Point of Law: Criminal Trial - Police officer’s power to investigate cognizable case - Section156 (3) Cr.P.C. any Magistrate empowered under Section 190 may order the investigation with regard to a cognizable case. So only consideration before Magistrate while issuing direction under Section 156(3) Cr.P.C. is to see as to whether the allegations made in the application demonstrate commission of cognizable offence or not and if it is found that the cognizable offence is made out, the Magistrate can order the investigation under Section 156 (3) Cr.P.C. Section 156(3) Cr.P.C. does not contemplate the issuance of any order other than the order of investigation of a cognizable case.

JUDGMENT :

RAJNESH OSWAL, J.

1. The petitioners are aggrieved of the order dated 9th January 2020 passed by the learned Judicial Magistrate 1st Class, (Duty Magistrate) Srinagar, (hereinafter referred to as ‘Magistrate’) by virtue of which the In-charge Police Division Humhama has been directed to remove the obstruction created by the accused persons by dumping stones.

2. The petitioner has filed the present petition on the ground that the learned Magistrate while exercising the powers under Section 156(3) Cr.P.C. had no jurisdiction to direct the Police to remove the obstruction created by the petitioner by dumping stones.

3. It is stated that the respondents herein had filed an application before the learned Magistrate under Section 156 (3) Cr.P.C. on the ground that the respondent No. 1 owned a landed property measuring 2 kanals situated at Gulbahar Colony Hyderpora and the respondent 2 and 3 being partners of the respondent No. 1 are jointly conducting business of real estate. It was further stated in the said application that there was a 12 feet wide road/pathway leading to the said land of the respondent No. 1, that is being used by the respondent for the ingress and egress purposes and the petitioners who are chronic litigants and have involved many people of the area in false and frivolous litigations, started causing interference in using the said pathway and tried to block the same illegally and forcibly, that compelled the respondents to file a suit before the court of learned Sub-Registrar Srinagar, whereby the petitioners were restrained from blocking the road/pathway used by the respondents as ingress and egress and were further restrained from dumping the stones on the road/pathway. However, on the service of the copy of the order, the petitioners became hostile and threatened the respondents of dire consequences and also petitioner tried to block the road by dumping stones. However, the respondents tried to stop the petitioners from blocking the pathway, who in turn (the petitioners) thrashed the respondents and hurled the choicest abuses upon the respondents. It was further stated in the application that the respondents had approached the police but no action was taken. It is further pleaded that on the presentation of said application, the learned Magistrate on 4th January 2020 directed the police concerned to furnish the report and the police concerned furnished the report and stated that the petitioners have blocked the pathway despite court directions. After the receipt of the report, the learned Magistrate vide order dated 9th January 2020 directed the In-charge Police Division Humhama, to lodge an FIR against the petitioners and investigate the matter thoroughly and further it was directed that the Police shall remove the obstruction created by the petitioners by dumping stones.

4. Mr. F.A. Wani, learned counsel for the petitioners has vehemently argued that the petitioners are not aggrieved of the order dated 9th January 2020 so far as issuance of direction for registration of FIR is concerned, but the petitioners are only aggrieved of the further direction regarding the removal of obstruction from the road as the learned Magistrate had no jurisdiction to pass such direction under Section 156 (3) Cr.P.C.

5. Heard and perused the record.

6. Section 156 Cr.P.C. is reproduced hereunder:

“156. Police officer's power to investigate cognizable case - (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 limits of such station would have power to inquire into or try under the provisions of Chapter XIII.

(2) No proceeding of a 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-men