The mandatory nature of legal provisions, specifically the requirement for a written complaint by the competent public servant for taking cognizance of the offense, and the lack of promulgation by the public servant for the offenses under Section 188 RPC.

1. Through the instant writ petition filed under Section 561-A of the Code of Criminal Procedure (hereinafter for short, Cr.P.C), the petitioner seeks following relief : -

“Quash the FIR No.30 of 2012 dated 27th March, 2012 registered with Police Station, Gangyal, Jammu for commission of offence under Section 188 RPC and Section 13/14/16/21 J&K Brick Kiln (Regulations) Act, 2010 and consequential investigation conducted so far.”

2. The petitioner claims to be the proprietor of Shiva Brick Kiln which is engaged in the manufacture of the bricks at Village Sikanderpur, Tehsil and District Jammu. It is stated that petitioner has been issued licence by the Licensing Authority for running the aforesaid Brick Kiln and the said license has been renewed upto 31.03.2013.

3. Learned counsel for the petitioner submits that on 27th March, 2012 about 7.00 a.m., petitioner came to know that the bricks which were being carried away by the purchasers after the purchase from the premises of the Brick Kiln, have been seized by Police at Police Station, Gangyal, Jammu. It is stated that on the same day i.e., 27th March, 2012 an FIR No.30 of 2112 for commission of offence under Section 188 RPC and Section 13/14/16/21 of the J&K Brick Kiln (Regulations), Act 2010, came to be registered by the In-charge Police Station, Gangyal. It is stated that entire facts of the aforesaid FIR were manipulated for ulterior motives, as it is impossible to have communication generated from the office of the Deputy Commissioner, Jammu more particularly, when the office time in the month of March is 10.00 a.m. to 4.00 p.m. It is further stated that even before the commencement of the investigation and after the registration of FIR, the vehicle had been seized. It is further stated that inasmuch as the FIR is registered on 27th March, 2012, the bricks are seized on the same day in the morning and in the FIR the communication which forms the basis of the FIR shows that the Deputy Commissioner has alleged that the office has received report from the Legal Metrology Department about the examination of the Bricks.

4. Learned counsel for the petitioner states that an application was filed before the Magistrate seeking status report in the FIR. It is stated that perusal of the status report submitted before the Magistrate would reveal that it is admitted by the Investigation Officer that after the registration of the FIR when investigation was entrusted to him, he seized the bricks and thereafter he seized 10 bricks each from the said vehicles for the purpose of their examination. It is stated that when the seizure of the bricks was made after the registration of the FIR, then it is not understandable as to how the District Magistrate in his communication has reported to the Police about his having already received the report from the Legal Metrology Department. Further, the report submitted before the Magistrate shows that the Investigating Officer has himself admitted that the case is non-cognizable in nature, but even then investigation in FIR has not been closed so far. It is stated that even if the allegations leveled in the FIR are taken on their face value and accepted in their entirety, even then they do not constitute any cognizable offence justifying the registration of FIR and investigation by the Police Officer. It is further stated that there is legal bar in the J&K Brick Kiln (Regulations) Act, 2010 to take cognizance of the offence under the said Act and offences under the said Act are non-cognizable. Therefore, respondent No. 2 has no jurisdiction to register the FIR and start the investigation as he is not the licensing authority. It is stated that admittedly Deputy Commissioner is the licensing authority and the cognizance of the offence under this Act can only be taken by the Court on a complaint made by the Deputy Commissioner.

5. It is submitted that consignment of the bricks which has been purchased by the purchaser was given to him along with the