Jammu & Kashmir High Court

Kamlesh Aryan And Others vs Ut Of J&K And Another on 4 October, 2024

Author: Vinod Chatterji Koul

Bench: Vinod Chatterji Koul

                                                                         Sr. No. 24
      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                      AT JAMMU

                                                          CRM(M) No. 957/2023

Kamlesh Aryan and others                              .... Petitioner/Appellant(s)

                        Through:-      Mr. Manoj Sharma, Advocate vice
                                       Mr. Koshal Parihar, Advocate

                  V/s

UT of J&K and another                                           .....Respondent(s)

                        Through:-      Mr. Mohd. Irfan Inqlabi, GA
                                       Mr. Vikas Pankaj Sharma, Advocate

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

04.10.2024

01. In this petition, the petitioners being aggrieved of FIR registered with

Police of P/S Kishtwar, on the directions passed by the trial court in an

application under Section 156(3) CrPC, has challenged the same

precisely on the following grounds: -

a) That the impugned FIR is against facts, law and all cannons of justice.

b) That even if the learned Magistrate was required to proceed in terms of Section 156(3) then the order of learned Magistrate must reflect that the complaint disclosed commission of cognizable offences and the learned Magistrate has a power to take cognizance of the said offences and therefore, can pass directions in terms of Section 156(3) of Cr.P.C by examining the application and applying his judicial mind and then exercising discretion whether or not to issue directions under Section 156(3) or whether he can take cognizance and follow the procedure under Section 202 but in the present case the Ld. Trial Court in a very mechanical manner has issued docket which is reproduced as under:-

"Docket SHO Police Station Kishtwar In the above-titled case you are hereby directed to register FIR in terms of Section 156(3) Cr.P C and submit compliance report before this Court by or before 4 October, 2023. Copy of the comflaint is annexed herewith. Announced 26.09.2023"

c) That the order dated 26/09/2023 pursuant to which FIR impugned has been lodged is contrary to the latest law laid down by the Hon'ble Supreme Court in case titled "Kailash Vijayargiya Vs Rajlakshmi Chaudhuri and Ors" reported in 2023(2) MadWN (Cri) 18.

d) That the learned Magistrate has passed the impugned order in a very mechanical manner without disclosing as to whether any offence is made out from the allegations made in the compliant or not. As such, the impugned order is liable to be set aside.

e) That it is settled law that reasoning is a life of an order and any order bereft of such reasoning is an illegal order and bare perusal of order dated 26/09/2023 reveals that order dated 26/09/2023 is an order without any reasoning and without application of judicial mind which would have been applied by the Ld. Trial Court then certainly the Ld. Trial Court would have first given: a finding that bare perusal of the application reveals commission of cognizable offence and therefore, then would have decided either to proceed under Section 156(3) or in terms of Section 202 followed with Section 203 and 204 but as it appears from the impugned order the Ld. Trial Court without application of mind has directed registration of FIR without coming to the conclusion whether any cognizable offence is made out or not which is sine qua non for invoking powers under Section 156(3) as the language used in Section 156(3)-is that any Magistrate empowered under Section 190 may ordered such an investigation as mentioned in Section 156(1).

f) That bare perusal of the complaint / application in terms of Section 156(3) Cr.P.C does not disclose any penal offence alleged to be committed by the petitioners herein and in absence of such ingredients no a can be said to be have been committed by the petitioners herein, as such, application even if treated as a complaint is liable to be dismissed.

g) That the allegation in the FIR / complaint even if taken. at their face value and accepted in entirety do not constitute offence as registered by the Police and it is settled law if the material do not disclose offence, no investigation can be permitted a has been held by the Hon'ble Apex Court of India in "State of Haryana Vs Bhajan Singh" reported in 1992 Supp. Vol-I SCC

335.

h) That the application under Section 156(3) does not specify any date, month, year and time of commission of offence and further the allegations are not supported by any documentary evidence such as execution of. agreement to sell as alleged in the application und Section 156(3) and there is not an iota of allegation against petitioners no. 4, 5 and 6 as such, the impugned order and FIR are bad in the eyes of law and as such, are required to be quashed.

i) That the respondent no. 2 in the application under Section 156(3) has alleged the trespass and threats on the part of the petitioners herein but has nowhere stated as to which land has been trespassed as there is no mention of any Khasra No. Survey No. or any identification of the land or any documentary proof qua the ownership and possession of the complainant / respondent no. 2, further in para no. 4 of the application the complainant has stated that the accused persons openly threatened the complainant for her elimination but again at what time, at what place and when the said threat has been administered by the accused persons has not been stated anywhere in the complaint and further the petitioners are on oath and it is specifically stated that the petitioners no. 1 to 3 have not executed any kind of agreement to sell either written or oral with petitioners no. 7, 8 and 9 at any point of time and a separate affidavit is being sworn by the petitioner no. 1 qua this fact which is duly attested by a Judicial Magistrate.

j) That the impugned order dated 26/09/2023 passed by the Ld. Magistrate pursuant to the remand order dated 20/09/2023 passed by the Hon'ble High Court in an earlier round of litigation passed in CRM(M) No. 833 of 2023 by virtue of which the Hon'ble High Court * quashes the course of proceeding initiated by the Ld Chief Judicial Magistrate, Kishtwar and held that the Ld. Chief Judicial Magistrate shall act within the bounds of law in the matter dealing with the said application under Section 156(3) of the Code of Criminal Procedure, 1973 which surely does not warrant summoning of the prospective accused in connection with the case and on receiving the said order the Ld Chief Judicial Magistrate straight way passed the order under Section 156(3) directing registration of FIR and therefore, the Ld. Magistrate has misread the order dated 20/09/2023 passed by this Hon'ble Court as it was the requirement of law to examine and applying judicial mind by the Ld. Magistrate in exercising the discretion of registering the FIR and therefore, the impugned order as well as the FIR is liable to be quashed.

k) That the impugned order directing the SHO concerned to register FIR and thereafter keeping the file alive in the records of the Ld. Chief Judicial Magistrate is also not in consonance with the law as the Ld. Magistrate after issuing the direction for registration of FIR is still continuing with the said proceedings under Section 156(3) and after issuing directions on 26/08/2023, fixed the matter for 4" of October, 2023 and thereafter on 20" of October, 2023 when all the respondents named in application under Section 156(3) except respondent no. 1 and 3 appeared before the Trial Court and the matter has been now adjourned for 14" November, 2023 for further proceedings in the application under Section 156(3) and now the petitioners have to appear both before the Investigating

Officer as well as before the Magistrate which is totally unknown to the Code of Criminal Procedure, 1973 as such, the impugned order and proceedings thereof are required to be quashed.

l) That the petitioners reserve their right to raise any other additional ground at the time of arguments with the permission of the Hon'ble Court.

02. Response has not been filed.

03. Heard learned counsel for the parties.

04. The application seeking direction to the SHO Police Station Kishtwar to

made before the Chief Judicial Magistrate, Kishtwar. In the said

application, the complainant submitted as under: -

i. That the complainant is a House maker by profession and is residing in the house of her mother including minor son in Village Sangrambhatta Kishtwar of Union Territory of Jammu & Kashmir and is a peace loving lind law abiding citizen of the Country as such, is entitled. to all the privileges and fundamental rights enshrined in the Constitution concerning her life and liberty.

ii. That a civil case titled Jatin Singh V/S Kamlesh Aryan was pending disposal before the Court of Learned Sub Judge Kishtwar with regard to land falling in the share, of Jatin Singh in which court has passed decree in favour of the minor son of the applicant and execution of same was filed and Tehsildar kishtwar was directed to hand over the possession of land which falls in the share of Karan Aryan to applicant as applicant is natural guardian and mother of minor son and the applicant was put in possession of some land and when applicant became ill and was under treatment at Delhi and Jammu the accused no.1,2,3 at back of applicant and despite the knowledge of court decree executed agreement to sell and other documents in favour of accused no.7,8,9 in active connivance with accused no.4,5,6.

iii. That the accused persons have committed fraud and have alienated the land which falls in the share of minor son and by this illegal act have caused irreparable loss and injury to applicant and minor son. The accused no.7.8,9 have illegally trespassed into the land and when applicant enquiry about the why they have alienate the land in favour of accused no. 7.8,9 and why they are trespassing in the share of the applicant the

accused persons threatened the applicant of dire consequences and openly declared that they will kill the applicant and her son and there is apprehension that the accused persons may cause physical injury to applicant and her son and all the accused persons are head strong person and openly declared that they do not care for any court order and what they desire can do.

iv. That the accused persons openly threatened the applicant and the complainant of her elimination and the complainant have every apprehension that the accused persons may cause injury to the complainant and her minor son also in future; es such the complainant has approached the concerned police authority to lodge FIR against the accused persons. v. That the complainant on 18.05 2023 filed a written complaint before SHO P/S Kishtwar and also to SSP Kishtwar on 30,05.2023 and when police failed to lodge FIR against the accused person the circumstances compelled the complainant to file the present application for intervention of the Hon'ble Court.

vi. That the accused persons ore highly influential person and having criminal mind set and there are every chances of breach of peace on spot if they are not booked under relevant sections of law. An affidavit in support is annexed herewith.

05. The said application was filed before the trial court, and on 19.06.2023,

direction was issued to summon the non-applicants and thereafter, as is

evident from the record placed with the file, on 21.07.2023, bailable

warrants of arrest were issued for securing the presence of the petitioners

herein. This order of issuing of warrants were repeated on 07.08.2023

and also on 04.09.2023. The process issued by the trial court was

challenged in CRM(M) No. 833/2023, and vide order dated 20.09.2023,

while allowing the petition, this Court quashed the course of proceedings

on the file of Chief Judicial Magistrate, Kishtwar. The order reads as

under: -

"The petitioners are aggrieved by a fact that in an application pending before the Chief Judicial Magistrate, Kishtwar filed by the respondent naming the petitioners herein as accused for the purpose of seeking a direction under section 156(3) of the Code

of Criminal Procedure, 1973, the Chief Judicial Magistrate, Kishtwar has issued non-bailable warrants against the petitioners in terms of an order dated 04.09.2023.

Mr. Koshal Parihar, learned counsel for the petitioners, submits that issuance of a process in a criminal case can take place in case if there is a criminal complaint taken cognizance of by a Magistrate or acting in response to a Police report under section 173 of the Code of Criminal Procedure, 1973 but none of two contingencies were available before the Chief Judicial Magistrate, Kishtwar to direct issuance of non-bailable warrants against the petitioners. The submission of the learned counsel is correct.

In the light of this, this Court quashes the course of proceedings on the file of Chief Judicial Magistrate, Kishtwar in the application filed by the respondent and directs the Chief Judicial Magistrate, Kishtwar to act within the bounds of law in the matter of dealing with said application under section 156(3) of the Code of Criminal Procedure, 1973 which surely does not warrant summoning of the prospective accused in connection with the case. Petition is thus disposed of."

06. This Court while disposing of the petition has directed the Chief Judicial

Magistrate, Kishtwar to act within the bounds of law in the matter of

dealing with the said application under Section 156(3) of the Code of

Criminal Procedure, 1973. On receipt of the said order, the trial court

passed the order impugned, on the basis of which, impugned FIR was

registered. The order was passed on 26.09.2023, which reads as under: -

"Complainant present. Non-applicant absent. Non- applicants have not caused their appearance especially non-applicant No. 3.

Received copy (e-format) of judgment in CRM(M) No. 833/2023 titled Kamlesh Aryan and others Vs Kalpana Singh, wherein Hon'ble High Court has been pleased to direct this court to deal with said application u/sec. 156(3) of CrPC. 1973. As such, SHO P/S Kishtwar is directed to register FIR in terms of Sec. 156(3) and submit compliance. As complainant herein has made efforts to get her FIR registered by approaching SHO as well as SSP Kishtwar.

Let copy of complaint along with this order be sent to SHO P/S Kishtwar for compliance. List on 04th of Oct, 2023 for compliance.

Sd/CJM Ktr."

07. The question arises as to whether by passing the order impugned, on the

basis of which FIR impugned has been registered, the learned Magistrate

has followed the procedure as enshrined in the Code of Criminal

Procedure while passing a direction to the Police to register FIR. Section

156 reads as under: -

156. Police Officer's power to investigate cognisable case.

(1) Any officer-in-charge of a police station may, without the order of a Magistrate, investigate any cognisable 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.