Mohd Aijaz vs Sajad Ahmad Dar & Another
2021 Latest Caselaw 141 j&K/2

                                IN THE HIGH COURT OF JAMMU AND KASHMIR
                                              AT SRINAGAR

                                                           Reserved on: 01.02.2021
                                                         Pronounced on:18.02.2021

                                                               CRMC No.285/2017

                          Mohd Aijaz                                   ...Petitioner(s)

                                          Through: -      Mr. Altaf Naik, Sr. Adv. with
                                                          Mr. Zia, Advocate

                          Vs.

                          Sajad Ahmad Dar & another                 ...Respondent(s)

                                          Through: -      Mr. Mubashir Adv.-for R1.
                                                          Mr. B. A. Dar, Sr. AAG, with
                                                          Ms. Saba Gulzar, Assisting
                                                          Counsel-for R2.


                          CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE.


                                                   JUDGMENT

1) Petitioner has challenged order dated 15th of

November, 2017, passed by Judicial Magistrate 1st Class,

Shopian, whereby a direction has been issued to SHO,

P/S Shopian, to register an FIR and investigate the

matter in terms of Section 156(3) of Cr. P. C. Petitioner

has filed an additional affidavit throwing challenge to FIR

No.291/2017 registered with P/S Shopian for offences

under Section 341, 323, 379 RPC, that has been

registered pursuant to the aforesaid impugned order.

MOHAMMAD ALTAF BHAT 2021.02.19 14:39 I attest to the accuracy and integrity of this document

2) Briefly stated, the facts leading to the filing of the

instant petition are that on 2nd of November, 2017, the

respondent No.1 (complainant) filed an application before

the Judicial Magistrate 1st Class, Shopian, alleging

therein that on 30th of October, 2017, while he was

travelling from Srinagar to Shopian in his personal

vehicle, the vehicle of the petitioner herein, who

happened to be posted as Deputy Commissioner,

Shopian, at the relevant time, was proceeding behind his

vehicle and because the complainant was unable to allow

the vehicle of the petitioner to proceed ahead on account

of traffic jam, the petitioner became furious. It was

further averred in the complaint that on reaching near

Mini Secretariat, Shopian, the petitioner got down from

his vehicle, stopped the respondent/complainant,

thrashed him and took away his five ATM cards, PAN

card and identity card. On the basis of these allegations,

the respondent (complainant) sought a direction for

lodging of FIR against the petitioner herein.

3) Upon receipt of complaint containing the foresaid

allegations, the learned Magistrate recorded the

preliminary statement of the complainant and sought a

report from SHO, P/S Shopian. The report was submitted

MOHAMMAD ALTAF BHAT by SHO, P/S Shopian, whereby he sought further time to 2021.02.19 14:39 I attest to the accuracy and integrity of this document

collect complete details about the matter. However,

learned Magistrate, without waiting for the complete

details, proceeded ahead to pass the impugned order

thereby issuing a direction to SHO, P/S Shopian, to

register FIR in the matter and investigate the same.

4) Petitioner has challenged the impugned order and

the FIR registered pursuant thereto on the grounds that

the learned Magistrate while passing the impugned order

has not followed the provisions of law; that the contents

of the complaint do not make out any offence against the

petitioner; that no notice was issued by the Magistrate to

the petitioner before passing the impugned order; that

while passing the impugned order, the binding

precedents of the Supreme Court and the High Court

have been overlooked by the learned Magistrate.

5) I have heard learned counsel for the parties and

perused the material available on record including the

record of the court below.

6) The main contention that has been urged during

the course of arguments by learned counsel for the

petitioner is that the learned Magistrate prior to directing

registration of FIR in terms of Section 156(3) of Cr. P. C

has, proceeded to record preliminary statement of the MOHAMMAD ALTAF BHAT 2021.02.19 14:39 I attest to the accuracy and integrity of this document

complainant and once the learned Magistrate has chosen

to record preliminary statement of the complaint, he

could not have passed a direction under Section 156(3) of

Cr.P.C directing the police to register the FIR.

7) In order to test merits of this argument, it is

necessary to notice the relevant provisions of the

Criminal Procedure Code. The learned Magistrate has in

the instant issued a direction in terms of Section 156(3)

of Cr. P. C to the police to register the FIR. The said

provision finds its place in Chapter XIV of the Jammu

and Kashmir Code of Criminal Procedure, 1989, which

was applicable at the relevant time. Section 156 of the

Code reads as under:

"156. Investigation into cognizable cases.--(1) Any officer-in-charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the local limits of such station would have power to inquire into or try under the provisions of Chapter XV relating to the place of inquiry or trial.

(2) No proceeding of police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.

(3) Any Magistrate empowered under section 190 may order such an investigation as above-mentioned."

MOHAMMAD ALTAF BHAT 2021.02.19 14:39 I attest to the accuracy and integrity of this document

A perusal of the aforesaid provision reveals that

there is no scope for the Magistrate to record preliminary

statement of the complainant at the time of issuing a

direction to the officer in charge of a police station to

investigate a cognizable case. In fact, a direction under

Section 156(3) Cr. P. C is issued at a pre cognizable

stage. So far as recording of preliminary statement of

complainant and his witnesses is concerned, the same is

provided in Section 200 of the Code of Criminal

Procedure, which finds placed in Chapter XVI of the said

Code. Section 200 reads as under:

200. Examination of complainant.--

A Magistrate taking cognizance of an offence on complaint shall at once examine the complainant and the witnesses present, if any upon oath and the substance of the examination shall be reduced to writing and shall be signed by the complainant and the witnesses and also by the Magistrate:

Provided as follows--

(a) when the complaint is made in writing, nothing herein contained shall be deemed to require a Magistrate to examine the complainant before transferring the case under section 192;

(b) when the complaint is made in writing, nothing herein contained shall be deemed to require the examination of a complainant in any case in which the complaint has been made by a Court or by a public servant acting or purporting to act in the discharge of his official duties ;

MOHAMMAD ALTAF BHAT 2021.02.19 14:39 I attest to the accuracy and integrity of this document

(c) when the case has been transferred under section 192 and the Magistrate so transferring it has already examined the complainant, the Magistrate to whom it is so transferred shall not be bound to re-examine the complainant.

A perusal of the aforesaid provision clearly shows

that when a complainant is examined by a Magistrate, it

means that he has taken cognizance of an offence on

complaint.

8) Thus, when a person approaches a Magistrate with

a complaint containing the allegations with regard to

commission of a cognizable offence, the Magistrate has

two options. He may either proceed under Section 156(3)

of Cr. P. C and direct the officer in charge of a police

station to register the FIR and investigate the case or he

may proceed to record preliminary statement of the

complainant and his witnesses after taking cognizance of

an offence and thereafter proceed in the manner as

provided under Section 202, 203 and 204 of the Code. If

the Magistrate after examining the complainant and his

witnesses is not sure about the truth or falsehood of the

contents of the complaint, he may proceed under Section

202 of Cr. P. C and postpone the issue of process and

direct an enquiry or investigation to be made by any

MOHAMMAD ALTAF BHAT Magistrate subordinate to him or by any police officer or 2021.02.19 14:39 I attest to the accuracy and integrity of this document

by such other person. This is clear from the provision

contained in Section 202 of Cr. P. C; which reads as

under:

202. Postponement for issue of process.-- (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been transferred to him under section 192, may, if he thinks fit, for reasons to be recorded in writing, postpone the issue of process for compelling the attendance of the person complained against, and either inquire into the case himself, or, direct an inquiry or investigation to be made by any Magistrate subordinate to him, or by a police officer, or by such other person as he thinks fit for the purpose of ascertaining the truth or falsehood of the complaint :

Provided that, save where the complaint has been made by a Court, no such direction shall be made unless the complainant has been examined on oath under the provisions of section 200.

(2) If any inquiry or investigation under this section is made by a person not being a Magistrate or a police officer, such person shall exercise all the powers conferred by this Code on an officer-in-charge of a police station, except that he shall not have power to arrest without warrant.

(3) Any Magistrate inquiring into a case under this section may, if he thinks fit, take evidence of witnesses on oath.

9) Even while having resort to the afore quoted

provision, a Magistrate has option of directing an

investigation in order to ascertain the truth or falsehood

of the complaint. However, the scope and nature of

investigation or inquiry contemplated under this

provision is not the same as contemplated in Section 156 MOHAMMAD ALTAF BHAT 2021.02.19 14:39 I attest to the accuracy and integrity of this document

of Cr.P.C. Under Section 202 of Cr. P. C, the scope of

investigation is limited to assist the Magistrate in

ascertaining truth or falsehood of the contents of the

complaint so that the Magistrate is in a position to make

up his mind whether to pass an order of dismissal of the

complaint in terms of Section 203 of Cr. P. C or to issue a

process against the accused in terms of Section 204 of

Cr. P. C. The investigation contemplated in Section 156

Cr. P. C involves registration of an FIR, arrest of accused,

if need be, and laying of charge sheet or closure report

before the Magistrate in terms of Section 173 of Cr. P. C.

So the scope and area of investigation under Section 156

and 202 Cr. P. C is entirely different and distinct from

each other.

10) In the instant case, the learned Magistrate while

passing the impugned order has specifically made a

direction for registration of an FIR and investigation of

the case, which means that he has exercised jurisdiction

under Section 156(3) of Cr. P. C and not under Section

202 Cr. P. C. A Magistrate, if he chooses to record

preliminary statement of the complainant, proceeds

under Chapter XVI of the Code, which presupposes that

he has taken cognizance of the offence on the complaint.

MOHAMMAD ALTAF BHAT Once a Magistrate has chosen this course of action, it is 2021.02.19 14:39 I attest to the accuracy and integrity of this document

not open to him to go back to the provisions contained in

Chapter XIV of the Code and issue a direction for

registration of FIR and investigation of the case in terms

of Section 156 Cr. P. C. In my aforesaid view, I am

supported by a recent judgment of a Coordinate Bench of

this Court delivered in the case of Sami-ullah

Naqashbandi vs. Sadaf Niyaz Shah, CRM(M) No.113/2020

decided on 31.08.2020

11) In view of the aforesaid legal position, it was not

open to the learned Magistrate in the case at hand to go

back to the pre-cognizance stage and exercise jurisdiction

under Section 156(3) of Cr. P. C by directing registration

of FIR, after having taken cognizance of the offence upon

the complaint of the respondent No.1 and recording his

preliminary statement.

12) Learned counsel for the respondent No.1 has urged

that the direction of the learned Magistrate for

investigation of the case may be treated as a direction

under Section 202 Cr. P. C and not a direction under

Section 156(3) of Cr. P. C. According to the learned

counsel, it is only an irregularity which deserves to be

cured by adopting the above course. In support of his

contention, the learned counsel has relied upon the

MOHAMMAD ALTAF BHAT 2021.02.19 14:39 I attest to the accuracy and integrity of this document

judgment of the Supreme Court in the case of Jamuna

Singh and Others vs Bhadai Sah, AIR 1964 SC 1541.

13) I am afraid the suggestion given by learned counsel

for respondent No.1 cannot be accepted for the reason

that in the instant case, the learned Magistrate, while

passing the impugned order has, in no uncertain terms,

stated that the direction is being issued under Section

156(3) of Cr. P. C and he has not only directed

investigation of the case but he has also directed

registration of an FIR which is permissible only under

Section 156(3) Cr. P. C and not under Section 202 of Cr.

P. C. In the case relied upon by respondent No.1, the

Magistrate had asked the police to institute a case and to

send a report and it is in those circumstances that the

Supreme Court holding it to be an irregularity, treated

the same as a direction made under Section 202 Cr. P. C.

However, the situation, as already noted, is quite

different in the case at hand as the directions of the

learned Magistrate over here are specifically for

registration of an FIR.

14) Summing up the legal position, once a complaint

alleging commission of cognizable offences is laid before a

Magistrate, two options are available before him. He may MOHAMMAD ALTAF BHAT 2021.02.19 14:39 either direct the officer in charge of the police station I attest to the accuracy and integrity of this document

concerned to register the FIR and investigate the case or

he may take cognizance of the offence, record the

preliminary statement of the complainant and his

witnesses, where after he may have resort to inquiry or

investigation to ascertain truth or falsehood of the

contents of the complaint so as to arrive at a decision

regarding issuance of process against the accused or

dismissal of the complaint but one thing is clear that

when a Magistrate proceeds under Chapter XVI of the

Code, by taking cognizance of the offence and recording

preliminary statement of the complainant, he cannot go

back to Chapter XIV of the Code and take resort to the

provisions contained in Section 156 of the Code.

15) In the instant case, the learned Magistrate by

issuing a direction for registration of the FIR and

investigation of the case, after having taken cognizance of

the offence and recording preliminary statement of the

complainant and without waiting for the report of the

police, which obviously was done by him in exercise of

his power under Section 202 Cr. P. C, has acted without

jurisdiction. The impugned order passed by the learned

Magistrate is, therefore, not sustainable in law and is

liable to be set aside.

MOHAMMAD ALTAF BHAT 2021.02.19 14:39 I attest to the accuracy and integrity of this document

16) For the foregoing reasons, the petition is allowed.

The impugned order and the FIR registered pursuant

thereto are quashed with a direction to the learned

Magistrate to proceed further in the matter in accordance

with the provisions contained in Chapter XVI of the J&K

Code of Criminal Procedure.

17) Trial court record along with copy of this order be

sent back.

(Sanjay Dhar) Judge Srinagar 18.02.2021 "Bhat Altaf, PS"

                                       Whether the order is speaking:       Yes
                                       Whether the order is reportable:     Yes




MOHAMMAD ALTAF BHAT
2021.02.19 14:39
I attest to the accuracy and
integrity of this document