Jammu & Kashmir High Court - Srinagar Bench
Ghulam Mohi-Ud-Din Peer vs Mohammad Hamza Lone And Others on 11 October, 2018
Author: M. K. Hanjura
Bench: M. K. Hanjura
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
CRMC No. 53/2014
C/w
CRMC No. 46/2014
CRMC No. 55/2014
Date of Order: 11.10.2018
Ghulam Mohi-ud-Din Peer v. Mohammad Hamza Lone & Others
Aijaz Ahmad Parray v. Mohammad Hamza Lone & Others
Dr. Javed Akbar Wan. v. Mohammad Hamza Lone
Coram:
Hon'ble Mr Justice M. K. Hanjura, Judge
Appearance:
For petitioner(s): Mr. M. A. Qayoom, Advocate in CRMC Nos. 53/2014 & 46/2014
Mr. B. A Zargar, Advocate in CRMC No. 55/2014
For respondent(s): Mr G. A. Lone, Advocate
i/ Whether to be reported in Yes/No
Press/Media?
ii/ Whether to be reported in Yes/No
Digest/Journal?
1. The petitions detailed above raise common and akin questions of the facts and the law and have, therefore, been clubbed together for collective decision.
2. In all the petitions, the petitioners are aggrieved of the order dated 30 th of December, 2013, passed by the learned Special Mobile Magistrate (Electricity), Unit-III, Pattan, Baramulla, Jammu & Kashmir and have assailed the same on the grounds inter-alia that the deceased Azad Ahmad Lone had not died under mysterious circumstances. He had committed suicide on 23.06.2011, in broad day light, in the absence of the petitioners. When the petitioners came to know about this incident, they informed the authorities of Police Station Sopore about the same on 23.6.2011 itself, as a consequence of which an FIR bearing No. 171/2011, for the commission of an offence under Section 309 RPC was registered in the matter and the investigation of the case was entrusted to the respondent No.3, in the petition bearing No. 46/2014 filed under Section 561-A CRMC No. 53/2014 C/w CRMC Nos. 46/2014 & 55/2014 Page 1 of 24 Cr. PC. The respondent No.3 proceeded on spot, recorded the statements of the witnesses under Section 161 Cr. PC and got the postmortem of the deceased conducted at SDH Sopore. The dead body was there after handed over to the relatives of the deceased for burial. It is however, unfortunate that at the behest of certain vested interests, the respondent No.1 herein, filed an application in the Court of CJM Sopore on 09.7.2011, when the police had already registered an FIR and were investigating the case, praying therein that the police authorities of Police Station Sopore be directed to register an FIR in the case and conduct the investigation in accordance with the law. The court without calling any report from the police authorities directed the SHO P/s Sopore to register an FIR immediately and submit the report to the court on 09.07.2011 itself. The respondent No.1 filed two more applications before the Court, in which he stated that the police authorities be directed to submit the status report before the Court and that his statement under section164-A Cr. PC, be also got recorded. In both these applications, the court passed an order directing the police authorities to furnish the status report immediately and to get the statement of the respondent No.1 recorded under section 164 -A Cr. PC. The respondent No.1 thereafter filed another application before the Court of CJM Sopore, stating therein that contempt proceedings be initiated against the SHO P/s Sopore and he be directed to register a case of murder of his minor son against the accused persons. On the said application, besides passing an order dated 20.9.2011 the court passed another order on 22.11.2011 directing the Dy. SP Headquarters to hold re-investigation and to record the statement of the complainant and the other witnesses, if any, through the nearest Judicial Magistrate and submit the result of the investigation within a period of two months to the Court. The Court also directed that the matter be listed on 06.02.2012. It was in response to the order dated 22.11.2011 that SDPO Sopore vide his report dated 29.03.2012 informed the court that he has conducted the investigation of the case and has recorded the statement of one witness namely CRMC No. 53/2014 C/w CRMC Nos. 46/2014 & 55/2014 Page 2 of 24 Sameer Ahmad Khan and during fresh investigation, it has come to the lime light that the deceased was a drug addict, who had smoked heavily before the incident. On the receipt of the report dated 29.03.2012, the learned CJM Sopore did not pass any order in the case until he transferred the same to the Court of Special Mobile Magistrate(Electricity) Pattan on 15.11.2012. On the receipt of the file from the Court of CJM Sopore, the learned Special Mobile Magistrate (Electricity) Pattan requested the Court of CJM Sopore to inform him as to whether or not any challan or closure report "Ikhtitami" has been filed in the Court. To this, the Court of CJM Sopore informed him that no Challan or closure report "Ikhtitami" has been presented before him.
3. It is further stated that the police authorities registered FIR No. 171/2011 in the matter on 23.6.2011 itself. When the respondent No.1 filed an application on 09.07.2011 in the Court of C JM Sopore, with the prayer that the police authorities be directed to register an FIR against the accused persons, the Court was obliged to call a report from the police and to verify and assess the position. Instead of doing so, he directed the SHO P/s Sopore to lodge an FIR and to submit the status report. It was also directed that the statement of the complainant be recorded under section 164-A Cr. PC. It is manifest that the Court did not take cognizance of the matter, but asked the police authorities to conduct the investigation in the matter. When the respondent No.1 filed another application on 28.7.2011 before the CJM Sopore, the Court after calling for the report, passed another order on 22.11.2011, whereby Dy. SP (HQ) Baramulla was directed to conduct re-investigation in the matter and submit the result of the said re-investigation to the Court. Thus on 09.07.2011 as well as on 22.11.2011, the court of CJM Sopore did not take any cognizance of the matter, except for directing the police authorities to conduct investigation/re- investigation in the matter. The Learned CJM Sopore was informed by SDPO Sopore that he has conducted the re-investigation in the matter. He visited the scene of occurrence and recorded the statement of Sameer Ah. Khan and he CRMC No. 53/2014 C/w CRMC Nos. 46/2014 & 55/2014 Page 3 of 24 found that the deceased was a drug addict. The learned CJM Sopore did not pass any further order in the case. It was however, on 15.11.2012 that the case was transferred to the Court of Special Mobile Magistrate (Electricity) Pattan by the CJM Sopore, who proceeded to record the evidence in the matter and passed the order dated 30.12.2013 therein. The learned Special Mobile Magistrate (Electricity) Pattan had no jurisdiction to record the evidence in the case or to pass the order dated 30.12.2013 therein. He had to follow the procedure as laid down in Section 205-E Cr. P.C. He having not done so and instead he having proceeded to record the statements of the witnesses and based on surmises and conjectures, he having passed the order dated 30.12.2013, which order has caused great miscarriage of justice, the same is, therefore, liable to be set aside.
4. It is further contended that assuming for the sake of arguments that the learned Special Mobile Magistrate (Electricity) Pattan, treated the applications filed by the respondent No.1 before the Court of CJM Sopore on 09.07.2011 and 28.07.2011 as complaints, still he had no jurisdiction to record evidence in the case and pass the order dated 30.12.2013, for the offences alleged against the petitioners and others were triable by the court of Sessions Judge. It is well settled proposition of law that when a private complaint is filed before a Magistrate in relation to the offences which are triable by the Court of Sessions, the Magistrate after recording the statement of the complainant, has to commit the case to the court of Session, as is provided by Section 193 Cr. PC. He cannot proceed to record evidence in the case and pass an order, holding the accused guilty of the commission of the crime which is exclusively triable by the Court of Session. The proceedings thus initiated by the Special Mobile Magistrate (Electricity) Pattan, as also the order dated 30.12.2013 are without jurisdiction and are liable to be set aside.
5. It is also pleaded that the investigation as envisaged under Section 156 Cr. PC is different from the one provided under Section 202 Cr. PC. Investigation under section 202 Cr. PC can be conducted after taking cognizance and it has a very CRMC No. 53/2014 C/w CRMC Nos. 46/2014 & 55/2014 Page 4 of 24 limited scope. In the instant case, the learned Chief Judicial Magistrate had not taken any cognizance in the matter and rightly so, because the offences alleged to have been committed by the petitioners and others were triable exclusively by the Court of Session. The proceedings initiated by the learned Magistrate and the order passed by him on 30.12.2013 besides being contrary to law have caused miscarriage of justice, and are as such, liable to be quashed.
6. It is further asserted that the mode and manner in which the trial Court has recorded the evidence in the case and has passed the order dated 30.12.2012 is unknown to the law. Warrants were issued against SDPO Sopore, Dr. Javed Akbar Medical Officer and Gazanfar Sayed SHO P/s Kupwara, for their appearance before the learned Magistrate. He not only recorded the evidence in the case, but has also harassed the witnesses by issuing bailable warrants against them, without any jurisdiction. In that view of the matter also, the proceedings initiated by the learned magistrate and the order passed by him on 30.12.2012 being abuse of the powers of the court, are liable to be set aside.
7. It is further avowed that without prejudice to what has been stated above, the evidence recorded by the trial Magistrate during the course of enquiry allegedly conducted by him under section 200/190 Cr. PC did not implicate the petitioners in the commission of the crime. As has been stated above, the deceased had committed suicide in broad day light and the petitioners were not on the spot at the time of the occurrence. They were informed about the occurrence subsequently and without wasting any time, they got the FIR registered with which the investigation ensued. It is also stated that the petitioners are not averse to the conducting of any further investigation into the matter by any agency which the Court may deem fit and proper under the facts and circumstances of the case. They are, however aggrieved of the method in which the learned CJM Sopore conducted the proceedings of the case and after passing several orders, transferred the same to the court of Special Mobile Magistrate (Electricity) Pattan who at the back of the petitioners and, as would CRMC No. 53/2014 C/w CRMC Nos. 46/2014 & 55/2014 Page 5 of 24 appear from the reading of the order dated 30.12.2013, recorded the evidence of the witnesses in camera and passed the impugned order dated 30.12.2013, which is legally untenable, and deserves to be set aside. In the premises, it has been prayed that the petitions be allowed and the proceedings and the order dated 30.12.2013 passed by Special Mobile Magistrate (Electricity) Unit III Pattan, Baramulla, be quashed.
8. Heard and considered.
9. The Important facets concerning the lodgment of the complaints, cognizance thereof and initiation of the proceedings emanating therefrom are to be dealt with strictly in accordance with the Code of Criminal Procedure. The Code of Criminal Procedure (Cr. PC.) is the principal legislation on the procedure for the administration of the substantive criminal law in India. Anent the J&K State, the Code of Criminal Procedure was sanctioned by His Highness the Maharaja Bahadur vide Notification no.43-L/ 1989 dated 4th January 1933/26th Poh, 1989 and published in Government Gazette on 17th Kartik, 1990. It provides the mode and method for investigation of the crime, apprehension of suspected the criminals, collection of the evidence, determination of the guilt or innocence of the accused person and the determination of the punishment of the guilty. It also deals with public nuisance, prevention of the offences and maintenance of the wife, the child and the parents. The Code of Criminal Procedure contains 565 Sections.
10. Chapter XIV of the Code of Criminal Procedure relates to information to the police and their powers to investigate. Section 154 is relevant regarding registration of a cognizable offence and that provision reads as follows:
"154. Information in cognizable cases. -
(1) Every information relating to the commission of a cognizable offence if given orally to an officer-in-charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.CRMC No. 53/2014 C/w CRMC Nos. 46/2014 & 55/2014 Page 6 of 24
Provided that if the information is given by the woman against whom an offence under section 326A, section 326B, section 354, section 354A, section 354B, section 354C, section 354D, section 376, section 376A, section 376B, section 376C, section 376D, section 376E or section 509 of the Indian Penal Code is alleged to have been committed or attempted, then such information shall be recorded, by a woman police officer or any woman officer and such woman shall be provided legal assistance and also the assistance of a healthcare worker or women's organization or both:
Provided further that-
(a) in the event of such woman being temporarily or permanently mentally or physically disabled, then such information shall be recorded by a police officer, at the residence of the person seeking to report such offence or at a convenient place of such woman's choice, in the presence of a special educator or an interpreter or a medical officer, as the case may be;
(b) the recording of such information may, as far as practicable, be video-graphed;
(2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant against a proper receipt. (3) Any person aggrieved by a refusal on the part of an officer-in-charge of a police station to record the information referred to in sub-section (1) may deliver personally or cause to be delivered or send by post the substance of such information, in writing to the Superintendent of Police concerned who if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer-in-charge of the police station in relation to that offence."
11. The legal mandate enshrined in the Section 154 is that every information relating to the commission of a cognizable offence (as defined under Section 4 (1)(d) of the Code), if given orally ( in which case it is to be reduced into writing) or in writing to an officer incharge of a police station (within the meaning of Section 4 (1)(l) of the Code) and signed by the informant should be entered in a book to be kept by such officer in such form as the Government may prescribe which form is commonly called as "First Information report" and which act of entertaining the information in the said form is known as registration of a crime or a case.
12. When a Magistrate receives a complaint, which may be either oral or in writing as defined under Clause (e) of Section 4 of the Code, he has two courses open before him. He may take cognizance under Section 190(l) (a) by applying his CRMC No. 53/2014 C/w CRMC Nos. 46/2014 & 55/2014 Page 7 of 24 mind to the facts of the case and thereafter proceed in the manner provided in Sections 200 and 202 Cr. PC. By virtue of Section 200, he is required to examine the complainant and the witnesses present, if any. If the Magistrate finds that there is sufficient ground for proceeding, he may issue process under Section 204. But if the Magistrate does not feel satisfied, he may either dismiss the complaint under Section 203 Cr. PC, or postpone the issue of process and take recourse to Section 202, which provides that he may inquire into the case himself or may direct an investigation to be made by a police officer or such other person as he thinks fit, for the purpose of deciding whether or not there are sufficient grounds to proceed. If he finds the grounds to be sufficient he may issue the process or otherwise he may dismiss the complaint under Section 203 Cr. PC, after briefly recording his reasons for so doing. Germane to point out here is that it is well settled principle of rule of law that the Magistrate is not bound to issue process immediately on a complaint filed before it. The Magistrate can postpone the issue of process when he has doubts about the truth of complaint.
13. It needs must be said that since the subject matter of challenge in all these petitions is the order dated 30.12.2013 of the Ld. Special Mobile Magistrate, Pattan, therefore the same requires to be scanned and analyzed. It states that keeping in view the facts and circumstances of the case and the set of facts as proved during the course of enquiry and applying the Law, read with the provisions of RPC as quoted above it is sufficiently proved that the accused Nos. 1, 2 and 6 i.e. Feroze Ahmad Ganai, Aijaz Ahmad Parray and Sameer Ahmad Khan were last seen in the company of the deceased before the night preceding the death of the deceased., while as the other two accused namely Mushtaq Ahmed Parray, Ghulam Rasool Parray, Mohi-ud-din Parray were in know of the facts but they did not inform the occurrence to the police. So far as SI Ghulam Mohi-ud-in who conducted the investigation of the case is concerned, he left out the main evidence and did not consider it during the CRMC No. 53/2014 C/w CRMC Nos. 46/2014 & 55/2014 Page 8 of 24 investigation, such as the seizure of the chair and the furnishing on the location. The I.O did not record the statements of the material witnesses, nor the persons last seen with the deceased were put to interrogation. No post-mortem was conducted either by the I.O or the SHO or the Medical Officer. The dead body was handed over to the Sarpanch in the evening after waiting for the whole day. The Postmortem which is mandatory in homicidal cases was not conducted. No plausible explanation has been given by I.O, the SHO or the Doctor on that count. The X-ray which was conducted is not on the file. No seized items like rugs, cigarette buts, chair etc were seized as case property in the case though, these were shown to be present on the spot by the accused No.1 and 2 while as SHO has said that these were not there. The suicide theory stands belied on the mathematical calculation where the height of the deceased exceeds the height of the place where from he was claimed to have hanged himself. After noting the above, the trial court came to the conclusion which is detailed herein below verbatim et literatim:-
"Therefore the accused 1,2 and 6 were last seen in the company of deceased who died under ex-explained mysterious circumstances, and after all of them conspired to fudge the evidence, fabricate post-mortem with the aid and abetment of Medical Officer, who without going through the standard procedure, provided opinion as to cause of death, without ascertaining the same on the basis of scientific procedures. Further till date the x-ray which was conducted on the deceased is missing and nt made part of the file. SHO alleging things as I.O (ASI) while ASI assigning the orders of SHO and doctor nor providing any plausible reasoning for not conducting post-mortem are not only guilty of dereliction of duly, but also tempered with the prosecution evidence, passed on fabricated evidence posing it to be genuine to screen the offenders from the Court of law and due process of law, and in order to secure their acquittal from the prosecution connived with the accused 1 to 6 and fabricated the whole story, planted witnesses, fudged prosecution evidence and thereby managed to close the charge sheet as untraced. So far as SDPO is concerned he has not only let all this happen, but disobey the lawful command of Ld. CJM wherein he was directed to re-investigate and did not seriously investigate the matter, conducted slip shod and sham investigation, fudged the case diaries, and not only that but labeled an innocent deceased as drug addict as well. Therefore the act of the SDPO is not only criminal but contemptuous as well as he was under legal obligation to investigate and bring it to the lawful conclusions, however he did not heed to the directives of the Court and derailed the due process of law, apart from wrongfully choosing the case of clear cut homicide as suicide. Charge sheet; 299/302 RPC with CRMC No. 53/2014 C/w CRMC Nos. 46/2014 & 55/2014 Page 9 of 24 read with 120-B/201/190-91/171 RPC against the accused as refereed to above.
Therefore DIG Baramulla to arrest the above referred accused and produce them before the Hon'ble Court of Sessions in custody for further trial. The DIG NKR shall also collect the missing evidence which includes the x-ray reports, photographs, seized articles during investigation and shall also seek necessary sanction for prosecution (if required) and complete the charge sheet within statutory time and shall present the same as supplementary charge sheet before the competent Court.
Case file is committed to Court of Sessions as the offence especially 302 RPC read with Section120-B RPC and also prima facie contempt of Court is established against SDPO and Doctor concerned along with ASI and SHO concerned who have fabricated false evidence and passed it on as genuine before the Ld. CJM Sopore. Also SDPO mentioned above has further committed not only contempt of Court but has derelicted in performance of his duty cast upon him by the Ld. CJM Sopore, wherein a direction was issued to the SDPO to re-investigate, however the SDPO has done a mere formality and after recording just one witness has concluded the case as untraced and also labeled the deceased as drug addict. Since offences under Section 302/ 299/300 RPC read with 120 B RPC are exclusively triable by the Hon'ble Court of Sessions. Disposed of in these terms, Office to maintain an index which shall come for further proceedings on 24thof March 2014. Let a copy of this order be served upon DIG Baramulla Zone for information and compliance along with direction to arrest the accused and produce before the trial Court i.e. Court of Hon'ble Principal Sessions Judge, Baramulla. Prosecution to communicate arrest warrants as well as that the same are executed well in time.
Copy of this order be served to DGP J&K Police for sanctioning prosecution against the accused Inspector Gazaffar Sayed NGO, 3007 of Police Station Sopore in the year 2011, ASI Ghulam Mohi-ud-din NGO 794/S of P.S. Sopore in the year 2011, the duo is also involved in fudging of evidence in Case FIR No. 80 of 2011 of Police Station Sopore which is now being investigated by Police Station Crime Branch, Srinagar.
Copy of this order be served upon Commissioner Secretary Health for sanctioning prosecution against the Dr. Javed Akbar Wani Medical Officer SDH Sopre for furnishing report in a homicidal case without conducting post- mortem and causing dis-appearance of evidence, apart from fudging reports. Copy of this order be also served upon Commissioner Secretary Home Department for sanctioning prosecution of Dy. S.P. Mushtaq, the than SDOP Sopore for not properly investigating a case of homicide and covering up a homicide case and passing it as suicide case without proper investigation."
14. Taking the order aforesaid on the anvil of law, it will be worthwhile to refer to a judgment of law laid down by the Supreme Court of India in the case of CRMC No. 53/2014 C/w CRMC Nos. 46/2014 & 55/2014 Page 10 of 24 Vinay Tiyagi v. Irshad Ali Alias Deepak and Others, reported in (2013) 5 SCC 762 , the relevant excerpts of which read as under:
"53. The Court of competent jurisdiction is duty-bound to consider all reports, entire records and documents submitted therewith by the investigating agency as its report in terms of Section 173(2) of the Code. This rule is subject to only the following exceptions:
(a) Where a specific order has been passed by the learned Magistrate at the request of the prosecution limited to excluded any document or statement or any part thereof;
(b) Where an order is passed by the higher Courts in exercise of its extraordinary or inherent jurisdiction directing that any of the reports, i.e., primary report, supplementary report or the report submitted on "fresh investigation" or "reinvestigation" or any part of it be excluded, struck off the Court record and be treated as non est.
54. No investigation agency is empowered to conduct a "fresh", "denovo" or "reinvestigation" in relation to the offence for which it has already filed a report in terms of Section 173(2) of the Code. It is only upon the orders of the higher Courts empowered to pass such orders that aforesaid investigation can be conducted, in which event the higher Courts will have to pass a specific order with regard to the fate of the investigation already conducted and the report so filed before the Court of the learned Magistrate."
15. Looking at the instant petition from the perspective of the law laid down above, the first question that strikes ones mind in this case is whether the learned Chief Judicial Magistrate had any authority in law in directing the registration of a fresh FIR, when the case was already investigated into by the police authorities on the face of an FIR bearing No. 171/2011, registered earlier in point of time for the commission of an offence under Section 309 RPC. The learned Chief Judicial Magistrate passed an order dated 09.07.2011, on an application filed by Shri Mohammad Ramzan Lone, directing the SHO Police Station Sopore, to lodge an FIR immediately by today and report. It is not only that the 2nd FIR could not have been lodged when the matter was already being investigated into by the police authorities on the same set of facts that a human life has been wasted, which is against the dictate of law. The learned Magistrate without calling for any report from the police authorities directed them to register an FIR in a roughshod manner, which is against the canons of law laid down by the apex court of the country in the case of Mrs. Priyanka Srivastava v State of UP CRMC No. 53/2014 C/w CRMC Nos. 46/2014 & 55/2014 Page 11 of 24 reported in AIR 2015 SC 1758, the relevant extracts of which are reproduced herein below verbatim:
"Power under S. 156(3) warrants application of judicial mind. A Court of law is involved. It is not the police taking steps at the stage of S. 154 of the Code. A litigant at his own whim cannot invoke the authority of the Magistrate. A principled and really grieved citizen with clean hands must have free access to invoke the said power. It protects the citizens but when pervert litigation sakes this route to harass their fellows citizens, efforts are to be made to scuttle and curb the same. Therefore, a stage has come in this country where S. 156(3) davit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in a an appropriate case, the Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations This affidavit can make the applicant more responsible. Such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain person. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal Court as if somebody is determined to settle the scores. There has to be prior applications under S. 154(1) and 154(3) while filing a petition under S. 156(3). Both the aspect should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that the application under S. 156(3) be supported by an affidavit so that the person make in the application should be conscious and also endeavour to see that no false affidavit is make. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of Magistrate under S. 156(3). That apart, the veracity of the same can also be verified by the Magistrate, regard being had to the nature of allegations of the case."
16. Applying the ratio of the law laid down above to the facts of the instant case, had the learned Chief Judicial Magistrate cared even a fig to call for a report from the police authorities or directed the complainant to support his application by an affidavit and had he come to a conclusion by a speaking and a definite order that the registration of an FIR at the hands of the police authorities is warranted in the case that would have at least attached a semblance of fairness to his action but he has utterly failed to do so. Directing investigation in a complaint under Section 156(3) of the Code of Criminal Procedure requires the application of judicial mind and it cannot be done domineeringly as has been done in the instant case. No reasons have been spelt out while passing the order except for a mere endorsement that register an FIR immediately and submit CRMC No. 53/2014 C/w CRMC Nos. 46/2014 & 55/2014 Page 12 of 24 report to the Court today itself when the investigation of the case was in vogue in an earlier FIR. This fact was known to him at a time when he directed the re- investigation into the matter and aborted the process of investigation of the case midway that the police authorities had undertaken in the earlier FIR. The question that arises for consideration is whether re-investigation could have been directed by the learned Court during the course of the investigation of the earlier FIR when the final report was yet to be laid before the Court as is palpable from the communication of the learned Chief Judicial Magistrate, Sopore, addressed to the Sub Judge Pattan, wherein it has been stated that no final report has been laid before the Court under Section 173 Cr. PC.
17. The law is that there is no provision in the Cr. PC which empowers a Magistrate to disturb the status of an accused pending investigation or when the report is filed to wipe out the report and its effect in law. In the case of State of Haryana and others v. Ch. Bejan Lal and Others reported in AIR 1992 SC 604, the Court has considered the powers of the Police to investigate under Chapters XII and XIV and held that the Magistrate is to be kept in the picture at all stages of the police investigation, but he is not authorized to interfere with the actual investigation or to direct the police how that investigation is to be conducted. Both the actions of the learned Chief Judicial Magistrate, directing the registration of an FIR when the matter was already being investigated into by the police authorities in the FIR registered at the police station at an earlier point of time and directing the re-investigation of the case during the course of the investigation itself are illegal and cannot withstand the scrutiny of law.
18. The learned Chief Judicial Magistrate as is reiterated here transferred the case to the Special Mobile Magistrate (Electricity) Pattan, who adopted a novel procedure which is unknown to the provisions of law. He recorded the statements of the witnesses in camera and opined that the offences under Section 302 read with 120 RPC and also contempt of court are established against the SDPO , the Doctor, the ASI and the SHO Concerned, who have CRMC No. 53/2014 C/w CRMC Nos. 46/2014 & 55/2014 Page 13 of 24 fabricated the evidence and passed it as genuine before the learned Chief Judicial Magistrate. Sopore.
19. In the law laid down in the case of Shaji v. State of Kerala reported in 2003(4) RCR (Criminal) 66, where a Division Bench of the Kerala High Court took a cue from the judgment of the Hon'ble Supreme Court rendered in the case of Randhir Singh Rana as also the other judgments, relevant on the subject, it has been laid down as under:
"When a final report is filed before the Magistrate under Section 173(2), the Court may accept the report and either drop the proceedings or take cognizance of the proceeding on the basis of the report.
(1) The Court may disagree with the report. Even if the final report states that no offence has been committed, if the Magistrate feels that there are sufficient grounds for proceedings further, he can issue process and take cognizance of the offence.
(2) The Court may without accepting the report order further investigation.
Magistrate has no power to direct the police to file a final report in a particular form or report making some persons guilty. On the basis of the further investigation, police is free to make the final report; (3) By taking cognizance of the offence, adjudicatory process of the Court starts and normally investigation stage ends except under Section 173(8). Therefore, ordinarily, after taking cognizance of the offence, Court shall not suo motu order further investigation unless circumstances warrant; (4) If the complainant files a petition saying that real culprits were not included in the final report or there is lacuna in the investigation which will cause failure of justice and if the Magistrate after considering the matter comes to the prima facie conclusion that proper investigation was not conducted, he is not helpless, the Magistrate will be free order further investigation to avoid failure of justice;
(5) Section 173(8) gives power to the police to conduct further investigation with permission from the Magistrate even in a case where a cognizance of the offence has already been taken by the Magistrate. The above provision gives express power Crl. Misc. No. M-8903 of 2011 to the police for further investigation even after taking cognizance of the offence; (6) Section 173(8) puts no bar on the Magistrate to order further investigation. If the Magistrate comes to the conclusion that in the interest of justice a further investigation is necessary, he can triger the police to exercise the power under Section 173(8) as police has power to conduct further investigation under Section 173(8) even after taking cognizance of the offence. The Magistrate has got power to point out to the police to exercise their duties under Section 173(8) if on the facts of the case, it is revealed that further investigation necessary. But, such powers can be exercised sparingly only in the circumstances warrant in the interest oh justice; (8) There is not provision in the Code prohibiting or fettering the power of the Magistrate from ordering further investigation if the circumstances warrant to prevebt miscarriage of justice. It is duty of the CRMC No. 53/2014 C/w CRMC Nos. 46/2014 & 55/2014 Page 14 of 24 Court to see that ultimate truth is revealed and no innocent shall be punished and at the same time real culprits shall not escape."
20. Again in the case of Popular Muthiah v. State reported in (2006)7 SCC 296 , it has been held as under:
"We have noticed hereinbefore that the jurisdiction of the learned Magistrate in the matter of issuance of process or taking of cognizance depends upon existence of conditions precedent therefor. The Magistrate has jurisdiction in the event a final form is filed (i) to accept the final form; (ii) in the event a protest petition is filed to treat the same as a complaint petition and if a prima facie case is made out, to issue processes; (iii) to take cognizance of the offences against a person, although a final form has been filed by the police, in the event he comes to the opinion that sufficient materials exist in the case diary itself therefor; and (iv) to direct re- investigation into the matter. [See Abhinandan Jha and Others v. Dinesh Mishra , AIR 1968 SC 117, see also Minu Kumari and Anr. v. The State of Bihar and Ors".
21. On the analogy of the law laid down above, the Magistrate has the jurisdiction in the matter of the issuance of process or taking cognizance depending upon the existence of the conditions precedent therefor. He can assume jurisdiction if and when the final report is laid. He may accept it in the final form and in the event a protest petition is filed, he may treat the same as a complaint petition and if a prima facie case is made out, he can issue process or he may take cognizance of the offences against a person, although a final form has been filed by the police, in the event he is of the opinion that sufficient material exists in the case diary itself therefor; and to direct the re-investigation into the matter. It is at these stages as postulated in the aforesaid judicial dictum that a Magistrate comes into the picture in a case. However, if a police officer transgresses the limits of his circumscribed jurisdiction and exercises the powers of investigation illegally in breach of any statutory provisions causing prejudice to the personal liberty and the property of a citizen, then the Court can consider the nature and extent of the breach and pass appropriate orders as may be required. The entire exercise of the learned Judicial Magistrate, Pattan, is dehors the law.
22. Section 205-E of the Code of Criminal procedure provides at first that when in a case instituted otherwise than on a police report (hereinafter referred to as a CRMC No. 53/2014 C/w CRMC Nos. 46/2014 & 55/2014 Page 15 of 24 complaint case), it is made to appear to the Magistrate, during the course of the inquiry or trial held by him that an investigation by the police is in progress in relation to the offence which is the subject matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report in the matter from the police officer conducting the investigation. Secondly, it envisages that if a report is made by the investigating police officer under Section 173 and on such report cognizance of any offence is taken by the Magistrate against any person who is accused in the complainant/case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report. Thirdly, it enjoins that if the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial which was stayed by him in accordance with the provisions of this Code.
23. Even if it be assumed for the sake of arguments but not conceded that the learned Special Mobile Magistrate (Electricity) Pattan, treated the applications filed by the respondent No. 1 before the Court of learned Chief Judicial Magistrate, Sopore on the dates 09.07.2011 and 28.07.2011 as complaints he had to work in tune and in line with the mandate of Section 205-E Cr. PC. After passing the order dated 22.11.2011, the police authorities informed the Court that the matter is under investigation, therefore, the learned Magistrate was bound to follow the procedure as envisaged under Section 205-E Cr. PC, in the case. The learned magistrate has followed the procedure in breach and violated it with impunity and has proceeded to record the evidence in camera, which cuts at the very root of the case.
24. The legal position on this count is settled. Once a closure report is submitted to a Magistrate in terms of Section 173(2) of Cr. PC, the Magistrate has three options. First one being that Magistrate can concur with the opinion of the investigating officer and accept the report. Another option with the Magistrate is CRMC No. 53/2014 C/w CRMC Nos. 46/2014 & 55/2014 Page 16 of 24 to take cognizance on the basis of closure report if the closure report reveals the commission of an offence and the third and the last option with the Magistrate is to direct further investigation in terms of section 156(3) of Cr. PC, if he is satisfied that the investigation has not been conducted in a perfunctory manner. It is true that Magistrate cannot direct the Investigating Officer to submit a charge sheet because the investigation is purely the domain of police.
25. It is imperative to mention here that indubitably the judicial process should not be an instrument of oppression or needless harassment. The court should be circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing the process, lest it would be an instrument in the hands of private complainant as vendetta to harass the persons needlessly. It is equally well settled, as ingeminated herein above, that summoning of an accused in a criminal case is a serious matter and the order taking cognizance by the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto.
26. Time and again the scope of the jurisdiction of the High Court under Section 561-A of the J&K Code of Criminal Procedure, which is pari materia to Section 482 of the Central Code of Criminal Procedure, has been examined and several principles which govern the exercise of jurisdiction of the High Court under Section 561-A of the Code has been laid down. A three-Judge Bench of the Supreme Court in State of Karnataka v. L. Muniswamy and others 1977 (2) SCC 699, held that the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. In paragraph 07 of the judgment following has been stated:
"7....In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which CRMC No. 53/2014 C/w CRMC Nos. 46/2014 & 55/2014 Page 17 of 24 is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realization of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice, between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction."
27. The judgment of the Court in the State of Haryana and others v. Bhajan Lal and others, 1992 Supp (1) SCC 335, has elaborately considered the scope and ambit of Section 482 Cr. P.C. and Article 226 of the Constitution of India in the context of quashing the proceedings in criminal investigation. After noticing various earlier pronouncements, the Supreme Court enumerated certain categories of cases by way of illustration, where the power under Section 482 Cr. P.C. can be exercised to prevent abuse of the process of the Court or secure ends of justice. Paragraph 102, which enumerates seven categories of cases where power can be exercised under Section 482 Cr. P.C. are extracted as follows:
"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers CRMC No. 53/2014 C/w CRMC Nos. 46/2014 & 55/2014 Page 18 of 24 under 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155 (2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155 (2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where 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 the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
28. A three-Judge Bench of the Supreme Court in State of Karnataka v. M. Devenderappa and another, 2002 (3) SCC 89, had an occasion to consider the ambit of Section 482 Cr. P.C. By analysing the scope of Section 482 Cr.P.C., the Supreme Court has laid down that the authority of the Court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice the Court has power to prevent abuse. It further held that the Court would be justified to quash any proceeding if it finds that the initiation/continuance thereof amounts to the abuse of the process of the Court or quashing of these proceedings would otherwise serve the ends of justice. Following was laid down in paragraph 6:
"6......All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a CRMC No. 53/2014 C/w CRMC Nos. 46/2014 & 55/2014 Page 19 of 24 court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto."
29. Further in paragraph 8 following was stated:
"8.....Judicial process should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death. The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal (AIR 1992 SC
604)."
30. In Sunder Babu and others v. State of Tamil Nadu, 2009 (14) SCC 244, the Supreme Court was considering the challenge to the order of the Madras High Court, where an Application was under Section 482 Cr.P.C. to quash the criminal proceedings under Section 498A IPC and Section 4 of Dowry Prohibition Act, 1961. It was contended before the Supreme Court that the complaint filed was nothing but an abuse of the process of the law and the allegations were unfounded. The prosecuting agency contested the petition filed under Section 482 Cr. P.C., taking the stand that a bare perusal of the complaint discloses commission of the alleged offences and, therefore, it is not a case CRMC No. 53/2014 C/w CRMC Nos. 46/2014 & 55/2014 Page 20 of 24 which needed to be allowed. The High Court accepted the case of the prosecution and dismissed the application. The Supreme Court after referring to the judgment in Bhajan Lal's case (supra), held that the case fell within Category 07. The Supreme Court, relying on Category 07, has held that Application under Section 482 deserved to be allowed and it quashed the proceedings. Insofar as the present case is concerned, it also squarely falls within Category 07 as laid down by the Supreme Court of in Bhajan Lal's case (supra).
31. In another case in Priya Vrat Singh and others v. Shyam Ji Sahai 2008 (8) SCC 232, the Supreme Court relied on Category 07 as laid down in State of Haryana v. Bhajan Lal (supra). In the above case the Allahabad High Court had dismissed an Application filed under Section 482 Cr. P.C. to quash the proceedings under Section 494, 120-B, and 109 IPC and Section 3 and 4 of the Dowry Prohibition Act. After noticing the background facts and parameters for exercise of the power under Section 482 Cr. P.C., the Supreme Court has held that Section 482 Cr. P.C. does not confer any new power on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. The Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine, which finds expression in the section, which merely recognises and preserves inherent powers of the High Courts. All courts, whether the civil or criminal, possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to CRMC No. 53/2014 C/w CRMC Nos. 46/2014 & 55/2014 Page 21 of 24 do the right and to undo a wrong in the course of the administration of justice on the principle quando lex aliquid alicui concedit, concedere videtur id sine quo res ipsa esse non potest (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under section 482 Cr.P.C., the Court does not function as a court of appeal or revision. Inherent jurisdiction under Section 482 Cr.P.C. though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. Authority of the court exists for advancement of the justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers, the court would be justified to quash any proceeding if it finds that the initiation / continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice.
32. The powers, as noticed above, possessed by the High Court under Section 561- A of the Code, are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. [See: Janata CRMC No. 53/2014 C/w CRMC Nos. 46/2014 & 55/2014 Page 22 of 24 Dal v. H.S.Chowdhary, AIR 1993 SC 892; Raghubir Saran (Dr.) v. State of Bihar, AIR 1964 SC 1; and Minu Kumari v. State of Bihar, AIR 2006 SC 1937]
33. Inherent power, given the above discourse, given to the High Court under Section 482 Cr. P.C. is with the purpose and object of advancement of the justice. In case the solemn process of the Court is sought to be abused by a person with some oblique motive, the Court has to thwart the attempt at the very threshold. The Court cannot permit a prosecution to go on if the case falls in one of the categories as illustratively enumerated by the Supreme Court in State of Haryana v. Bhajan Lal (supra). Judicial process is a solemn proceeding, which cannot be allowed to be converted into an instrument of the operation or harassment. When there is material to indicate that a criminal proceeding is manifestly attended with mala fide and proceeding is maliciously instituted with an ulterior motive, the High Court or for that matter this Court will not hesitate in exercise of its jurisdiction under Section 561-A Cr. P.C. to quash the proceeding under Category 06 as enumerated in State of Haryana v. Bhajan Lal (supra), which is to the following effect:
"(6) Where 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 the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party."
34. Based on the holistic consideration of the facts and circumstances summarized in the foregoing paragraphs, the present case appears to be one where Category 06 of the illustrations given in the case of State of Haryana v. Bhajan Lal (supra) is clearly applicable.
35. Having regard to what has been said and done above, I think that there is a necessity to exercise jurisdiction under Section 561-A Cr. PC. Hence, the order dated 30.12.2013, passed by the Special Mobile Magistrate, Sub Judge, Pattan, is set aside. The police authorities shall conduct the investigation in case bearing FIR No. 171/2011, registered at police station. Sopore, for the CRMC No. 53/2014 C/w CRMC Nos. 46/2014 & 55/2014 Page 23 of 24 commission of an offence under Section 309 in accordance with the law and lay a report before the Court of the competent jurisdiction who shall pass appropriate orders in it in accordance with the law without getting swayed by any observation made hereinbefore by this Court.
36. Learned Registrar Judicial shall place a copy each of this order before the Hon'ble Chief Justice and the Hon'ble Portfolio Judge, looking into the affairs of District Baramulla, who may desire to initiate administrative action against the learned Special Mobile Magistrate (Electricity), Unit-III, Pattan, for having travelled into an area which was neither within his domain nor in his power.
37. The record be sent down along with copy of this order.
(M. K. Hanjura) Judge Srinagar 11.10.2018 "Manzoor"
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