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2016 Supreme(J&K) 285
JAMMU AND KASHMIR HIGH COURT
Mohammad Yaqoob Mir, J.
State of J&K and another - Petitioners
Versus
Abdul Rehman Mir - Respondent
Pet. U/S 561-A No.204 of 2016 and Cr.MP No.02 of 2016
Decided On : 04-08-2016
For the Petitioners: M/S Jahangir Iqbal Ganai, AG & M.A. Rathore, AAG.
For the Respondent:Mr. Z.A. Qureshi, Sr. Advocate with Mr. M. Ashraf Bhat, M. Abdullah Pandit and S.H. Thakur, Advocates.
The court emphasized that the registration of a second FIR is permissible if the subsequent crime is of such magnitude that it does not fall within the ambit and scope of the first FIR, as per the provisions of the Criminal Procedure Code.
Headnote:
FIR Registration - Criminal Procedure Code - Section 154, 156, 190 - Summary
Fact of the Case:
The respondent filed an application seeking registration of FIR for the alleged murder of his son by a police officer. The Chief Judicial Magistrate directed the police to register the FIR, which was contested by the State.
Finding of the Court:
The court found that the second occurrence, the alleged murder, was not part of the first occurrence for which an FIR had been registered. The court upheld the Chief Judicial Magistrate's orders for FIR registration.
Issues: The main issue was whether the second occurrence constituted a separate incident warranting the registration of a second FIR.
Ratio Decidendi: The court applied the test of 'sameness' to determine if the second occurrence was part of the same transaction as the first FIR. It concluded that the two incidents were of different times and involved different persons, thus justifying the registration of a second FIR.
Final Decision: The court dismissed the petition and upheld the Chief Judicial Magistrate's orders for FIR registration.
Mohammad Yaqoob Mir, J.
Aggrieved by the orders dated 18.07.2016 and 28.07.2016, passed by learned Chief Judicial Magistrate, Srinagar, instant petition seeking quashment of the same has been filed.
2. Respondent has filed an application before the Court of Chief Judicial Magistrate, Srinagar, alleging therein that on 10th July, 2016, at about 6.45 PM Police Party head by Dy. SP Yasir Qadiri while entering into their house started smashing window panes and doors of the house. Wife of the respondent tried to stop the said action, as a result whereof police official got infuriated and physically assaulted her. Shabir Ahmad Mir (deceased), son of the respondent, tried to rescue his mother but the police official in the fit of rage started beating him fired two shots into the body of the deceased on point blank range who died on spot. Alleging that the police official has committed a cold blooded murder of his son, had requested the SHO concerned for lodging FIR but same was refused to be lodged. In support of the application, respondent has also filed an affidavit.
3. Learned Chief Judicial Magistrate has observed that the position of the application supported by an affidavit reveals commission of cognisable offence, therefore, in the light of said application and the affidavit, SSP, Srinagar, shall register the FIR and to get the case investigated by some senior officer not below the rank of Dy. SP. Copy of the order dated 18.07.2016 along with application has been forwarded to the SSP, Srinagar, for compliance. Index of the application was maintained for being taken up on 28.07.2016.
4. On 28th July, 2016, CPO on behalf of the State has appeared and stated that regarding occurrence FIR No.89/2016 under Sections 147, 148, 307, 436, 152 RPC has been registered and investigation has been entrusted to Mr. Sajad Khalid, Superintendent of Police, City South, Srinagar, which is in progress. In short has projected that registration of second FIR regarding same occurrence is impermissible.
5. Learned Magistrate after hearing both the parties, noticing position of FIR No.89/2016 and after perusing case diary has mentioned that the deceased has been cited as an accused for having been leading a procession, for dispersal of which police party used force. Application filed under Section 156(3) Cr. P. C reveals that a police officer named therein has killed an unarmed person in his house. Learned Magistrate disagreeing with the version of the CPO that no second FIR can be lodged, referred to the judgments as have been relied upon by the rival parties, has directed SSP, Srinagar, to lodge the FIR i.e. to comply with the directions of the court dated 18.07.2016 and to file the copy of FIR within 24 hours, in default to remain personally present for showing cause as to why action be not taken for non-compliance. The application was posted for further proceedings on 30.07.2018.
6. It is stated that learned Chief Judicial Magistrate vide order dated 01.08.2016 directed SSP to file statement of facts on 2nd August, 2016 so as to comply with the direction of the court dated 18.07.2016 and 28.07.2016, in default, rule will be framed against him and will be referred to the High Court for being punished under law.
7. Learned AAG first contended with all vehemence that on 10th July, 2016, angry protesters who were also led by deceased (son of the respondent), were armed with stones and sticks, they were blocking the road. The mob was dispersed, in the process deceased got injured. Incident report has been submitted to the Police Station, Batamaloo, same has been registered as FIR No.89/2016 and the investigation has commenced, so regarding occurrence FIR is already lodged. The direction of the learned Chief Judicial Magistrate provide for registration of second FIR which, in law, is impermissible. Then further added that the occurrence made mention of in application under Section 156(3) Cr. P. C forms part of the same transaction, regarding which FI
