Jammu & Kashmir High Court
Mst. Naziran Bi And Ors. vs State And Ors. on 28 May, 2004
Equivalent citations: 2005CRILJ360, 2004(3)JKJ609
JUDGMENT S.K. Gupta, J.
1. Through the currency of this petition, the inherent jurisdiction of the Court under Section 561-A of the Code of Criminal Procedure (for short 'the Code') has been invoked in seeking quashment of FIR No. 103/2003 for offences under Sections 2/3-A, EPIMCO, 120B/121,121A/123-212, RPC, together with the order dated 15.1.2004, by virtue of which charges under the aforesaid provisions have been framed, to the extent it pertains to the petitioners, on the ground that the cognizance taken by the trial court and charges framed, are without jurisdiction and an abuse of process of the court because of the bar created under section 196 Cr. P. C, that no court shall take cognizance of the offence to which the provisions of section 196 of the Code apply, unless upon a compliant made by order of or under authority from (the Government or District Magistrate or such other officer as may be empowered by the Government in this behalf).
2. It appears that first information report came to be registered with Police Station, Poonch, on the basis of communication No. 669/SO dated 26.7.2003. For facility of reference the communication is reproduced as under:-
"OFFICE OF THE DISTRICT MAGISTRATE POONCH.
Station House Officer, Police Station, Poonch.
No:- 669/SO dated:- 26.7.2003 Subject: Action under Chapter VI of Cr.P.C.
Due to militancy, District Poonch is badly effected by the activities of militants and anti national elements. The Inter Service Intelligence Agency of Pakistan has pushed a large number of armed infiltrators into the local jurisdiction of P/S Poonch to operate for subversive, disruptive and terrorist activities. The anti-national elements, banned Organizations Let, TUJI, JeM have hatched a criminal conspiracy with Muneer Hussain Code Allah Din s/o Nek Mohd R/o Kalsan, Abdul Karim Code name S. Karim s/o Fazal Din caste Gujjar R/o Serrian Noor Kote, Manzoor Husain code Jarrar s/o Bagh Hussain R/O Hari, Mst. Sharifa Bi Code Sheen point w/o Bali Mohd Bagh Hussain R/O Hari Mohalla Illian and other co-accused have indulged in funding the militant Organization with the help of relatives across the border, concealing and dumping arms and explosive material and are providing food and shelter to the anti-national elements and militants operating in the area for waging war against state Govt. and Govt. of India.
Moreover the activities launched by militants at the behest of ISI with the active connivance of above noted individuals and other co-accused have created a sense of insecurity alarm among the public at large. The disruptive and subversive activities of militants and these anti-national elements have also disturbed the peace and tranquility of State. Now it has become day to day practice of militants and anti-national elements to indulge in such activities hence, a legal action is required to be initiated against the culprits. Therefore, I Ejaz Iqbal District Magistrate Poonch direct you for registration of the case under appropriate sections of law and take up the investigation.
Sd /-
(Ejaz Iqbal) District Magistrate Poonch"
3. It is clearly gatherable from record that on the registration of the case for offences under sections 2/3-A EPIMCO, 120B/121,121A/123-212 RPC, investigation was conducted by the Police. On the conclusion of the investigation, challan against the petitioners and other accused persons was presented before the Sessions Judge, Poonch. Cognizance of the offences was taken by the learned Sessions Judge, Poonch, vide his order dated 15.1.2004 and he found prima facie charge under sections 2/3-A EPIMCO, 120B/121,121A/123-212, RPC, madeout against the petitioners and formal charges were framed against them, accordingly.
4. Learned counsel appearing for the petitioners submitted that no cognizance could be taken by the learned Sessions Judge in the absence of a complaint made by the order of or under the authority of the Government or District Magistrate or such other officer as may be empowered in this behalf, as required under section 196 Cr.P.C. So, the spinal question in this petition is as to whether cognizance could be taken by the learned Sessions Judge for the offences under sections 2/3-A, EPIMCO, 120B/121,121A/123-212 RPC, upon a Police report.
5. To appreciate the controversy it is apt to refer to section 196 Cr. P. C, which reads as under:-
"196. Prosecution for offences against the State: - No court shall take cognizance of any offence punishable under Chapter VI or IX-A of the Ranbir Penal Code (except section 127 [and section 171F, so far as it relates to the offence of personation]) or punishable under section 108A or section 153A or section 294A [ or section 295A] or section 505 of the Ranbir Penal Code, unless upon complaint made by order of or under authority from,[the Government or District Magistrate or such other officer as may be empowered by the Government in this behalf]."
6. A plain reading" of the aforesaid provision makes it abundantly clear that no prosecution can be initiated under this section except on a complaint made by the District Magistrate. The expression "upon a complaint" used in the aforesaid provision is explicit and significant.
7. In the present case, the District Magistrate has asked the Police, vide his communication dated 26.7.2003, to register a case without indicating the offences committed by the petitioners. The Police report is not a substitute for a complaint in terms of Section 196 Cr. P. C. Cognizance taken by the learned Sessions Judge, Poonch in respect of the offences indicated in Section 196 Cr. P. C, in the absence of a complaint by the District Magistrate, would amount to defect of jurisdiction of the Court, which cannot be cured under law. In other words, the prosecution is primarily concerned to see that the prosecution in case of offences under sections 2/3-A EPIMCO, 120B/121,121A/123-212 RPC, covered by prohibition under Section 196 Cr. P. C, shall not commence without complying with the conditions contained therein. Under Section 196B Cr. P. C, the District Magistrate can order a preliminary investigation by a Police Officer. However, this provision empowers the District Magistrate to order preliminary investigation by a Police Officer before filing the complaint under Section 196 Cr. P. C for prosecution of the accused under sections 120B/121,121A/123-212 RPC. The communication dated 26.7.2003 could, at best, be treated a direction for preliminary investigation. In directing registration of a case, the District Magistrate has completely ignored the provisions of section 196 Cr. P. C. What was required by the Police in this case was to submit the report to the District Magistrate after receipt of the communication from him and, thereafter, on the basis of such report, the District Magistrate could have filed the compliant against the petitioners.
8. Mr. A. H. Qazi, learned AAG appearing for the State, has fairly admitted that the procedure under section 196B Cr. P. C has not been followed and no cognizance could be taken by the learned Sessions Judge in the aforesaid offences against the petitioners, without there being a complaint from the District Magistrate, Poonch, in compliance to the provisions of section 196 Cr. P. C.
9. In the facts and circumstances of the case, the inevitable conclusion reached is that, cognizance taken by the trial court on the basis of the FIR and charge framed, is without jurisdiction and an abuse of process of court, in view of the bar created under Section 196 Cr. P. C.
10. Accordingly, the petition is allowed and FIR and the charges framed vide order dated 15.1.2004, so far as they pertain to the petitioners, are quashed. The petitioners shall be released in the aforesaid FIR by the respondents forthwith provided they are not required in any other case or detained under Public Safety Act/Special Offences.