Jammu & Kashmir High Court
State Of J&K vs Arjun Singh And Another on 9 June, 2023
Author: Rajnesh Oswal
Bench: Rajnesh Oswal
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on 25.04.2023
Pronounced on 09.06.2023
CRREF No. 1/2022
State of J&K .....Appellant(s)/Petitioner(s)
Q
Through: Mr. Dewakar Sharma, Dy.AG
Vs
Arjun Singh and another ..... Respondent(s)
Through: Mr. Anil Khajuria, Adv.
Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
JUDGMENT
1. This reference has been made by the court of learned Additional Sessions Judge, Kathua (hereinafter to be referred as the „trial court‟) after it came to the notice of the learned trial court that the respondents have been chargedfor the commission of offences under section 295-A and 201 RPC on 17.05.2017, in utter disregard of the provisions contained in section 196 Code of Criminal Procedure (for short „the Code‟) as was applicable in the erstwhile State of J&K in the year, 2017.
2. The section 432 of the Code provides that where any Court is satisfied that a case pending before it involves a question as to the validity of any Act or Ordinance, or of any provision contained in an Act or Ordinance, the determination of which is necessary for the disposal of the case, and is of opinion that such Act or Ordinance or provision is invalid or 2 CRREF No. 1/2022 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 therefore, may refer the same for the decision of the High Court and this Court does not find that the validity of any Act or Ordinance or of any provision contained in an Act or Ordinance, is the subject matter of the proceedings pending before the learned trial court, so this reference per se is not maintainable.
3. Be that as it may, it has come to the notice of this Court that the learned trial court has taken the cognizance of offence under section 295-A and 201 RPC in utter disregard of the provision contained in section 196 of the Code. Sections 196 and 196-B of the Code of Criminal Procedure are reproduced as under:
"196. Prosecution for offences against the State.
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, 1 [and section 171-F, so far as it relates to the offence of personation], or punishable under section 108-A, or section 153-A, or section 294-A, 2 [or section 295-A] 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].
196-B. Preliminary inquiry in certain cases.-In the case of any offence in respect of which the provisions of section 196 or section 196-A apply, a District Magistrate may, notwithstanding anything contained in those sections or in any other part of this Code, order a preliminary investigation by a police officer not being below the rank of Inspector, in which case such police officer shall have powers referred to in section 155, subsection (3).
4. Thus, as per the provisions contained in section 196 of the Code, the court cannot take cognizance of offence punishable Section 295-A RPC 3 CRREF No. 1/2022 unless a complaint is made by order or any authority of the Government or District Magistrate or such other officer as may be empowered by the Government in this behalf. There is one sanction order dated 11.02.2017 issued by the Additional District Magistrate Kathua grating sanction for prosecution of the respondents under section 153-A. It can by no stretch of imagination be construed as complaint with in the meaning of section 4(1)(e) of „the Code‟. There is no complaint either by the Government or District Magistrate or any other officer empowered by the Government against the respondents for the commission of offence under section 295-A of RPC. The learned trial court has not taken note the provisions of section 196 of the Code while charging the respondents for the commission of the offence under section 295-A RPC.
5. The Apex court in M. Narayandas vs. State of Karnataka and others, (2003) 11 SCC 251, has held as under:
"Not only are we bound by this judgment but we are also in complete agreement with the same. Sections 195 and 340 does not control or circumscribe the power of the police to investigate under the Criminal Procedure Code. Once investigation is completed then the embargo in Section 195 would come into play and the Court would not be competent to take cognizance. However, that Court could then file a complaint for the offence on the basis of the FIR and the material collected during investigation provided that procedure laid down in Section 340 Criminal Procedure Code is followed. Thus no right of the Respondents, much less the right to file an appeal under Section 341, is affected."
(Emphasis added)
6. Though the judgment (supra) pertains to interplay of section 195 and 340 Cr.P.C (Central Code) but the ratio that the cognizance would be 4 CRREF No. 1/2022 barred unless the procedure prescribed by the section 195 is followed is applicable in the instant case as well.
7. Also in 'Zabir Ahmed vs. State &Anr' 2010(2) JKJ(HC) 6, it has been held by this court that "The district magistrate having not authorised anyone to file the requisite complaint and the prosecution having been initiated on the basis of the final police report i.e the police challan and not on a complaint can templated by section 196 of the code of criminal procedure, may not just be justified. Thus, it is evident that the cognizance of the offences as mentioned above cannot be taken, until and unless the provisions contained in section 196 of the Code are complied with.
8. The respondents have been simultaneously charged for the commission of offence under section 201 RPC. Though the respondents in the absence of the compliance of the provisions contained in section 196 of the Code cannot be tried for the commission of offence under section 295-A RPC but they can still be tried for the commission of offence under section 201 RPC. It would be apt to take note of the judgment of the Hon‟ble Apex Court in Kalawati v. State of H.P., 1953 SCR 546, where notwithstanding the acquittal of the accused for the commission of main offence of murder, the accused was convicted for commission of offence under section 201 IPC.
9. In view of the settled position of law, this court deems it proper to exercise powers vested in it by virtue of section 482 (561-A) of the Code and accordingly quash the order dated 17.05.2017 to the extent 5 CRREF No. 1/2022 whereby the respondents were charged for the commission of the offence under section 295-A RPC. The perusal of the record reveals that the prosecution evidence stands closed. The learned trial court shall proceed ahead in accordance with law so far as offence under section 201 RPC is concerned. It is made clear that any observation made herein above shall have no bearing upon the merits of the case, as this court has not even examined the prosecution evidence and has simply examined the legality of the order dated 17.05.2017.
10. Disposed of.
(RAJNESH OSWAL) JUDGE Jammu 09.04.2023 Rakesh Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No