Recently, the Jammu and Kashmir High Court held that general exceptions can only be put up as a defence to the prosecution case but in a case where facts are clear, either from a bare perusal of the complaint lodged against a person or from the material collected by the Investigating Agency during investigation of the case, it may not be necessary to wait for the accused to lead evidence so as to bring his case within the purview of General Exceptions.
Brief facts:
The factual matrix of the case is that an application under section 156(3) of Cr.P.C was filed before the learned Judicial Magistrate, 1st Class, wherein it was alleged that the Respondents are running a trust for imparting education (religious/ technical) to the poor orphan girls with hostel and mess facilities. It was furthermore alleged that adjacent to the proprietary land on which the trust was constructed, there exists a state land which is also recorded in the name of the trust under the J&K State Lands (Vesting of Ownership to Occupants) Act and after the abrogation of the said act, the revenue authorities were causing interference. It was alleged that the petitioners forcibly entered the trust premises without any prior notice and lawful authority and started harassing the female orphan students, forcibly threw the female students out of the kitchen/mess and dining hall, locked the same, and even outraged the modesty of the female students. Moreover, it was stated that the said matter was reported to the police authorities; however, no action was taken.
Furthermore, the learned magistrate directed the officer in charge of the police station to register FIR, and the impugned FIR alleging commission of offences under Section 447, 354 and 506 of IPC came to be registered. Aggrieved by this, the present petition is preferred.
Contentions of the Petitioners:
The learned counsel appearing on behalf of the Petitioner contended that the learned magistrate failed to take into account that the complainant had not complied with the provisions contained in Section 154(1) and 154(3) of the Cr.P.C, inasmuch as neither the SHO, nor the SSP concerned were approached by the complainant prior to filing of the application under Section 156(3) of Cr.P.C before the learned Magistrate. It was furthermore contended that the order passed by the learned magistrate is mechanical in nature and no offence is made out against the Petitioner
Observations of the court:
The Court, while dealing with the first issue as to whether the complainant had adhered to the provisions of Section 154(1) and 154(3) of the Cr.P.C prior to making the complaint before the learned Magistrate, and if not, what would be its effect, put its reliance upon the judgment of the Hon’ble Supreme Court titled Priyanka Shrivastava vs. U. P and others, and observed that, “the applications have to be supported by affidavits duly sworn by the applicant(s) and besides this, it should be indicated in the application that there has been prior application under Section 154(1) and 154(3) of Cr. P. C. The Court further made it clear that these aspects should be spelt out in the applicant and necessary documents to that effect should be filed”.
Moreover, in the present case, the complainant failed to comply with the said provisions before filing an application under Section 156(3) of the CrPC. The Court also relied upon the judgments titled Babu Venkatesh & others vs State of Karnataka & anr and Ranjit Singh Bath & another v U. T of Chandigarh & another.
The court furthermore observed after perusing the contents of the complaint that the Petitioners were trying to evict them from the state land and the Petitioners have also placed on record copies of eviction notices issued by the revenue authorities against the respondent trust and the Petitioners were acting in pursuance of the judgment titled S. K. Bhalla v. State of J&K and others. Also, Section 78 of the IPC clearly provides that an act done in pursuance of a judgment or order of a Court is not an offence, notwithstanding the Court may have had no jurisdiction to pass such judgment or order.
The Court noted that “Section 78 of IPC falls in the chapter relating to General Exceptions which can only be put up as a defence to the prosecution case but in a case where facts are clear, either from a bare perusal of the complaint lodged against a person or from the material collected by the Investigating Agency during investigation of the case, it may not be necessary to wait for the accused to lead evidence so as to bring his case within the purview of General Exceptions. If on the basis of the allegations made in the complaint, the case falls in General Exceptions, it can be stated that the action cannot be termed as an offence.”
Based on these considerations, the Court was of the opinion that no offence is made out against the Petitioners.
The decision of the Court:
With the above direction, the court allowed the present petition and quashed the impugned FIR.
Case Title: Syed Muiz Qadri & Ors. vs. UT of J&K & Ors.
Coram: Justice Sanjay Dhar
Case No: CRM(M) No.119/2022
Advocates for the Petitioners: Mr. Salih Pirzada, Advocate, With Mr. Bhat Shafi, Advocate.
Advocates for the Respondent: Mr. Faheem Nisar Shah, GA.
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