Aijaz Ahmad Jahra & Others vs Ut Of J&K & Another
2022 Latest Caselaw 534 j&K/2

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


                                    Reserved on:   27.04.2022
                                    Pronounced on: 09.05.2022

                     CRM(M) No.305/2021
                      CrlM No.1086/2021

AIJAZ AHMAD JAHRA & OTHERS                    ...PETITIONER(S)
Through: - Mr. Altaf Mehraj, Advocate

Vs.

UT OF J&K & ANOTHER                         ...RESPONDENT(S)
Through: - Mr. Satinder Singh Kala., AAG-for R1.
             Mr. S. R. Hussain, Advocate-for R2.


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

                              JUDGMENT

1) The petitioners have challenged order dated

21.09.2021, passed by Judicial Magistrate 1st Class(Sub

Judge), Chadoora, in a complaint filed by respondent No.2

against them. Vide the aforesaid order, the learned

Magistrate has, while exercising his power under Section

156(3) of the Cr. P. C, directed registration of FIR and

investigation of the case. Challenge has also been thrown

to FIR No.162/2021 for offences under Section 376, 354,

109, 120-B IPC registered by Police Station, Chadoora,

CrlM No.1086/2021

pursuant to the impugned direction of the learned

Magistrate.

2) It appears that respondent No.2 had filed a complaint

before the trial court alleging commission of offences

under Section 376, 354, 109, 120-B IPC against

petitioners. In the complaint it was alleged that the

petitioner No.2, who happens to be the mother-in-law of

respondent No.2, has committed acts of domestic violence

upon her. It was further alleged that on 17.06.2021, when

the husband of respondent No.2/complainant was not

present in the house, at around 10.30 pm, petitioner No.1

offered a glass of milk to respondent No.2/complainant

and when she took the milk, she became unconscious. It

was further alleged that at around 2/3 a.m, when

respondent No.2 regained her senses, she found herself

naked on a bed along with petitioner No.1, who thereafter

ran away from there. Respondent No.2/complainant went

on to allege that she was in a state of inebriation and again

became unconscious and woke up in the morning. It is

further alleged that the respondent No.2/complainant,

after a period of three days, upon insistence of her

husband, narrated the episode to her husband and later

to the uncle of her husband. The matter was brought to

the notice of the family elders but nothing fruitful came

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out. Respondent No.2/complainant is also alleged to have

approached SSP, Budgam, who marked her complaint to

Dy. SP, Cherar-i-Sharief, wherefrom she was referred to

SHO, P/S Chadoora, but no heed was paid to her woes and

no FIR was lodged. It was further alleged that the

petitioners had admitted their guilt before the Panchayat

members and that petitioner No.1 had even tendered an

apology.

3) The record reveals that on 14.08.2021, the learned

Magistrate recorded the preliminary statement of the

complainant and one witness on oath, whereafter the

learned Magistrate directed SHO, P/S Chadoora, to

investigate the matter in the light of the averments made

in the complaint, in terms of Section 202 of the Cr. P. C

for ascertaining the truth or falsehood of the allegations

made in the complaint. Thereafter on 21.09.2021, the

learned Magistrate, upon receipt of the report from the

SHO, P/S Chadoora, passed another order observing that

after going through the averments made in the complaint

and the statements of the witnesses recorded and also the

supporting documents and the phone recording, she has

come to a conclusion that a proper FIR needs to be

registered against the accused persons. Accordingly, the

impugned order came to be passed by the learned

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Magistrate. It appears that pursuant to the aforesaid

order, the police registered the impugned FIR.

4) The petitioners have challenged the impugned order

and the FIR registered pursuant thereto on the grounds

that the order impugned passed by the learned Magistrate

is contrary to law, inasmuch as once the learned

Magistrate had chosen to take cognizance of the offences

and directed investigation in terms of Section 202 of the

Cr. P. C, it was not open to her to pass a direction under

Section 156(3) of the Cr. P. C to the police to register an

FIR. It is further contended that the proceedings initiated

by respondent No.2 are aimed at divesting petitioner No.2

and her husband of the immovable property owned and

possessed by them. It is contended that in this regard

respondent No.2 had filed a complaint under Section 23 of

Protection of Women from Domestic Violence Act against

petitioner No.2 and her husband seeking reliefs with

respect to providing of residence. It is further contended

that the impugned FIR registered by the police against the

petitioner is an abuse of process of law and that the same

deserves to be quashed. The petitioners have also

contended that the learned Magistrate could not have even

directed investigation in the matter in terms of Section 202

CrlM No.1086/2021

of the Cr. P. C as the offences alleged in the impugned

complaint are exclusively triable by the Court of Session.

5) Respondent No.2 has contested the petition by filing

a reply thereto. In her reply, the respondent No.2 has

submitted that the power of a Magistrate to direct

registration of FIR under Section 156(3) of the Cr. P. C is

not curtailed by the fact that the Magistrate has taken

cognizance of the offences. In this regard, reliance has

been placed upon the judgment of the Supreme Court in

the case of Vinubhai Haribhai Malaviya and Ors. Vs.

State of Gujarat and another, (2019) 17 SCC 1. It has

been further contended that the offences disclosed against

the petitioners are of very serious nature and technicalities

should not come in the way of punishing the persons who

are guilty of such heinous offences.

6) I have heard learned counsel for the parties and

perused the material on record including the record of the

trial court.

7) Certain facts which are borne out from the record

and are not in dispute are required to be noticed.

Respondent No.2 filed a complaint before the learned trial

Magistrate on 14.08.2021 alleging commission of offences

under Sections 376, 109, 120-B, 354 IPC. The record

CrlM No.1086/2021

shows that on 14.08.2021 itself, the preliminary statement

of respondent No.2 was recorded by the learned

Magistrate. The preliminary statement of one more

witness, namely, Ghulam Ahmad Thekrey was also

recorded on the same date, whereafter the learned

Magistrate vide order dated 14.08.2021, observed that the

matter needs to be investigated in terms of Section 202 of

the Cr. P. C and a direction was extended to SHO, P/S

Chadoora, to undertake the investigation/enquiry. It is

borne out from the record that upon receipt of report of SHO,

P/S Chadoora, the trial Magistrate passed the impugned order

directing registration of FIR against the accused persons.

8) 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 evidence of the

complainant and once the learned Magistrate has chosen

to record preliminary evidence of the complaint, he could

not pass a direction under Section 156(3) of Cr.P.C against

the police to register the FIR.

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

necessary to notice the relevant provisions of the Criminal

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Procedure Code. The learned Magistrate has in the instant

case 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 XII of the Code of Criminal Procedure,

1973. Section 156 of the Code reads as under:

"156. Police officer's power to investigate cognizable case.--(1) Any officer incharge 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 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."

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,

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which finds place in Chapter XVI of the Code. Section 200

reads as under:

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

Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses--

(a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or

(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192:

Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.

A perusal of the aforesaid provision clearly shows

that when a complainant and his witnesses are examined

by a Magistrate, it means that he has taken cognizance of

an offence on complaint.

10) 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.

CrlM No.1086/2021

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

Sections 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 Magistrate subordinate

to him or by any police officer or by such other person.

This is clear from the provision contained in Section 202

of Cr. P. C; which reads as under:

202. Postponement of 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 made over to him under section 192, may, if he thinks fit, and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding:

Provided that no such direction for investigation shall be made,--

(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or

CrlM No.1086/2021

(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200.

(2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath:

Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath. (3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant.

11) 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 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

CrlM No.1086/2021

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.

12) In the instant case, the learned Magistrate while

passing the impugned order has specifically made a

direction for registration of an FIR, which means that she

has exercised jurisdiction under Section 156(3) of Cr. P. C.

If a Magistrate, if he chooses to record preliminary

statement of the complainant and his witnesses, proceeds

under Chapter XV of the Code, which presupposes that he

has taken cognizance of the offence on the complaint.

Once a Magistrate has chosen this course of action, it is

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

Chapter XII of the Code and issue a direction for

registration of FIR in terms of Section 156 Cr. P. C.

13) Learned counsel for the respondent No.2, while

placing reliance upon the judgment of the Supreme Court

in Vinubhai Haribhai Malaviya's case (supra),

vehemently contended that the power of a Magistrate to

direct investigation under Section 156 of the Cr. P. C is

available even at post cognizance stage until the trial

commences i.e., when charges are framed. It has been

CrlM No.1086/2021

further contended that in view of the ratio laid down by the

Supreme Court in the aforesaid case, the statement of law

that power under Section 156(3) of the Cr. P. C cannot be

exercised at post-cognizance stage cannot be relied upon.

14) At the first blush, the argument of learned counsel

for respondent No.2 appears to be attractive but when the

said argument is closely analyzed in the light of the facts

of the instant case, it becomes clear that the ratio laid

down by the Supreme Court in Vinubhai Haribhai

Malaviya's case (supra) cannot be applied to facts of the

instant case. In Vinubhai Haribhai Malaviya's case

(supra), the Supreme Court was dealing with a situation

where the charge sheet had been laid before the Magistrate

and one of the accused had filed an application for further

investigation under Section 173(8) of the Cr. P. C and the

said application was rejected by the learned Magistrate. It

was not a case initiated on a complaint but it was a case

filed on the basis of the police report laid before the

Magistrate under Section 173 of the Code of Criminal

Procedure.

15) There is a distinction between a complaint and the

police report. As is clear from the definition of the

'complaint' as contained in Section 2(d) of the Cr. P. C, it

CrlM No.1086/2021

means any allegation made orally or in writing to a

Magistrate, with a view to his taking action under the

Code, that some person, whether known or unknown, has

committed an offence. The definition of complaint given in

the Code specifically excludes a police report. Different

procedures have been prescribed for inquiry and trial of

cases lodged on the basis of a police report and those

lodged on the basis of a private complaint. The process for

taking action on the basis of a police report starts with the

registration of an FIR under Section 154 of the Code and

culminates with the filing of final report under Section 173

of the Cr. P. C, whereas procedure for initiating

proceedings on a complaint is provided in Chapter XV of

the Cr. P. C (Section 200 to 203).

16) The statement of law laid down by the Supreme Court

in Vinubhai Haribhai Malaviya's case (supra), is based

upon interpretation of the provisions contained in Section

156(3) read with the provisions contained in Section 173(8)

of the Cr. P. C. This is clear from para 43 of the aforesaid

judgment wherein the Court has clearly observed that it

has grounded the power of the Magistrate to order further

investigation until charges are framed under Section

156(3) read with Section 173(8) of the Cr. P. C, meaning

thereby that the statement of law laid down in the said

CrlM No.1086/2021

judgment owes its origin to interplay of the aforesaid two

provisions of the Code.

17) So far as the instant case is concerned, the

proceedings have been initiated on the basis of a private

complaint on which cognizance of offences has been taken

by the learned Magistrate. So, the provisions contained in

Section 173(8) of the Cr. P. C are not applicable to the case

at hand. Once that is so, the statement of law laid down

by the Supreme Court in the aforesaid case by reading the

provisions contained in Section 156(3) of the Cr. P. C in

conjunction with the provisions contained in Section

173(8) of the Cr. P. C cannot be made applicable to the

instant case.

18) We have to examine the legality and validity of the

impugned order passed by the learned Magistrate in the

light of the provisions contained in Section 156(3) and the

provisions contained in Chapter XV of the Cr. P. C without

falling back on the provisions contained in Section 173(8)

of the Cr. P. C. When we do so, there is no scope for holding

that the learned Magistrate, after taking cognizance of the

offences, had any jurisdiction to direct registration of the

FIR by going back to the pre-cognizance stage. A

Magistrate, on a complaint regarding commission of a

CrlM No.1086/2021

cognizable offence, is vested with power to direct

investigation into the offences by taking resort to Section

156(3) of the Cr. P. C but if he takes cognizance of the

offences under Section 190(a) of the Cr. P. C and embarks

upon a procedure embodied in Chapter XV of the Code, he

is not competent to switch back to the pre-cognizance

stage and avail of Section 156(3) of the Cr. P. C. I am

supported in my aforesaid view by the judgments of this

Court in Sami-ullah Naqashbandi vs. Sadaf Niyaz Shah,

CRM(M) No.113/2020 decided on 31.08.2020 and Mohd

Aijaz vs. Sajad Ahmad Dar & another (CRMC

No.285/2017) decided on 18.02.2021.

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

to the learned Magistrate to go back to the pre-cognizance

stage and exercise jurisdiction under Section 156(3) of the

Cr. P. C by directing registration of FIR after having taken

cognizance of the offence upon the complaint of

respondent No.2. By doing so, the learned Magistrate has

committed a grave illegality.

20) Yet another illegality which has been committed by

the learned Magistrate while passing the order of taking

cognizance on 21.09.2021 is that she has directed SHO

concerned to conduct an enquiry/investigation under

CrlM No.1086/2021

Section 202 of the Cr. P. C. The offences disclosed in the

complaint are triable by the Sessions Court and, as such,

the learned Magistrate had no jurisdiction to pass a

direction for investigation in terms of Section 202 of the

Code. Proviso to sub-section (1) of Section 202 of the Cr.

P. C clearly lays down that no direction for investigation

can be made by the Magistrate if it appears to him that the

offence complained of is triable exclusively by the Court of

Session. So, even the report of the investigation submitted

by the SHO cannot be looked into by the Magistrate

because the same is based upon an illegal order.

21) It has been contended by learned counsel for the

respondents that there has been substantial progress in

the investigation of the case pursuant to the registration

of the impugned FIR and offences have been disclosed

against the petitioners and, as such, if merely on the basis

of technicalities the proceedings are quashed, a heinous

crime would go unpunished.

22) It is true that the allegations made in the complaint

against the petitioners are of very serious nature but then

if an illegality committed by the learned Magistrate is

allowed to perpetuate, it may ultimately affect the final

outcome of the case as these illegalities go to the very

CrlM No.1086/2021

root of the case. Therefore, this Court has to work a way

out so that alleged crime does not go un-investigated and

unpunished but at the same time the illegalities

committed by the trial Magistrate have not to be

perpetuated, lest the same may result in failure of justice.

23) The only course open in the aforesaid situation is

that the Magistrate should be permitted to enquire into the

case himself/herself in terms of Section 202 of the Cr. P.

C. Proviso to sub-section (2) of Section 202 of the Cr. P. C

lays down that in the cases exclusively triable by the Court

of Sessions, the Magistrate has to call upon the

complainant to produce all his witnesses and examine

them on oath. Therefore, the learned Magistrate would do

well to ask the complainant to produce all her witnesses

and record their statements on oath and thereafter frame

an opinion whether or not any offence is made out against

the petitioners and thereafter proceed in accordance with

the law.

24) Accordingly, the petition is allowed. The impugned

order passed by the learned Magistrate on 21.09.2021 is

set aside and consequently the FIR registered pursuant

thereto is also quashed. The order dated 14.08.2021

passed by the learned Magistrate to the extent it directs

CrlM No.1086/2021

SHO, P/S Chadoora, to conduct investigation in the

matter is also set aside.

25) The learned Magistrate is directed to conduct enquiry

into the case herself by examining all the witnesses of the

complainant on oath and thereafter proceed further in the

matter in accordance with the law. It shall be open to the

learned Magistrate to summon witnesses of the

complainant if she is unable to produce all the witnesses

at her own responsibility. The learned Magistrate shall

also be at liberty to summon the relevant

record/documents from the police or any other authority

that would assist her in conducting the enquiry.

26) The petition stands disposed of accordingly.

27) A copy of this order be sent to the learned Magistrate

for information and compliance.

(Sanjay Dhar) Judge Srinagar 09.05.2022 "Bhat Altaf, PS"

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