In a recent ruling, High Court of Jammu and Kashmir and Ladakh held that in cases of abnormal delay by the complainant in initiating criminal prosecution, the Magistrate must order a preliminary inquiry. It was further stated that such an inquiry can help identify potential obstacles in the prosecution process and determine reasons for the delay, including missing evidence or witnesses.
Brief Facts:
According to the complainant/respondent 3's statement to the Magistrate in this case, the accused petitioner approached him in 2017 and persuaded him to invest in three construction companies, promising returns within a year. However, after investing Rs. 1,75,76,961/-, the complainant/respondent 3 did not receive any profits. The accused persons failed to make any payments in return, and when the complainant/respondent 3 demanded the return of his money, they threatened him and his family and committed several criminal acts, including attempted murder. No action was taken when the complainant/respondent 3 approached the police, leading to the filing of an application under Section 156(3) CrPC. The Magistrate directed respondent 2 to file an FIR and provide a compliance report, stating that if the information indicates the occurrence of a cognizable offense, then under Section 154 CrPC, the registration of an FIR is obligatory, and no preliminary inquiry can be conducted in such circumstances.
Contentions of the Appellant:
Mr. Dar, counsel for the petitioners, reiterated vigorously praying for the quashing of the impugned order and FIR.
Contentions of the Respondent:
Mr. Faisal Qadiri, Senior Advocate for Respondent 3, and Mr. Sajad Ashraf, GA representing Respondents 1 and 2, opposed Mr. Dar's contentions and urged for the dismissal of the petitions.
Observations by the Court:
The court while referring to the landmark judgments of “Lalita Kumari vs. Government of UP and others reported in (2014) 2 SCC 1 and Priyanka Srivastava and another versus State of U. P. and others reported in (2015) 6 SCC 287 reaffirmed that the necessity of a preliminary inquiry and the type of cases in which it should be conducted are determined by the specific facts and circumstances of each case. The following are examples of cases that may require a preliminary inquiry: a) matrimonial or family disputes, b) commercial offenses, c) medical negligence cases, d) corruption cases, and e) cases where there is an unusual delay or laches in initiating criminal proceedings, such as a delay of more than 3 months without a satisfactory explanation, as held in the Lalita Kumari case. While referring to the facts of the case, the court was of the view that the complaint against the petitioners pertained to offenses committed in 2019, and that there was no explanation for the delay in reporting the matter to officials. Taking into consideration the petitioner’s argument, the court held that the Magistrate overlooked the principle laid down by the Lalita Kumari Case, which mandates a preliminary inquiry when there is an abnormal delay in initiating criminal prosecution without satisfactory reasons. Despite the application filed by respondent 3 alleging offenses committed by the petitioners in 2019, with no explanation provided for the delay in approaching officials, the Magistrate directed the registration of the impugned FIR without ordering a preliminary inquiry, the court noted.
The judgment authored by Justice Javed Iqbal Wani read:
“There apparently has been a considerable delay in seeking registration of FIR by complainant/respondent no. 3 against the accused persons/petitioners for the commission of offences allegedly committed against the complainant/respondent no. 3 and his family initially in the month of September, 2019. The Magistrate apparently has not considered this aspect of the matter while overlooking clause (e) of para 126.6 of Lalita Kumari’s case supra.”
The decision of the Court:
The court allowed the petitions in the instant case and the order by the Magistrate was set aside.
Case Title: Harbachan Singh vs Sr. Superintendent of Police Srinagar and others
Coram: Hon’ble Mr. Justice Javed Iqbal Wani
Case No.: CRM(M) No. 231 of 2022
Advocate for the Applicant: Mr. M. I. Dar, Advocate
Advocate for the Respondent: Mr. Faisal Qadiri, Senior Advocate, Mr. Sajad Ashraf, GA and Mr. Salih Pirzada, Advocate.
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