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Jammu & Kashmir High Court - Srinagar Bench

Assadullah Wagay And Others vs Ut Of Jk Through Police Station on 12 May, 2026

                                                             S. No.02
                                                             SuppleCause List

 INTHE HIGH COURT 0F JAMMU & KASHMIR AND LADAKH
                   AT SRINAGAR

                        CRM(M) no. 722/2023

Assadullah Wagay and others
                                                ...Appellant(s)/Petitioner(s)
Through: Mr. Nissar Ahmad, Advocate

                                    Vs.
UT of JK through Police Station, Nowgam
                                                 ...Respondent(s)
Through: None

CORAM:
HON'BLE MR. JUSTICE SANJAY PARIHAR, JUDGE

                               ORDER

12.05.2026

1. The petitioners, by invoking the inherent jurisdiction of this Court, seek quashing of the order dated 03.04.2023 passed by the learned JMIC, Chadoora, in the case titled State versus Assadullah Wagay and Ors., whereby they have been charged for offences under Sections 447 and 186 IPC and Section 18 of the J&K State Evacuees (Administration of Property) Act, Svt. 2006, hereinafter, "the Act", to which they pleaded not guilty. The challenge to the impugned order is founded on the assertion that the predecessors-in-interest of the petitioners had been in possession of the land in question as tenants and, upon the coming into force of the J&K Big Landed Estates Abolition Act, most of the land fell within the purview of the said legislation. However, according to the petitioners, a substantial portion under Khasra Nos. 133 and 133/1 situated at village Shanker Pora never came to be treated as evacuee property and continued to remain in their possession as tenants. It is contended that the said land was never notified by the Custodian Department as evacuee property belonging to Raja Faqirullah Khan, who had migrated in the year 1947.

2. The petitioners further submit that since the aforesaid land was never declared as evacuee property, the Custodian Department had no authority CRM(M) No. 722/2023 Page 1 of 10 or jurisdiction to administer or interfere with the same. They state that in the year 2015, the Custodian Evacuee Property Department issued notices alleging that the land in possession of the petitioners had been allotted to them on lease for residential purposes for a period of forty years and that the lease period had expired. According to the petitioners, no such lease agreement was ever executed and the Department, without any lawful basis, assumed control over the land under the aforesaid survey numbers. Aggrieved thereof, the petitioners along with other similarly situated persons approached this Court through OWP No. 1885/2015 seeking quashing of the notices dated 17.09.2015. The writ petition was disposed of with a direction to the petitioners to appear before the Custodian and produce relevant documents in support of their claim, whereafter the Custodian was directed to determine their status after granting an opportunity of hearing. The petitioners allege that despite repeated appearances, the Custodian Department failed to take any decision and instead began exerting pressure upon them through police authorities with the object of interfering with their possession over the land.

3. It is further pleaded that the Custodian Department was unable to produce any notification issued under Section 6 of the J&K State Evacuees (Administration of Property) Act, Svt. 2006 declaring the land under Khasra Nos. 133 and 133/1 as evacuee property. Nevertheless, in collusion with the police authorities, the petitioners were allegedly implicated in a false criminal case on the allegation that they had encroached upon evacuee property and violated orders of the Custodian Department. In this backdrop, FIR No. 73/2021 came to be registered against them for offences under Section 447 IPC and Section 18 of the aforesaid Act. The petitioners contend that the dispute is essentially civil in nature concerning possession and title over land, but the same has been given a criminal colour by portraying them as unlawful occupants despite their longstanding possession over the property.

4. The petitioners also assail the order of framing of charges on the ground that the Trial Court failed to appreciate that offences under Section 186 IPC and Section 18 of the J&K State Evacuees (Administration of CRM(M) No. 722/2023 Page 2 of 10 Property) Act are non-cognizable offences and, therefore, the police could not have filed a chargesheet in the matter. It is pointed out that although the FIR was initially registered under Section 353 IPC, the said offence was subsequently dropped, which, according to the petitioners, clearly demonstrates that they had never obstructed any public servant in discharge of official duties. Rather, they had been regularly appearing before the Custodian Department pursuant to the directions issued by this Court in the earlier writ proceedings. The petitioners maintain that the land in question is not evacuee property and that their possession has always been permissive and protected. Reliance is also placed upon the order dated 13.09.2017 passed by this Court protecting their possession, and it is contended that without initiating proceedings in accordance with law under the relevant statute, the Custodian Department, in connivance with the police authorities, falsely implicated them in the present case.

5. Lastly, it is contended that in view of Section 23 of the J&K State Evacuees (Administration of Property) Act, Svt. 2006, no Court could have taken cognizance of an offence under Section 18 of the Act except upon a complaint made in accordance with the said provision. The petitioners argue that there was no material before the investigating agency to conclude that they had unlawfully trespassed upon evacuee land, particularly when their possession already stood protected by orders of this Court. On these grounds, the petitioners seek quashing of the FIR as well as the consequential proceedings arising therefrom.

6. Respondents, on the other hand, submit that upon receipt of a complaint from the Custodian, Evacuee Property, Srinagar, an FIR came to be registered under Sections 447 and 353 IPC and Section 18 of the J&K State Evacuees (Administration of Property) Act, Svt. 2006. During the course of investigation, the offence under Section 353 IPC was deleted and Section 186 RPC was incorporated. According to the respondents, the investigation revealed that the petitioners had illegally occupied evacuee land and had violated the directions issued by the Evacuee Department, thereby committing the aforesaid offences, pursuant where to a charge-sheet has been filed.

CRM(M) No. 722/2023 Page 3 of 10

7. It is further contended that the land in question stands vested in the Evacuee Department and that although the property comprised in Khasra Nos. 133 and 133/1 has not been formally notified by the Department, the same constitutes land left behind by evacuees. It is also stated that a portion of the evacuee land having come under railway acquisition, compensation in respect thereof has already been disbursed to the Evacuee Department. The petitioners, along with certain similarly situated tenants, had also laid claim to such compensation; however, their claims came to be rejected.

8. The respondents further maintain that the petitioners are unauthorized occupants of evacuee property, which prompted the Evacuee Department to issue directions requiring them to vacate the land in question. It is submitted that in the case of certain unauthorized occupants, possession has already been regularized by the Custodian General vide order dated 27.02.2015. However, the petitioners, despite being in unauthorized occupation, did not avail the opportunity for regularization of their possession. In that background, notices were issued to the defaulters and the field agency was directed to recover possession of the land from such unauthorized occupants. According to the respondents, the investigation has been conducted fairly and has culminated in the filing of the charge- sheet. Therefore, it is argued that the petitioners cannot invoke the inherent jurisdiction of this Court for quashing of the proceedings.

9. Learned counsel for the petitioners, relying upon 2017 (3) SCC 286 and 2025 INSC 1009, argued that insofar as the offence under Section 186 IPC is concerned, the same is triable only upon a complaint lodged by the competent public servant or the authorized officer. It was contended that Section 186 IPC deals with voluntary obstruction of a public servant in discharge of public functions and is punishable in the manner prescribed therein. In view of Section 195 CrPC, such an offence cannot ordinarily form the subject matter of a police report and prosecution can proceed only on the basis of a complaint instituted in accordance with the provisions of the CrPC.

10. It was further contended that no complaint had been lodged by the Evacuee Department and, therefore, the prosecution of the petitioners on CRM(M) No. 722/2023 Page 4 of 10 the basis of the police report is contrary to the statutory mandate. Placing reliance upon Section 23 of the J&K State Evacuees (Administration of Property) Act, Svt. 2006, learned counsel argued that the offence under Section 18 of the said Act is non-cognizable and, as such, registration of an FIR and submission of a charge-sheet could not substitute the statutory requirement of a complaint.

11. Per contra, learned counsel for the respondents argued that the allegations also disclose commission of offence under Section 447 IPC, which is cognizable in nature. It was submitted that the petitioners were unauthorized occupants of evacuee property and had failed to establish any right of regularization under the policy framed by the Custodian Department. According to the respondents, the petitioners were in illegal possession of evacuee land and, therefore, their acts clearly attracted the ingredients of Section 447 IPC. It was further contended that the petitioners had violated the orders of the Custodian Department and had also committed offences punishable under Section 18 of the J&K State Evacuees (Administration of Property) Act, Svt. 2006. In such circumstances, the offences could not be artificially segregated or split up and the Trial Court had rightly framed charges against the petitioners. It was thus argued that no case for interference under the inherent jurisdiction of this Court is made out.

12. Have heard both the counsels and seen the record of Trial Court.

13. A conjoint reading of Section 195 CrPC and Section 23 of the J&K State Evacuees (Administration of Property) Act, Svt. 2006 makes it manifest that the bar against taking cognizance is absolute unless the procedure prescribed therein is strictly complied with. In respect of an offence under Section 186 IPC, cognizance can be taken only upon a complaint in writing by the concerned public servant or by a public servant to whom he is administratively subordinate. Likewise, for an offence under Section 18 of the aforesaid Act, prosecution can be instituted only on the basis of a written complaint made by a competent public servant with the previous sanction of the Government.

14. In the present case, the record does not disclose compliance with either of the aforesaid mandatory requirements. The police, on its own, could CRM(M) No. 722/2023 Page 5 of 10 neither register nor investigate the offence under Section 18 of the Act in the manner of a cognizable offence, nor could the learned trial Court have taken cognizance in absence of a complaint envisaged under Section 23 of the Act. The same principle equally governs the offence under Section 186 IPC in view of the express embargo contained in Section 195 CrPC.

15. It is well settled that where a statute creates a special offence and simultaneously prescribes a special mode for taking cognizance, the ordinary procedure under the Code stands excluded to that extent. Any prosecution launched in derogation of such mandatory provisions is rendered legally unsustainable. Consequently, the continuation of proceedings against the petitioner for the aforesaid offences, in absence of a valid complaint by the competent authority, would amount to abuse of the process of law.

16. Admittedly, in the case at hand, the FIR came to be registered on the basis of information furnished by the Custodian, Evacuee Property, alleging that the petitioners had raised illegal construction over evacuee land situated at Shankerpora. Pursuant thereto, investigation was conducted, culminating in the registration of FIR No. 73/2021 for offences punishable under Sections 447 and 353 IPC and Section 18 of the J&K State Evacuees (Administration of Property) Act, Svt. 2006. The petitioners were arrested during investigation and were subsequently charge-sheeted.

17. At this stage, it would be apposite to notice that the term "complaint", as defined under Section 2(d) CrPC, means any allegation made orally or in writing to a Magistrate with a view to his taking action under the Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. The Explanation appended thereto further clarifies that a report made by a police officer in a case which, after investigation, discloses the commission of a non-cognizable offence, shall be deemed to be a complaint, and the police officer by whom such report is made shall be deemed to be the complainant.

18. In the present case as well, the prosecution has admittedly been launched on the basis of an FIR registered by the police, followed by investigation and presentation of a charge-sheet. No written complaint, as CRM(M) No. 722/2023 Page 6 of 10 contemplated under Section 195 CrPC, has been filed by the competent public servant before the learned Magistrate.

19. The law on the subject is no longer res integra. The Hon'ble Supreme Court in Daulat Ram v. State of Punjab, AIR 1962 SC 1206, as reaffirmed in Saloni Arora v. State (NCT of Delhi), 2017 3 SCC 286, has categorically held that prosecution for an offence under Section 186 IPC, in absence of a written complaint by the concerned public servant, is void ab initio and the court lacks jurisdiction to take cognizance on the basis of a police report.

20. It is apposite to reproduce the law laid down by the Apex Court in Daulat Ram (supra) which reads as under:

"there is an absolute bar against the court taking seisin of the case under Section 182 IPC except in the manner provided by Section 195 CrPC.
Section 182 does not require that action must always be taken if the person who moves the public servant knows or believes that action would be taken. The offence under Section 182 is complete when a person moves the public servant for action. Where a person reports to a Tehsildar to take action on averment of a certain facts, believing that the Tehsildar would take some action upon it, and the facts alleged in the report are found to be false, it is incumbent, if the prosecution is to be launched, that the complaint in writing should be made by the Tehsildar, as the public servant concerned under Section 182, and not leave it to the police to put a charge-sheet. The complaint must be in writing by the public servant concerned. The trial under Section 182 without the Tahsildar's complaint in writing is, therefore, without jurisdiction ab initio".

21. In Saloni Arora (supra) the Apex Court went on to hold "It is not in dispute that in this case, the prosecution while initiating the action against the appellant did not take recourse to the procedure prescribed under Section 195 of the Code. It is for this reason, in our considered opinion, the action taken by the prosecution against the appellant insofar as it relates to the offence under Section182 IPC is concerned, is rendered void ab initio being against the law laid down in Daulat Ram."

CRM(M) No. 722/2023 Page 7 of 10

22. In State of Punjab versus Raj Singh, AIR 1998 SC 6768, the Hon'ble Apex Court had ruled that Section 195 of the CrPC cannot be seen as prohibiting the entertainment of an investigation into the offences of the police. The bar comes into operation only when the court intends to take cognizance of the offence under Section 195 CrPC. In other wards the statutory power of the police to investigate under the CrPC is not in any way controlled or circumscribed by Section 195 CrPC.

23. In M. Narain Das versus State of Karnataka, AIR 2004 SC 555, there too it was laid down that once the investigation is completed, the embargo under Section 195 CrPC would come into play and the Court would not be competent to take cognizance. However, it was held that the Court could thereafter proceed in accordance with the provisions of the CrPC on the basis of the FIR and the material collected during investigation, by following the procedure laid down under Section 340 CrPC. Thus, the legal position which emerges is that where offences under Sections 172 to 188 IPC are alleged, cognizance cannot be taken unless there is a written complaint by the public servant concerned or by his administrative superior. In the absence of such complaint, the Court lacks competence to take cognizance of such offences, including offences relating to obstruction of a public servant in discharge of public functions.

24. It was argued by the respondents that the Custodian, Evacuee Property had lodged a complaint before the SHO, Police Station Nowgam, alleging illegal construction and unauthorized occupation of evacuee land by the petitioners and, therefore, the same constituted a "complaint" within the meaning of Section 2(d) CrPC. Though, at first blush, the argument appears attractive, yet the same does not satisfy the requirement of a "complaint" as defined under Section 2(d) CrPC. What the Custodian, Evacuee Property, had done was merely to furnish information to the police, on the basis whereof the police conducted investigation and ultimately filed a final report/charge-sheet before the Trial Court.

CRM(M) No. 722/2023 Page 8 of 10

25. The Trial Court admittedly took cognizance against the petitioners on the basis of the police report and proceeded to frame charges for offences under Sections 186 and 447 IPC as well as Section 18 of the J&K State Evacuees (Administration of Property) Act, Svt. 2006. However, so far as the offences punishable under Section 186 IPC and Section 18 of the Act are concerned, cognizance thereof could have been taken only upon a complaint in writing by the public servant concerned, whose lawful authority or order is alleged to have been violated.

26. A police report consequent upon investigation cannot be equated with a "complaint" within the meaning of Section 2(d) CrPC, for the provision itself excludes a police report from the ambit of a complaint. The statutory scheme of Section 195 CrPC clearly mandates that where offences specified therein are alleged, the competent public authority must itself set the criminal law into motion by filing a complaint before the competent Court after recording satisfaction regarding the alleged disobedience or obstruction.

27. Significantly, Section 18 of the J&K State Evacuees (Administration of Property) Act, Svt. 2006 also employs the expression "complaint" and not mere furnishing of information to the police. Thus, initiation of prosecution through a police report, in substitution of a statutory complaint by the competent authority, is impermissible in law.

28. The Trial Court, therefore, fell into error in framing charges against the petitioners for the aforesaid offences, as no complaint had been lodged before it by the authorised officer so as to warrant taking cognizance against the petitioners.

29. Admittedly, it stands established that the petitioners, and prior to them their predecessors-in-interest, had been in possession of the evacuee property for a long time. Once that position is accepted, even the independent commission of offence under Section 447 IPC was not made out. Consequently, the proceedings initiated against the petitioners for offences under Section 186 IPC and Section 18 of the J&K State Evacuees' (Administration of Property) Act, Svt. 2006, were rendered void ab initio, being contrary to the law laid down in Daulat Ram's case (supra), wherein it was held that the complaint in writing must be made CRM(M) No. 722/2023 Page 9 of 10 by the concerned public servant himself and cannot be substituted by a police report or charge-sheet. The complaint has necessarily to emanate in writing from the concerned public servant; therefore, any trial in the absence of such written complaint is without jurisdiction and void ab initio.

30. In view of the aforesaid legal position, the proceedings initiated against the petitioners are wholly untenable in the eyes of law and stand vitiated being void ab initio. Consequently, FIR No. 73/2021 along with the charge-sheet arising therefrom is quashed.

31.The petition is, accordingly, disposed of.

(SANJAY PARIHAR) JUDGE Srinagar 12.05.2026 "Imtiyaz"



                                           Whether the order is speaking?   Yes/No
                                           Whether the order is reportable? Yes/No




Imtiyaz Ul Gani     CRM(M) No. 722/2023
I attest to the accuracy and
                                                                                          Page 10 of 10
authenticity of this document

19.05.2026 11:00