Section 195 CrPC does not Bar Registration of FIR without Sanction, Rules HC

On Monday, in a significant procedural challenge concerning the scope of Section 195 of the Code of Criminal Procedure, the High Court of Jammu & Kashmir and Ladakh stepped in to examine whether criminal proceedings arising out of alleged COVID-19 lockdown violations could be halted at the threshold. The petition questioned the very legality of an FIR registered for offences under Sections 188, 269, and 353 IPC, arguing that the absence of a complaint by a competent public servant vitiated the proceedings, an issue that compelled the Court to clarify the precise stage at which statutory bars under criminal law truly operate.

The controversy began when the petitioner, claiming to be a journalist, was intercepted during the 2020 lockdown in Bandipora while allegedly moving in violation of prohibitory orders imposed under Section 144 of the CrPC. According to the prosecution, he not only failed to justify his presence but also allegedly assaulted police personnel on duty, leading to registration of the FIR and subsequent investigation. Counsel for the petitioner argued that the prosecution had bypassed mandatory safeguards under Section 195 of the CrPC and Section 60 of the Disaster Management Act, contending that without a formal complaint by the competent authority, the entire criminal process stood vitiated. The State, however, countered that the allegations disclosed a prima facie offence and that the statutory bar, if any, did not extend to the stage of investigation.

The Court emphasised that Section 195 of the CrPC does not impede the registration of FIRs or the investigative process. The Bench observed, “there is neither any bar nor any prohibition in registration of FIR and investigation of the case but only on completion of investigation the embargo in Section 195 Cr.P.C would come into play.” It further cautioned against invoking inherent jurisdiction prematurely, remarking that “the question whether there is any violation of section 195 Cr.P.C is wholly far-fetched… the petitioner has approached this Court prematurely at the pre-cognizance stage.” Emphasising that disputed factual issues and compliance objections must be tested at the stage of charge or discharge before the trial court, the Court ultimately refused to interdict the proceedings.

Consequently, the petition seeking quashing of the FIR was dismissed, with liberty granted to raise all permissible objections before the trial court.

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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