Jammu & Kashmir High Court - Srinagar Bench

Ghulam Mohammad Khan And Others vs State Of J&K on 5 February, 2021

               HIGH COURT OF JAMMU AND KASHMIR
                          AT SRINAGAR
                                (Through Video Conference)


                                                     Reserved on 17.12.2020
                                                     Pronounced on 05.02.2021

                                                     Pet. u/s 561-A No. 90/2009
                                                     IA No. 1/2009[177/2009]


Ghulam Mohammad Khan and others                              ...Petitioner/Applicant(s)


                 Through :- Mr. Z. A. Quershi, Sr. Advocate with
                            Ms. Rehana, Advocate

                v/s
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State of J&K                                                         .....Respondent (s)


                 Through :-


Coram:       HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
                      (through Video Conference from residence in Jammu)

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                                      JUDGMENT

1. The present petition has been filed under section 561-A Cr.P.C.

for quashing proceedings in the complaint, titled, "State vs Ghulam

Mohammad Khan and others" pending before the court of Sessions Judge,

Kathua (hereinafter to be referred as the trial court) for commission of offences

under sections 120-B, 121, 121-A and 123 RPC in FIR No. 12/2001 registered

with Police Station, Lakhanpur.

2. The petitioners have challenged the charges for commission of

offences under sections 120-B, 121, 121-A and 123 RPC, those were framed

by the trial court vide order dated 15.05.2009 as well as proceedings thereof

solely on the ground that there is violation of section 196 of the Code of

Criminal Procedure (for short the Code) and, as such, the proceedings as well

as order dated 15.05.2009 (supra) are required to be quashed. It is further stated

that no complaint as envisaged under section 196 of the Code has been filed by

the District Magistrate, Kathua.

3. Before appreciating the contentions of the petitioner, it is

appropriate to have brief resume of the prosecution story. On 27.03.2001, a

source information was received that one Showkat Ahmed Din an employee of

Veterinary Department S/o Ghulam Qadir R/o Shah Mohallah, Nawabazar,

Srinagar and Abdul Majid Sheikh S/o Abdul Aziz Sheikh R/o Gou-Kadal,

Masoma, Srinagar, a member of banned organization are coming in a Maruti

Car from Delhi towards Srinagar and are carrying huge amount of money by

unlawful means to deliver the same to one Ghulam Mohammad Khan R/o

Chanpora Acting Chairman of the banned organization, "People League" to

promote militant activities in the State. On receiving the information, FIR

bearing No. 12/2001 was registered and naka was laid at Basohli Morh,

Lakhanpur and about at 6.30 PM, the above mentioned Car was intercepted

and accused were arrested. On personal search of the accused, an amount of

Rs.1,03,260/- was recovered and during the course of investigation, both the

accused confessed that one Farooq Rehmani, Chairman of aforesaid banned

organization had contacted them on phone from Pakistan in Delhi and directed

them that one unknown person will hand over them an amount of Rs. 18.00

lacs for handing over the same to one Ghulam Mohammad Khan at Srinagar.

Accordingly, one unknown person met them in a hotel, De-Remona, Delhi and

handed over the said amount, which they have hidden inside the window and

dicky of the Car and some money in their pockets. On their disclosure,

Rs. 17,14,600/- were recovered from inside the window and dicky of the Car.

Thereafter, the Superintendent of Police, Kathua while forwarding

investigation papers of the case FIR bearing No. 12/2001 of Police Station,

Lakhanpur requested the District Magistrate, Kathua to frame a complaint for

launching prosecution against the accused. Thereafter, the District Magistrate,

Kathua vide complaint dated 08.08.2002 in exercise of the powers vested in

him under the provision of section 196 of the Code framed the complaint and

instituted proceedings in the court of law and simultaneously, requested that

the Police challan may kindly be treated as complaint against the accused

persons.

4. Mr. Z. A. Quershi, learned senior counsel for the petitioners has

raised the sole ground that the court could not have taken cognizance upon the

challan filed by the Police without there being any formal complaint filed by

the District Magistrate, Kathua. Mr. Quershi has reiterated what has been stated

in the petition and has placed much reliance upon a judgment of the coordinate

Bench of this Court in case titled "Syed Ali Shah Geelani vs State and ors"

decided on 30.04.2012.

5. It is apt to take notice of section 196 as well as section 4(e) of the

Code and the same are reproduced as under:

"No Court shall take cognizance of any offence punishable under Chapter VI or IX-A of the Ranbir Penal Code (except section 127, (and sanction 171-F, so far as it relates to the offence of

personation), or punishable under section 108-A or section, 153- A, or section 294-A (or section 295-A) or section 505 of the Ranbir Penal Code, unless upon complaint made by order of, or under authority from (the Government or District Magistrate or such other officer as may be empowered by the Government in this behalf."

Section 4(e) of the Code "Complaint"-"Complaint" means the allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence but it does not include the report of a police officer."

6. A perusal of section 196 of the Code reveals that filing of the

complaint is sine qua non for taking any cognizance of any offence punishable

under Chapter VI or IX-A of the Ranbir Penal Code. The complaint does not

include the report of a Police Officer. The bar as contained in section 196 of

the Code is with regard to the cognizance of the offence mentioned in Chapter

VI or IX-A of the Ranbir Penal Code as the cognizance of an offence can be

taken only on the basis of a complaint made by order of or under the authority

from the Government or the District Magistrate or such officer as may be

empowered by the Government on that behalf. A perusal of the record reveals

that the District Magistrate had instituted a complaint dated 08.08.2002 on the

basis of the investigation conducted by the Police. The subject and the prayer

of the complaint dated 08.08.2002 reads as under:

"Sub: Framing of complaint for launching prosecution against the accused namely------

X X Therefore, in view of above, I, B. D Sharma, District Magistrate Kathua, in exercise of powers vested in me under provisions of sec 196 Cr.P.C institute the proceedings against the accused namely----

- -------- ------ for their commission of offences u/s 120-B, 121,121- A and 123 RPC in the court of law. The Hon'ble Court is requested that the police challan may kindly be treated as complaint against

the accused and the said accused be dealt under law for their commission of said offences."

(Emphasis supplied)

7. A perusal of the complaint dated 08.08.2002 reveals that it contains

all the material facts regarding the illegal activities of the petitioners and it

qualifies the criteria as prescribed under section 4(e) of the Code to be termed

and considered as complaint within the meaning of section 196 of the Code and

mere passing reference in the complaint that the Police challan may be treated

as complaint against the accused is of no consequence, particularly when in the

prayer part of the complaint it has been stated that he (District Magistrate) has

instituted the proceedings against the accused. Had there been no complaint on

the part of District Magistrate, then certainly the court is estopped from taking

cognizance simply on the basis of the challan filed by the police.

8. The judgment rendered by the court in Syed Ali Shah Geelani's

case (supra) is not applicable in the instant case. In the said case, the Police

had filed the challan for commission of offence under section 153-A of the

Ranbir Penal Code and there was no complaint filed by the District Magistrate

and the District Magistrate had accorded sanction for the prosecution.

9. In view of all what has been said and discussed above, this

petition has no merit and is, hereby, dismissed.

10. Before parting, this Court is at pains to observe that the present

petition had remained pending before this Court for a considerable period of

time only because of absence of the counsels for the Union Territory and even

on the day when the matter as considered, none had appeared on behalf of

Union Territory. So, in order to avoid any further delay, the learned trial court