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2020 Supreme(J&K) 274
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Sanjay Dhar, J.
(Through Virtual Mode)
Taro Devi
Versus
Union Territory of J&K and Anr.
CRM(M) No.330/2020
Decided on 22-10-2020
For the Petitioner(s):Mr. Deepak Mahajan, Advocate
For the Respondent(s): None
Headnote:
Constitution of India,1950 - Article 226 - Criminal Procedure Code,1973 – Section, 156(3) – FIR – Investigation- Petitioner had filed an application Section before learned Magistrate seeking a direction for registration of FIR- In application it was alleged when petitioner was working in her land measuring comprised in situated at District Samba accused persons armed with and clubs trespassed into said land and hurled abuses upon petitioner- It is also alleged that petitioner somehow managed to escape from spot otherwise she would have been physically harmed by accused persons- It was also alleged in application that petitioner had approached SHO concerned as well as SSP concerned but her efforts to get case registered against accused persons did not bear any fruits- Accordingly she approached learned Magistrate with a request to issue direction for registration of a case against accused persons –Held, Court judgment directly orders registration of FIR without verifying veracity of allegations and without getting satisfied as to whether or not any cognizable offence is made out affected parties will be un-necessarily put to harassment- It is because of se consequences in mind that Supreme Court case clearly laid down that in appropriate cases Magistrates before ordering registration of FIR should look for certain safeguards like filing of an affidavit by petitioner and verifying veracity of allegations Magistrate it was mentioned that on an earlier occasion another FIR bearing for offences under Section had been registered at instance of petitioner with regard to trespass on same land in which accused are on bail- In impugned order submission of counsel for petitioner that re is a civil litigation with regard to said land going on between parties has been noted- So it is a case where parties are litigating in Civil Court in respect of a patch of land and previously also one more FIR alleging trespass into said land stands registered- Thus it was not an ordinary run of mill case- It had special features inasmuch as re was a long standing land dispute pending between parties and as such filing of frivolous FIRs by parties against each or to settle dispute on terms suitable to respective parties could not be ruled out- In backdrop of se facts learned Magistrate was fully justified in directing verification of allegations made in application before registration of FIR counsel for petitioner that learned Magistrate could not have delegated her power to verify veracity of allegations to SHO is without merit for reason that once ld- Magistrate decided to proceed in terms of Section she had no option but to get allegations made in complaint verified by officer-in-charge of Police Station- Magistrate could have done so by herself only if she would have decided to proceed in terms of provisions contained in Chapter of Code of Criminal Procedure and not otherwise - Petition dismissed
Judgment
Sanjay Dhar, J.—The petitioner has challenged order dated 09.09.2020 passed by learned Additional Mobile Magistrate, Samba, whereby the learned Magistrate has directed SHO, P/S Vijaypur to verify the matter and if cognizable offences are made out, to proceed in terms of Section 156(3) of the Code of Criminal Procedure.
2. Petitioner is primarily aggrieved of the direction of the learned Magistrate to the extent it asks the SHO to verify the matter prior to proceeding in terms of Section 156(3) of Cr. P. C. According to the petitioner the learned Magistrate could not have delegated the power of verification to the SHO.
3. For appreciating the controversy at hand, it is necessary to notice the facts of the case.
4. It appears that the petitioner had filed an application under Section 153(6) of Cr. P. C before the learned Magistrate seeking a direction for registration of FIR. In the application it was alleged that at about 9. 30 a.m. on 29.08.2020, when the petitioner was working in her land measuring 16 marlas comprised in Khasra No.3 situated at Smball Wali Tehsil Vijaypur District Samba, the accused persons, armed with Dharatis and clubs, trespassed into the said land and hurled abuses upon the petitioner. It is also alleged that the petitioner somehow managed to escape from the spot otherwise she would have been physically harmed by the accused persons. It was also alleged in the application that the petitioner had approached the SHO concerned as well as the SSP concerned but her efforts to get the case registered against the accused persons did not bear any fruits. Accordingly, she approached the learned Magistrate with a request to issue a direction for registration of a case against the accused persons in terms of Section 156(3) of Cr. P. C.
5. It seems that the learned Magistrate vide a detailed order dated 09.09.2020, after noting the contents of the complaint and the submissions of learned counsel for the petitioner, directed SHO P/S Vijaypur to verify the matter and if cognizable offences are made out, to proceed in terms of Section 156(3) of Cr. P. C. It is this direction of the learned Magistrate which is under challenge before this Court by way of instant petition.
6. It has been contended by learned counsel for the petitioner that the learned Magistrate has delegated the power vested under Section 156(3) of Cr. P. C to the SHO concerned. It has been further contended that there was no occasion for the learned Magistrate to get the matter verified when the application of the petitioner on the face of it disclosed commission of cognizable offences against the accused. According to the learned counsel, the impugned direction of the learned Magistrate is in violation of various judgments of the Supreme Court to which he has made reference in the petition.
7. I have heard learned counsel for the petitioner and perused the record of the case.
8. Section 154 of Cr. P. C makes its incumbent upon an officer-in-charge of a Police Station to register an FIR when he receives an information disclosing commission of a cognizable offence. Section 156(3) of Cr. P. C gives jurisdiction to a Magistrate empowered under Section 190 of Cr. P. C to order an investigation into a cognizable case. 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. From a perusal of the aforesai
