Rafaqat Hussain And Others vs Sayidha Kouser
2021 Latest Caselaw 828 j&K

                                                                                      S. No. 235
                       HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                                       AT JAMMU

                                                                        CRM(M) No. 420/2019
                                                                        CrlM No. 1001/2019

        Rafaqat Hussain and others                                      ...Appellant/Petitioner(s)


                                   Through :- Mr. Sheikh Najeeb, Advocate

                                  v/s
                                    <




        Sayidha Kouser                                                         .....Respondent (s)
        't




                                   Through :- None


        Coram:                 HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE

                                                        ORDER

1. The present petition has been filed by the petitioners for quashing

order dated 27.07.2019 passed by the learned Chief Judicial Magistrate, Rajouri in

complaint titled "Sayidha Kouser vs. Javed Iqbal and others" by virtue of which

learned Magistrate has directed Station House Officer, Police Station, Rajouri to

lodge an FIR against the petitioners in terms of Section 156(3) Cr.P.C.

2. The necessary facts for the disposal of the present petition are that the

marriage between the respondent and petitioner No. 1 was solemnized on

27.04.2017 at Village Jamola, Tehsil Koteranka, District Rajouri. It is further

stated that the respondent after leaving the company of petitioner No. 1 has

solemnized her second marriage and in this regard FIR bearing No. 29/2017 was

registered with Women Cell, Rajouri by the petitioner No. 1 for commission of

offence under section 366/109 RPC. It is further stated that thereafter respondent

has filed false and vexatious complaint before the court of Chief Judicial

Magistrate, Rajouri for commission of offences under section 120-B/366/376-

NEHA KUMARI 2021.08.09 10:29 I attest to the accuracy and integrity of this document

D/403 RPC on 02.03.2019 against the petitioners leveling baseless allegations and

a story was concocted just to implicate the petitioners in false and frivolous case.

3. It is further stated that thereafter, learned Magistrate vide order dated

18.03.2019 ordered an enquiry under section 202 Cr.P.C for ascertaining veracity

of the allegations leveled in the complaint. It is further stated that Station House

Officer, Rajouri has conducted an enquiry and submitted the report stating therein

that no offence as alleged in the complaint has been proved against the petitioners

herein. Thereafter, learned Magistrate, after perusing the said report, vide order

dated 27.07.2019 directed the concerned Station House Officer to lodge an FIR

under section 156(3) Cr.P.C and to file report within a period of 05 days. It is

further stated that the petitioners sought quashing of the order impugned primarily

on the ground that once learned Magistrate had ordered an enquiry under section

202 Cr.P.C, learned Magistrate could not have taken recourse to section 156(3)

Cr.P.C.

4. So far as, Chapter XVI of Cr.P.C is concerned, it deals with complaint

to Magistrate whereas, section 156(3) falls under Chapter XIV and Chapter XIV

deals with the information to the Police and their powers to investigate. Both

operate in different fields. Once after the report was submitted pursuant to the

enquiry conducted under section 202 Cr.P.C, the only course available before the

concerned Magistrate was either to issue process against the petitioners or to

dismiss the complaint in terms of section 203 Cr.P.C but in the instant case,

learned Magistrate neither issued process against the petitioners nor dismissed the

complaint. Learned Magistrate has resorted to section 156(3) Cr.P.C, the course

that was not available to the Magistrate at all, since he had already resorted to 202

Cr.P.C and had postponed the issuance of process pending enquiry to be

conducted by the Station House Officer, Police Station, Rajouri.

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5. Reliance is placed upon the judgment of the Hon'ble Apex Court in

case titled "Madho & Anr. vs. State of Maharashtra & Anr." reported in 2013

(5) SCC 615, in paragraph-13, it has been held as under:-

"13) When a magistrate receives a complaint he is not bound to take cognizance if the facts alleged in the complaint disclose the commission of an offence. The magistrate has discretion in the matter. If on a reading of the complaint, he finds that the allegations therein disclose a cognizance offence and the forwarding of the complaint to the police for investigation under section 156(3) will be conducive to justice and save the valuable time of the magistrate from being wasted in enquiring into a matter which was primarily the duty of the police to investigate, he will be justified in adopting that course as an alternative to taking cognizance of the offence itself. As said earlier, in the case of a complaint regarding the commission of cognizable offence, the power under Section 156(3) can be invoked by the Magistrate before he takes cognizance of the offence under Section 190(1)(a). However, if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to revert back to the pre-cognizance stage and avail of Section 156(3)."

6. In view of this, the order impugned is bad in the eye of law and the

same is hereby quashed. However, the learned Magistrate shall be at liberty to

proceed in accordance with law.

7. The present petition, is accordingly, disposed of.

(RAJNESH OSWAL) JUDGE JAMMU 06.08.2021 Neha Whether the order is speaking: Yes Whether the order is reportable: No

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