Jammu & Kashmir High Court - Srinagar Bench
Ajaz Ahmad Dobi & Anr vs State Through P/S Pulwama on 6 August, 2020
Item No.101 After Notice
List
IN THE HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
(THROUGH VIRTUAL MODE)
Ref(Crl)No.06/2020
Ajaz Ahmad Dobi & anr. ...Petitioner(s)
Through:
V/s
State through P/S Pulwama ...Respondent(s)
Through: Mr. B. A. Dar, Sr. AAG
(On voice call from his residence)
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR,
JUDGE
(JUDGMENT)
06.08.2020
1) The instant reference has been made by Learned Chief Judicial
Magistrate, Pulwama, vide his order dated 08.07.2020 passed in the case titled Ajaz Ahmad Dobi & another Vs. State through Police Station, Pulwama. According to the learned Magistrate, some serious and complicated interests of general public are involved regarding which orders and directions are required to be issued which are not within his competence. Accordingly, he has made a reference to this Court for necessary directions.
2) Before coming to the merits of the instant reference, let me give a brief background of the facts of the case.
MOHAMMAD ALTAF BHAT2020.08.11 12:32 I attest to the accuracy and integrity of this document 2 Ref(Crl) No.06/2020
3) A perusal of the record of the Court below reveals that Ajaz Ahmad Dobi and another, who were booked by Police Station, Pulwama, in FIR No.126/2020 for offences under Section 505(i)B and 153 IPC, approached the Court of Chief Judicial Magistrate, Pulwama, seeking bail in their favour. The application of the accused was declined by the learned Chief Judicial Magistrate vide his order dated 17.06.2020. The learned Magistrate, while dismissing the bail application of the accused, made the following observations:
"At the end of the day what I gathered out of material available before me and from the arguments advanced that the public at large are not feeling safe and seem to be under serious threat at the hands of the alleged accused persons, therefore, in such a situation in a case at this stage discretion is exercised in favour of accused persons, there is every apprehension that the accused persons shall definitely try to destroy the evidence and shall also try to win over the prosecution witnesses which shall destroy very fabric of the investigation. Hence application is rejected being devoid of any merit. Before parting, I am of the considered opinion the investigation in the matter has been conducted in a very casual manner, which has diluted the whole matter, hence I am constrained to convey my serious displeasure. Therefore, keeping into account observation made hereinabove and in order to shift out the matter, and also keeping in view the feeble, faulty and flimsy investigation, I am constrained to pass the MOHAMMAD ALTAF BHAT 2020.08.11 12:32 I attest to the accuracy and integrity of this document 3 Ref(Crl) No.06/2020 following directions in order to conduct effective investigation:
a) SSP Pulwama shall constitute a sit headed by a senior DYSP who shall thoroughly investigate the matter strictly in terms of the observations made herein above.
b) That it is expected newly constituted sit shall apprise this court weekly from the developments of the investigation.
c) That a copy of order shall be communicated to IG Kashmir for information.
4) It seems that a subsequent bail application was moved by the accused persons before learned Chief Judicial Magistrate, Pulwama, and the same came to be disposed of vide order dated 08.07.2020. The learned Magistrate, while declining bail to the accused, reiterated his earlier observations recorded in order dated 17.06.2020 and further made the following observations:
"I have heard Ld counsel for the accused persons and ld. APP for the state and perused the material available on the file. Beaten law on the maintainability of successive bail application is that there must be circumstantial change or new grounds available to the accused persons otherwise successive bail applications are not maintainable. In my opinion ld. Counsel for the accused persons have not succeeded in convincing me on this count. Further perusal of C/D file and other material available on the file clearly reflects that neither SIT has been constituted nor investigation has been carried out as far as above observations are concerned. At this stage ld. APP made a statement at bar that District Police is contemplating to assail the previous rejection MOHAMMAD ALTAF BHAT order dated 17.06.2020 to the extent constitution 2020.08.11 12:32 I attest to the accuracy and integrity of this document 4 Ref(Crl) No.06/2020 of SIT head by Senior DYSP and process has already begun. Attaching due weightage to the statement made by ld. APP, the SSP Pulwama, is left at liberty to avail and exercise his constitutional right, but even then it is the legal and constitutional duty of the investigating agency to effectively go ahead with the investigation, but C/D file visualises investigation in the matter is stand still and no visible improvements are witnessed. It is of course, highly surprising and astonishing as to why police does not want to conduct professional and effective investigation in the matter, despite having knowledge of the fact, that above observations have already been admitted and are also matter of record. In these circumstances I am constrained to reiterate my opinion which has already been made in the previous rejection order dated 17.06.2020.
Hence I am of the considered opinion, unless a thorough and professional investigation is conducted in the matter strictly in terms of observations made hereinabove and also in previous rejection order dated 17.06.2020, actual panorama of the matter shall not come to surface and in case at this stage discretion of bail is exercised in favour of the accused persons, it shall definitely be at the cost of general public and there is every apprehension that whole fabric of the investigation shall be destroyed. Hence both the applications are rejected.
Worth noticing is that as far as observations made hereinabove are concerned, some serious and complicated interests of general public are involved, regarding which in my opinion some orders and directions are required to be issued which is not within the competence of this Court. Hence a copy of this order is submitted to Hon‟ble High Court of Jammu and Kashmir at Srinagar with a humble request to the worthy Registrar Judicial High Court of J&K at Srinagar to list it before appropriate bench for necessary direction in public interest.
5) I have heard Ld. Sr. AAG for the State and considered the record which has been forwarded by the Ld. CJM with the order of reference.MOHAMMAD ALTAF BHAT 2020.08.11 12:32 I attest to the accuracy and integrity of this document 5 Ref(Crl) No.06/2020
6) First of all, let us understand the scope and power of a Court or Magistrate to make a reference to the High Court. Section 395 of the Code of Criminal Procedure lays down the procedure and power of a Court to make a reference to the High Court. It reads as under:
395. Reference to High Court.-- (1) Where any Court is satisfied that a case pending before it involves a question as to the validity of any Act, Ordinance or Regulation or of any provision contained in an Act, Ordinance or Regulation, the determination of which is necessary for the disposal of the case, and is of opinion that such Act, Ordinance, Regulation or provision is invalid or inoperative, but has not been so declared by the High Court to which that Court is subordinate or by the Supreme Court, the Court shall state a case setting out its opinion and the reasons therefor, and refer the same for the decision of the High Court.
Explanation.-In this section, "Regulation" means any Regulation as defined in the General Clauses Act, 1897 (10 of 1897), or in the General Clauses Act of a State.
(2) A Court of Session or a Metropolitan Magistrate may, if it or he thinks fit in any case pending before it or him to which the provisions of sub-section (1) do not apply, refer for the decision of the High Court any question of law arising in the hearing of such case.
(3) Any Court making a reference to the High Court under subsection (1) or sub-section (2) may, pending the decision of the High Court thereon, either commit the accused, to jail or release him on bail to appear when called upon.
7) From a perusal of the afore-quoted provision, it is clear that a Court can make a reference under sub-section (1) of Section 395 if it is satisfied that a case pending before it involves a question as to the validity of any Act, Ordinance, Regulation or any other provision of MOHAMMAD ALTAF BHAT 2020.08.11 12:32 law. Under sub-section (2), a Court of Session or a Magistrate can I attest to the accuracy and integrity of this document 6 Ref(Crl) No.06/2020 make a reference to the High Court if the matter does not fall under sub-section (1) but if the Court/Magistrate thinks fit in any case pending before it that the decision of the High Court on any question of law arising in the hearing of any such case is necessary
8) In the instant case, learned Magistrate, while passing the order of reference, has not formulated any question of law which is required to be decided by this Court nor has he stated anything in his order with reference to the validity of any Act, Ordinance or any provision of law. It appears that the learned Magistrate has, while passing the order of reference, expressed concern about the public importance of the issues involved in the case that was pending before him with a view to solicit directions from this Court regarding investigation of the case.
9) The Courts, including the Magisterial Courts, have been constituted to do justice in accordance with law. A Judicial Magistrate, while dealing with an application for bail or with proceedings relating to investigation of a case, has to strictly proceed in accordance with the provisions contained in the Code of Criminal Procedure. He cannot go beyond the four corners of law while passing orders in such proceedings. The crime under investigation regarding which the ld. Magistrate has decided the bail application of the accused may, in his opinion, have ramifications of general public importance but the same does not give a licence to the Magistrate to beseech the High Court to issue directions. It seems that the ld. Magistrate sensing that his direction regarding constitution of a Special Investigating Team is not MOHAMMAD ALTAF BHAT 2020.08.11 12:32 I attest to the accuracy and integrity of this document 7 Ref(Crl) No.06/2020 going to be implemented and is likely to be challenged before a higher forum, made the instant reference to circumvent the aforesaid course of action by the State. The ld. Magistrate by passing the order of reference, which does not state any question of law, perhaps wants this Court to treat it as a public interest petition. I am afraid the course adopted by the ld. Magistrate is unknown to law and without any legal sanctity. There was absolutely no occasion for the learned Magistrate to make any reference to the High Court in the facts and circumstances of the case.
10) It is needless to state that a reference should be made by a subordinate court under sub-section (2) or sub-section (1) of Section 395 of Cr. P. C only for some compelling reason in an extraordinary circumstance, and not for any fanciful or spent up purpose. In the instant case, the purpose for which the reference has been made by the ld. Magistrate is wholly irrelevant and no question for reference to this Court at all has been stated. The reference is, therefore, wholly unwarranted and deserves to be declined.
11) Upon going through the record of the Court below, it has come to the notice of this Court that vide orders 17.06.2020 and 08.07.2020, passed by learned Chief Judicial Magistrate, a direction has been issued to SSP, Pulwama, to constitute a Special Investigating Team (for short SIT) headed by a Senior Dy. SP to investigate the matter in accordance with the observations made by the learned Magistrate in his aforesaid MOHAMMAD ALTAF BHAT 2020.08.11 12:32 I attest to the accuracy and integrity of this document 8 Ref(Crl) No.06/2020 orders. The question arises as to whether such a direction is legally tenable.
12) In order to determine the above issue, we need to understand the scope of powers of investigating agency and the powers of a Magistrate to supervise the investigation. Chapter XII of the Code of Criminal Procedure deals with information to the police and their powers to investigate. The investigation of a case starts with the recording of information under Section 154 of the Code of Criminal Procedure and it culminates with the filing of a report of police before the Magistrate in terms of Section 173 of Cr. P. C. There is nothing in the Code of Criminal Procedure which confers any power or jurisdiction upon a Magistrate to supervise the investigation of a case right from the moment an FIR is registered until a final report is submitted by the police before the Magistrate. The manner in which the investigation has to be conducted is the prerogative of the police. It is only after a final report is submitted by the police before the Magistrate that the jurisdiction of the Magistrate commences. After going through the final report of the police, if the Magistrate is of the opinion that the investigation has not been conducted fairly or that any aspect of the case has been left out while investigating the case, he can direct further investigation of the case. The power and jurisdiction of the Magistrate commences only after the presentation of police report and the same is governed by the provisions contained in Chapter XIV of the Code of Criminal Procedure.
MOHAMMAD ALTAF BHAT 2020.08.11 12:32 I attest to the accuracy and integrity of this document 9 Ref(Crl) No.06/2020
13) In S. N. Sharma vs. Bipin Kumar Tiwari & Ors, (1970) 3 SCR 946, the Supreme Court was called upon to examine the scope of magisterial powers. After referring to the relevant provisions of the Code, the Court concluded that:-
"The scheme of these sections, thus, clearly is that the power of the police to investigate any cognizable offence is uncontrolled by the Magistrate, and it is only in cases where the police decide not to investigate the case that the Magistrate can intervene and either direct an investigation, or, in the alternative, himself proceed or depute a Magistrate subordinate to him to proceed to enquire into the case. The power of the police to investigate has been made independent of any control by the Magistrate"
14) In State of Bihar and another vs. J. A. C. Saldanha & Ors. reported in (1980) 2 S. C. R 16, the Supreme Court was again called upon to adjudicate upon the scope of judicial interference over investigation. The court observed as under:-
"There is a clear cut and well demarcated sphere of activity in the field of crime detection and crime punishment. Investigation of an offence is the field exclusively reserved for the executive through the police department, the superintendence over which vests in the State Government. The executive which is charged with a duty to keep vigilance over law and order situation is obliged to prevent crime and if an offence is alleged to have been committed it is its bounden duty to investigate into the offence and bring the offender to book. Once it investigates and finds an offence having been committed it is its duty to collect evidence for the purpose of proving the offence. Once that is completed and the investigating officer submits report to the Court requesting the Court to take cognizance of the offence under s. 190 of the Code its duty comes to an end. On a cognizance MOHAMMAD ALTAF BHAT 2020.08.11 12:32 of the offence being taken by the Court the police I attest to the accuracy and integrity of this document 10 Ref(Crl) No.06/2020 function of investigation come to an end subject to the provision contained in s. 173(8), there recommences the adjudicatory function of the judiciary to determine whether an offence has been committed and if so, whether by the person or persons charged with the crime by the police in its report to the Court, and to award adequate punishment according to law for the offence proved to the satisfaction of the Court. There is thus a well defined and well demarcated function in the field of crime detection and its subsequent adjudication between the police and the Magistrate."
15) From the aforesaid enunciation of the law on the subject, it is clear that investigation of an offence is the exclusive field of the police and the sphere of jurisdiction of a Magistrate commences only after a final report of investigation is place before him. In the instant case the ld. Chief Judicial Magistrate has, while the investigation was still in progress and without waiting for submission of final report, passed certain directions with regard to investigation of the case, which are premature and preemptive in nature.
16) The only provision which deals with the power of a Magistrate to direct investigation into a cognizable case at pre-cognizance stage is S. 156 of the Code of Criminal Procedure. The Section reads thus:
"156. Police officer's power to investigate cognizable case.--(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 limits of such station would have power to inquire into or try under the provisions of Chapter XIII.MOHAMMAD ALTAF BHAT 2020.08.11 12:32 I attest to the accuracy and integrity of this document 11 Ref(Crl) No.06/2020
(2) No proceeding of a 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."
17) From a perusal of the aforesaid provision, it is clear that a Magistrate empowered to take cognizance of an offence has power to order investigation of a case by the officer incharge of the concerned police station. The question that arises for consideration is whether a Magistrate in exercise of powers under S. 156(3) of Cr. P. C can order an investigation by a particular police officer (s).
18) The aforesaid question came up for discussion before the Hon'ble Supreme Court in Central Bureau of Investigation v. State of Rajasthan and another, reported as (2001) 3 SCC 333. The Hon'ble Court, while interpreting the expressions "Police Station" and "Officer Incharge of a Police Station" as contained in Section 156 of the Code of Criminal Procedure, observed as under:
"7. The two expressions" police station" and "officer in charge of a police station" have been given separate definitions in the Code. Section 2(o) of the Code defines "officer in charge of a police station" as under:
"2.(o)„Officer in charge of a police station‟ includes, when the officer in charge of the police station is absent MOHAMMAD ALTAF BHAT from the station- house or unable from 2020.08.11 12:32 I attest to the accuracy and integrity of this document 12 Ref(Crl) No.06/2020 illness or other cause to perform his duties, the police officer present at the station-house who is next in rank to such officer and is above the rank of constable or, when the State Government so directs, any other police officer so present."
8. Section 2(s) defines a "police station" as under:
"2(s) „Police station‟ means any post or place declared generally or specially by the State Government, to be a police station, and includes any local area specified by the State Government in this behalf."
9. It is clear that a place or post declared by the Government as police station, must have a police officer in charge of it and if he, for any reason, is absent in the station-house, the officer who is in next junior rank present in the police station, shall perform the function as officer in charge of that police station. The primary responsibility for conducting investigation into offences in cognizable cases vests with such police officer. Section 156(3) of the Code empowers a magistrate to direct such officer in charge of the police station to investigate any cognizable case over which such magistrate has jurisdiction.
10. In this context a reference has to be made to Section 36 of the Code which says that:
"36.Police Officers superior in rank to an officer in charge of a police station may exercise the same powers, throughout the local area to which they are appointed, as may be exercised by such officer within the limits of his station."
11. This means any other police officer, who is superior in rank to an officer in charge of a police station, can exercise the same powers of the officer in charge of a police station and when he so exercises the power he would do it in his capacity as officer in charge of the police MOHAMMAD ALTAF BHAT 2020.08.11 12:32 station. But when a magistrate orders I attest to the accuracy and integrity of this document 13 Ref(Crl) No.06/2020 investigation under Section 156(3), he can only direct an officer in charge of a police station to conduct such investigation and not a superior police officer, though such officer can exercise such powers by virtue of Section 36 of the Code. Nonetheless when such an order is passed, any police officer, superior in rank of such officer, can as well exercise the power to conduct investigation, and all such investigations would then be deemed to be the investigation conducted by the officer in charge of a police station. Section 36 of the Code is not meant to substitute the magisterial power envisaged in Section 156(3) of the Code, though it could supplement the powers of an officer in charge of a police station. It is permissible for any superior officer of police to take over the investigation from such officer in charge of the police station either suo motu or on the direction of the superior officer or even that of the Government.
(emphasis supplied)
19) From the aforesaid enunciation of law on the subject, it is clear that a Judicial Magistrate has no jurisdiction to direct investigation of a case by a particular agency or by a particular set of officers. The only jurisdiction which is vested with a Judicial Magistrate is to direct investigation of a case by the officer incharge of the police station concerned and by no other authority.
20) In the instant case, the ld. Magistrate has exceeded his jurisdiction by directing the SSP concerned to constitute a SIT headed by a Senior Dy. SP, that too at a stage when the investigation is still going on. This direction of the learned Magistrate is patently illegal and without jurisdiction but the same has not been called in question before this Court. The question arises as to whether this Court has power and jurisdiction to nullify the aforesaid direction of the learned Magistrate, MOHAMMAD ALTAF BHAT 2020.08.11 12:32 I attest to the accuracy and integrity of this document 14 Ref(Crl) No.06/2020 particularly when the same has come to the notice of this Court in the present proceedings. To seek an answer to this issue, it will be apt to refer to the provisions contained in Section 397 of Cr. P. C, which confers upon the High Court the power of revision. It reads as under:-
397. Calling for records to exercise powers of revision.--(1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself; to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling, for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement that he be released on bail or on his own bond pending the examination of the record.
Explanation.--All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of section 398. (2) The powers of revision conferred by sub-
section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.
(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them."
21) From a perusal of the aforesaid provision, it is clear that the High Court has power to examine legality or propriety of any finding or order recorded by an inferior Court after examining record of such Court. A reading of S. 397 of the Code makes it manifestly clear that if a matter somehow comes to the knowledge of the High Court while MOHAMMAD ALTAF BHAT 2020.08.11 12:32 I attest to the accuracy and integrity of this document 15 Ref(Crl) No.06/2020 examining the record of an inferior court, the High Court has the jurisdiction to test the legality or propriety of any order passed by such court. It is open to the High Court to exercise its revisional jurisdiction or power of superintendence under S. 397 of Cr. P. C in order to rectify the unjust, improper and illegal order of an inferior court. Thus if an unjust or improper order comes to the notice of the High Court suo motu or in some other proceedings, the Court can suo motu exercise the power of superintendence or revisional power vested in it under Section 397 of the Code of Criminal Procedure and remedy the wrong committed by the inferior court.
22) As already discussed hereinbefore, the direction of the ld. Chief Judicial Magistrate for constitution of Special Investigating Team is illegal and without jurisdiction. It will be unjust and improper if the said direction is allowed to stand, particularly when the same has come to the notice of this Court in these proceedings. This Court will be failing in its duty if it refuses to exercise its revisional and supervisory jurisdiction merely because the aforesaid direction of the ld. Chief Judicial Magistrate has not been called into question before this Court. Accordingly, the aforesaid order of the ld. Chief Judicial Magistrate, being legally unsustainable and without jurisdiction, deserves to be set aside by this Court by exercising its revisional jurisdiction and power of superintendence.
23) For what has been discussed hereinbefore, the reference and the recommendation made by the learned Chief Judicial Magistrate, MOHAMMAD ALTAF BHAT 2020.08.11 12:32 I attest to the accuracy and integrity of this document 16 Ref(Crl) No.06/2020 Pulwama, is declined and the direction made by him vide his orders dated 17.06.2020 and 08.07.2020, to the extent of constitution of Special Investigating Team for investigation of the subject FIR, is set aside.
24) Record of the court below along with a copy of this order be sent back.
(SANJAY DHAR) JUDGE Srinagar 06.08.2020 "Bhat Altaf, PS"
Whether the order is speaking: Yes
Whether the order is reportable: Yes
MOHAMMAD ALTAF BHAT
2020.08.11 12:32
I attest to the accuracy and
integrity of this document