The High Court (HC) Tuesday ruled that proceedings could be quashed if essential ingredients of offence were missing in the First Information Report (FIR) and the subsequent charge-sheet.
Quashing proceedings by the Special Mobile Magistrate, Passenger Tax Electricity, Srinagar against one Dr Syed Sajad Nazir, a bench of Justice Rajnesh Oswal held that the complainant's allegations that he was made to purchase the surgical equipment from the clinic of Dr Nazir did not at all constitute an offence of "cheating".
In 2013 an FIR was registered against Dr Nazir, an Assistant Professor in the Discipline of Urology in Super Specialty Hospital, Government Medical College, Srinagar at Police Station Karan Nagar under Section 420 (cheating) of erstwhile Ranbir Penal Code (RPC) following a compliant.
In his complaint, one Naseer Ahmad Dar of Wagat, Handwara had said that due to kidney problem of his mother, she was admitted at SMHS Hospital, Srinagar for undergoing treatment in 2013.
Dar alleged that before hospitalisation at SHMS, his mother was getting treatment from private clinic of Dr Nazir. It was because of huge charges which he could ill afford that he decided to get her mother treated at SMHS Hospital.
According to the compliant, the date for surgery of Dar was fixed for 2nd October 2013 and Dr Nazir "compelled" Dar to purchase the surgical equipment from the private clinic for illegitimate profits.
On this complaint, an FIR for commission of offence under Section 420 of the Ranbir Penal Code was registered against Dr Nazir in the Police Station concerned.
After the conclusion of the investigation, a challan for commission of offence under Section 420 RPC was filed against Dr Nazir and the same was sub judice before the court of Passenger Tax, Srinagar.
Lawyer Salih Pirzada, on behalf of Dr Nazir argued that bare perusal of the complaint pursuant to which FIR was lodged would reveal no offence under Section 420 (cheating) of RPC.
For prosecuting a government servant, Pirzada said, the sanction from the government was required, particularly when there were allegations that offence was committed by the public servant while discharging his official duties.
"The complainant has raised the dispute with regard to the fact that he was made to purchase the surgical equipment from the clinic of the petitioner and these allegations do not at all constitute offence of cheating," the court said. "Even if all the allegations in the complaint, FIR and chargesheet taken at the face value are true, the basic essential ingredients of cheating are missing."
The court said that even for the sake of arguments, if any offence is made out, even then the same has been committed by the petitioner during the discharge of his official duties as whatsoever incident that took place, was while the petitioner was performing his official duties.
"This is admitted fact that no formal sanction has been obtained under Section 197 CrPC for prosecuting the petitioner," the court said.