HIGH COURT OF JAMMU & KASHMIR
IA Nos.99001/2013, 337/2011
Date of order: 22.11.2018
Pitamber Singh and ors.
State of J&K & ors.
Coram: Hon’ble Mr. Justice Sanjay Kumar Gupta, Judge
For petitioner (s) : Mr. U.K.Jalali, Sr. Advocate with
Mr. Anuj Sawhney, Advocate.
For respondent(s) : Mr. Arshad Malik, Dy AG.
i/ Whether to be reported in : Yes/No
ii/ Whether to be reported in : Yes/No
1. The instant petition filed under Section 561-A of the Code of Criminal Procedure, the petitioners inter alia seek quashing of FIR No.13/2011 dated 11.12.2011, under Sections 427 & 379 RPC, registered at Police Station Dessa, Doda against the petitioners.
2. Before assailing the FIR, it is in the fitness of things to give a short resume of facts leading to the filing of this instant petition.
3. The petitioners herein have called in question the FIR No.13/2011 registered by the SHO Police Station, Dessa, District Doda on the instructions of the Deputy Commissioner, Doda, on 11.12.2011 against the petitioners under Sections 427/379 RPC. The said FIR is nothing but a poly to harass the petitioners who have also filed a writ petition bearing OWP No.1611/2011 challenging the action of the respondents, who are in the wake of diverting the water of a spring (Keshnala, Mandrala) from village Gai Dessa to another revenue village Manjhmi, Bijharni which is about 6 Kms away from this spring. The said FIR is abjectly an abuse of the process of law and has been registered without holding any kind of enquiry much less a legal one.
4. Petitioners feeling aggrieved of the action of the official respondents have challenged the FIR No.13/2011 dated 11.12.2011 impugned in this petition on the following grounds:-
a) That the FIR impugned and its contents being the outcome of a malafide exercise of police power is indeed nothing but the abuse of the process of law. The very fact that the taking away of the only natural source of water by any means is violative of Article 21 of the Constitution and in order to prevent the infraction of this valuable fundamental right to the petitioner, would amount to taking away the life line from the lives of the villagers and that was the reason why the petitioners had sought the indulgence of this Hon’ble Court by way of filing the writ petition Bearing No 1611/2011.
b) That the indulgence of the Hon’ble High Court for ensuring this basic amenity of life and its sustenance somehow was not to the liking of the Engineers of the PHE who took it as a personal affront caused to them and with a view to avenge this insult they got this FIR registered that too by using the offices of the Deputy Commissioner who had been in fact pleading for the protection of the petitioners right to use the natural Water Body.
c) That even on the Ex Facie reading of the F.I.R No.13/2011, the offences under section 427 and in particular under section 379 is not disclosable. It is also a fact that the pipes had not been laid down near the source of water but according to the records available even with the office of the PHE the programme of laying down the pipes started from the tail end.
d) That the said FIR has been lodged to brow beat the petitioners into submissions and make them run for their lives. Even otherwise an offence alleged to have occurred on 3rd December 2011 appears to be a fantasy because, on 3rd December 2011, the petitioner Nos.1&2 along with the said villagers were before the Hon’ble High Court of Jammu and Kashmir pursuing their case as the lawyers were on strike. However, the name of the lawyer had been recorded by inadvertence who had in turn handed over a written note to the petitioners for reading it out to the Hon’ble Court. Even other-wise the said F. I. R has roped in the name of one Swami Raj, Petitioner No 3, whose daughters were getting married on the same very day and almost everyone from the village was present there to grace the said occasion. This fact can be ascertained from an affidavit along with the marriage card as and when the need arises.
e) That the said FIR has very cryptically roped in some names which are non-existent in the entire revenue village Dessa and against the non- existent names some of the petitioners are being followed by the police for instance one name recorded In the FIR is of Devinder Pal Thakur, which name is non- existent and where as the actual name of the petitioner No 10 is Deen Dayal Thakur and he has also come to seek the indulgence of this Hon’ble Court for being implicated in a totally false and a baseless case. The official respondents have committed grave illegalities to the extent of stating the date of occurrence as 3rd of December and citing it as Sunday it being actually Saturday.
f) That even, otherwise, the said criminal proceedings could not have been initiated owing to the fact that a civil dispute was pending between the parties and the said FIR is just a counter blast to the proceedings initiated against the official respondents by way of OWP No. 1611/2011.
g) That the said FIR has roped in the petitioners under very high sounding offences like sections 427/379 but the FIR nowhere mentions as to whether the official respondents have recovered the said pipes from anywhere which would constitute the most essential ingredient of Section 379 RPC.
5. Respondent Nos.2 and 3 have filed objections wherein it is stated that FIR has been registered on receipt of written complaint from Executive Engineer PHE Division Doda to Deputy Commissioner Doda stating therein interference in laying and fitting of gravity main pipe by villagers/petitioners in the intervening night of 3rd and 4th December, 2011 and damage to the tune of Rs.3,80,864/- which is required to be recovered from petitioners. On this, police registered FIR 13/2011 under Section 427/379 RPC, commenced investigation, recorded statements of six witnesses on 12.12.2011, recovered 150 meters of pipe and rest of the pipe needs to be recovered from the petitioners/accused under section 3 of PPPD Act. It is further stated that on receipt of interim direction on 03.01.2012 from the High Court for staying the investigation, no further investigation/proceedings has been undertaken by respondents, the respondents pray that the interim directions may kindly be vacated and the respondents be allowed to complete the investigation so that the challan of the case may be presented before the competent court of law. It is further stated that pendency of civil dispute has no connection with the criminal offence committed by the petitioners and cannot be termed as abuse of process of law. It is also stated that the petitioners have taken law into their own hands and have caused damage to the property of Government; the pipe is yet to be recovered from the petitioners; the petitioners are required to be dealt with firm hand in accordance with law; the petitioners have miserably failed to make out a case requiring quashing of proceedings and for this reason, the petition needs to be rejected.
6. Heard learned counsel for the parties and perused the case file.
7. Learned counsel for the petitioners submits that during the pendency of the instant petition some of the petitioners have died.
8. It is apt to reproduce the contents of the FIR no.13/2011 dated 11/12/2011 u/s 379/427 RPC, which read as under:
Office of the executive PHE Division Doda wrote a complaint to Deputy Commissioner Doda with regrd to interfering in laying PHED 5692-14 fitting of gravity man for WSS Mangni and damage/theft of pipe thereof Ref District Development Commissioner Doda 2011/BC/1087 dated 7.11.2012. In the letter it was submitted that WSS Mangni taken up under NABARD during the investigation tapping of the source from the deep forest of the kesh Nallah on the left side of the perennial Dassa Nallah, the work of lying of gravity main was earlier started through a contractor and was objected by the peoples of village Gaie with the logic that their paddy fields may get effected by the tapping source which was not true. The nallah being a tributary merges into Dassa Nallah about ½ km up stream of Gaie village. The dispute was resolved between the public representatives of Mangni and Gaie in 2010 by your goodself with the condition that the public of Mangni shall allow road construction to village of Gaie passing through their lands and public of magmi shall not object to the tapping of water source from kash nallah. The work was finally started in Nov.2011 and about 1.0 kms of gravity main was laid as reported by the Assistant Executive Engineer PHE Sub Division Doda West vide no.PHESD/W/911 dated 07.12.2011 and the public of the village Mangni that persons Shri Pitamber Singh S/o Bali Ram, 2. Devinder Kumar, 3. Kwani Raj (Ex-serviceman), 4. Chain Singh S/o Sh. Bhagat Ram, 5 Mir Chand S/o Dave Dyal, 6. Harbans S/o Chain Singh,
7.Shadi Lal, 8.Roshan Lal, 9.Karbal Singh, 10.Kabal R/o Dhandra etc all resident of Gaie Village damaged above 730mtr of G.S.Pipes 65 MM on 3rd and 4th Dec 2011, the costs works out to be Rs.380864.00 which needs to be recovered from the miscreants under the Water Supply Regulation and Maintenance Act 2010. It is requested that the police protection may be provided so that the gravity main is laid before the snowfall, further instructions in the matter are solicited please copy of the representation of the public of Mangni and of AEE is enclosed your faithfully, Executive Engineer PHE Doda Office of the Deputy Commissioner Doda no.DCD/PA2KX1/4119-22 dated 7.12.2011 subject interference inclined and fitting of the gravity main for WSS Mangni and damaged thereof pipes enclosed please find letter no.PHED/5612-14 dated 12.07.2011 of the Executive Engineer PHE Division Doda addressed to the undersigned with a copy of the among others to AEE, PHE Sub Division Doda West who has been directed to the lodge FIR in P/S Dassa the contents of communication self explanatory. The matters is of serious nature and therefore SHO P/S Dassa may be directed to take serious action in the matter under law.
9. This letter was sent to Police Station for action. Accordingly, FIR no.13/2011 dated 11/12/2011 u/s 379/427 RPC, was registered .
10. From bare perusal of the contents of FIR, it is evident that case for cognizable offences has been made out, which requires in depth investigation.
11. The ground taken in the memo of petition is that even on the ex-
facie reading of F.I.R No.13/2011, the offence under section 427 and in particular under section 379 is not disclose-able; that the pipes had not been laid down near the source of water but according to the records available even with the office of the PHE the programme of laying down the pipes started from the tail end, are not tenable. Because these are factual aspects cannot be taken note in this petition.
12. Another argument that FIR has been lodged to brow beat the petitioners into submissions and make them run for their lives; that even otherwise an offence alleged to have occurred on 3 rd December 2011 appears to be a fantasy because, on 3rd December 2011, the petitioner Nos.1 & 2 along with the said villagers were before the High Court of Jammu and Kashmir pursuing their case as the lawyers were on strike, this argument is also not tenable as perusal of order of High court would reveal that it does not show the names of petitioners.
13. The law with regard to quashing of FIR is now well settled. FIR can only be quashed in order to prevent abuse of process of law or to otherwise secure the ends of justice. The expression ends of justice and to prevent abuse of process of any court are intended to work out either when an innocent person is unjustifiably subjected to an undeserving prosecution or if an ex-facie all merited investigation is throttled at the threshold without collecting the material in support of it.
14. This court while exercising the power under section 561-A Cr.P.C, does not function as court of trial, appeal or revision. Inherent jurisdiction has to be exercised sparingly, carefully and with great caution. These powers cannot be used to stifle the legitimate investigation. This is discretionary power vested in High Court to do substantial justice. High Court cannot examine the evidence as to whether charge for alleged offence is made put or not. This is the prerogative of trial court where challan is produced. When accused has opportunity to advance submission before trial court that material on record does not call for framing of charge then High court shall not exercise power under section 561-A Cr.P.C.
15. It is not the case of petitioner that 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 conduct investigation.
16. In view of above discussion, this petition is dismissed. Interim stay, if any, is vacated. Contempt Petition also stands closed.
(Sanjay Kumar Gupta)