ORDER
M. Yaqoob Mir, J.
1. Invocation of power under Section 561A Cr.P.C. is permissible sparingly so as to secure ends of justice and to prevent abuse of process of law.
2. Petitioner claims abuse of process of law, so seeks quashment of the proceedings initiated on complaint dated 29-3-2007 and judgment and order passed thereon dated 26-6-2007.
3. The circumstances which have prompted the petitioner to seek quashment of the proceedings are required to be noticed precisely.
4. Respondent No. 3 Avtar Krishan Shangloo claim to be the owner of land measuring 42 kanals and 10 marlas situated at Gadroo Ganderbal, wanted to sell the same. Petitioner approached respondent No. 3, volunteered to arrange some purchasers also paid rupees One lac as advance money. Value, of the land per kanal at the relevant time was rupees 4 lakh. Petitioner is alleged to have assured full payment after arranging the purchasers.
5. Respondent No. 3 executed General power of attorney in favour of the petitioner on 15-1-2005. Subsequently, doubted bona fides of the petitioner, so on 17-3-2005 revoked general power of attorney. Later on, according to respondent No. 3 petitioner had prepared document styled as 'Recall/withdrawal of Revocation of General Power of Attorney', forged the signature of the respondent (complainant).
6. In the background of the aforesaid position, respondent No. 3 filed a complaint before the Court of Chief Judicial Magistrate, Jammu on 4-7-2006 which was assigned to Judicial Magistrate (Electricity Magistrate) Jammu, who in turn forwarded the same to SHO Police Station, Janipur for investigation under Section 156(3) Cr. P. C., SHO, Janipur, submitted a detailed report to the Judicial Magistrate (Electricity Magistrate) an 2-8-2006 stating therein that the complainant (respondent No. 3) has concocted the story. The allegations contained in the complaint have been investigated and found incorrect.
7. Not satisfied with the report, Magistrate, asked the SHO, Police Station, Janipur to register the case. Accordingly, case was registered as Crime No. 121/2006, Police Station Janipur, for commission of offence punishable under Sections 420s 464, 468 and 471 RPC. The investigation has culminated in filing the closure report in terms of Section 173 Cr. P. C. The commission of offence as alleged, were not established during the investigation.
8. Complainant (respondent No. 3) filed one more complaint before the Court of Chief Judicial Magistrate on 29-3-2007 on the same facts and circumstances which was forwarded to Incharge Crime Branch, Jammu, for verifying facts and to take action under law. SSP Crime and Railways moved an application before the learned Chief Judicial Magistrate, stating therein that the property in question is situated in Kashmir Division, alleged occurrence is in Kashmir Division, therefore, matter may be referred to SSP, Kashmir Division being individual case with no inter-district peripheries.
9. Learned Chief Judicial Magistrate, vide order 26-6-2007 has passed direction to IGP Crime Branch to investigate the matter in terms of Section 156(3) Cr. P.C. through an officer not below the rank of Inspector. Aggrieved thereof instant petition has been filed.
10. Basically respondent No. 3 is a migrant for sale of his property, at Srinagar has executed General Power of Attorney in favour of the petitioner who acted on the General Power of Attorney sought permission for alienation from the prescribed authority i.e. Divisional Commissioner, Kashmir, same has been granted vide order No. 190 DIVK of 2006 dated 26-5-2006 as was permissible under J & K Migrant Immovable Property ((Preservation, Protection and Restraint on Distress Sales) Act, 1997.
11. The said order has been challenged before the Financial Commissioner. Financial Commissioner, had stayed the order which was also challenged before this Court, same was set aside.
12. Respondent No. 3, with the Object of extracting more money than settled, has resorted to frivolous litigation. Respondent No. 3 has also filed suit for declaring the General Power of Attorney and also recall/revocation of General Power of Attorney dated 2-2-2005 to treat the agreement to sell void ab initio.
13. Application for injunction as was filed alongside, was dismissed by Court of Munsiff Jammu. Same was challenged by respondent No. 3 before the Ist. Additional District Judge, Jammu but without success. These contentions are supported by copy of the order of Munsiff dated 21-4-2006 and also copy of order dated 30-8-2007 passed by Ist. Additional District Judge, Jammu.
14. The crucial point for determination is as to whether Chief Judicial Magistrate was competent to entertain the complaint when on identical grounds earlier filed complaint was investigated and found incorrect and baseless and closure report submitted under Section 173 Cr. P.C. '
15. On the basis of the complaint dated 4-7-2006, case registered as Crime No. 121/2006 at Police Station, Janipur, has been further investigated and closure report prepared and filed subsequent complaint on 20-3-2007 on identical ground could not be filed so Chief Judicial Magistrate, Jammu was not competent to pass the order dated 26-6-2007.
16. The submission was resisted by the appearing counsel for respondent No. 3 who stated that under Section 173(8) Cr. P.C. Police has ample powers to conduct further investigation, therefore, order dated 26-6-2007 is in consonance with law.
17. Appearing counsel for the petitioner placed reliance on judgment reported in AIR 2001 SC page 2637 : 2001 Cri LJ 3329 whereas, appearing counsel for respondent No. 3 placed reliance on judgment reported in AIR 1979 SC page 1791 : 1979 Cri LJ 1346 and also judgment reported in AIR 1919 Madras page 751.
18. Thoughtfully considering the contention, it is established fact that respondent No. 3 has resorted to multiple process by filing complaint over complaint and by filing civil suit; also complaint before Accountability Commission and then appeal before Financial Commissioner.
19. It is trite that after conclusion of investigation, if the police comes across any further evidence, it has ample powers to collect the same and then to forward it to the Court. But in the instant case, it is not the question of collection of further evidence, the case has its distinct features. On the direction of Judicial Magistrate (Electricity Magistrate), Jammu, case registered as crime No. 121/06, has been thread bare investigated and closure report submitted. If respondent No. 3 is not satisfied with the said conclusion, he has every right to lodge the protest before the Court of Judicial Magistrate, which he has not done. Instead, respondent No. 3 while concealing the fact of filing multiple complaints and the conclusion thereon, has chosen to file fresh complaint on identical grounds learned Chief Judicial Magistrate, has asked the IGP Crime Branch to investigate the matter in terms of Section 156(3) Cr. P.C. Whether the same is permissible; my answer is in negative because the proper course for the complainant was to lodge the protest before the concerned Magistrate as against final report submitted under Section 173 Cr. P.C.
20. The import of sub-section 173(8) Cr. P.C. is to enable the police officer to conduct further investigation in respect of an offence after a report under sub-section 2 has been forwarded to the Magistrate. Upon such investigation incharge of the police station, if obtains further evidence oral or documentary, same has to be forwarded to the Magistrate.
21. Filing of a fresh complaint on identical grounds/allegations is not permissible under the said section. The complainant by concealing the investigation and result thereof the earlier filed complaint has chosen to file fresh complaint which the Chief Judicial Magistrate has forwarded to the IGP, Crime, for investigation, means the matter already fully investigated by the Police Station, Janipur which culminated in presenting the closure report has been ignored and investigation ordered through different agency, which is not covered by any provision of law.
22. In the judgment reported in AIR 2001 SC page 2637 : (2001 Cri LJ 3329), it has been held in para 21:
The 1973 Cr. P.C. specifically provides for further investigation after forwarding report under Sub-section (2) of Section 173 of Cr. P.C. and forwarding of further report or reports to the concerned Magistrate under Section 173(8) of Cr. P.C. It follows that if the gravamen of the charges in the two FIRs the first and the second is in substance and truth the same, registering the second FIR and making fresh investigation and forwarding report under Section 173 Cr. P.C. will be irregular and the Court cannot take cognizance of the same.
23. The first detailed complaint dated 4-7-2006 and second detailed complaint dated 24-3-2007 in substance are the two FIRs. On the basis of first FIR i.e. complaint dated 4-7-2006, detailed investigation has been conducted and concluded sidelining the same and concealing the same, fresh complaint dated 24-3-2007 termed to be 2nd FIR has been lodged on the basis of which learned Chief Judicial Magistrate, has passed order dated 26-6-2007 investigation as directed by the Chief Judicial Magistrate, vide order dated 26-6-2007, is not only In contravention to Section 173(8) Cr. P.C. but is also in contravention with Section 154 Cr. P.C. which amounts to abuse of process of law so warrants exercise of power under Section 561-A Cr. P.C.
24. In my view, I am fortified by the judgment reported in AIR 2001 SC page 2637 : 2001 Cri LJ 3329 it shall be quite relevant to quote para 27 of the said judgment.
A just balance between the fundamental rights of the citizens under Articles 19 and 21 of the Constitution and the expansive power of the police to investigate a cognizable offence has to be struck by the Court. There cannot be any controversy that Sub-section (8) of Section 173 Cr. P.C. empowers the police to make further investigation, obtain further evidence (both oral and documentary) and further report or reports to the Magistrate. In Narang's case 1979 Cri LJ 1346(supra) it was, however, observed that it would be appropriate to conduct further investigation with the permission of the Court. However, the seeping power of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident giving rise to one or more cognizable offences, consequent upon filing of successive FIRs whether before or after filing the final report under Section 173(2) Cr. P.C. it would clearly be beyond the purview of Sections 154 and 156 Cr. P.C. may, a case of abuse of the statutory power of investigation in a given case. In our view a case of fresh investigation based on the second or successive FIRs, not being a counter case, filed in connection with the same or connected cognizable offence alleged to have been committed in the course of the same transaction and in respect of which pursuant to the first FIR either investigation is underway or final report under Section 173(2) has been forwarded to the Magistrate, may be a fit case for exercise of power under Section 482 Cr. P.C. or under Article 226/227 of the Constitution.
25. The law as has been laid down in the facts and circumstances of the present case, exercise of power for quashing the proceedings on the complaint dated 24-3-2007 as well as order dated 26-7-2007 are liable to be quashed as the same in categorical terms amounts to abuse of process of law.
26. Respondent No. 3, if at all, has any grievance against the conclusion of investigation i.e. closure report submitted under Section 173 Cr. P.C. before the Court of Judicial Magistrate Jammu, (Electricity Magistrate), shall have right to lodge the protest same can be taken care of by the concerned Magistrate. To sideline the same and to file the fresh compliant is not only unwarranted but impermissible as well, hence, the proceedings initiated on the 2nd complaint dated 24-3-2007 forwarded by the Chief Judicial Magistrate, Jammu on 29-3-2007 followed by order dated 26-6-2007 Chief Judicial Magistrate are quashed.