Even if Offence is Punishable under Two Statutes, Accused can't choose one, Rules HC

On Monday, in a significant procedural challenge arising from Covid-19 lockdown enforcement, the Jammu & Kashmir and Ladakh High Court examined whether an accused can dictate the legal framework under which prosecution must proceed. The case raised a crucial question on the limits of an accused’s rights at the pre-trial stage, particularly when multiple statutes may apply to a single set of alleged acts, an issue the Court closely scrutinised before delivering its verdict.

The controversy began when the petitioner, claiming to be a journalist, was intercepted by a police patrol during restrictions imposed under Section 144 of the CrPC.  According to the prosecution, he was found moving without justification during the lockdown and allegedly assaulted police personnel on duty, leading to registration of offences under Sections 188, 269, and 353 of the IPC. Challenging the FIR, the petitioner contended that the prosecution was legally flawed, arguing that cognizance could only be taken under the Disaster Management Act or through a complaint mechanism under Section 195 of the CrPC. He further claimed that the statutory safeguards had been bypassed, rendering the entire proceedings unsustainable.

The Court, however, found no merit in these submissions and emphasised that its inherent jurisdiction under Section 482 of the CrPC must be exercised sparingly, particularly when the matter is still at a preliminary stage. It noted that the petitioner had approached the Court prematurely, seeking to challenge procedural aspects that are properly examined during trial or at the stage of framing of charges. Delivering a clear and decisive observation, the Court held that “an accused cannot insist for presentation of chargesheet under the penal statute of his choice, when such acts are punishable under two different statutes.” It further clarified that while certain statutes may prescribe conditions for cognizance, they do not bar investigation or prosecution under other applicable laws. The Bench also underscored that assessing the correctness of allegations or statutory compliance would require an appreciation of evidence, an exercise reserved for the trial court.

Finding no exceptional circumstance warranting interference, the Court dismissed the petition and directed that the trial proceed in accordance with the law.

Case Title: Mushtaq Ahmad Ganie Vs. Union Territory of J and K & Anr.

Case No.: CRM(M) No.141/2020

Coram: Hon’ble Mr. Justice Shahzad Azeem

Advocate for the Petitioner: Adv. Bilal Ahmad Malla

Advocate for the Respondent: Government Adv. Jehangir Dar

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