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IN THE HIGH COURT OF JAMMU AND KASHMIR
Reserved on: 13.06.2021
Pronounced on: 15.07.2021
CrlM No.419/2019 IA No.1/2018
Ghulam Qadir Bhat and others …PETITIONER(S)
Through: Mr. F.A.Wani, Advocate
State of JK and another ….RESPONDENT(S)
Through: Mr. Mir Suhail, AAG for R-1
Mr. Mir Majid Bashir, Advocate for R-2
CORAM:HON’BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
1) The petitioners, four in number i.e. father and his three sons,
have jointly filed this petition under Section 561-A Cr.P.C. seeking
ground that while the learned Judicial Magistrate 1 st Class (Sub-
Judge), Pattan [“the Trial Magistrate”] had taken cognizance and was
seized of the complaint filed by respondent No.2, the police of Police
Station, Magam was not competent to register an FIR on the same
facts and set in motion the investigation.
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2) With a view to appreciating the grounds taken by the petitioners
to challenge the registration of impugned FIR, it is necessary to first
set out material facts:-
Respondent No.2 is brother of Mst. Asifa Rasool, who
conducted nikah ceremony with petitioner No.2, Ghulam Rasool Bhat
on 29.12.2016. Soon after the nikah ceremony and before the ruksati
of Mst. Asifa Rasool, a dispute arose between the parties to marriage.
It is allegation of respondent No.2 that the petitioners had concealed
the factum of petitioner No.2 already having a wife and a subsisting
marriage with her. As is usual, during nikah ceremony some cash
amount and gold ornaments by way of mehar were handed over to
Mst. Asifa Rasool. As is claimed, an effort was made to amicably
resolve the dispute. It is the allegation of respondent No.2 that the
petitioners called him along with Mehar items at their residence at
Archanderhama on 26.012.2017 at 7.30 p.m where the petitioners by
deceitful means made respondent NO.2 to deliver gold items, clothing
and cash etc, which, as per the complainant, were retained by the
petitioners with an intention to misappropriate the same.
Be that as it may, it is in this background of allegations,
respondent No.2 filed a complaint before the Trial Magistrate on
28.12.2017 for taking appropriate action against the petitioners herein.
The Trial Magistrate after recording the statement of respondent No.2
and one of his witnesses, namely, Abdul Khaliq Dar, deferred the
issuance of process and directed SDPO Magam for conducting inquiry
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ascertain the truth and falsehood of the allegations made in the
complaint. This was done by the Trial Magistrate vide its order dated
28.12.2017. While the matter was before the SDPO, Magam for
conducting investigation in the matter, it transpires that on
08.01.2018, respondent No.2 launched parallel proceedings and filed a
written complaint on same allegations before the Incharge Police
Station, Magam seeking registration of FIR against the petitioners.
Interestingly, while the Trial Magistrate was seized of the matter and
awaiting inquiry report in terms of Section 202 Cr.P.C. from the
SDPO, Magam, Police Station Magam registered FIR No.06/2018
under Sections 406, 420, 120-B and 506(ii) RPC and set the
investigation in motion. It is this FIR the petitioners are aggrieved of
and have challenged the same, inter alia, on the grounds noticed
3) On being put on notice, S.H.O. Police Station, Magam has filed
his status report. In the status report he has not dealt with the specific
contention of the petitioners that the Trial Magistrate, Pattan was
already seized of the complaint containing same allegations, as have
been made the basis of registration of the impugned FIR. He,
however, has tried to explain the circumstances under which the
impugned FIR came to be registered in the Police Station, Magam.
Respondent No.2 has also filed his objections and has claimed that,
though, he had filed a criminal complaint before the Trial Magistrate
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but since the offences committed by the petitioners were cognizable,
as such, he moved a written application before the S.H.O., Police
Station, Magam on 08.01.2018 for registration of FIR under Section
154 Cr.P.C. After the FIR was registered, he withdrew the complaint,
which was pending consideration of the learned Trial Magistrate.
4) Having heard learned counsel for the parties and perused the
record, I am of the view that registration of impugned FIR on
08.01.2018 by the police of Police Station, Magam was not only an
act of grave impropriety but was also impermissible in law.
Respondent No.2 was not entitled to launch two proceedings
simultaneously, one by way of a complaint before the Trial Magistrate
and the other by lodging an FIR with the Police Station, Magam.
5) It is not disputed that the complaint and the FIR both were
made on the basis of the same allegations. It is not correct to say that
in the complaint filed by respondent No.2 before the Trial Magistrate,
cognizance of the offence had not been taken by the Trial Magistrate.
As is evident from order dated 28.12.2017, the Trial Magistrate had
not only entertained the complaint but had also recorded the
preliminary statement of the complainant and his witness Abdul
Khaliq Dar. The Trial Magistrate, however, decided to defer issuance
of process and get the truth and falsehood of the allegations made in
the complaint ascertained through an inquiry to be conducted by the
SDPO, Magam in terms of Section 202 Cr.P.C.
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6) The police instead of conducting inquiry in terms of Section
202 Cr.P.C. in compliance of the order of the Trial Magistrate dated
28.12.2017, received a written application containing the same
allegations from respondent No.2 and registered an FIR on
08.01.2018. Respondent No.2, who is stated to be an Advocate played
his skills and it was only after he succeeded in registering an FIR
against the petitioner, he withdrew the complaint. It is evident from
the response filed by respondent No.2 to oppose the instant petition.
Respondent No.2 has, however, not placed on record the order,
whereby he was permitted by the Trial Magistrate to withdraw his
7) Be that as it may, the manner in which respondent No.2 has
acted in the matter leaves one without any doubt that the FIR was
lodged against the petitioners maliciously. Otherwise also, looking to
the allegations made in the complaint as well as FIR, offences alleged
in the complaint are not strictly made out. The dispute with regard to
the return of Mehar and other valuables given to the petitioners at the
time of Nikah ceremony, at the most can be a civil dispute, which can
be resolved either by private negotiations or by having resort to civil
8) The disputes, which are purely civil in nature, cannot be
permitted to be resolved by abusing the process of Criminal Courts.
Legal position in this regard is well settled. The offence of criminal
breach of trust punishable under Section 406 RPC or offence of
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cheating punishable under Section 420 are the offences, which are
mutually exclusive. If it is a case of breach of trust under Section 406
RPC, it cannot also constitute offence under Section 420 RPC and it is
true vice versa.
9) For commission of offence under Section 406 RPC, there must
be entrustment of property to the accused in the first place. The
accused after being entrusted with such property dishonestly
misappropriates or converts to his own use that property or
dishonestly uses or disposes of that property in violation of any
direction of law prescribing the mode in which such trust is to be
discharged etc etc. So far as offence punishable under Section 420 is
concerned, the offence is complete when accused cheats and thereby
dishonestly induces a person deceived to deliver any property to any
person or to make alteration or destroy the whole or any part of a
antithesis of each other. Obviously, entrustment and deceiving cannot
go together. It is, thus, trite law that a person cannot be charged with
the offence of cheating and criminal breach of trust simultaneously for
the same transaction because for the offence of cheating, it is a
prerequisite that dishonest intention must exist at the inception of any
transaction, whereas in a case of breach of trust, there must exist a
relationship between the parties whereby one party entrusts another
with property. Therefore, for commission of criminal breach of trust,
the dishonest intention comes later i.e. after obtaining dominion over
7 CRMC No.11/2018
property by the accused person, whereas for commission of cheating,
dishonest intention is present at the inception of transaction.
10) Having regard to the nature of offence of cheating and
misappropriation, same set of facts/allegations cannot make an
offence of cheating and misappropriation simultaneously. The whole
edifice of the FIR is built on a premise, which is legal impermissible.
11) The registration of the impugned FIR on the basis of
allegations, which were part of the complaint taken cognizance of by
the Trial Magistrate, which at the time of registration of impugned
FIR, was pending, was legally impermissible and an act of grave
impropriety by the police. Subsequent withdrawal of the complaint, if
any, made by respondent No.2 is of no consequence and would not
lend any legitimacy to the illegal registration of the impugned FIR.
12) For the foregoing reasons, I am inclined to accept this petition
and by exercise of inherent powers vested in this Court by Section
561-A Cr.P.C. quash the impugned FIR.
Whether the order is speaking: Yes
Whether the order is reportable: Yes
I attest to the accuracy and
integrity of this document