Vijay Choudhary And Another vs Union Territory Of J&K And Others
2021 Latest Caselaw 773 j&K

IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                    AT JAMMU

                           Crl R No.9/2020
                          CrlM No.204/2020

Vijay Choudhary and another                         ...PETITIONER(S)

          Through: Mr. Sunil Sethi, Sr. Advocate with
                      Mr. Ravi Abrol, Advocate

Vs.

Union Territory of J&K and others                  ....RESPONDENT(S)

          Through: Mr. Vishal Bharti, Dy. AG for R-1 & 2
                   Mr. Sachin Gupta and T.R.Wani, Advocates for R-
                   3


CORAM:HON'BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE

                                JUDGMENT

1) Order of the District Judicial Mobile Magistrate(T), Udhampur

("the trial court" for short) passed on 14.01.2020 in an application

under Section 156(3) of the Code of Criminal Procedure, whereby

directions have been made to the respondent No.2 to register an FIR

under relevant provisions of the IPC and get the case investigated by an

officer of a rank not less than the Deputy Superintendent of Police on

the ground that facts stated in the application when read in light of the

material on record, cognizable offences under various sections of the

IPC including offence under Section 409 IPC were prima facie shown

to have been committed by the petitioners herein.

2) The order of the trial Court, which is sought to be challenged in

this revision petition is reproduced hereunder:-

"1. This order disposes of the application filed by the applicant above named for a direction for the registration of FIR against the non-applicants above named for the commission of various offences committed by them vis- a-vis him. It has been stated in the application, inter alia, that the applicant is the registered owner of the Tipper bearing registration number JK 19-0923 whcih was seizied by the non-aplicant on 21/09/2019 in a false and frivolous FIR. The applicant approached the Court of Ld. CJM Udhampur for the release of the said vehicle which was allowed by that Court on 5/11/2019. When the applicant approached the non-applicants to get his vehicle released, they did not comply with the Court order. He approached them many times for release of his vehicle but to no avail. The applicant filed a contempt petition against the non-applicant NO.1 before the said Court. The DySP Headquarters Udhampur appeared before the Court in the contempt petition and assured the Court that Departmental action will be taken against both the non-applicants for non-compliance of the Court order. It has further been alleged in the application that the non-applicants had forcibly taken the signature of applicant on sapurdnama while he was in their custody without without handing over the vehicle to him. The applicant was falsely implicated as driver of the said vehicle in a case and was arrested in the police station as soon as he approached both the non-applicants to get his vehicle. He further stated that on 05/11/2019, when he approached the non-applicants to get his vehicle, he found that one tyre and Battery of the vehicle had been changed and the said vehicle was not roadworthy any more. In this manner, the non-applicants have committed offences under section 405/409 by misappropriating the vehicle of the applicant which was seized by them in case FIR No.495/2019. The applicant approached the high officials of the police but no action

was taken in the case. He has prayed by means of this application that an FIR be registered under the relevant sections of law against the accused persons and investigation may be entrusted to some independent agency keeping in view the influence of the accused persons who are police officials. Along with the application, the applicant has annexed the copy of the application addressed by him to SSP Udhampur and SDPO Udhampur and the original registered postal receipt. The application is supported by a duly attested affidavit.

2. I have gone through the contents of the application and have heard the Ld. Counsel for the applicant. From the facts exposited in teh application read in the light of the material on record, cognizable offences under various sections of the Indian Penal Code are prima facie shown to have been committed by the non-applicants against the applicant including the offence under Section 409 IPC. The application is supported by a duly attested affidavit. The applicant has averred on affidavit that he approached SSP Udhampur through post for registering case against the non- applicants. Report of the SSP Udhampur dated 03-01- 2020 on record shows that no FIR has been lodged against the non-applicants in this matter. The applicant herein has thus complied with all the conditions laid down in the judgment of the Apex Court titled "Mrs. Priyaanka Srivastava v/s State of UP", AIR 2015 SC 1758. Thus, SSP Udhampur is directed to register an FIR in the case against the above mentioned non- applicants under the relevant sections of IPC and get the case investigated by an officer of a rank not less than the Deputy Superintendent of Police. The copy of the complaint is directed to be forwarded to SSP Udhampr along with a copy of this order for compliance and after

registration of FIR, SSP Udhampur shall file compliance report within a period of 7 days from the date of receipt of the copy of this order. Accordingly this application is disposed of. File be consigned to records after due compilation."

3) I have heard learned counsel for the parties and considered the

record.

4) Learned Senior Counsel appearing for the petitioners submits that

before passing direction for registering of an FIR in terms of Section

156(3) of the Code of Criminal Procedure, trial court ought to have

conducted a preliminary enquiry and if in such enquiry commission of

such offence was found to have been committed, only then he should

have directed in terms of Section 156(3) of the Code of Criminal

Procedure. The further submission made by the learned Senior Counsel

is that, if the order passed by the trial Court is allowed to sustain, it will

encourage the offenders after commission of offence to pressurize the

investigating officer by filing false complaint against them. It will cause

anarchy. It has also been submitted that investigation in respect of a

crime committed by the petitioner was being investigated into. The

vehicle in question was seized and the same was released on the

spurdnama after release order was passed. The respondent No.3 made

false allegations after release of the vehicle only with a view to

pressurize the petitioners herein.

5) As per the complaint, the allegations is that despite a release

order from the competent Court, the petitioners did not release the

vehicle of which respondent No.2 is owner. A Contempt petition was

also filed in which DySP Headquarters Udhampur appeared and assured

the Court that departmental action will be taken against the petitioners.

It is the further allegation in the complaint that the petitioners had

forcibly taken the signatures of respondent No.2 on sapurdnama while

he was in their custody without handing over the vehicle to him and the

he has been falsely implicated as driver of the said vehicle in a case.

When respondent No.2 approached the petitioners to get his vehicle,

one tyre and Battery of the vehicle had been found changed and the

vehicle was not roadworthy. These allegations, when taken into

consideration would constitute offences punishable under Sections 166-

A and 409 IPC. The complaint, thus, disclosed commission of

cognizable offence.

6) Section 156(3) deals with investigation into cognizable offences,

which reads as under:-

156. Police officer's power to investigate cognizable case.-- (1) xxxxxxxxxxxxxxxx (2) xxxxxxxxxxxxxxxxxxxxx (3) Any Magistrate empowered under section 190 may order such an investigation as above-mentioned"

It is clear that under the provisions of Sub Section 3 of Section

156 of the Code of Criminal Procedure, a Magistrate, who is

empowered to take cognizance of offence in terms of Section 190

Cr.P.C. can order investigation in terms of Section 156 of the Code.

According to Section 190, Magistrate may take cognizance of any

offence upon receiving a complaint of facts which constitute such

offence. Section 190 of the Code of Criminal Procedure is reproduced

hereunder:-

"190. Cognizance of offences by Magistrates.-- (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence--

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a police report of such facts;

(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub- section (1) of such offences as are within his competence to inquire into or try."

7) In the instant case, a complaint has been filed by the

complainant-respondent No.2 before the District Judicial Mobile

Magistrate (T), Udhampur wherein he has complained that the

petitioners herein have falsely implicated him in a false case and did not

comply with the order of the Court for release of vehicle. It was also

alleged in the complaint that while respondent NO.2 was in custody of

the petitioners, they forcibly took his signatures on the spurdnama but

did not hand over the vehicle to him. One tyre of vehicle and also

Battery of the vehicle was found to have been changed.

In terms of Section 190 Cr.P.C., the Magistrate is empowered to

take cognizance of the complaint, which was presented before him

provided complaint discloses commission of offence in respect of

which he had powers to take cognizance.

In terms of Sub Section 3 of Section 156, the Magistrate has the

power to order for investigation into such cognizable offence as per the

provisions of Section 156(1).

8) It is not the case where we can say that the complaint which was

presented before the Magistrate in which direction was passed did not

disclose commission of any offence. The commission of offence of mis-

appropriation is specifically alleged by the complainant before the

Magistrate against the petitioners herein and the Magistrate after being

satisfied, as is clear from the order impugned, had directed for

investigation in terms of Section 156(3). It is not the case of the

petitioners that the complaint does not disclose commission of

cognizable offence but petitioners' case is that a false complaint with

false allegations was made with an intention to pressurize the

petitioners/police officials in investigating the case against the

complainant-respondent No.2.

9) The order impugned would show that the complainant had also

approached the Senior Superintendent of Police but no action was taken

and the complainant was left with no option but to make an application

seeking direction for registration of FIR in terms of Section 156 Cr.P.C.

before the Magistrate.

10) Having gone through the grounds taken in the revision petition

and the submissions made by learned senior counsel appearing for the

petitioners, I am of the view that no ground is made to interfere with the

impugned order, as the order of investigation in terms of Section 156(3)

Cr.P.C. requiring investigation cannot be said to have caused any injury

of irreparable nature, at this stage, requiring quashing of the

investigation. The stage of cognizance would arise only after

investigation report is filed before the Magistrate. Therefore, at this

stage, filing of such petition is premature. Hon'ble the Supreme Court

while dealing with a similar situation in HDFC Secutiries Ltd. and

others v. State of Maharashtra and others, (2017) 1 SCC 640 has

held as under:-

"24. It appears to us that the appellants approached the High Court even before the stage of issuance of process. In particular, the appellants challenged the order dated 04.01.2011 passed by the learned Magistrate under Section 156(3) of Cr.P.C. The learned counsel appearing on behalf of the appellants after summarizing their arguments in the matter have emphasized also in the context of the fundamental rights of the appellants under the Constitution, that the order impugned has caused grave inequities to the appellants. In the circumstances, it was submitted that the order is illegal and is an abuse of the process of law. However, it appears to us that this order under Section 156(3) of Cr.P.C. requiring investigation by the police, cannot be said to have caused an injury of irreparable nature which, at this stage, requires quashing of the investigation. We must keep in our mind that the stage of cognizance would arise only after the investigation report is filed before the Magistrate. Therefore, in our opinion, at this stage the High Court has correctly assessed the facts and the law in this situation and held that filing of the petitions under Article 227 of the Constitution of India or under Section 482 of Cr.P.C., at this stage are nothing but premature. Further, in our opinion, the High Court correctly came to the conclusion that the inherent powers of the Court under Section 482 of Cr.P.C. should be sparingly used. In these circumstances, we do not find that there is any flaw in the impugned order or any illegality has been committed by the High Court in dismissing the petitions filed by the appellants before the

High Court. Accordingly, we affirm the order so passed by the High Court dismissing the writ petitions. The appeal is dismissed."

11) Therefore, in view of the facts and circumstances of the case and

the observations of the Supreme Court in the case of HDFC Securities

(supra), I do not find any merit in this petition, the same is accordingly,

dismissed.

(Vinod Chatterji Koul) Judge Jammu 30.07.2021 "Vinod, PS"

                                        Whether the order is speaking:     Yes/No
                                        Whether the order is reportable:   Yes/No




VINOD KUMAR
2021.07.31 12:07
I attest to the accuracy and
integrity of this document