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Jammu & Kashmir High Court

Abdul Latif & Ors. vs State And Anr. on 12 October, 2017

Author: Sanjay Kumar Gupta

Bench: Sanjay Kumar Gupta

                                                        1




                  HIGH COURT OF JAMMU AND KASHMIR
                                                      AT JAMMU

561-A Cr.P.C. No. 41/2010, MP No. 44/2010
                                                                        Date of decision:-12.10.2017
Abdul Latif and ors.                                 Vs.                             State and Anr.

Coram:
                           Hon'ble Mr. Justice Sanjay Kumar Gupta


Appearing counsel:
For the Petitioner/Appellant(s)      :   Mr. R.K.S. Thakur, Advocate.
For the Respondents(s)               :   None.

i/       Whether to be reported in            :                Yes/No
         Press/Media
ii/      Whether to be reported in            :                Yes/No
         Digest/Journal

1. In this petition, the petitioners seeks quashment of order dated 11th July, 2009 passed by the learned Sessions Judge, Samba, by which the petitioners have been charge-sheeted under Sections 121, 121-A, 122, and 120-B RPC and 3/25 Arms Act. The petitioners also seek quashment of Final Report/Charge Sheet bearing No. 33/2008 filed by the respondents in the Court of learned Sessions Judge, Samba.

2. The facts giving rise to the filing of the petition briefly stated are that the petitioners have been involved in FIR No. 41/2008 by Police Station, Ramgarh registered under Sections 120, 120-B, 121 RPC and 3/25 Arms Act. After registration of the aforesaid case, the respondents submitted the Charge- Sheet (Annexure-A) in the Court of learned Sessions Judge, Samba under the aforesaid Sections/offences.

3. The learned Sessions Judge, Samba vide judgment (Annexure-B) dated 11th July, 2009 has charge-sheeted the petitioners under Sections 121, 121-A, 122 and 120-B and 3/25 Arms Act. No Complaint was made by the District Magistrate, as required under Section 196 of the Cr. P.C. 561-ACr.P.C. No. 41/2010 c/w MP No. 44/2010 Page 1 of 6 2 However, alongwith Challan, a copy styled as Order No. DMS/JC/797 dated 12th August, 2008 has been placed on record, which has been issued by the District Magistrate, Samba. The District Magistrate, Samba also stated to have requested that the police charge-sheet be treated as Complaint against the alleged accused. The Challan has been prepared on 12th August, 2008 itself when the said Communication/Order has been issued by the District Magistrate, Samba. The learned Sessions Judge in the order impugned has held that there was the substantial compliance of the provision of Section 196 of the Cr. P.C. The judgment dated 11th July, 2009 passed by the learned Sessions Judge, Samba is, therefore challenged on the following grounds:-

(a) The judgment impugned is contrary to the facts of the case and law on the point. The same, therefore, deserves to be quashed.

(b) Section 196 of the Cr. P.C provides that no Court should take cognizance of any offence punishable under Sections VI and X of the RPC unless petition/complaint made by the Government or under the authority from the Government or District Magistrate or such other officers, as may be empowered by the Government in this behalf.

Admittedly, in the present case, the FIR was registered by the Police Station, Ramgarh on the basis of the Letter written by the Assistant Commandant of the B.S.F, alleging therein that the petitioners were caught with the arms and ammunition. Thereafter, the investigation was conducted and the final report/charge sheet No. 33/2008 was prepared on 18th August, 2008. The aforesaid Challan was approved for production of the Court of law by Dy. S.P. Hq., Samba and the same was presented by the respondent (Police Station, Ramgarh). Thus, no Complaint was made by the Government or District Magistrate or any other officer empowered by the Government in this behalf before the Court below. The learned Sessions Judge, Samba has wrongly taken the cognizance of the offence punishable under Section VI of the RPC. The judgment impugned deserves to be quashed on this ground alone.

(c) The learned Sessions Judge has held that though the Challan stood filed, but with the Communication of the District Magistrate, requesting to treat the Challan as Complaint, as has been enclosed and the same produced to substantial compliance of the provision of Section 196 of the Cr.P.C. the aforesaid finding of the learned Sessions Judge, Samba, therefore, had no jurisdiction to entertain the Challan and take cognizance. Therefore, the aforesaid judgment is liable to be quashed.

(d) In the judgment impugned, the learned Sessions Judge, Samba has held that the District Magistrate stood arrayed as the Complainant in the case in the column of witnesses. It is submitted that the aforesaid finding is factually incorrect. It is also submitted that in the column of witnesses, 561-ACr.P.C. No. 41/2010 c/w MP No. 44/2010 Page 2 of 6 3 the prosecution witness No. 1 has been shown as Harjinder Kumar, Dy. Commandant.

(e) A bare perusal of the Challan would show that the complainant in the aforesaid case is Sh. Harjinder Kumar, Dy. Commandant 91 Bn. B.S.F, Panthi, Samba. Thus, admittedly, there is no Complaint made by the District Magistrate, as is required under Section 196 of the Cr. P.C. The Order impugned passed by the learned Sessions Judge, Samba and the Challan, therefore, deserve to be quashed. On this ground also, the order impugned is liable to be quashed. As submitted hereinabove, the Challan has been prepared on 12th August, 2008 and the same was approved for filing in the Court of law by the Dy. S.P, Hq., Samba, which fact is apparent on the copy of the Challan itself. Thereafter, a formal Order/Communication dated 12th August, 2008 has been annexed with the Challan. The District Magistrate, Samba has requested that the Police Charge Sheet (Challan) be treated as Complaint. The aforesaid course is not permissible. The course adopted by the respondents is, therefore, contrary to the provision of Section 196 of the Cr. P.C. The judgment impugned is liable to be quashed on this ground as well.

(f) A bare perusal of the material placed on record by the police does not make out a case under Sections 121, 121-A, 122 and 120-B RPC. The charge framed by the learned Sessions Judge, Samba and the Challan submitted by the respondent No. 1 deserves to be quashed.

(g) The petitioners have also been charge-sheeted under Section 3/25 Arms Act. It is in this behalf submitted that the Court below had no jurisdiction to entertain the said Challan under Section 3/25 Arms Act. Section 39 Arms Act provides that no prosecution should be instituted against any person in respect of any offence under Section 3 without the prior sanction of the District Magistrate. Admittedly, in the present case, no prior sanction of the District Magistrate has been obtained. On this ground, the order impugned passed by the learned Sessions Judge, Samba and the Challan deserves to be quashed. It is settled principle of law that any proceedings initiated in violation of Section 39 of the Act, is violated the same are without jurisdiction.

(h) The petitioners reserves their right to make further additional and alternate submission at the time of hearing.

4. I have heard learned counsel for the petitioners at length. Learned counsel for the petitioners has stoutly argued the case on the touchstones of grounds taken in memo of petition. He has relied upon the judgments of this High Court in the cases titled, "Naziran Bibi and ors. Vs. State and ors., 2004 JKJ [HC] 609", "Munir Hussain and ors. Vs. State and ors., 2015 (2) JKJ [HC] 743" and "Sheikh Imran and another Vs. State of J&K and ors., 2013 (4) JKJ [HC] 520".

5. I have given my thoughtful consideration to whole aspects of the matter and have also gone through the law on the subject.

6. Section 196 and 196-B of Cr.P.C. read as under:-

"196. Prosecution for offences against the State No Court shall take cognizance of any offence punishable under Chapter VI or IX-A of the Ranbir Penal Code (except Sections 127 and 171-F), so far as it relates to the offence of personation or punishable under Section 108-A or Section 153-A or Section 294-A or Section 295-A or Section 505 of the Ranbir Penal Code unless upon the complaint made by order or under authority from (the Government or District Magistrate or such other Officer, as may be empowered by the Government in this behalf."

Section 196-B. Preliminary inquiry in certain cases.- In the case of any offence in respect of which the provisions of Section 196 or Section 196-A apply, a District Magistrate may, notwithstanding anything contained in those Sections or in any other part of this Code, order a preliminary investigation by a police officer not being below the rank of Inspector, in which case such police officer shall have powers referred to in Section 155, sub-Section (3)."

7. A conjoint reading of these two sections, it would reveal that no persecution can be initiated under Sections 121, 121-A, 122, and 120-B RPC except on complaint made by District Magistrate; further District Magistrate has to order for preliminary investigation by officer not below the rank of inspector.

8. From the bare perusal of the Challan produced in FIR No.41/2008, it is evident that the BSF party conducted a special operation on the intervening night on 13/14th June, 2008 in the area between BOP, Mulachak and BOP, Mular at 8.30 A.M on 14th June, 2008. The accused persons, namely, Abdul Latif alias Janisar S/o Ghulam Mohammad Magrey, Fiaz Ahmed code Waseem ul Haq S/o Abdul Salam, Mohd. Ayaz code Saraj S/o Ghulam Mohammad, residents of Banihal, District Ramban were found entering Indian Territory from Pakistan post Lakari Kaln. Upon search, four pistols (two Chinese made and two Pakistani Made), five pistol magazines, 67 rounds of pistol, which comprised of 54 561-ACr.P.C. No. 41/2010 c/w MP No. 44/2010 Page 4 of 6 5 green colored and 19 brown in color were recovered from them. Thereafter, the police lodged FIR bearing No. 41/2008 under Sections 120, 120-B, 121 RPC and 3/25 Arms Act. Accordingly, after completing the investigation, the Challan was produced before the learned Sessions Judge, Samba, who on 11th July, 2009 framed the charge against the accused persons under the aforesaid Sections. The only ground taken in the petition is that the accused persons cannot be charge-sheeted under the aforesaid Sections in view of Section 196 Cr. P.C.

9. The Court below vide order dated 11th July, 2009 has held that communication of District Magistrate dated 12th August, 2008 can be termed as Complaint in terms of Section 196 Cr.P.C. So, there is sufficient compliance of Section 196 Cr. P.C. Accordingly, the Court below has framed the charge.

10. I have gone through the aforesaid Communication of District Magistrate Samba ( Sourav Bhagat), which has been referred by the Court below in its order while framing the charge. The relevant extract of communication dated 12.8.2008 reads as under:-

"Whereas after perusal and careful consideration of the record placed on the file and evidence collected during investigation, I am convinced that offences u/s 120-B/12/.121-A / 122RPC 3/12 I.PA and 3/25 Arms Act have prima facie established against the accused as per investigation and accused deserve to be prosecuted and dealt with under law.

Whereas complaint from undersigned u/s 196 Cr.p.c is pre- requisite condition for launching prosecution against accused persons u/s 120-B/12/.121-A / 122RPC .

There in view of the above ,I Saurabh Bhagat IAS District Magistrate Samba in exercise of powers vested in me under section 196 Cr.P.C institute proceedings against the above mentioned persons for commissions of offences u/s s 120-B/12/.121-A / 122RPC in the court of law . The Hon'ble Court of competent jurisdiction is requested that police charge sheet may kindly be treated as complaint against the alleged accused so that the said accused be dealt in accordance to law for commission of said offences.

11. The aforesaid communication of District Magistrate does not amount to a complaint, as provided under Section 196 Cr.P.C, because the FIR was already lodged prior to issuance of this Communication and investigation was also stands completed. As per law, it is the Complaint, which has to be filed by the District Magistrate initially before launching of investigation. The Complaint has been defined under Section 4 (e) of the Code of Criminal Procedure (Cr.P.C.), Svt. 1989, which reads as under:-

"Complaint:- Complaint means the allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but it does not include the report of the police officer."

12. Thus, the aforesaid communication attached with the Challan does not fulfill the requirement of complaint. I have gone through the citations produced by counsel for petitioners; these all laws are applicable in present set of case. Because in all these laws it has been held that, it is on District Magistrate complaint, the prosecution is to be launched for taking cognizance for offences u/s 120-B/121/121-A/122 RPC.

13. Accordingly, the aforesaid order, i.e., the order dated 11 th July, 2009 for framing of charge u/s 120-B/121/121-A/122RPC is hereby quashed. So for rest of charges u/s 3/25 is concerned, there is a sanction for prosecution by District Magistrate, it is upheld accordingly.

14. Record be sent back immediately alongwith this order for further proceedings.

( Sanjay Kumar Gupta ) Judge Jammu, 12.10.2017 Ram Krishan 561-ACr.P.C. No. 41/2010 c/w MP No. 44/2010 Page 6 of 6