Aabid Ahmad Tibetbaqal vs Union Territory Of J&K Through P/S ...
2023 Latest Caselaw 610 j&K/2

                                                                             1



                                                         S. No. 2
                                                         Supp Cause List
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                   AT SRINAGAR

                              CRM(M) No. 132/2020 CrlM No. 489/2020
                                                 Reserved on: 01.05.2023
                                               Pronounced on:19.05.2023

Aabid Ahmad Tibetbaqal, Aged 32 Years,                      ...Petitioner(s)
S/o Mohammad Ashraf Tibetbaqal,
R/o Upper Soura Khalil Coloney Shah Faisal Lane,
Srinagar.

Through: Mr Ishfaq Bashir, Advocate.
                                Vs.

1. Union Territory of J&K through P/S Budgam,             ...Respondent(s)
   Budgam.
2. Imran Khan,
S/o Muhammad Amin Khan,
R/o Botakadal Lalbazar, Srinagar.

Through: Mr Faheem Shah, GA.
CORAM:
 HON'BLE MR JUSTICE MOHAN LAL, JUDGE
                              JUDGMENT

1. Petitioner has invoked the jurisdiction of this Court in terms of Section 482 of the Code of Criminal Procedure (hereinafter referred to „theCode') for quashing the proceedings of a case pending before the Court of Special Mobile Magistrate (Munsiff) Budgam. It is averred, that in the proceedings under Section 488 CrPC pending adjudication before the Magistrate in case titled „Romysa and another vs. Imran Khan, non applicant No. 2 being husband of said Romysa was in arrears of maintenance amount of Rs. 94000/-,counsel for the said applicant Romysa on 08.06.2016 called the said lady and her brother petitioner Abid Ahmad Tibetbaqal in his chamber and informed the said lady applicant that the counsel will move a transfer application of her case from the Court/Magistrate but before transferring the said case, the counsel would like to talk to her husband non-applicant No. 2/Imran Khan to which the said lady Romysa objected yet her counsel send for non-applicant No. 2/Imran Khan, and as soon as non-

applicant No. 2 entered the chamber of the counsel, non-applicant No. 2 started abusing the said lady and even manhandled her, whereby, her brother/petitioner objected to the said conduct of non-applicant No. 2, and then both non-applicant No. 2/Imran Khan and her counsel pushed both Romysa and her brother/petitioner above named Abid Ahmad Tibetbaqal out of the chamber. It is moreso averred, that the petitioner and his sister Romysa objected to the coercive and one sided compromise of waiving of arrears of Rs. 94000/- whereby non- applicant No. 2/Imran Khan husband of the said applicant/lady Romysa got annoyed and hit the petitioner ruthlessly and his sister, whereby right leg of the petitioner got surgically installed,therefore, the petitioner‟s sister went to Police Station Budgam and reported the incident and filed a written complaint,however respondent No. 2/Imran Khan (husband of the applicant Romysa) also submitted compliant before the Chief Judicial Magistrate Budgam against the petitioner for robbery of amount of Rs. 15000/- which amount respondent No. 2 had with him to be paid to his wife the said Romysa. It is further averred, that on the written report of the said lady Romysa, FIR No. 122/2016 for commission of offences punishable under Sections 354/323 RPC stood registered against the respondent No. 2/Imran Khan in Police Station Budgam, however, against the petitioner without therebeing any material to be charged for commission of offence under Section 392 RPC, the Magistrate forwarded the complaint to the SHO Police Station Budgam under Section 156(3) CrPC without following the due procedure of law. Prayer has been made for quashment/setting aside of the proceedings before the Court of Special Mobile Magistrate (Munsiff) Budgam.

2. Status report/reply stands filed by respondent No. 1, wherein, it has been contended, that a case FIR No. 120/2016 under Section 392 IPC was registered in Police Station Budgam and during investigation I/O visited the spot, prepared site plan and recorded the statement of prosecution witnesses under Section 161 CrPC, and after collecting the evidence, the offences under Section 392 IPC have been established against the petitioner/accused and finally the challan of the

case has been produced before the Court of Magistrate on 30.10.2017 for judicial determination.

3. Learned counsel for the petitioner/accused while seekingquashment/setting aside of the criminal proceedings against the petitioner/accused pending before the Magistrate in case FIR No. 120/2016 for commission of offences under Section 392 IPC,has vehemently canvassed arguments, that before taking recourse to provisions of Section 156(3) CrPC the Magistrate was required to reflect in his order that prior applications under Sections 154(1) and 154(3) CrPC were filed by respondent No. 2 which were duly supported by an affidavit sworn. It is argued, that the Magistrate has directly forwarded the application/complaint of respondent No. 2 under Section (156(3) CrPC to the concerned police which is unknown to the criminal law, therefore, the proceedings under Section 156(3) CrPC coupled with the registration of FIR which further culminated in the production of charge sheet before the trial Court are non-est in the eyes of law and require to be quashed. To support his arguments, learned counsel for the petitioner has relied upon the judgment of Hon‟ble Supreme Court rendered in case titled Priyanka Srivastava and Another v. State of Uttar Pradesh and Ors[2015(6) SCC 287].

4. Learned counsel for respondent No. 1 per contra,has strenuously argued, that proper procedure has been followed by the Magistrate in forwarding the application of respondent No. 2 to Police Station Budgam for registration of FIR No. 120/2016 for commission of offence under Section 392 IPCagainst petitioner,therefore, the proceedings pending before the Magistrate need no interference.

5. I have heard learned counsel for the parties, considered their rival arguments,perused the ratio of judgment relied upon by the learned counsel for the petitioner and bestowed my thoughtful consideration to the material aspects involved in the case in hand.

6. The endorsement of the Special Mobile Magistrate (Munsiff) Budgam dated 08.06.2016 on the application of complainant/respondent No. 2 Imran Khan reads as under: -

"Forwarded to SHO Police Station Budgam for immediate action as warranted under Section 156(3) CrPC forthwith and report compliance. This court is of the opinion that the said person has been done number of times unwanted activities in this Court. Therefore strict action warrants in this backdrop. Let compliance report reach this Court through CPO by or before 09.06.2016."

7. In the case law relied upon by learned counsel for the petitioner reported in 2015(6) SCC 287, Hon‟ble Supreme Court while discussing the duty and approach of the Magistrate in exercising power under Section 156(3) of the Code of Criminal Procedure and while observing that before taking recourse to registration of FIR under Section 156(3) CrPC the Magistrate should keep himself alive to the fact that the complainant has filed prior applicationsu/ss 154(1) & 154(3) CrPC, in paragraph 30, 31 & 34 of the judgment has observed as under: -

30. In our considered opinion, a stage has come in this country where Section156(3) Cr.P.C. applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores.

31.We have already indicated that there has to be prior applications under Section 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a

direction that the application under Section 156(3) be supported by an affidavit is so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR.

34. In view of the aforesaid analysis, we allow the appeal, set aside the order passed by the High Court and quash the registration of the FIR in case Crime No.298 of 2011, registered with Police Station, Bhelupur, District Varanasi, U.P.

8. Ratio of the judgment (supra)relied by learned counsel for the petitioner makes the legal proposition abundantly clear, that before the Magistrate issues any direction for registration of FIR in terms of Section 156(3) CrPC, the said order of Magistrate must indicate that there has to be a prior applications filed by the complainant/informant under Sections 154(1) &154(3) CrPC before the concerned police authorities, and the application under Section 156(3) must be supported by an affidavit and necessary documents filed in reference to the provisions of Section 154(1) & 154(3). The impugned order of Magistrate dated 08.06.2016 forwarding the compliant of respondent No. 2 to SHO Police Station Budgam, nowhere specifies that the complainant/informant before seeking invocation of the provisions of Section 156(3) CrPC has complied with the provisions of Sections 154 (1) & 154(3) CrPC. Section 154(1) relates to giving information by the complainant/informant to officer- in-charge of police station regarding commission of cognizable offence orally or in writing, whereas Section 154(3) deals with the provision that if a person

aggrieved by refusal of officer- in-charge of police station as referred in Section 154(1) CrPC, the said informant/complainant shall deliver or send by post the substance of such information in writing to the Superintendent of Police concerned disclosing the said information of the cognizable offences. Ratio decidendi of the judgment (supra) lays down an invariable principle of law that before giving direction in an application under Section 156(3) CrPC by the Magistrate, the Magistrate should mandatorily satisfy himself that the complainant/informant has filed prior applications before the concerned police authorities in terms of Sections 154(1) &154(3) CrPC.The order impugned dated 08.06.2016 does not indicate that the learned Special Mobile Magistrate (Munsiff) Budgam, before giving a direction under Section 154(3) CrPC has satisfied himself that complainant/informant No. 2 has taken recourse to the provisions of Section 154(1) r/w 154(3) CrPC, and even the complaint is not supported by an affidavit.

9. In view of the aforesaid discussion, I am obligated to say that learned Special Mobile Magistrate(Munsiff) Budgam, should have kept himself alive to the aforesaid provisions before venturing into passing of direction of registration of FIR No. 120/2016 under Section156(3) CrPC against the petitioner for commission of offence under Section 392 IPC.

10. Viewed thus, I allow the petition, thereby,the impugned order dated 08.06.2016 resulting in registration of FIR No. 120/2016 under Section 392 IPC of Police Station Budgam and all the consequential proceedings arising thereof and pending before the court of Special Mobile Magistrate (Munsiff) Budgam against the petitioner stand set- aside/quashed. Copy of this order be forthwith provided to the concerned Magistrate for information and compliance.

11. Disposed of.

(MOHAN LAL) JUDGE SRINAGAR 19.05.2023 Ishaq Whether the judgment is speaking ?Yes/No Whether the judgment is reportable ? Yes/No