him in the lockup for reasons unknown to him. Consequent upon this an application u/s. 100 Cr.P.C. was moved before the Ld. Munsiff, Jammu who directed the inspection of the police station through a commissioner. When the SHO Police Station Gandhi Nagar came to know about this order of the Ld. Munsiff, Jammu he set the complainant free on 08.02.2013 at about 4:00 pm which by itself is an offence. The complainant simultaneously moved a representation before IG Jammu, Zone Jammu, for harassment and illegal confinement wherein Assistant Superintendant of Police SDPO South, Jammu, was directed to hold an enquiry against the above named SHO P/S. Gandhi Nagar vide letter No. Clt/16/J/Pol/2013/4527 dated 22.02.2013. The enquiry officer so appointed by the IG Jammu after holding the enquiry fairly and squarely indicted the said SHO and recommended for the registration of a criminal case against him, but unfortunately instead of taking any action against the said SHO the department slept over the matter and he is enjoying a lucrative posting at the moment. In the end it has been prayed that the non-applicant may kindly be directed to register an FIR against the above said accused person Gurmeet Singh A/p SHO Police Station Gandhi Nagar, Jammu, without wasting further time and he shall file the compliance report in the Court in the interest of justice and fair play. The learned Munsiff vide his order dated 28.03.2013 directed that, prima facie, the commission of a cognizable offence is made out in the instant case and accordingly SSP Jammu is directed to investigate the matter under Section 156(3) Cr.P.C. either by himself or through his subordinate. In view of the direction so extended, a case bearing FIR No. 150 of the year 2013 was registered against the respondent No. 2 on 29.06.2013 for the commission of an offence under Section 343 Cr.P.C.
8. Heard and considered.
9. The law is that in exercise of the wholesome power vested in the High Court under Section 482 of the Criminal Procedure Code corresponding to Section 561-A of the J & K Criminal Procedure Code, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a Court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to the laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and the purpose of the provision which seeks to save the inherent powers of the High Court to do justice, between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction.
10. In the law laid down by the Supreme Court in the case of State of Haryana and others v. Bhajan Lal and others, reported in MANU/SC/0115/1992 : 1992 Supp (1) SCC 335, the Supreme Court has elaborately considered the scope of Section 482 Cr.P.C. In this case the Supreme Court had the occasion to determine the power of the High Court to quash the entire criminal proceeding including the FIR. The case under scrutiny arose out of an FIR registered under Sections 161, 165 IPC and Section 5(2) of the Prevention of Corruption Act, 1947. After noticing the earlier pronouncements on the subject, the Supreme Court detailed with lace certain categories of cases by way of illustration where power under Section 482 of the Cr.P.C. can be exercised to prevent the abuse of the process of the Court or secure the ends of justice. Paragraph 102 of the judgment provides seven categories of cases where the provisions of Section 482 Cr.P.C. can be invoked and these are extracted below:
"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 Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
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 any order of a Magistrate as contemplated under Section 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."
11. Testing the instant case on the standards of the law laid down above, what requires to be looked into at the first blush is whether the criminal proceedings initiated against the accused are manifestly attended with mala fides and devised to wreck vengeance on the accused and whether the allegations made in the FIR or the complaint, if taken at their face value and accepted in their entirety, do prima facie constitute an offence or make out a case against the accused. The respondent No. 3 has banked upon an agreement to sell, allegedly executed by the petitioners in his favour by which it is said that they agreed to put a house to sale in his favour but backed out subsequently from this promise. To put it in other words, the contention of the informant i.e. the respondent No. 3 is that the petitioners did not specifically perform the contract, which they executed in his favour. Such a course gives rise to civil consequences. Section 54 of the Transfer of Property Act makes it clear that an agreement to sell does not itself create any interest or title on immoveable property. Transfer of Immoveable Property by way of sale can be by a deed of convenience i.e. sale. An agreement to sell would fall short of the requirement of Sections 54 & 55 of Transfer of Property Act and will not create any interest or charge on such property.
12. Specific performance is an equitable remedy in the law of contract, whereby a court issues an order requiring a party to perform a specific act that is to complete the performance of a contract. It is an equitable relief which a Civil Court can grant instead of directing the payment of money. Specific performance in real estate term means when either the buyer or the seller wants to complete the sale under the agreed terms and conditions in the agreement to sell. An agreement to sell is a contract between the buyer and seller of the property in which like any other contract, the deal can go wary. Therefore, it is important for both the buyer and the seller to pay due consideration while making or accepting the offer. If the deal does not materialize, one has to look into the conditions incorporated in the agreement to find out whether there is any clause in it which states that the balance money would be paid only after the buyer is satisfied with the title of the property or whether there is any clause whereby notice can be issued to the buyer for the cancellation of the agreement and seek damages, or, whether, there is any provision to issue legal notice to the seller for the cancellation of the agreement and seek damages, and to cap it all what was the life of the agreement. All these areas require to be determined by the civil courts. The SDPO, who conducted the enquiry into the matter and came to the conclusion that the case has a civil lineage and has to be determined by a civil court, was right in his conclusions. Therefore, on the face of what has been stated above, even if the allegations made in the FIR or the complaint are taken at their face value and accepted in their entirety, these do not constitute any offence or make out a case against the accused. Respondent No. 3 in pursuing his claim has to knock at the doors of the civil court and he cannot set the criminal law into motion for implicating the petitioners for the commission of the offences for which the FIR has been registered against them.
13. The FIR against the petitioners is totally unwarranted, unjust and against the law for the elementary reason as stated hereinabove that the matter raises a civil dispute in between the parties. In 'Joseph Salavaraj Vs. State of Gujrat & Ors.' reported in MANU/SC/0719/2011 : 2011 (7) SCC 59, the Supreme Court has viewed that a purely civil dispute can be given a colour of a criminal offence to wreak the vengeance against the applicant and it is necessary to draw a distinction between a civil wrong and a criminal one and the applicant cannot be allowed to go through the rigmarole of a criminal prosecution for a long number of years, even when admittedly a civil suit has been filed.
14. Admittedly, the house belonged to late Puran Chand Bhardwaj, who was succeeded by his wife and son namely Asha Bhardwaj and Manu Bhardwaj. Asha Bhardwaj and Manu Bhardwaj executed a deed of sale on the 30th day of April, 2015 in favour of Pardeep Jain and the said deed was registered by Sub Registrar, Jammu, on 2nd day of May, 2005. Pardeep Jain executed an irrevocable power of attorney in favour of the petitioner-Anil S/o. Kapil Muni, which was registered by Sub Registrar, 2nd Additional Munsiff, Jammu on 15.02.2010. Therefore, the contention of respondent No. 3 that the petitioner did not have the power to execute the deed of sale in his favour pales into insignificance. It is a spurious and a contrived argument, which cannot be entertained and sustained.
15. Looking at the instant case from yet another angle, the law laid down in the case of "Priyanka Srivastava & Anr. v. State of U.P. & Ors." reported in MANU/SC/0344/2015 : 2015 (2) Crimes 209 is germane in the context of the decision of the instant case and the relevant excerpts thereof that have a direct bearing on the subject matter of the controversy are reproduced below verbatim et literatim:-
"115. Although, we, in unequivocal terms, hold that Section 154 of the Code postulates the mandatory registration of FIRs on receipt of all cognizable offences, yet, there may be instances where preliminary inquiry may be required owing to the change in genesis and novelty of crimes with the passage of time. One such instance is in the case of allegations relating to medical negligence on the part of doctors. It will be unfair and inequitable to prosecute a medical professional only on the basis of the allegations in the complaint."
After so stating the constitution Bench proceeded to state that where a preliminary enquiry is necessary, it is not for the purpose for verification or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence. After laying down so, the larger Bench proceeded to state:-
"120.6. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:
(a) Matrimonial disputes/family disputes
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases
(e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months' delay in reporting the matter without satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.
120.7. While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time-bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry."
We have referred to the aforesaid pronouncement for the purpose that on certain circumstances the police is also required to hold a preliminary enquiry whether any cognizable offence is made out or not."
16. Para 115 cited above countenances that, there may be instances where preliminary inquiry is the need of the hour owing to the change in the novelty of the crime with the passage of time. It lays down that one such instance is a case where allegations leveled relate to medical negligence on the part of the doctors, where it will be unfair to prosecute the medical professional only on the basis of allegations in the complaint. It further states at para 120.6 that in addition to the above, the category of cases in which the preliminary inquiry may be made, are matrimonial disputes/family disputes, commercial offence, corruption cases and cases where there is abnormal delay/laches in initiating criminal prosecution i.e. over three months delay in reporting the matter without satisfactorily explaining the reasons of delay. It also provides that these are only illustrations and not an exhaustive list of all the conditions which may warrant a preliminary enquiry.
17. Testing the instant case on the touchstone of the above, it was on 03.04.2012 and 11.06.2012 that the cheques were issued by the respondent No. 3 in favour of the petitioner Nos. 1 & 3. These cheques as is repeated and reiterated here, were delivered to the petitioner Nos. 1 & 3 in token of the advance money for the purchase of the property i.e. a house situated at Gandhi Nagar, Jammu. These dates, as stated above, have been culled out from the FIR lodged by the informant. The informant i.e. respondent No. 3, after a great lull, filed a complaint before the learned Chief Judicial Magistrate, which was forwarded to the SHO P/S. Gandhi Nagar with a direction to investigate the matter under law, if cognizable offence appears to have been committed by the accused. The FIR was registered on 02.04.2013 i.e. much after the time laid down in the law cited above, which emphatically provides that an inquiry requires to be made where there is abnormal delay/laches in initiating the prosecution. No reason has been spelt out as to how and why this delay occurred in filing the complaint before the Court.
18. Another defect, which goes to the root of the case is that the petitioner No. 1 filed a representation before the IGP in which he stated that he was wrongly confined by respondent No. 3 at Police Station Gandhi Nagar and this confinement continued for three days. The IGP directed the SDPO to look into the matter and submit a report. The SDPO conducted the enquiry, recorded the statements of the witnesses and laid the enquiry report before the IGP in which he stated that the said respondent No. 2 confined the petitioner No. 1 illegally in a matter which involved a pure dispute of civil nature in between the parties and not a criminal one and that an FIR should be lodged against respondent No. 2. The respondent No. 2 did not conduct any enquiry into the matter and proceeded to register the FIR straightway in the case to wreck-vengeance against the petitioner because the petitioner No. 1 had mustered the courage to file a representation before the IGP highlighting the conduct of the respondent No. 3 in putting him behind the bars without lodging any report. The respondent No. 2 did not conduct any enquiry into the matter and above all he rejected the report of his superior with contempt.
19. The higher ups in the police hierarchy to whom the report was forwarded by the SDPO did not take any action on it. They allowed the respondent No. 2 to continue and enjoy a lucrative posting. The SDPO had made it amply clear that the respondent No. 2 had confined the petitioner in custody for three days without any authority of law. The petitioner was forced and coerced to knock at the portals of the Court and the Court directed that the matter should be investigated and it was on the directions of the Court that an FIR was registered against him. Why an FIR was not lodged against the respondent on the bulwark of the report laid by the SDPO is a mystery that has not been unraveled, may be perhaps because of the influence that he wielded in the corridors of power or because of his nexus with the higher ups. He appears to have been protected by his superiors from the onslaught of the crime imputed to him by the petitioner No. 1 as proved by his superior in the enquiry initiated against him and in this process the position of the SDPO also appears to have been brought to a ridicule. This depicts a sad and sordid state of affairs. The prime duty and function of the police authorities is to protect the life and limb of the citizens of the State and not to harass them under the colourable exercise of power. Accountability appears to have become causality in the instant case.
20. The law is that Section 561-A Cr.P.C. envisages three circumstances under which the inherent jurisdiction may be exercised, namely (i) to give an effect to an order under the code (ii) to prevent abuse of 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 the inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. Courts are invested with all such powers as are necessary to do right and to undo a wrong in the course of administration of justice on the principle of Quando lex aliquid alique concedit concediture et id Sine quo res ipsa esse non protest (When the law gives the person anything, it gives him that without which it cannot exist).
21. Viewed in the context of all that has been said and done above, the petition of the petitioners merits to be allowed, as a consequence of which, FIR No. 78/2013 registered at Police Station Gandhi Nagar, Jammu, against the petitioners for the commission of offences under Sections 426, 420, 467, 468, 471 & 406 RPC, is quashed along with all other proceedings emanating therefrom.
22. However, before parting, it needs must be said in a pertinent digression that the respondent No. 2-Gurmeet Singh, the then SHO Police Station Gandhi Nagar, has violated the directions extended by the Supreme Court in the case of D.K. Basu Vs. State of West Bengal, reported in MANU/SC/0157/1997 : 1997 (1) SCC 416 with impunity. He detained the petitioner-Anil Kumar in Police Station Gandhi Nagar for a period of three days without any authority of law which came to the surface on an enquiry conducted against him by the SDPO City South, Jammu, on the direction of the IGP Jammu. What action has been taken against the erring officer is required to be made known to this Court. To this is added that in the inquiry report the SDPO City South, Jammu directed that an FIR be registered against the SHO Gandhi Nagar for confining the petitioner in the Police Station Gandhi Nagar, without following the established procedure of law. Instead of registering an FIR against the then SHO, he continued to enjoy a lucrative posting which gave him a lever in his hands to wreak vengeance against the petitioner No. 1 and settle scores with him. It was only when the petitioner No. 1 knocked at the portals of the Court that an FIR was registered against him, that too, after a great lull and to crown it all what is the present status of the FIR registered against the respondent No. 2. These circumstances which require to be explained by the State radiate from the fact that the police force is a disciplined one and the faith that the people in general repose in it should not get eroded, corroded and rusted. A copy of this order shall be provided to Mr. S.S. Nanda, learned Sr. AAG who shall file a compliance report in light of the queries raised above, before the next date, after getting the inputs from the officers concerned.
23. List on 30.05.2018
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