Jammu & Kashmir High Court - Srinagar Bench
Manzoor Ahmad Bhat & Anr vs Habibullah Mir & Ors on 18 March, 2021
IN THE HIGH C0URT 0F JAMMU AND KASHMIR
AT SRINAGAR
CRM(M) 18/2020
CrlM No. 27/2020
CrlM No. 28/2020
Reserved on 15.03.2021.
Pronounced on 18.03.2021
Manzoor Ahmad Bhat & Anr. ...Petitioner(s)
Through: Mr. F.A. Wani, Adv.
Vs.
Habibullah Mir & Ors. ...Respondent(s)
Through: None
Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
JUDGMENT
1. The petitioners are aggrieved of the order dated 9 th January 2020
passed by the learned Judicial Magistrate 1st Class, (Duty Magistrate)
Srinagar, (hereinafter referred to as 'Magistrate') by virtue of which
the Incharge Police Division Humhama has been directed to remove
the obstruction created by the accused persons by dumping stones.
2. The petitioner has filed the present petition on the ground that the
learned Magistrate while exercising the powers under Section 156(3)
Cr.P.C had no jurisdiction to direct the Police to remove the
obstruction created by the petitioner by dumping stones.
3. It is stated that the respondents herein had filed an application before
the learned Magistrate under Section 156 (3) Cr.P.C on the ground
that the respondent No. 1 owned a landed property measuring 2 kanals
situated at Gulbahar Colony Hyderpora and the respondent 2 and 3
being partners of the respondent No. 1 are jointly conducting business
of real estate. It was further stated in the said application that there
CRM(M) No. 18/2020
MOHAMMAD ALTAF NIMA
2021.03.18 17:00
I attest to the accuracy and
integrity of this document
was a 12 feet wide road/pathway leading to the said land of the
respondent No. 1, that is being used by the respondent for the ingress
and egress purposes and the petitioners who are chronic litigants and
have involved many people of the area in false and frivolous
litigations, started causing interference in using the said pathway and
tried to block the same illegally and forcibly, that compelled the
respondents to file a suit before the court of learned Sub-Registrar
Srinagar, whereby the petitioners were restrained from blocking the
road/pathway used by the respondents as ingress and egress and were
further restrained from dumping the stones on the road/pathway.
However, on the service of the copy of the order, the petitioners
became hostile and threatened the respondents of dire consequences
and also petitioner tried to block the road by dumping stones.
However, the respondents tried to stop the petitioners from blocking
the pathway, who in turn (the petitioners) thrashed the respondents
and hurled the choicest abuses upon the respondents. It was further
stated in the application that the respondents had approached the
police but no action was taken. It is further pleaded that on the
presentation of said application, the learned Magistrate on 4 th January
2020 directed the police concerned to furnish the report and the police
concerned furnished the report and stated that the petitioners have
blocked the pathway despite court directions. After the receipt of the
report, the learned Magistrate vide order dated 9th January 2020
directed the Incharge Police Division Humhama, to lodge an FIR
against the petitioners and investigate the matter thoroughly and
further it was directed that the Police shall remove the obstruction
created by the petitioners by dumping stones.
4. Mr. F.A. Wani, learned counsel for the petitioners has vehemently
argued that the petitioners are not aggrieved of the order dated 9th
January 2020 so far as issuance of direction for registration of FIR is
concerned, but the petitioners are only aggrieved of the further
direction regarding the removal of obstruction from the road as the
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MOHAMMAD ALTAF NIMA
2021.03.18 17:00
I attest to the accuracy and
integrity of this document
learned Magistrate had no jurisdiction to pass such direction under
Section 156 (3) Cr.P.C.
5. Heard and perused the record.
6. Section 156CrPC is reproduced hereunder: -
"156. Police officer' s power to investigate cognizable
case. (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 limits of such station would
have power to inquire into or try under the provisions of
Chapter XIII.
(2) No proceeding of a 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."
7. Under Section156 (3) Cr.P.C, any Magistrate empowered under
Section 190 may order the investigation with regard to a cognizable
case. So the only consideration before the Magistrate while issuing
direction under Section 156(3) Cr.P.C is to see as to whether the
allegations made in the application demonstrate the commission of
cognizable offence or not and if it is found that the cognizable offence
is made out, the Magistrate can order the investigation under Section
156 (3) Cr.P.C. Section 156(3) Cr.P.C does not contemplate the
issuance of any order other than the order of investigation of a
cognizable case.
8. The perusal of the order impugned reveals that the learned Magistrate
has travelled beyond his jurisdiction while passing the order
impugned so far as it pertains to the issuance of direction for removal
of obstruction from the road is concerned.
9. The courts are generally reluctant to interfere with the order passed
under Section 156 (3) Cr.P.C particularly when the FIR has yet to be
registered. But in the instant case, the petitioners are not aggrieved of
the directions with regard to the issuance of directions for registration
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2021.03.18 17:00
I attest to the accuracy and
integrity of this document
of FIR and their only grievance is with regard to the further direction
regarding the removal of obstruction from the road.
10.This court finds substance in the case of the petitioners that no
direction other than the direction under Section 156 (3) Cr.P.C for
investigation of a cognizable case can be issued by the Magistrate.
11.In view of this, the order impugned dated 9 th January 2020 to the
extent of the issuance of direction to the police for removal of
obstruction from the road is not sustainable in the eyes of law and, as
such, the said direction is quashed.
12.The concerned SHO shall comply the direction to the extent of
registration of FIR passed by the learned Magistrate.
13. Disposed of.
(RAJNESH OSWAL)
JUDGE
SRINAGAR
18.03.2021
Altaf
Whether the order is speaking: Yes
Whether the order is reportable: No
CRM(M) No. 18/2020
MOHAMMAD ALTAF NIMA
2021.03.18 17:00
I attest to the accuracy and
integrity of this document
