Research › Search › Judgment

J&K High Court · body

2001 DIGILAW 344 (JK)

Iqbal Begum v. State Of J. &K.

2001-12-27

MUZAFFAR JAN

body2001
1. This petition has been filed with the prayer that the respondents may be directed -to investigate the complaint in FIR No. 114 of 1993 registered at Police Station Sherghari under Section 302 RPC regarding the death of two sons of the petitioners, namely, Tariq Parvez Rohel and Mohammad Ayoub Wani allegedly killed by the" B.S.F. personnel. Grievance of the petitioner seems to be that adequate measures are not taken by the investigating agency to effectively enquire into the complaint and that the investigation has not been conduced in accordance with the mandate of law. 2. The stand taken by the respondents in their objections is that the investigation was initially conducted by the officers of the local Police Station and finally by a senior Police Officer of the rank of Superintendent of Police. During investigation it was found that the sons of the petitioners had been killed during the militancy related cross-fire in which one B.S.F. personnel, Constable Bimal Kumar, was also killed, As it was established that the sons of the petitioners had not been killed by any official of the B.S.F. on the date of occurrence, the investigation was closed as not proved. On these grounds the respondents submit that the petition in not maintainable under law. 3. Heard the learned counsel for the parties. On the facts and circumstances as made out from the record, it is manifestly clear that an FIR was lodged on the complaint of the petitioners, it was investigated and closed as not proved thus nothing survives in this petition. 4. The writ petition is, accordingly, dismissed. However, a direction is given to the Chief Judicial Magistrate, Srinagar, to monitor and scrutinize the record which may be submitted in "Ikhtitami" under Section 169 Cr. P.C. 5. The learned CJM has three options to proceed under Section 173 of the Code of Criminal Procedure. Section 173 Cr. P.C. is reproduced for reference: 173. Report of Police Officer on completion of investigation. P.C. 5. The learned CJM has three options to proceed under Section 173 of the Code of Criminal Procedure. Section 173 Cr. P.C. is reproduced for reference: 173. Report of Police Officer on completion of investigation. (1) Every investigation under this Chapter shall be completed without unnecessary delay: Provided that investigation into offences under Section 152,153-A, 295, 295-A, 296, 297, 298, 435, 436 and 505 of the State Ranbir Penal Code shall be completed within two weeks, and if the investigation is not so completed the investigating officer shall report the causes of the delay to the District Superintendent of Police who shall issue necessary instructions for completion of the investigation. (2) (i) As soon as it is completed, the officer-in-charge of the Police Station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the Government stating:- (a) the names of the parties; (b) the nature of the information; (c) the names of the persons who appear to be acquainted with the circumstance of the case; (d) whether any offence appears to have been committed and if so, by whom; (e) whether the accused has been arrested; (f) whether he has been released on his bond and if so, whether with or without sureties; (g) whether he has been forwarded in custody under Section 170. (ii) The officer shall also communicate, in such manner as may be prescribed by the Government, the action taken by him, to the person if any, by whom the information relating to the commission of the offence was first given. (3) Where a superior officer of Police has been appointed under Section 158, the report shall in any case in which the Government by general or special order so directs, be submitted through that officer, and he may, pending the order of the Magistrate direct the officer-in-charge of the police station to make further investigation. (4) Whether it appears from a report forwarded under this Section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit. (4) Whether it appears from a report forwarded under this Section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit. (5) When such report is in respect of a case to which Section 170 applies, the police officer shall forward to the Magistrate along with the report: (a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation; (b) the statements recorded under section 161 of all the persons who the prosecution proposes to examine as its witness. (6) If the police officer is of opinion that any part of any such statement is not relevant to the subject matter of the proceedings or that the disclosure to the accused is not essential in the interest of justice and is not expedient in the public interest, he shall indicate the part of the statement and append a note requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating his reasons for making such request. (7) Where the police officer investigating the case finds its convenient so to do, he may furnish to the accused copies of all or any of the documents referred to in sub-section 5. (8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer-in-charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-section (2) to (6) shall as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2).� 6. The first option is to agree with the report of the investigating agency which does not make out grounds for existence of a cognizable offence and drop the proceedings. The second option is to disagree with the report and take cognizance of the offence, if there are sufficient grounds existing on record to justify to proceed in the matter. The first option is to agree with the report of the investigating agency which does not make out grounds for existence of a cognizable offence and drop the proceedings. The second option is to disagree with the report and take cognizance of the offence, if there are sufficient grounds existing on record to justify to proceed in the matter. In this view I am supported by a judgment of the Apex Court report in AIR 1985SC 1285, the relevant portion of which is quoted hereunder:- The Court may disagree with the report and take cognizance of the offence and issue process if it takes the view that there is sufficient ground for proceedings further.� The third option for the Court is to direct further investigation to be made by the Police. This view is supported by a judgment of the Apex Court reported in AIR 1997 SC 3875, the relevant portion of which is reproduced below: The Magistrate could, thus in exercise of the powers under Section 173 (8) Cr. P.C. direct the CBI to further investigate the case and collect further evidence keeping in view the objection raised by the appellant to the investigation and the new report to be submitted by the investigating officer would be governed by sub-sections (2) to (6) of Section 173 Cr. P.C.� 7. In view of the above position of law, the petitioners may, if they so desire, associate with the proceedings and assist the prosecuting agency before the learned Chief Judicial Magistrate who will keep the above observations in mind while dealing with the Ikhtitami final report submitted to him under section 169 of the Code of Criminal Procedure. Registry to send a copy of this order to the learned Chief Judicial Magistrate, Srinagar, forthwith.