Jammu & Kashmir High Court - Srinagar Bench
Aijaz Ahmad Jahra & Others vs Ut Of J&K & Another on 9 May, 2022
Author: Sanjay Dhar
Bench: Sanjay Dhar
IN THE HIGH COURT OF JAMMU & KASHMIR AND
LADAKH AT SRINAGAR
Reserved on: 27.04.2022
Pronounced on: 09.05.2022
CRM(M) No.305/2021
CrlM No.1086/2021
AIJAZ AHMAD JAHRA & OTHERS ...PETITIONER(S)
Through: - Mr. Altaf Mehraj, Advocate
Vs.
UT OF J&K & ANOTHER ...RESPONDENT(S)
Through: - Mr. Satinder Singh Kala., AAG-for R1.
Mr. S. R. Hussain, Advocate-for R2.
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE.
JUDGMENT
1) The petitioners have challenged order dated 21.09.2021, passed by Judicial Magistrate 1st Class(Sub Judge), Chadoora, in a complaint filed by respondent No.2 against them. Vide the aforesaid order, the learned Magistrate has, while exercising his power under Section 156(3) of the Cr. P. C, directed registration of FIR and investigation of the case. Challenge has also been thrown to FIR No.162/2021 for offences under Section 376, 354, 109, 120-B IPC registered by Police Station, Chadoora, 2 CRM(M) No.305/2021 CrlM No.1086/2021 pursuant to the impugned direction of the learned Magistrate.
2) It appears that respondent No.2 had filed a complaint before the trial court alleging commission of offences under Section 376, 354, 109, 120-B IPC against petitioners. In the complaint it was alleged that the petitioner No.2, who happens to be the mother-in-law of respondent No.2, has committed acts of domestic violence upon her. It was further alleged that on 17.06.2021, when the husband of respondent No.2/complainant was not present in the house, at around 10.30 pm, petitioner No.1 offered a glass of milk to respondent No.2/complainant and when she took the milk, she became unconscious. It was further alleged that at around 2/3 a.m, when respondent No.2 regained her senses, she found herself naked on a bed along with petitioner No.1, who thereafter ran away from there. Respondent No.2/complainant went on to allege that she was in a state of inebriation and again became unconscious and woke up in the morning. It is further alleged that the respondent No.2/complainant, after a period of three days, upon insistence of her husband, narrated the episode to her husband and later to the uncle of her husband. The matter was brought to the notice of the family elders but nothing fruitful came 3 CRM(M) No.305/2021 CrlM No.1086/2021 out. Respondent No.2/complainant is also alleged to have approached SSP, Budgam, who marked her complaint to Dy. SP, Cherar-i-Sharief, wherefrom she was referred to SHO, P/S Chadoora, but no heed was paid to her woes and no FIR was lodged. It was further alleged that the petitioners had admitted their guilt before the Panchayat members and that petitioner No.1 had even tendered an apology.
3) The record reveals that on 14.08.2021, the learned Magistrate recorded the preliminary statement of the complainant and one witness on oath, whereafter the learned Magistrate directed SHO, P/S Chadoora, to investigate the matter in the light of the averments made in the complaint, in terms of Section 202 of the Cr. P. C for ascertaining the truth or falsehood of the allegations made in the complaint. Thereafter on 21.09.2021, the learned Magistrate, upon receipt of the report from the SHO, P/S Chadoora, passed another order observing that after going through the averments made in the complaint and the statements of the witnesses recorded and also the supporting documents and the phone recording, she has come to a conclusion that a proper FIR needs to be registered against the accused persons. Accordingly, the impugned order came to be passed by the learned 4 CRM(M) No.305/2021 CrlM No.1086/2021 Magistrate. It appears that pursuant to the aforesaid order, the police registered the impugned FIR.
4) The petitioners have challenged the impugned order and the FIR registered pursuant thereto on the grounds that the order impugned passed by the learned Magistrate is contrary to law, inasmuch as once the learned Magistrate had chosen to take cognizance of the offences and directed investigation in terms of Section 202 of the Cr. P. C, it was not open to her to pass a direction under Section 156(3) of the Cr. P. C to the police to register an FIR. It is further contended that the proceedings initiated by respondent No.2 are aimed at divesting petitioner No.2 and her husband of the immovable property owned and possessed by them. It is contended that in this regard respondent No.2 had filed a complaint under Section 23 of Protection of Women from Domestic Violence Act against petitioner No.2 and her husband seeking reliefs with respect to providing of residence. It is further contended that the impugned FIR registered by the police against the petitioner is an abuse of process of law and that the same deserves to be quashed. The petitioners have also contended that the learned Magistrate could not have even directed investigation in the matter in terms of Section 202 5 CRM(M) No.305/2021 CrlM No.1086/2021 of the Cr. P. C as the offences alleged in the impugned complaint are exclusively triable by the Court of Session.
5) Respondent No.2 has contested the petition by filing a reply thereto. In her reply, the respondent No.2 has submitted that the power of a Magistrate to direct registration of FIR under Section 156(3) of the Cr. P. C is not curtailed by the fact that the Magistrate has taken cognizance of the offences. In this regard, reliance has been placed upon the judgment of the Supreme Court in the case of Vinubhai Haribhai Malaviya and Ors. Vs. State of Gujarat and another, (2019) 17 SCC 1. It has been further contended that the offences disclosed against the petitioners are of very serious nature and technicalities should not come in the way of punishing the persons who are guilty of such heinous offences.
6) I have heard learned counsel for the parties and perused the material on record including the record of the trial court.
7) Certain facts which are borne out from the record and are not in dispute are required to be noticed. Respondent No.2 filed a complaint before the learned trial Magistrate on 14.08.2021 alleging commission of offences under Sections 376, 109, 120-B, 354 IPC. The record 6 CRM(M) No.305/2021 CrlM No.1086/2021 shows that on 14.08.2021 itself, the preliminary statement of respondent No.2 was recorded by the learned Magistrate. The preliminary statement of one more witness, namely, Ghulam Ahmad Thekrey was also recorded on the same date, whereafter the learned Magistrate vide order dated 14.08.2021, observed that the matter needs to be investigated in terms of Section 202 of the Cr. P. C and a direction was extended to SHO, P/S Chadoora, to undertake the investigation/enquiry. It is borne out from the record that upon receipt of report of SHO, P/S Chadoora, the trial Magistrate passed the impugned order directing registration of FIR against the accused persons.
8) 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 evidence of the complainant and once the learned Magistrate has chosen to record preliminary evidence of the complaint, he could not pass a direction under Section 156(3) of Cr.P.C against the police to register the FIR.
9) In order to test merits of this argument, it is necessary to notice the relevant provisions of the Criminal 7 CRM(M) No.305/2021 CrlM No.1086/2021 Procedure Code. The learned Magistrate has in the instant case 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 XII of the Code of Criminal Procedure, 1973. Section 156 of the Code reads as under:
"156. Police officer's power to investigate cognizable case.--(1) Any officer incharge 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 XIII.
(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."
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, 8 CRM(M) No.305/2021 CrlM No.1086/2021 which finds place in Chapter XVI of the Code. Section 200 reads as under:
200. Examination of complainant.--
A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:
Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses--
(a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or
(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192:
Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.
A perusal of the aforesaid provision clearly shows that when a complainant and his witnesses are examined by a Magistrate, it means that he has taken cognizance of an offence on complaint.
10) 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.9 CRM(M) No.305/2021 CrlM No.1086/2021
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 Sections 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 Magistrate subordinate to him or by any police officer or by such other person. This is clear from the provision contained in Section 202 of Cr. P. C; which reads as under:
202. Postponement of 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 made over to him under section 192, may, if he thinks fit, and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding:
Provided that no such direction for investigation shall be made,--
(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or 10 CRM(M) No.305/2021 CrlM No.1086/2021
(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200.
(2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath:
Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath. (3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant.
11) 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 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 11 CRM(M) No.305/2021 CrlM No.1086/2021 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.
12) In the instant case, the learned Magistrate while passing the impugned order has specifically made a direction for registration of an FIR, which means that she has exercised jurisdiction under Section 156(3) of Cr. P. C. If a Magistrate, if he chooses to record preliminary statement of the complainant and his witnesses, proceeds under Chapter XV of the Code, which presupposes that he has taken cognizance of the offence on the complaint. Once a Magistrate has chosen this course of action, it is not open to him to go back to the provisions contained in Chapter XII of the Code and issue a direction for registration of FIR in terms of Section 156 Cr. P. C.
13) Learned counsel for the respondent No.2, while placing reliance upon the judgment of the Supreme Court in Vinubhai Haribhai Malaviya's case (supra), vehemently contended that the power of a Magistrate to direct investigation under Section 156 of the Cr. P. C is available even at post cognizance stage until the trial commences i.e., when charges are framed. It has been 12 CRM(M) No.305/2021 CrlM No.1086/2021 further contended that in view of the ratio laid down by the Supreme Court in the aforesaid case, the statement of law that power under Section 156(3) of the Cr. P. C cannot be exercised at post-cognizance stage cannot be relied upon.
14) At the first blush, the argument of learned counsel for respondent No.2 appears to be attractive but when the said argument is closely analyzed in the light of the facts of the instant case, it becomes clear that the ratio laid down by the Supreme Court in Vinubhai Haribhai Malaviya's case (supra) cannot be applied to facts of the instant case. In Vinubhai Haribhai Malaviya's case (supra), the Supreme Court was dealing with a situation where the charge sheet had been laid before the Magistrate and one of the accused had filed an application for further investigation under Section 173(8) of the Cr. P. C and the said application was rejected by the learned Magistrate. It was not a case initiated on a complaint but it was a case filed on the basis of the police report laid before the Magistrate under Section 173 of the Code of Criminal Procedure.
15) There is a distinction between a complaint and the police report. As is clear from the definition of the 'complaint' as contained in Section 2(d) of the Cr. P. C, it 13 CRM(M) No.305/2021 CrlM No.1086/2021 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. The definition of complaint given in the Code specifically excludes a police report. Different procedures have been prescribed for inquiry and trial of cases lodged on the basis of a police report and those lodged on the basis of a private complaint. The process for taking action on the basis of a police report starts with the registration of an FIR under Section 154 of the Code and culminates with the filing of final report under Section 173 of the Cr. P. C, whereas procedure for initiating proceedings on a complaint is provided in Chapter XV of the Cr. P. C (Section 200 to 203).
16) The statement of law laid down by the Supreme Court in Vinubhai Haribhai Malaviya's case (supra), is based upon interpretation of the provisions contained in Section 156(3) read with the provisions contained in Section 173(8) of the Cr. P. C. This is clear from para 43 of the aforesaid judgment wherein the Court has clearly observed that it has grounded the power of the Magistrate to order further investigation until charges are framed under Section 156(3) read with Section 173(8) of the Cr. P. C, meaning thereby that the statement of law laid down in the said 14 CRM(M) No.305/2021 CrlM No.1086/2021 judgment owes its origin to interplay of the aforesaid two provisions of the Code.
17) So far as the instant case is concerned, the proceedings have been initiated on the basis of a private complaint on which cognizance of offences has been taken by the learned Magistrate. So, the provisions contained in Section 173(8) of the Cr. P. C are not applicable to the case at hand. Once that is so, the statement of law laid down by the Supreme Court in the aforesaid case by reading the provisions contained in Section 156(3) of the Cr. P. C in conjunction with the provisions contained in Section 173(8) of the Cr. P. C cannot be made applicable to the instant case.
18) We have to examine the legality and validity of the impugned order passed by the learned Magistrate in the light of the provisions contained in Section 156(3) and the provisions contained in Chapter XV of the Cr. P. C without falling back on the provisions contained in Section 173(8) of the Cr. P. C. When we do so, there is no scope for holding that the learned Magistrate, after taking cognizance of the offences, had any jurisdiction to direct registration of the FIR by going back to the pre-cognizance stage. A Magistrate, on a complaint regarding commission of a 15 CRM(M) No.305/2021 CrlM No.1086/2021 cognizable offence, is vested with power to direct investigation into the offences by taking resort to Section 156(3) of the Cr. P. C but if he takes cognizance of the offences under Section 190(a) of the Cr. P. C and embarks upon a procedure embodied in Chapter XV of the Code, he is not competent to switch back to the pre-cognizance stage and avail of Section 156(3) of the Cr. P. C. I am supported in my aforesaid view by the judgments of this Court in Sami-ullah Naqashbandi vs. Sadaf Niyaz Shah, CRM(M) No.113/2020 decided on 31.08.2020 and Mohd Aijaz vs. Sajad Ahmad Dar & another (CRMC No.285/2017) decided on 18.02.2021.
19) In view of the aforesaid legal position, it was not open to the learned Magistrate to go back to the pre-cognizance stage and exercise jurisdiction under Section 156(3) of the Cr. P. C by directing registration of FIR after having taken cognizance of the offence upon the complaint of respondent No.2. By doing so, the learned Magistrate has committed a grave illegality.
20) Yet another illegality which has been committed by the learned Magistrate while passing the order of taking cognizance on 21.09.2021 is that she has directed SHO concerned to conduct an enquiry/investigation under 16 CRM(M) No.305/2021 CrlM No.1086/2021 Section 202 of the Cr. P. C. The offences disclosed in the complaint are triable by the Sessions Court and, as such, the learned Magistrate had no jurisdiction to pass a direction for investigation in terms of Section 202 of the Code. Proviso to sub-section (1) of Section 202 of the Cr. P. C clearly lays down that no direction for investigation can be made by the Magistrate if it appears to him that the offence complained of is triable exclusively by the Court of Session. So, even the report of the investigation submitted by the SHO cannot be looked into by the Magistrate because the same is based upon an illegal order.
21) It has been contended by learned counsel for the respondents that there has been substantial progress in the investigation of the case pursuant to the registration of the impugned FIR and offences have been disclosed against the petitioners and, as such, if merely on the basis of technicalities the proceedings are quashed, a heinous crime would go unpunished.
22) It is true that the allegations made in the complaint against the petitioners are of very serious nature but then if an illegality committed by the learned Magistrate is allowed to perpetuate, it may ultimately affect the final outcome of the case as these illegalities go to the very 17 CRM(M) No.305/2021 CrlM No.1086/2021 root of the case. Therefore, this Court has to work a way out so that alleged crime does not go un-investigated and unpunished but at the same time the illegalities committed by the trial Magistrate have not to be perpetuated, lest the same may result in failure of justice.
23) The only course open in the aforesaid situation is that the Magistrate should be permitted to enquire into the case himself/herself in terms of Section 202 of the Cr. P. C. Proviso to sub-section (2) of Section 202 of the Cr. P. C lays down that in the cases exclusively triable by the Court of Sessions, the Magistrate has to call upon the complainant to produce all his witnesses and examine them on oath. Therefore, the learned Magistrate would do well to ask the complainant to produce all her witnesses and record their statements on oath and thereafter frame an opinion whether or not any offence is made out against the petitioners and thereafter proceed in accordance with the law.
24) Accordingly, the petition is allowed. The impugned order passed by the learned Magistrate on 21.09.2021 is set aside and consequently the FIR registered pursuant thereto is also quashed. The order dated 14.08.2021 passed by the learned Magistrate to the extent it directs 18 CRM(M) No.305/2021 CrlM No.1086/2021 SHO, P/S Chadoora, to conduct investigation in the matter is also set aside.
25) The learned Magistrate is directed to conduct enquiry into the case herself by examining all the witnesses of the complainant on oath and thereafter proceed further in the matter in accordance with the law. It shall be open to the learned Magistrate to summon witnesses of the complainant if she is unable to produce all the witnesses at her own responsibility. The learned Magistrate shall also be at liberty to summon the relevant record/documents from the police or any other authority that would assist her in conducting the enquiry.
26) The petition stands disposed of accordingly.
27) A copy of this order be sent to the learned Magistrate for information and compliance.
(Sanjay Dhar) Judge Srinagar 09.05.2022 "Bhat Altaf, PS"
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No