Kamal Nain Singh vs State Of J&K And Others
2024 Latest Caselaw 585 j&K

Jammu & Kashmir High Court

Kamal Nain Singh vs State Of J&K And Others on 28 March, 2024

Author: Sanjay Dhar

Bench: Sanjay Dhar

          HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                          AT JAMMU
                                                            Reserved on 22.03.2024
                                                          Pronounced on 28.03.2024

CRMC No. 107/2014
c/w
CRM(M) No. 712/2022
1.       Kamal Nain Singh                            .....Appellant(s)/Petitioner(s)
2.       Kamal Nain Singh
                         Through: Mr. Rahul Pant, Sr. Adv. with
Q
                                  Mr. Dhruv Pant, Adv.
                    vs
1.       State of J&K and others                                ..... Respondent(s)
2.       State of J&K and others
                         Through: Ms. Monika Kohli, Sr. AAG for Nos. 1 and 2
                                  None for No. 3
Coram: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE

                                   JUDGMENT

1. The petitioner has invoked jurisdiction of this Court under Section 482

Cr.P.C. by filing two separate petitions. By virtue of CRMC No. 107/2014,

the petitioner has challenged order dated 13.03.2014 passed by the Judicial

Magistrate 1st Class (Forest Magistrate) Jammu, whereby on a compliant

filed by the private respondent, directions have been issued for registration

of FIR in light of the guidelines issued by the Supreme Court in Lalita

Kumari vs State of Utter Pradesh, (2014) 2 SCC 1 as also the FIR

bearing No. 6/2014 for offences under Sections 420, 465, 467, 468, 471 and

120-B RPC read with Section 5(2) of J&K Prevention of Corruption Act

registered pursuant to the aforesaid order. By virtue of CRM(M) No.

712/2022, the petitioner has challenged order dated 11.03.2014 passed by

Judicial Magistrate 1st Class (Forest Magistrate), Jammu in the aforesaid

CRMC No. 107/2014 &

complaint filed by the private respondent, whereby the learned Magistrate

has treated the report submitted by the Crime Branch Jammu pursuant to

order dated 21.09.2013 of the said Magistrate as one under Section 156(3)

of the Code of Criminal Procedure (for short the Code).

2. The facts emanating from the pleadings of the parties are that the private

respondent filed a complaint before learned trial Magistrate alleging therein

that the petitioner is a non State Subject, originally hailing from Palampur

Himachal Pradesh, but he in furtherance of criminal conspiracy with the

Revenue Authorities of District Udhampur has managed to obtain a fake

State Subject Certificate by deceiving the State Government. It was also

alleged in the complaint that on the basis of the said fake State Subject

Certificate, the petitioner has accumulated huge property in the erstwhile

State of Jammu and Kashmir.

3. Upon presentation of the complaint before the learned the Magistrate, the

following order was made by the said Magistrate on 21.09.2013:

"This complaint was presented before Ld CJM, Jammu who transferred this complaint to this court for disposal under law and here it is presented by complainant. Complaint is found in order. Office is directed to enter the same in the concerned register.

It is stated in the complaint that accused who is non-state subject originally hailing from Palampur where all his ancestors were residing having movable and immovable properties which has been inherited by the accused in succession. The accused who was married to a Jammu based girl, namely, Auradha Jamwal after marriage accused purchase immovable property as Benami transaction in the name of his wife, father-in-law and brother-in-law. The accused in connivance with the revenue authority of Tehsil Chenani District Udhampur by fraudulent means procured fake state subject on the basis of which the accused has accommodated huge property.

As such SSP Crime Branch Jammu is directed to enquire into the matter and ascertain the truth and falsehood of the complaint in

CRMC No. 107/2014 &

terms of section 202 Cr.P.C. Copy of this order is forwarded to SSP, Crime Branch, Jammu for compliance of this order. For further proceedings put up on 20.10.2017."

4. Pursuant to the aforesaid order, the respondent-Crime Branch conducted the

enquiry and submitted its report before the trial Magistrate on 21.01.2014

wherein it was stated that the petitioner is basically a resident of Palampur

Himachal Pradesh and after getting married in Bernai, Jammu, he shifted to

Jammu. It was also reported that in the year, 1994, the petitioner managed

entries in the revenue record of Village Chenani and in the year, 1999, he in

connivance with revenue official/officers of Tehsil Chenani, procured a

permanent resident certificate of J&K State Subject.

5. Upon receipt of aforesaid report of enquiry, the learned Magistrate passed

the following order on 11.03.2014:

"March lI, 2014: Complainant alongwith counsel present. Ld. Counsel for the complainant submitted that pursuant to the enquiry report submitted by SSP Crime Branch, Jammu, FIR should be ordered to be registered against the accused. He further submitted that cognizance has not been taken yet by my Ld. Predecessor as complainant has not been examined on oath yet, and that the enquiry report submitted by SSP Crime Branch, Jammu does not fall under the purview of Sec. 202, instead it is an enquiry report falling under the ambit of Sec. 156(3) Cr.P.C. and hence SSP Crime Branch should be directed to register FIR. Ld. Counsel placed reliance on the following authorities: (i) Dilwar Singh vs State of Delhi (AIR 2007 SC 3234), (ii) Minu Kumari vs State of Bihar (AIR 2006 SC 1437), (iii) K. V. Subbiah v. State of Mysore (1969 CrLJ 754).

Heard the Ld. Counsel and perused the complaint, order dated 21.09.2013, enquiry report pursuant to that and aforementioned authorities. This complaint was sent for enquiry to SSP Crime Branch Jammu u/s 202, Cr.P.C. but without examining the complainant on oath Sec. 202(l), Cr.P.C. provides that a Magistrate on receipt of a complaint of an offence of which he is authorized to take cognizance may direct an enquiry or investigation to be made by a police officer. The proviso to that sub-section requires that (except where the complaint has been made by a Court) no such

CRMC No. 107/2014 &

direction shall be made unless the complainant has been examined on oath under Sec. 200. In K. V. Subbiah v. State of Mysore (1969 CrLJ 754), Hon'ble High Court of Karnataka has held that "if the report is called for by the Magistrate without his having cognizance of the offence complained of, then the report submitted by the police consequent upon an enquiry directed by the Magistrate will be one which will fall within Sec. 156(3) Cr.P.C."

Thus, the Ld. Predecessor had not examined the complainant on oath, hence the report submitted by SSP Crime Branch, Jammu does not fall within the purview of Sec. 202 Cr.P.C., but instead it falls under Sec. 156(3) Cr.P.C. File shall come up for further proceedings on March 13,2014."

The aforesaid-quoted order is subject matter of challenge in

CRM(M) No. 712/2022.

6. After making the aforesaid order, the learned Magistrate on next date of

hearing i.e. on 13.03.2014, upon perusal of the complaint and the enquiry

report recorded that the same disclose commission of cognizable offences.

Accordingly, Senior Superintendent of Police, Crime Branch, Jammu was

directed to register FIR in the matter and submit report in accordance with

law. The said order is subject matter of challenge in CRMC No. 107/2014.

Pursuant to aforesaid order of learned Magistrate, the impugned FIR came

to be registered and investigation was set into motion. The investigation

was stayed by this Court in terms of order dated 09.04.2014.

7. In its latest status report filed by the respondent-Investigating Agency, it

has been submitted that after investigation of the case, offences stand

established against the petitioner and certain other revenue officials. The

private respondent also submitted her reply to the writ petition in which she

has reiterated the allegations made by her in the complaint. After filing her

reply, the private respondent stopped appearing in the case.

CRMC No. 107/2014 &

8. I have heard learned counsel for the parties and perused the record of the

case including the record of the trial court.

9. Learned Senior Counsel appearing for the petitioner has submitted that it

was not open to the learned Magistrate to direct registration of FIR against

the petitioner once a decision was taken by the learned Magistrate to direct

enquiry into the allegations made in the complaint in terms of Section 202

of the Code. It has been further contended that the learned Magistrate could

not have treated the report submitted by the Investigating Agency under

Section 202 of the Code as one under Section 156(3) of the Code and

thereafter proceed to direct registration of the FIR. According to the learned

Senior Counsel, the learned Magistrate had no jurisdiction to review its

own order dated 21.09.2013 whereby it was specifically directed that the

Crime Branch shall enquire into the matter in terms of Section 202 of the

Code.

10. Learned Senior AAG appearing for the official respondents has submitted

that in the instant case, the learned Magistrate, while passing order dated

21.09.2013 had not recorded the preliminary statements of the complainant

and her witnesses as such, it cannot be stated that the learned Magistrate

had taken cognizance of the offences. According to her, the matter was at

pre cognizance stage when the impugned order dated 13.03.2014 came to

be passed by the learned Magistrate, whereby direction for registration of

the FIR was issued. She has contended that this position has been simply

clarified by the learned Magistrate vide his order dated 13.03.2014. Ms.

Monika Kohli, learned Senior AAG has further contended that in any case

CRMC No. 107/2014 &

once it has been shown that the offences have been established against the

petitioner, mere procedural irregularities cannot be made a ground to scuttle

a genuine prosecution against him.

11. The issues that arise in this case for consideration are:

(i) Whether order dated 21.09.2013 passed by the learned

Magistrate amounts to taking cognizance of the offences;

(ii) If it is found that the learned Magistrate has taken

cognizance of offences whether the learned Magistrate

could have reviewed the said order in terms of order

11.03.2014;

(iii) Whether after taking cognizance of the offences, it was open

to the learned Magistrate to direct registration of an FIR.

12. So far as the first issue is concerned, we need to understand as to what is

meant by taking cognizance. In ordinary language, word „cognizance‟ means

detailed knowledge about or understating of something, whereas in legal

parlance, it means taking of judicial notice of an offence. It is a pre-requisite

to initiation of proceedings by a court or by a Magistrate. The Code of

Criminal Procedure does not define the term taking of cognizance but in

general it means application of judicial mind to the facts mentioned in a

complaint or to a Police report and it is different from issuance of process.

13. In R. R. Chari v State of U.P. AIR 1951 SC 207, the Supreme Court made

it clear that the word cognizance is used by the court to indicate the point

when the Magistrate or a Judge first takes judicial notice of an offence.

Therefore, primarily cognizance of an offence takes place when a judicial

CRMC No. 107/2014 &

Magistrate applies his mind and takes judicial notice of the offence, which is

statutorily stipulated under Section 190(1) of the Code.

14. In Darshan Singh Ram Krishan v State of Maharashtra , 1971(2) SCC

654, it has been held by the Supreme Court that taking cognizance does not

involve any formal action or indeed action of any kind but occurs as soon as

the Magistrate applies his mind to the suspected commission of an offence.

15. In Prashant Srikant Purohit v State of Maharashtra, (2015) 7 SCC 440,

the Supreme Court has held that taking judicial notice is nothing but

perusing the report of the Police Officer, proceeding further on that report by

opening the file and thereafter taking further steps to ensure the presence of

the accused and all other consequential steps including at a later stage

depending upon the nature of the offence alleged, to pass necessary order of

committal to court of Session.

16. In Mona Panwar v High Court of Judicature at Allahabad, (2011) 3 SCC

496, the Supreme Court held that before the Magistrate can be said to have

taken cognizance of an offence under Section 190(1)(b) of the Code, he must

have not only applied his mind to the contents of the complaint presented

before him, but he must have done so for the purpose of proceeding under

Section 200 of the Code and the provisions following that section. It was

also held that when a Magistrate has applied his mind only for ordering an

investigation under Section 156(3) of the Code, or issued a warrant for the

purposes of investigation, he cannot be said to have taken cognizance of an

offence.

CRMC No. 107/2014 &

17. A Coordinate Bench of this Court in the case of Nasreen Bano vs State of

J&K and others, OWP No. 526/2019, decided on 10.05.2019 has after

taking note of the various judgments of the Supreme Court on this issue

concluded as under:

"20. On conspectus of the judicial opinion on the issue, it can be safely held that when a Magistrate applies his mind to the suspected commission of offence and applies his mind for the purposes of the proceeding under the subsequent Section of the chapter, the Magistrate can be said to have taken the cognizance. The broadly speaking, when on receiving a complaint the Magistrate applies his mind for the purposes of proceeding under Section 200 Cr.PC and the succeeding Section in Chapter XVI of Cr.PC, he said to have taken cognizance of the offence within the meaning of Section 190(1)(A), but, if instead of proceeding under Chapter XVI, the Magistrate decides, in its judicial exercise of discretion, to take action of some other kind like directing investigation under Section 156(3) Cr.PC or issuing a search warrants for the purposes of investigation, he cannot be said to have taken the cognizance of offence. (See. R R Chari. AIR 1951 SC"

18. From the analysis of the law on the subject, it is clear that when a Magistrate

receives a complaint alleging commission of offences and he/she applies

his/her judicial mind to the facts alleged in the complaint for the purpose of

taking action and proceedings under Chapter XVI of the Code, he/she is

stated to have cognizance of the offence, but in a case alleging commission

of cognizable offences, the Magistrate has option either to proceed under

Chapter XVI or to direct investigation under Section 156(3) of the Code. So

the determining factor is the intention of the Magistrate while dealing with

the complaint alleging commission of cognizable offences.

19. Adverting to the facts of the present case, if we have a look at the initial

order passed by the learned Magistrate on 21.09.2013, which has been

quoted hereinabove, it is clear that the Magistrate has directed the Senior

CRMC No. 107/2014 &

Superintendent of Police, Crime Branch to enquire into the matter to

ascertain the truth or falsehood of the complaint in terms of Section 202 of

the Code. There is no ambiguity in the order passed by the trial Magistrate.

The expression used is "to ascertain the truth or falsehood of the complaint

in terms of Section 202 of the Code" which clearly indicates that the learned

Magistrate had intended to proceed in the complaint in accordance with the

Chapter XVI of the Code. Expression "to ascertain the truth or falsehood" is

not used while issuing direction under Section 156(3) of the Code. The use

of these expressions is indicative of intention of the Magistrate to direct

investigation/enquiry as contemplated under Section 202 of the Code.

20. It is true that the learned Magistrate before passing an order under Section

202 of the Code, should have recorded the preliminary evidence of the

complainant in terms of 200 of the Code which he omitted to do, but the said

omission on the part of the learned Magistrate is an irregularity committed

by him, which does not in any manner indicate that the learned Magistrate

did not intend to proceed under Chapter XVI of the Code keeping in view

the expressions used by him in order dated 21.09.2013. He may have faulted

in not recording the preliminary evidence of the complainant before resorting

to enquiry under Section 202 of the Code but it can by no stretch of

imagination be stated that the learned Magistrate had not taken cognizance of

the offences and decided to proceed under Chapter XVI of the Code. Issue

No. 1 is answered accordingly.

21. The second issue is as to whether the learned trial Magistrate could have

reviewed order dated 21.09.2013 in the manner it did in terms of impugned

CRMC No. 107/2014 &

order dated 11.03.2014. Vide the said order, the learned Magistrate has by

relying upon the judgment of the High Court of Mysore in the case of K. B.

Subbiah vs State of Mysore, 1969 CrLJ 754 treated the report of enquiry

submitted by the Crime Branch as the report in terms of Section 156(3) of

the Code. According to the learned Magistrate, the cognizance was not taken

by the said court while passing order dated 21.09.2013 as such, the report of

enquiry submitted by the Crime Branch can be treated as one under Section

156(3) of the Code.

22. In view of the finding recorded on issue No. 1, according to which, passing

of order dated 21.09.2013 by the learned Magistrate amounts to taking of

cognizance, it was not open to the learned Magistrate to review the said

order. This is so because a criminal court does not possess jurisdiction to

review its own order. In this regard, I am supported by the ratio laid down by

the Supreme Court Adalat Prasad vs Roop Lal Jindal, 2004 7 SCC 338,

wherein it has been held that if a Magistrate has issued process against an

accused in contravention of the provisions contained in Section 200 or

Section 202 of the Code, the order of the Magistrate may be vitiated but the

only option available to the aggrieved accused is to invoke the jurisdiction of

the High Court under Section 482 of the Code and not by applying for

review of the said order. In the face of this legal position, the impugned

order passed by the learned Magistrate on 11.03.2014 is not sustainable in

law.

23. That takes us to issue No. 3. The question that arises for determination is

whether after taking cognizance of offences, it is open to a Magistrate to

CRMC No. 107/2014 &

revert back to provisions contained in 156(3) of the Code and direct

registration of the FIR.

24. It is a settled law that a Magistrate after taking cognizance of the offences

has no jurisdiction to direct registration of the FIR by reverting back to the

pre cognizance stage. A Magistrate on a complaint regarding commission of

a cognizable offence is vested with power to direct investigation into the

offences by taking resort to Section 156(3) of the Code, but if he takes

cognizance of offences under Section 190-(1)(b) of the Code and embarks on

a procedure embodied under Chapter XVI of the Code, he is not competent

to switch back to the pre-cognizance stage and avail of Section 156(3) of the

Code. In my aforesaid view, I am supported by the judgments of this Court

in Samiullah Naqshbandi vs Sadaq Niyaz Shah, CRM(M) 113/2020 decided

on 31.08.2020, Mohd Aijaz vs Sajjad Dar and anr, CRMC No. 285/2017

decided on 18.02.2021, Dalip Singh vs State of J&K, CRMC No. 139/2016

decided on 22.02.2022 and the judgment of Nasreen Bano (supra).

25. In view of the aforesaid position of the law, the learned Magistrate has

committed a grave illegality by issuing a direction to the Crime Branch,

Jammu to register an FIR on the basis of the complaint made by private

respondent after having already taken cognizance of the offences. The

impugned order dated 13.03.2014 whereby direction for registration of the

FIR has been issued is, therefore, not sustainable in law.

26. The question that arises for consideration is as to what should be the fate of

the investigation that has been conducted by the Crime Branch in the instant

case. It has been vehemently contended by the learned Sr. AAG that in the

CRMC No. 107/2014 &

instant case it has been found that the crime has been committed by the

petitioner, therefore, the same should not go unpunished just because of

some procedural illegality committed by the learned Magistrate.

27. There can be no quarrel with the proposition propounded by the learned Sr.

AAG appearing for the respondents. However, it has to be borne in mind that

in the instant case the legality and validity of the impugned FIR was

immediately challenged by the petitioner by filing the petition on 25.03.2014

itself. The impugned FIR was registered on 22.03.2014 barely a few days

before the filing of the petition, whereafter, stay of the investigation was also

granted by this Court. Thus, within a few days of lodging of the impugned

FIR, the petitioner approached this Court without losing any time. It is not a

case where pursuant to the registration of the impugned FIR, charge sheet

has been filed and the trial against the petitioner has proceeded but it is a

case where the petitioner has approached the Court immediately upon

registration of the FIR and the investigation was stayed immediately

thereafter. Even if it is found that the petitioner has committed any offence,

he can be prosecuted in the manner as provided under Chapter XVI of the

J&K Cr.P.C. but no charge sheet can be laid against him as the learned

Magistrate has already taken cognizance of the offences. There is no scope

of taking of cognizance of the offences more than once. If the Investigating

Agency is allowed to produce challan against the petitioner, it would amount

to taking of cognizance of offences by the learned Magistrate a second time,

which is impermissible in law. The illegality in this case has been pointed

CRMC No. 107/2014 &

out at the initial stage itself, therefore, if the same is cured at this stage, it

will not cause any prejudice to either of the parties.

28. In view of the above, the ends of justice would be served by directing the

Investigating Agency to submit its report before the learned Magistrate,

which shall be treated as report in terms of Section 202 of the Code,

whereafter, the learned Magistrate shall record preliminary evidence of the

private respondent and her witnesses and proceed in the matter in accordance

with the law.

29. One important factor relating to final report of State Subject Commission has

not been considered by the respondent-Investigating Agency while

investigating the case as is clear from the status report submitted by it. This

petitioner has placed on record a copy of the final report submitted by the

State Subject Commission, according to which after conducting thorough

enquiry into the matter, it was found that the State Subject of the petitioner is

genuine. This aspect of the matter needs to be looked into by the respondent-

Crime Branch before submitting its report with the learned Magistrate.

30. In view of the above, both the petitions are allowed with the following

directions:

(i) Impugned orders dated 11.03.2014 and 13.03.2014 passed by the learned

Magistrate shall stand quashed.

(ii) Respondent-Crime Branch shall, after considering the matter regarding

validity of the State Subject Certificate of the petitioner in light of the report

of the State Subject Commission, file the enquiry report based on the

investigation conducted by it before the learned Magistrate.

CRMC No. 107/2014 &

(iii) The learned Magistrate after recording the preliminary evidence of the

complainant and after taking into consideration the said evidence along with

the report of the investigation that may be placed on record by the

respondent-Crime Branch, Jammu before him, proceed further in the matter

in accordance with the procedure prescribed under Chapter XVI of the J&K

CrPC.

(SANJAY DHAR) JUDGE

Jammu 28.03.2024 Rakesh PS Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No