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2020 Supreme(J&K) 260
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Sanjay Dhar, J.
(Through Virtual Mode)
Som Raj Taroch and Ors.
Versus
State and Anr.
CRMC 180/2019[CRM(M) 180/2019] and CrlM 889/2020, 446/2019[1/2019]
Decided on 12-11-2020
For the Petitioner(s):Mr. Sunil Sethi, Sr. Advocate with Mr. Navyug Sethi, Advocate
For the Respondent(s):Mr. Aseem Sawhney, AAG, Mr. P.N. Raina, Sr. Advocate with Mr. Basit Manzoor Keng, Advocate
Headnote:
Criminal Procedure Code1973 - Section 156(3) of J&K – Investigation – FIR - Petitioners happen to be parents of petitioner whereas petitioners happen to be and sister of petitioner- Respondent complainant happens to be mother-in-law of petitioner whereas petitioners are close relatives of petitioners- It is averred that petitioner had entered into wedlock with deceased Rajesh Kumar who happens to be son of respondent and out of said wedlock two children a daughter and a son were born- marital relationship between petitioner and her husband remained strained as according to petitioners deceased husband of petitioner was a drug addict- It is further averred that petitioner and her late husband were disinherited by respondent- Reference is also made in instant petition to matrimonial litigation that has taken place between petitioner and her deceased husband- It is averred that marriage ceremony of daughter of petitioner was being celebrated and in order to attend said marriage ceremony petitioner and her deceased husband went to with petitioner –Held Cases and investigation in se is not a substitute or alternative for investigation conducted pursuant to registration of FIR Section and nature of inquest report has no bearing on registration of a case/FIR on complaint/information long as it prima facie discloses commission of non-cognizable offence- It is also held that course adopted by respondents first to conduct a full-fledged local inquiry resort to inquest proceedings would not militate against petitioner’s right to seek registration of an FIR for investigation into alleged death of his son- Respondent’s communication is accordingly quashed and y are directed to register an FIR on petitioners and hand over investigation of same to Crime Branch Magistrate would not make said order unsustainable in law- In fact learned Magistrate while passing impugned order has taken pains to deal with this aspect of matter and has come to right conclusion by holding that complaint filed by respondent contains clear and precise disclosing commission of cognizable offence- While doing Magistrate has noticed background of matrimonial discord between deceased and his wife as also previous complaints made from time to time by deceased against his in-laws- In backdrop of se circumstances as also fact that petitioners were present on spot when death of deceased had taken place in mysterious circumstances re was sufficient material before learned Magistrate to conclude that cognizable offences had taken place which required investigation by police occurrence has taken place more than one and a half years ago and police is yet to investigate into circumstances in which death of deceased has taken place it is directed that respondent shall after registration of FIR hand over investigation of case some efficient police officer so that investigation of case is concluded expeditiously after taking into consideration all aspects of matter - Petition disposed
Judgment
Sanjay Dhar, J.—Through the medium of instant petition, the petitioners have challenged the order dated 18.03.2019 passed by the learned Judicial Magistrate First Class (Sub-Judge), Katra (hereinafter referred to as the ‘Magistrate’) whereby the learned Magistrate has, while exercising powers under Section 156(3) of J&K Cr.P.C, directed respondent No.1 to undertake the investigation of the complaint filed by respondent No.2/complainant.
2. The case of the petitioners is that petitioners No.1 and 4 happen to be the parents of petitioner No.3, whereas petitioners No. 2 and 5 happen to be the brother and sister of petitioner No.3. Respondent No.2/complainant happens to be the mother-in-law of petitioner No.3, whereas petitioners No. 6 to 8 are close relatives of the petitioners. It is averred that petitioner No.3 had entered into wedlock with deceased Rajesh Kumar, who happens to be the son of respondent No.2 and out of the said wedlock, two children, a daughter and a son were born. The marital relationship between petitioner No.3 and her husband remained strained, as according to the petitioners, the deceased husband of petitioner No.3 was a drug addict. It is further averred that petitioner Nos. 3 and her late husband were disinherited by respondent No.2. Reference is also made in the instant petition to the matrimonial litigation that has taken place between petitioner No.3 and her deceased husband. It is averred that on 31.01.2019, marriage ceremony of daughter of petitioner No.8 was being celebrated at Katra and, in order to attend the said marriage ceremony, petitioner No.3 and her deceased husband went to Katra with petitioner No.1. The other family members including petitioner No.2 and petitioners No. 4 to 7 were already present over there to attend the said marriage.
3. It is further averred that during the intervening night of 31.01.2019 and 01.02.2019, late Rajesh Kumar developed some pain in his chest and he was rushed to the Hospital at Katra, wherefrom he was referred to Government Medical College Hospital, Jammu for treatment, but by the time he reached the Hospital, he had already breathed his last. It is averred that, upon the death of the deceased, the police of Police Station, Katra initiated inquest proceedings under Section 174 of J&K Cr.P.C and the dead body of the deceased was subjected to post mortem. However, during the pendency of inquest proceedings, respondent No.2 approached the learned Magistrate by way of an application under Section 156(3) of J&K Cr.P.C, urging the learned Magistrate to direct registration of FIR. It was alleged in the complaint that the deceased Rajesh Kumar had been murdered by hatching a criminal conspiracy.
4. Upon receipt of the complaint, the learned Magistrate called report from the Police Station, Katra and thereafter directed registration of FIR by passing the impugned order.
5. The petitioners have challenged the impugned order mainly on the grounds that the learned Magistrate, while passing the impugned order, overlooked the guidelines laid down by the Supreme Court in the case titled Priyanka Srivastava & anr vs State of U.P.& ors, AIR 2015 SC 1758, inasmuch as the complainant had not made any application before the SHO and the SSP concerned in accordance with Section 154(1) and Section 154(3) of J&K Cr.P.C. It has been further contended that the approach of the learned Magistrate in passing the impugned order is absolutely illegal because the inquest proceedings regarding death of the deceased were still under way and without waiting for its result, the learned Magistrate jumped the gun and directed investigation of the case. Lastly, it has been contended that passing of impugned order by the learned Magistrate is nothing, but an abuse of process of law.
6. Respondent No.1, in answer to the petition, has filed its status report. As per the status report, on 01.02.20149, an information was received at Police Station, Katra that during the intervening night of 3
