Jammu & Kashmir High Court - Srinagar Bench
Mohd Aijaz vs Sajad Ahmad Dar & Another on 18 February, 2021
Author: Sanjay Dhar
Bench: Sanjay Dhar
IN THE HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
Reserved on: 01.02.2021
Pronounced on:18.02.2021
CRMC No.285/2017
Mohd Aijaz ...Petitioner(s)
Through: - Mr. Altaf Naik, Sr. Adv. with
Mr. Zia, Advocate
Vs.
Sajad Ahmad Dar & another ...Respondent(s)
Through: - Mr. Mubashir Adv.-for R1.
Mr. B. A. Dar, Sr. AAG, with
Ms. Saba Gulzar, Assisting
Counsel-for R2.
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE.
JUDGMENT
1) Petitioner has challenged order dated 15th of November, 2017, passed by Judicial Magistrate 1st Class, Shopian, whereby a direction has been issued to SHO, P/S Shopian, to register an FIR and investigate the matter in terms of Section 156(3) of Cr. P. C. Petitioner has filed an additional affidavit throwing challenge to FIR No.291/2017 registered with P/S Shopian for offences under Section 341, 323, 379 RPC, that has been registered pursuant to the aforesaid impugned order. MOHAMMAD ALTAF BHAT 2021.02.19 14:39 I attest to the accuracy and integrity of this document 2 CRMC No.285/2017
2) Briefly stated, the facts leading to the filing of the instant petition are that on 2nd of November, 2017, the respondent No.1 (complainant) filed an application before the Judicial Magistrate 1st Class, Shopian, alleging therein that on 30th of October, 2017, while he was travelling from Srinagar to Shopian in his personal vehicle, the vehicle of the petitioner herein, who happened to be posted as Deputy Commissioner, Shopian, at the relevant time, was proceeding behind his vehicle and because the complainant was unable to allow the vehicle of the petitioner to proceed ahead on account of traffic jam, the petitioner became furious. It was further averred in the complaint that on reaching near Mini Secretariat, Shopian, the petitioner got down from his vehicle, stopped the respondent/complainant, thrashed him and took away his five ATM cards, PAN card and identity card. On the basis of these allegations, the respondent (complainant) sought a direction for lodging of FIR against the petitioner herein.
3) Upon receipt of complaint containing the foresaid allegations, the learned Magistrate recorded the preliminary statement of the complainant and sought a report from SHO, P/S Shopian. The report was submitted MOHAMMAD ALTAF BHAT by SHO, P/S Shopian, whereby he sought further time to 2021.02.19 14:39 I attest to the accuracy and integrity of this document 3 CRMC No.285/2017 collect complete details about the matter. However, learned Magistrate, without waiting for the complete details, proceeded ahead to pass the impugned order thereby issuing a direction to SHO, P/S Shopian, to register FIR in the matter and investigate the same.
4) Petitioner has challenged the impugned order and the FIR registered pursuant thereto on the grounds that the learned Magistrate while passing the impugned order has not followed the provisions of law; that the contents of the complaint do not make out any offence against the petitioner; that no notice was issued by the Magistrate to the petitioner before passing the impugned order; that while passing the impugned order, the binding precedents of the Supreme Court and the High Court have been overlooked by the learned Magistrate.
5) I have heard learned counsel for the parties and perused the material available on record including the record of the court below.
6) The main contention that has been urged during the course of arguments by learned counsel for the petitioner is that the learned Magistrate prior to directing registration of FIR in terms of Section 156(3) of Cr. P. C has, proceeded to record preliminary statement of the MOHAMMAD ALTAF BHAT 2021.02.19 14:39 I attest to the accuracy and integrity of this document 4 CRMC No.285/2017 complainant and once the learned Magistrate has chosen to record preliminary statement of the complaint, he could not have passed a direction under Section 156(3) of Cr.P.C directing the police to register the FIR.
7) In order to test merits of this argument, it is necessary to notice the relevant provisions of the Criminal Procedure Code. The learned Magistrate has in the instant issued a direction in terms of Section 156(3) of Cr. P. C to the police to register the FIR. The said provision finds its place in Chapter XIV of the Jammu and Kashmir Code of Criminal Procedure, 1989, which was applicable at the relevant time. Section 156 of the Code reads as under:
"156. Investigation into cognizable cases.--(1) Any officer-in-charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the local limits of such station would have power to inquire into or try under the provisions of Chapter XV relating to the place of inquiry or trial.
(2) No proceeding of police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.
(3) Any Magistrate empowered under section 190 may order such an investigation as above-mentioned."MOHAMMAD ALTAF BHAT 2021.02.19 14:39 I attest to the accuracy and integrity of this document 5 CRMC No.285/2017
A perusal of the aforesaid provision reveals that there is no scope for the Magistrate to record preliminary statement of the complainant at the time of issuing a direction to the officer in charge of a police station to investigate a cognizable case. In fact, a direction under Section 156(3) Cr. P. C is issued at a pre cognizable stage. So far as recording of preliminary statement of complainant and his witnesses is concerned, the same is provided in Section 200 of the Code of Criminal Procedure, which finds placed in Chapter XVI of the said Code. Section 200 reads as under:
200. Examination of complainant.--
A Magistrate taking cognizance of an offence on complaint shall at once examine the complainant and the witnesses present, if any upon oath and the substance of the examination shall be reduced to writing and shall be signed by the complainant and the witnesses and also by the Magistrate:
Provided as follows--
(a) when the complaint is made in writing, nothing herein contained shall be deemed to require a Magistrate to examine the complainant before transferring the case under section 192;
(b) when the complaint is made in writing, nothing herein contained shall be deemed to require the examination of a complainant in any case in which the complaint has been made by a Court or by a public servant acting or purporting to act in the discharge of his official duties ;MOHAMMAD ALTAF BHAT 2021.02.19 14:39 I attest to the accuracy and integrity of this document 6 CRMC No.285/2017
(c) when the case has been transferred under section 192 and the Magistrate so transferring it has already examined the complainant, the Magistrate to whom it is so transferred shall not be bound to re-examine the complainant.
A perusal of the aforesaid provision clearly shows that when a complainant is examined by a Magistrate, it means that he has taken cognizance of an offence on complaint.
8) Thus, when a person approaches a Magistrate with a complaint containing the allegations with regard to commission of a cognizable offence, the Magistrate has two options. He may either proceed under Section 156(3) of Cr. P. C and direct the officer in charge of a police station to register the FIR and investigate the case or he may proceed to record preliminary statement of the complainant and his witnesses after taking cognizance of an offence and thereafter proceed in the manner as provided under Section 202, 203 and 204 of the Code. If the Magistrate after examining the complainant and his witnesses is not sure about the truth or falsehood of the contents of the complaint, he may proceed under Section 202 of Cr. P. C and postpone the issue of process and direct an enquiry or investigation to be made by any MOHAMMAD ALTAF BHAT Magistrate subordinate to him or by any police officer or 2021.02.19 14:39 I attest to the accuracy and integrity of this document 7 CRMC No.285/2017 by such other person. This is clear from the provision contained in Section 202 of Cr. P. C; which reads as under:
202. Postponement for issue of process.--
(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been transferred to him under section 192, may, if he thinks fit, for reasons to be recorded in writing, postpone the issue of process for compelling the attendance of the person complained against, and either inquire into the case himself, or, direct an inquiry or investigation to be made by any Magistrate subordinate to him, or by a police officer, or by such other person as he thinks fit for the purpose of ascertaining the truth or falsehood of the complaint :
Provided that, save where the complaint has been made by a Court, no such direction shall be made unless the complainant has been examined on oath under the provisions of section 200.
(2) If any inquiry or investigation under this section is made by a person not being a Magistrate or a police officer, such person shall exercise all the powers conferred by this Code on an officer-in-charge of a police station, except that he shall not have power to arrest without warrant.
(3) Any Magistrate inquiring into a case under this section may, if he thinks fit, take evidence of witnesses on oath.
9) Even while having resort to the afore quoted provision, a Magistrate has option of directing an investigation in order to ascertain the truth or falsehood of the complaint. However, the scope and nature of investigation or inquiry contemplated under this provision is not the same as contemplated in Section 156 MOHAMMAD ALTAF BHAT 2021.02.19 14:39 I attest to the accuracy and integrity of this document 8 CRMC No.285/2017 of Cr.P.C. Under Section 202 of Cr. P. C, the scope of investigation is limited to assist the Magistrate in ascertaining truth or falsehood of the contents of the complaint so that the Magistrate is in a position to make up his mind whether to pass an order of dismissal of the complaint in terms of Section 203 of Cr. P. C or to issue a process against the accused in terms of Section 204 of Cr. P. C. The investigation contemplated in Section 156 Cr. P. C involves registration of an FIR, arrest of accused, if need be, and laying of charge sheet or closure report before the Magistrate in terms of Section 173 of Cr. P. C. So the scope and area of investigation under Section 156 and 202 Cr. P. C is entirely different and distinct from each other.
10) In the instant case, the learned Magistrate while passing the impugned order has specifically made a direction for registration of an FIR and investigation of the case, which means that he has exercised jurisdiction under Section 156(3) of Cr. P. C and not under Section 202 Cr. P. C. A Magistrate, if he chooses to record preliminary statement of the complainant, proceeds under Chapter XVI of the Code, which presupposes that he has taken cognizance of the offence on the complaint.MOHAMMAD ALTAF BHAT
Once a Magistrate has chosen this course of action, it is 2021.02.19 14:39 I attest to the accuracy and integrity of this document 9 CRMC No.285/2017 not open to him to go back to the provisions contained in Chapter XIV of the Code and issue a direction for registration of FIR and investigation of the case in terms of Section 156 Cr. P. C. In my aforesaid view, I am supported by a recent judgment of a Coordinate Bench of this Court delivered in the case of Sami-ullah Naqashbandi vs. Sadaf Niyaz Shah, CRM(M) No.113/2020 decided on 31.08.2020
11) In view of the aforesaid legal position, it was not open to the learned Magistrate in the case at hand to go back to the pre-cognizance stage and exercise jurisdiction under Section 156(3) of Cr. P. C by directing registration of FIR, after having taken cognizance of the offence upon the complaint of the respondent No.1 and recording his preliminary statement.
12) Learned counsel for the respondent No.1 has urged that the direction of the learned Magistrate for investigation of the case may be treated as a direction under Section 202 Cr. P. C and not a direction under Section 156(3) of Cr. P. C. According to the learned counsel, it is only an irregularity which deserves to be cured by adopting the above course. In support of his contention, the learned counsel has relied upon the MOHAMMAD ALTAF BHAT 2021.02.19 14:39 I attest to the accuracy and integrity of this document 10 CRMC No.285/2017 judgment of the Supreme Court in the case of Jamuna Singh and Others vs Bhadai Sah, AIR 1964 SC 1541.
13) I am afraid the suggestion given by learned counsel for respondent No.1 cannot be accepted for the reason that in the instant case, the learned Magistrate, while passing the impugned order has, in no uncertain terms, stated that the direction is being issued under Section 156(3) of Cr. P. C and he has not only directed investigation of the case but he has also directed registration of an FIR which is permissible only under Section 156(3) Cr. P. C and not under Section 202 of Cr. P. C. In the case relied upon by respondent No.1, the Magistrate had asked the police to institute a case and to send a report and it is in those circumstances that the Supreme Court holding it to be an irregularity, treated the same as a direction made under Section 202 Cr. P. C. However, the situation, as already noted, is quite different in the case at hand as the directions of the learned Magistrate over here are specifically for registration of an FIR.
14) Summing up the legal position, once a complaint alleging commission of cognizable offences is laid before a Magistrate, two options are available before him. He may MOHAMMAD ALTAF BHAT 2021.02.19 14:39 either direct the officer in charge of the police station I attest to the accuracy and integrity of this document 11 CRMC No.285/2017 concerned to register the FIR and investigate the case or he may take cognizance of the offence, record the preliminary statement of the complainant and his witnesses, where after he may have resort to inquiry or investigation to ascertain truth or falsehood of the contents of the complaint so as to arrive at a decision regarding issuance of process against the accused or dismissal of the complaint but one thing is clear that when a Magistrate proceeds under Chapter XVI of the Code, by taking cognizance of the offence and recording preliminary statement of the complainant, he cannot go back to Chapter XIV of the Code and take resort to the provisions contained in Section 156 of the Code.
15) In the instant case, the learned Magistrate by issuing a direction for registration of the FIR and investigation of the case, after having taken cognizance of the offence and recording preliminary statement of the complainant and without waiting for the report of the police, which obviously was done by him in exercise of his power under Section 202 Cr. P. C, has acted without jurisdiction. The impugned order passed by the learned Magistrate is, therefore, not sustainable in law and is liable to be set aside.
MOHAMMAD ALTAF BHAT 2021.02.19 14:39 I attest to the accuracy and integrity of this document 12 CRMC No.285/2017
16) For the foregoing reasons, the petition is allowed. The impugned order and the FIR registered pursuant thereto are quashed with a direction to the learned Magistrate to proceed further in the matter in accordance with the provisions contained in Chapter XVI of the J&K Code of Criminal Procedure.
17) Trial court record along with copy of this order be sent back.
(Sanjay Dhar) Judge Srinagar 18.02.2021 "Bhat Altaf, PS"
Whether the order is speaking: Yes
Whether the order is reportable: Yes
MOHAMMAD ALTAF BHAT
2021.02.19 14:39
I attest to the accuracy and
integrity of this document