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HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Ali Mohammad Magrey, J.
Sami-ullah Naqashbandi
Versus
Sadaf Niyaz Shah
CRM (M) No.113/2020 & Crl (M) No. 316/2020
Decided on 31-08-2020
Indian Penal Code1860 - Section 166 166-A and 167 354 201 209 and 120-B - Criminal Procedure Code1973 - Section 482 – FIR – Quash - Judicial Magistrate passed following order - After going through averments made in application Court deem proper to get matter investigated before issuing any process in matter against accused person- Since applicant has put allegations against also investigation shall be conducted in instant matter by SSP Srinagar- Accordingly SSP Srinagar is directed to investigate matter by himself or through any police officer not below rank SDPO in earnest and submit his report before undersigned - On receipt of order SSP Srinagar got matter enquired through SDPO Nehru Park Srinagar and report of enquiry was submitted before Court of Judicial Magistrate through CPO Srinagar on It is stated that enquiry report reflected that matter and allegations against petitioner and or accused persons were not substantiated –Held Court records what transpired that learned Magistrate has very mechanical manner and as a result of non-application of mind issued directions to Senior Superintendent of Police Srinagar for investigation Section Code ignoring very spirit of law in terms whereof Magistrates have been authorized/empowered to issue directions for investigation Section Code- Thus direction Section to be issued only after application of mind by Magistrate- When Magistrate does not take cognizance and does not find it necessary to postpone instance of process and finds a case made out to proceed forthwith direction under said provision is issued- In or words where on account of credibility of information available or weighing interest of justice it is considered appropriate to straightway direct investigation such a direction is issued- In present case Magistrate takes cognizance and postpones issuance of process as Magistrate has yet to determine existence of sufficient ground to proceed- Magistrate has abused process of law by not adhering to procedure - Court delivered of Delhi where difference in investigative procedure in Chapters Code has been recognized and in that case Supreme Court also appears to have taken view that any Judicial Magistrate before taking cognizance of an offence can order investigation under Section Code and in doing so he is not required to examine complainant since he was not taking cognizance of any offence rein for purpose of enabling police to start investigation- Reference has been made to decision of Court in Suresh Court has taken a view that approach adopted by learned Magistrate in conducting case in hand has not been in consistent with law abuse of process of law has become necessary to send copy of order to Registrar General of this Court for requesting Director Judicial Academy to arrange training session on subject for all Magistrates in Union Territory of Jammu and Kashmir and Union Territory in phased manner- He shall also request Director Judicial Academy to circulate Judgment amongst all Magistrates well in advance of training session – Petition disposed
JUDGMENT
The instant petition, filed under Section 482 of Code of Criminal Procedure (for short “Code”), seeking quashment of order dated 25.06.2020, read with order dated 11.05.2020 passed by the Judicial Magistrate 1st Class (3rd Additional Munsiff/JMIC, Srinagar.)
Brief facts
2. Petitioner while performing his duties as Naib Tehsildar, Executive Magistrate, Khanyar, came to know about filing of the compliant by respondent against him as well as other accused persons. The said complaint stated to be filed for commission of offences under Section 166, 166-A, and 167, 354, 201, 209 and 120-B IPC. The said compliant was assigned to the Court of Judicial Magistrate 1st Class (3rd Additional Munsiff/JMIC, Srinagar), by the learned CJM, Srinagar. In the said complaint, petitioner has prayed for registration of FIR or in the alternative cognizance of offence mentioned in the complaint. It is stated that the grouse of respondent revolved around possession and dispossession of respondent herein from the property, violation of lease agreement, rights of respondent at the hands of non-applicants therein. It is stated that upon presentation of the complaint the Judicial Magistrate 1st Class (3rd Additional Munsiff/JMIC, Srinagar), passed the following order.
“ ….After going through the averments made in the application, I deem it proper to get the matter investigated before issuing any process in the matter against the accused person. Since the applicant has put allegations against Tehsildar and Naib Tehsildar also, therefore, the investigation shall be conducted in the instant matter by the SSP Srinagar. Accordingly, the SSP Srinagar is directed to investigate the matter either by himself or through any police officer not below the rank SDPO in the earnest and submit his report before the undersigned….”
3. On receipt of the order, SSP, Srinagar, got the matter enquired through SDPO, Nehru Park, Srinagar, and the report of the enquiry was submitted before the Court of Judicial Magistrate 1st Class (3rd Additional Munsiff/JMIC, Srinagar), through CPO, Srinagar, on 23.05.2020. It is stated that the enquiry report reflected that the matter and allegations levelled against the petitioner and other accused persons were not substantiated.
4. The Judicial Magistrate 1st Class (3rd Additional Munsiff/JMIC, Srinagar), on receipt of the report from SSP, Srinagar, and on consideration of the matter and while recording that the SSP, has not taken any action in the matter, directed the SSP, Srinagar, to take action under the provisions of Section 156(3), of Criminal Procedure Code in the earnest and get the matter investigated through SP concerned vide order dated 25.06.2020, which order is under challenge in the instant petition on the grounds detailed out as under:-
(a) That the impugned orders passed by the Judicial Magistrate 1st Class (3rd Additional Munsiff/JMIC, Srinagar), directing the SSP, Srinagar to investigate the matter and to take action under the provisions of Section 156(3) of Criminal Procedure Code is contrary to the provisions of law inasmuch as the offence which is non-cognizable has been allowed to be investigated by the Police by a cryptic incomplete order of the learned Magistrate.
(b) That in the present case, admittedly the complainant had neither approached the SHO concerned nor SSP, Srinagar, before approaching the learned Magistrate. The assumption of jurisdiction by the magistrate is contrary to the Judgment and provisions of Hon’ble Supreme Court of India in Priyanka Srivastava’s case, therefore, is bad in law and consequently direction to register the FIR is also bad and contrary to the law laid down by the Hon’ble Supreme Court.
(c) That the Magistrate could not have ordered enquiry under Section 202, as there was no material available in the complaint and consequentially issue of jurisdiction under Section 156(3) Cr. P.C. is without jurisdiction and without following the mandate of law. Both the orders passed by the Ma
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