JUDGEMENT

1. Petitioners in both the above titled petitions filed under Sec 561-A of J&K CrPC (akin to Section 482 of Central CrPC) seek quashment of FIR Nos. 145/2018 and 153/2018 registered at Police Station, Mendhar on 01.09.2018 for the commission of offences punishable under sections 124-

A/120-B RPC.

2. It is pleaded that the registration of the FIR against the petitioners is misuse of the process in view of the fact that as per Section 196-B of CrPC which is mandatory the District Magistrate has to hold a preliminary investigation by a police officer not below the rank of Inspector before making a formal complaint for the registration of FIR and that no prosecution can be initiated for offences punishable under Chapter VI of Ranbir Penal Code except on a complaint made by the District Magistrate, in terms of section 196 of J&K CrPC.

3. Pursuant to notice, the respondents filed status report asserting therein that on a protest was carried out in Mendhar Town in favour of Article 35-A of the Indian Constitution on 31.08.2018 and the participants of the protest moving from Bus-stand towards Dak Bungalow raised pro-freedom slogans which tantamount to disaffection towards the State and the Country and eleven persons including the petitioners were identified; that a report was compiled by Police Station Mendhar and was forwarded to District Police Office, Poonch and on receiving instructions, a case was registered at Police Station Mendhar and the investigation was assigned to Inspector Mohd Ameen, SHO Police Station, Mendhar; that during the course of investigation, five persons were arrested, whereas the others including the petitioners absconded and the arrested accused persons were admitted to bail by Sessions Court Poonch, on 13.09.2018.

4. Respondents have also filed objections in both the petitions asserting therein that these petitions are not maintainable as the same involve factual disputes, which can be adjudicated by leading evidence in the cases as this Court cannot appreciate the evidence/statements recorded by the Investigating Agency, in view of the settled law by the Hon’ble Supreme Court; that Hon’ble the Supreme Court in a case “Kurukshetra University vs State” while discussing the scope of Section 482 CrPC, has held that the powers can be exercised very sparingly as there is very bleak scope of interference into the investigation.

5. Learned Counsel for the petitioners argued that the registration of the FIRs is misuse of the process of law against the petitioners as for an offence under Section 124 IPC Hon’ble Supreme Court of India has stayed proceedings of all the cases involving this offence in a case, where constitutional validity of section 124-A IPC has been challenged, asserting its infringement on freedom of speech. He has further argued that the impugned FIRs requires to be quashed, in view of the fact that no FIRs could have been registered and it was only the District Magistrate who was competent to order preliminary investigation before laying a complaint that too by the District Magistrate himself. As such, no charge-sheet can be formulated by the police after investigation of the case for being presented to the Court of law. He has finally prayed that the petitions be allowed and the impugned FIRs be quashed in the interest of justice. In support of his arguments, learned counsel for the petitioners has relied upon the judgments of this Court in cases titled “ Zabir Ahmed vs State of J&K & Anr ” , reported as 2010(2) JKJ 6[HC], “ Ahali Manhassan vs Financial Commissioner & Ors” , reported as 2010(2) JKJ 7[HC], “Mst. Naziran Bi & Ors vs State & Ors ”, reported as 2005(1) SLJ , “ Sheikh Imran & Anr vs State of J&K & Ors”, reported as 2013 (4) JKJ 520, “Munir Hussain & Ors vs State & Ors”, reported as 2015(2) JKJ 743 and “S G Vombatkere vs Union of India”, reported as 2022 L