Jammu & Kashmir High Court
Daleep Singh vs State Of J&K And Ors on 22 February, 2022
Author: Sanjay Dhar
Bench: Sanjay Dhar
Sr. No. 26
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
CRMC No. 139/2016 (O&M)
Daleep Singh .....Appellant(s)/Petitioner(s)
Through: Mr. Rahul Pant, Sr. Adv. with
Mr. Anirudh Sharma, Adv.
Vs
State of J&K and ors. ..... Respondent(s)
Through: Mr. Suneel Malhotra, GA
Coram: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
ORDER
22.02.2022
1. The petitioner has called in question order dated 05.02.2016 passed by the learned Chief Judicial Magistrate (CJM), Doda in case titled Arun Kumar v. SHO, Police Station, Thathri whereby learned CJM has directed respondent No.2 to register an FIR in terms of Section 156(3) of Cr.P.C.
2. The facts emerging from the record are that on 20.07.2015, a road traffic accident took place at Siku Nallah near Thalela Tehsil Thathri District Doda. In connection with this accident, FIR No. 57 of 2015 for offence under Section 279 RPC was registered with the Police Station, Thathri. After investigation of the case, the challan was filed for offence under section 279 RPC before the learned Judicial Magistrate 1st Class, Thathri (for short, learned Magistrate). The 2 CRMC No. 139/2016 investigation of the case was conducted by the petitioner who was posted in the Police Station, Thathri at the relevant time. The accused in the challan pleaded guilty before the learned Magistrate and he was convicted of offence under Section 279 RPC and sentenced to pay a fine of Rs. 1,000/-.
3. After conclusion of proceedings in the challan, a complaint was lodged by respondent No. 3 before the learned CJM, Doda on 17.10.2015. In the said complaint, it was alleged by respondent No. 3 that he was also travelling in the offending vehicle and as a result of the accident, he suffered severe injuries, whereafter he remained admitted to the Army Hospital as well as in a Hospital at Doda. It was further alleged that respondent No. 3-complainant received serious injuries to his head and he had to undergo treatment in a Hospital at Jammu as well and that the injuries have rendered him disabled. According to respondent No.3-complainant, the petitioner, who was the investigating Officer (IO) of the case connived with the accused/driver of the offending vehicle and overlooked all these aspects of the case by presenting challan for a milder offence. Respondent No. 3-complainant sought fresh investigation into the case and an action against the I.O. viz. the petitioner-herein.
4. Learned CJM, Doda after entertaining the complaint, directed the Deputy Superintendent of Police (Dy.SP) Headquarter Doda to hold an enquiry under Section 202 of Cr.P.C. The said order was passed by the learned CJM on 17.10.2015. The Dy.SP after holding enquiry/investigation under Section 202 of Cr.P.C. submitted its report before the learned CJM wherein he has concluded that investigation of the case has not been conducted in a fair manner and that 3 CRMC No. 139/2016 there has been a lapse on the part of the IO against whom he recommended a departmental enquiry. Upon receipt of this report of the enquiry officer, learned Magistrate passed the impugned order which is reproduced as under:
"Vide order dated 17.10.2015 Dy. S.P. Headquarter was directed to hold an inquiry under Section 202 Cr.P.C. Inquiry report has been submitted and made part of the file. From the perusal of the report prima facie case is made out against the Investigating Officer. Therefore, SHO Police Station, Thathri in terms of Section 156(3) Cr.P.C. lodged FIR against the IO. Office is directed to forward the entire original file through CPO after preparing an index of the file. The application is accordingly disposed of and index be consigned to record."
5. On the basis of the aforesaid order, FIR No. 09 of 2016 for offence under Section 193/217 RPC stands registered against the petitioner. Both, the order dated 05.02.2016 as well as the FIR registered pursuant thereto is under challenge before this court by way of instant petition.
6. Learned counsel appearing for the petitioner has raised two legal contentions to assail the impugned order and the FIR registered pursuant thereto. He has contended that learned CJM after having taken cognizance of the offence has decided to direct holding of enquiry/investigation under Section 202 of Cr.P.C. According to the learned counsel, it was not open to the learned CJM to direct registration of FIR against the petitioner. Secondly, it has been contended that the offences alleged to have been committed by the petitioner are non cognizable in nature and as such respondent No. 2 could not legally register an FIR against the petitioner.
4 CRMC No. 139/2016
7. I have heard learned counsel for the parties and perused the record.
8. So far as the facts narrated herein-before are concerned, the same are not in dispute. In order to test the merits of the first contention raised by the learned Senior Counsel appearing for the petitioner, it is necessary to notice relevant provision of the Code of Criminal Procedure. 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."
9. 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 5 CRMC No. 139/2016 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 ;
(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.6 CRMC No. 139/2016
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.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 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 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 7 CRMC No. 139/2016 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.
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 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, learned CJM while passing the impugned order has specifically made a direction to the concerned SHO to lodge an FIR against the 8 CRMC No. 139/2016 petitioner in terms of Section 156(3) of Cr.P.C. which means that he has exercised jurisdiction under Section 156(3) of Cr.P.C. and not under Section 202 of Cr.P.C. A Magistrate, if he chooses to proceed under Section 202 of Cr.P.C. presupposes that he has taken cognizance of the offence on the compliant. Once the Magistrate has chosen this course of action it is not open to him to go back to the provisions contained in Chapter XIV of Cr.P.C. and issue a direction for registration of FIR and investigation of the case in terms of Section 156 of the Cr.P.C. My aforesaid view is fortified by the judgments of this Court in the cases of Sami-ullah Naqashbandi v. Sadaf Niyaz Shah, CRM(M) No. 113 of 2020 decided on 31.08.2020 and Mohd. Aijaz v. Sajad Ahmad Dar and anr., CRMC No. 285 of 2017 decided on 18.02.2021.
13. In view of the foregoing position of law, it was not open to the learned CJM 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 a complaint filed by respondent No. 3.
14. There is yet another aspect of the matter which requires to be noticed. As per the FIR, which has been registered pursuant to impugned order passed by the learned CJM, offences under Section 193/217 RPC are disclosed against the petitioner. Both these offences are non cognizable in nature. In exercise of its power under Section 156(3) of Cr.P.C. a Magistrate is empowered to direct registration of a case and its investigation only in a cognizable case and not in 9 CRMC No. 139/2016 non cognizable case. On this count also, the direction issued by the learned CJM vide the impugned order is without jurisdiction and hence not sustainable in law.
15. For the foregoing reasons, the present petition is allowed and the impugned order as well as the FIR registered pursuant thereto is 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.
16. This petition stands disposed of accordingly.
(Sanjay Dhar) Judge Jammu 22.02.2022 Paramjeet Whether the order is speaking : Yes/No Whether the order is reportable : Yes/No