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2018 Supreme(J&K) 732
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
M.K. Hanjura, J.
Ghulam Mohi-ud-Din Peer and Ors. - Petitioners
Versus
Mohammad Hamza Lone and Ors. - Respondents
CRMC No. 53 of 2014 C/w CRMC No. 46 of 2014 and CRMC No. 55 of 2014
Decided On : 11-10-2018
Advocate Appeared:
For the Petitioners: Mr. M.A. Qayoom, Mr. B.A Zargar
For the Respondents:Mr G.A. Lone, Advocate
Important Point – Order taking cognizance by Magistrate summoning accused must reflect that he has applied his mind to facts of case and law.
Headnote:Jammu and Kashmir Code of Criminal Procedure, 1989 – Sections 154, 156(3), 173 and 561 – A – Summoning of accused to face trial – There is no provision in Cr. PC which empowers Magistrate to disturb status of an accused pending investigation or when report is filed to wipe out report and its effect in law – Magistrate has jurisdiction in matter of issuance of process or taking cognizance depending upon existence of conditions precedent therefor – He can assume jurisdiction if and when final report is laid – Summoning of accused in a criminal case is a serious matter – Order taking cognizance by Magistrate summoning accused must reflect that he has applied his mind to facts of case and law applicable thereto – Order passed by Special Mobile Magistrate quashed. (Paras 17, 21, 25, 32 and 35)
Result – Petition allowed.
M.K. Hanjura, J.
The petitions detailed above raise common and akin questions of the facts and the law and have, therefore, been clubbed together for collective decision.
2. In all the petitions, the petitioners are aggrieved of the order dated 30th of December, 2013, passed by the learned Special Mobile Magistrate (Electricity), Unit-III, Pattan, Baramulla, Jammu & Kashmir and have assailed the same on the grounds inter-alia that the deceased Azad Ahmad Lone had not died under mysterious circumstances. He had committed suicide on 23.06.2011, in broad day light, in the absence of the petitioners. When the petitioners came to know about this incident, they informed the authorities of Police Station Sopore about the same on 23.6.2011 itself, as a consequence of which an FIR bearing No. 171/2011, for the commission of an offence under Section 309 RPC was registered in the matter and the investigation of the case was entrusted to the respondent No.3, in the petition bearing No. 46/2014 filed under Section 561-A Cr. PC. The respondent No.3 proceeded on spot, recorded the statements of the witnesses under Section 161 Cr. PC and got the postmortem of the deceased conducted at SDH Sopore. The dead body was there after handed over to the relatives of the deceased for burial. It is however, unfortunate that at the behest of certain vested interests, the respondent No.1 herein, filed an application in the Court of CJM Sopore on 09.7.2011, when the police had already registered an FIR and were investigating the case, praying therein that the police authorities of Police Station Sopore be directed to register an FIR in the case and conduct the investigation in accordance with the law. The court without calling any report from the police authorities directed the SHO P/s Sopore to register an FIR immediately and submit the report to the court on 09.07.2011 itself. The respondent No.1 filed two more applications before the Court, in which he stated that the police authorities be directed to submit the status report before the Court and that his statement under section164-A Cr. PC, be also got recorded. In both these applications, the court passed an order directing the police authorities to furnish the status report immediately and to get the statement of the respondent No.1 recorded under section 164 –A Cr. PC. The respondent No.1 thereafter filed another application before the Court of CJM Sopore, stating therein that contempt proceedings be initiated against the SHO P/s Sopore and he be directed to register a case of murder of his minor son against the accused persons. On the said application, besides passing an order dated 20.9.2011 the court passed another order on 22.11.2011 directing the Dy. SP Headquarters to hold re-investigation and to record the statement of the complainant and the other witnesses, if any, through the nearest Judicial Magistrate and submit the result of the investigation within a period of two months to the Court. The Court also directed that the matter be listed on 06.02.2012. It was in response to the order dated 22.11.2011 that SDPO Sopore vide his report dated 29.03.2012 informed the court that he has conducted the investigation of the case and has recorded the statement of one witness namely Sameer Ahmad Khan and during fresh investigation, it has come to the lime light that the deceased was a drug addict, who had smoked heavily before the incident. On the receipt of the report dated 29.03.2012, the learned CJM Sopore did not pass any order in the case until he transferred the same to the Court of Special Mobile Magistrate(Electricity) Pattan on 15.11.2012. On the receipt of the file from the Court of CJM Sopore, the learned Special Mobile Magistrate (Electricity) Pattan requested the Court of CJM Sopore to inform him as to whether or not any challan or closure report “Ikhtitami” has been filed in the Court. To this, the Court of CJM Sopore informed him that no Challan or closure report “Ikhtitami” ha
