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2001 DIGILAW 72 (JK)

Sonam Ganbo v. State Of J. &K.

2001-03-29

O.P.SHARMA

body2001
1. The inherent jurisdiction of the court is sought to be invoked to quash the criminal proceedings pending in the court of Sessions Judge, Leh on the ground that court has taken cognizance of the offences punishable under Section 153-A/295-A Ranbir Penal Code without complying the mandate of Section 196 of the Code of Criminal Procedure. 2. The First Information Report was registered in Police Station Leh on the basis of letter written by the District Magistrate, Leh on 11-07-2000 to the Senior Superintendent of Police, Leh. This letter reads as under: - "To The Sr. Superintendent of Police, District Leh. Sir, It has been brought to my notice that a public meeting was held in Polo ground Leh on 10-07-2000, by Ladakh Budhist Association, in which reportedly Sh. Sonam Ganbo, Vice-President, LBA allegedly made certain remarks which has reportedly hurt the religious sentiments of a particular community. You are, requested to register an FIR in the matter and investigation be got conducted. Sd/- (District Magistrate) Leh (Ladakh)" 3. So the investigation commenced with the registration of the case under Section 153-A and 295-A RPC. The Investigating Police Officer came to the conclusion that the accused-petitioner herein is guilty of the offence and he was sent up for trial under the afore said offences. The learned Sessions Judge, took cognizance of the offences and vide order dated: 22-09-2000 found that prima facie charge under section 153-A & 295-A RPC is made out against him. So a formal charge-sheet was also framed against the petitioner. 4. Mr. J.P. Singh, learned advocate appearing for the petitioner argued that learned Sessions Judge could not have taken cognizance because the complaint has not been made by an order of or under the authority from the Government or District Magistrate or such other officer as may be empowered by the Government in this behalf as required under Section 196 RPC. Mr. Sharma, Govt. Advocate, on the other hand argued that since the District Magistrate has asked the police to register a case against the petitioner, therefore, mandate of section 196 Cr. P.C. is complied with. 5. So the only question to be decided is whether the court could have taken cognizance of the offence on a police report. This makes reference to section 196 Cr. P.C. necessary, it reads as under:- "196. P.C. is complied with. 5. So the only question to be decided is whether the court could have taken cognizance of the offence on a police report. This makes reference to section 196 Cr. P.C. necessary, it reads as under:- "196. Prosecution for offence against the State- No court shall take cognizance of any offence punishable under Chapter VI or IX-A of the Ranbir Penal Code (except section 127, (and section 171-F, so far as it relates to the offence of personation), or punishable under section lO0-A, or section 153-A, or section 294-A, (or section 295-A) or section 505 of the Ranbir Penal Code, unless upon complaint made by order of, or under authority from (the Government or District Magistrate or such other officer as may be empowered by the Government in this behalf)". 6. The expression, "upon complaint made by order of, or under authority from (the Government or District Magistrate or such other officer as may be empowered by the Government in this behalf)", is significant. So the complaint must be by the District Magistrate or under the authority of the Government. In this case, the District Magistrate has only asked the police to register a case against the petitioner without indicating the offence committed by him. The police report complied under section 173 is not a substitute for complaint, in terms of section 196. The only exception to the requirement of section 196 is the procedure prescribed by section 196-B Cr. P.C. which reads as follows:- "196-B. Preliminary inquiry in certain cases." In the case of any offence in respect of which the provisions of section 196 or section 196-A apply, a District Magistrate may, notwithstanding anything contained in those section or in any other part of this Code, order a preliminary investigation by a police officer not being below the rank of Inspector, in which case such police officer shall have powers referred to in section 155, subsection (3)." 7. This section allows the District Magistrate to order a preliminary investigation by police officer before filing the complaint in terms of section 196 Cr. P.C. for the prosecution of the accused under section 153-A and 295-A. The letter dated: 11-07-2000 at best could be treated as an order for preliminary investigation. This provision has been completely ignored by the Sr. Suptd. of Police, Leh in directing the registration of the case. P.C. for the prosecution of the accused under section 153-A and 295-A. The letter dated: 11-07-2000 at best could be treated as an order for preliminary investigation. This provision has been completely ignored by the Sr. Suptd. of Police, Leh in directing the registration of the case. So the only course open to the police was to submit this report to the District Magistrate on the basis of which latter could have filed a complaint against the petitioner. That not being the case, the cognizance taken by the trial court and charge framed being without jurisdiction is an abuse of the process of the court because the bar under section 196 Cr. P.C. is against taking cognizance by the court, unless complaint is made by order of the District Magistrate, it is not the case here. Accordingly, this petition is allowed and the proceedings are quashed.