In a non-cognizable case, the police cannot register the FIR without permission from the magistrate, and after receiving such permission, the police has the power to investigate the case as in a cognizable case, except the power to arrest.

JUDGMENT

Heard.

2. Through the instant petition filed under Section 561-A Cr.P.C., petitioner seeks quashment of FIR No.88/2018 dated 04.07.2018 registered with Police Station, Bakshi Nagar, Jammu under Section 506 RPC against the petitioner.

3. The petitioner claims to be a retired Superintendent of Police and that on account of good name earned by him, he was offered many social and political assignments. The petitioner is presently residing at Subash Nagar, Jammu and right opposite to the house of the petitioner, the house of respondent No. 2 is situated. It is stated that the relationship between the petitioner and respondent No. 2 remained strained for the past few years. Although the petitioner has never given any opportunity or occasion to respondent No. 2 to complain about any of his activities, yet respondent No. 2 picks up quarrels and abuses the petitioner over non-issues and creates scene in the locality by harassing and victimizing the petitioner. It is further stated that in view of the hostility between the petitioner and respondent No. 2 and due to her ill will towards the petitioner and his family, a complaint was lodged before the court of learned Chief Judicial Magistrate by respondent No. 2. It is submitted that the said complaint has been filed under the provisions of Section 156(3) of Cr.P.C. without approaching the concerned SHO or District Superintendent of Police.

4. Learned counsel for the petitioner states that from the perusal of the complaint and in the endorsement made thereupon, it reveals that police of Bakshi Nagar, Jammu initially investigated the matter and found that case was non-cognizable as per Daily Diary Report No.32, dated 14.06.2018. A report in this regard was furnished to the learned CJM, Jammu. Thereafter, learned CJM, Jammu after going through the aforesaid report directed the SHO Police Station, Bakshi Nagar to conduct investigation in the matter. The order of learned Chief Judicial Magistrate is also recorded on the said application. The very fact that the offence disclosed as non-cognizable offence would mean that the police is barred from conducting the investigation in the matter and only recourse available to complainant was to file a regular complaint before the Magistrate/competent court.

5. Learned counsel for the petitioner further contends that the learned Chief Judicial Magistrate, Jammu has acted in an arbitrary and illegal manner by directing the police to register an FIR against the petitioner on the basis of a complaint under Section 156(3) Cr.P.C. It is stated that compelled under the circumstances and findings itself cornered of the impugned order dated 04.07.2018 passed by the learned Chief Judicial Magistrate, Jammu, SHO Police Station, Bakshi Nagar, Jammu has registered FIR even though offence is non-cognizable.

6. The petitioner seeks quashment of the impugned order dated 04.07.2018 and registration of FIR No.88 of 2018 on the following grounds:-

(a) That the FIR No. 88/2018 dated 04.07.2018 registered with Police Station, Bakshi Nagar, Jammu under Section 506 RPC against the petitioner 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 Chief Judicial Magistrate, Jammu.

(b) That in the present case, admittedly the complainant had neither approached the SHO nor the District Superintendent of Police before approaching the learned Magistrate. The assumption of jurisdiction by the Chief Judicial Magistrate is contrary to the judgment and provisions of Hon’ble Supreme Court of India in Priyanka Srivastava’s case and is therefore, 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 inquiry under Section 202 and consequentially issue of jurisdiction under Section 156(3) Cr. P.C. without issuing to the applicant/petitio