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2017 DIGILAW 610 (JK)

Anshul Gupta v. State of J&K

2017-08-11

SANJAY KUMAR GUPTA

body2017
JUDGMENT : 1. Petitioner invokes inherent jurisdiction of this Court under Section 561-A Cr.P.C for quashment of FIR No.116/2010 registered by Police Station Mohore, District Reasi, under Section 295-A RPC on the ground that police was not competent to lodge the FIR because in terms of Section 196 Cr.P.C., it is the only a District Magistrate or any other officer empowered by the Government, who can lodge the FIR or in the alternative, learned counsel for the petitioner submits that treat the instant petition as a transfer petition and the investigation of the case FIR No.116/2010/Challan by Police Station Reasi may kindly be transferred either at Jammu or Kathua. 2. The case of the petitioner is that the petitioner is dealing with the business of publication and printing of books at Sadder Bazar, Jalandhar Punjab. In the normal course of his business, the petitioner is printing books of general knowledge etc and in this venture, a book of general knowledge was published by the publication house of the petitioner in which bonafidely and by mistake a picture of Prohphet Mohammad)PBUH) was published. It is further stated that at the time of publication of the said picture, the petitioner was not conscious of the fact that the depiction of picture of holy Prophet is not permissible in Islam. However, when the petitioner got knowledge of the same, he reprinted the same very book of general knowledge by deleting the said picture. It is further contended that a complaint was filed in Police Station Mahore, District Reasi for offence under Section 295-A RPC on 01.10.2010 by Sh. Bashir Ahmed and on the basis of said complaint, an FIR No.116/2010 has been registered by respondent No.2 against the petitioner under Section 295-A RPC. Subsequent to the registration of the FIR, the petitioner applied for bail in anticipation of his arrest before learned Sessions Judge Reasi, who called the report from the Police Station Mahore. The learned Sessions Judge, Reasi after adjudication of the matter dismissed the application vide order dated 16.11.2010. Thereafter petitioner approached this Court and this Court vide order dated 03.12.2010 admitted the petitioner on bail. 3. The learned Sessions Judge, Reasi after adjudication of the matter dismissed the application vide order dated 16.11.2010. Thereafter petitioner approached this Court and this Court vide order dated 03.12.2010 admitted the petitioner on bail. 3. Aggrieved of registration of FIR No.116/2010/challan by respondent No.2, the petitioner seeks to claim relief on the following grounds: (i) The registration FIR under Section 295-A RPC itself is not legally permissible in view of Section 196-A Cr.P.C which provides for a complaint in this regard can only be made by the Government or by the District Magistrate or by such other officer as may be empowered by the Government in this behalf. Filing of complaint/FIR by a private person under Section 295-A is not permissible. The cognizance of the complaint lodged by a private individual, taken by respondent No.2 is totally illegal and contrary to the provisions of law. The respondent No.2 before registration of FIR on the basis of complaint filed by a private individual ought to have been taken into consideration the aforesaid provision of Code of Criminal Procedure. Had the said provision been appreciated in its entirety, then there would not have any occasion for respondent No.2 to register FIR against the petitioner. (ii) That respondent No.2 has registered the impugned FIR on a complaint filed by a private individual, which is quite apparent from a bare perusal of the FIR impugned. This clearly shows that respondent No.2 by registering the impugned FIR has given clear goby to the provision of Section 196-A CrPC which unequivocally and unambiguously envisages that a complaint in this regard can only be made by the government or by the District Magistrate or by such other officer as may be empowered by the Government in this behalf. Sh. Bashir Ahmed s/o Sh. Ibrahim R/o Biddo Mohra Darbari is a private individual and has not been empowered by the government by way of any order or document to register a complaint under Section 295-A RPC. This aspect has not been taken into consideration by respondent No.2 before taking cognizance of the complaint lodged by an individual and impugned FIR has been registered against the petitioner. (iii) That respondent No.2 before registration of the FIR impugned in this petition has not held any enquiry into the matter. This aspect has not been taken into consideration by respondent No.2 before taking cognizance of the complaint lodged by an individual and impugned FIR has been registered against the petitioner. (iii) That respondent No.2 before registration of the FIR impugned in this petition has not held any enquiry into the matter. Had the contents of the complaint lodged by a private individual been actually verified and petitioner was subjected to such enquiry, then there would have no occasion for respondent No.2 to register the complaint because of the reason that the petitioner immediately after coming to know about the bonafide error crept in the book in question, reprinted the same by deleting the picture Prohphet Mohammad. (iv) That if at all the error which was committed by the petitioner is bonafide error and is not actuated by malicious intention without which no offence is made out. The basic ingredients of Section 295-A RPC are not only missing but are not made out because the book in question is a general knowledge book for the students an the picture in question has been published because of oversight and inadvertence. The said action cannot be said to be an action of causing hurt to any religion. Since the basic ingredients of Section 295-A RPC are missing in the FIR therefore, the said FIR deserves to be quashed. (v) That FIR on the face of it is unbelievable and the same has been registered by respondent No.2 on the complaint of a person, who is not competent to lodge such a complaint. (vi) That there was no wilful intention or aim of the petitioner to cause any damage or insult to any religion, but the mistake is apparently rept in because of oversight and inadvertence and is not a wilful at causing any damage to any religion or its preaching. The petitioner immediately after coming to know of the error rectified the same by publishing a fresh book. (vii) That the petitioner is a resident of State of Punjab and it is extremely difficult for him to associate himself with the investigation of the case, which has been registered at Mahore a remote area of District Reasi. The petitioner immediately after coming to know of the error rectified the same by publishing a fresh book. (vii) That the petitioner is a resident of State of Punjab and it is extremely difficult for him to associate himself with the investigation of the case, which has been registered at Mahore a remote area of District Reasi. In case this Court does not find favour with the prayer of the petitioner for quashment of the impugned FIR then the investigation/challan may kindly be ordered to be transferred either at Jammu or at Kathua where the petitioner can easily come and properly associate with the investigation as going to Mahore or Reasi will be great security threat to the lives of the petitioners in view of surcharged atmosphere and nature of false allegations. (viii) That Section 561-A CrPC empowers this Court to exercise its inherent powers to prevent abuse of process of the law and that power can be exercised and proceedings can be quashed. 4. This Court vide order dated 31.12.2010, issued notice to the respondents and stayed the investigation in FIR No.116/2010 registered at Police Station Mahore, District Reasi. 5. On 16.03.2011, the respondents have filed objections wherein it is stated that the present petition is misconceived inasmuch as the same is not maintainable as the same has been filed by suppressing the real facts of the case as such the petition deserves to be dismissed out rightly. No legal, fundamental and or statutory rights of the petitioner have been violated. The present petition raises dispute question of facts which this Court while exercising its extra ordinary jurisdiction under Section 561-A CrPC may not prove into such disputed question of facts. Since the investigation is in progress and the association of the accused/petitioner with the investigation is must keeping in view the fact and circumstances of the case. During the investigation a prima facie case has been made out against the accused/petitioner as such the accused has no legal right to seek the indulgence of this Court for quashment of FIR under Section 561-A CrPC. It is, therefore, prayed that the petition under Section 561-A of the petitioner may kindly be dismissed with costs. 6. I have considered the arguments of learned counsel for the parties. It is, therefore, prayed that the petition under Section 561-A of the petitioner may kindly be dismissed with costs. 6. I have considered the arguments of learned counsel for the parties. There is legal issue involved in the case, as to whether police has power to conduct the investigation in offence under section 295-A RPC due to bar created in terms of Section 196 and 196 –B of Cr.P.C. 7. Sections 196 and 196-B of Cr.P.C. read as under: “196. Prosecution for offences 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 108-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 half. 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 sections 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 such police officer shall have powers referred to in section 155, such-section (3).” 8. A bare perusal of Section 196 Cr.P.C., it is evident that it is only on the complaint made by the order of, or under authority from the Government or District Magistrate or such other officer as may be empowered by the Government, the FIR can be lodged for conducting investigation under section 295-A RPC. Further in terms of section 196-B CrP.C , District Magistrate has to order a preliminary investigation with regard to Section 295-A by a police officer not being below the rank of Inspector. 9. But in present case, FIR no.116/2010 u/s 295-A RPC has been lodged by Police on the complaint of one Bashir Ahemed S/o Ibrahim directly. 10. In 2005 (1) SLJ in case titled Mst. Nazirain Bi v State, it is held as under :- “To appreciate the controversy it is apt to refer to section 196 Cr.P.C, which reads as under:- "196. 10. In 2005 (1) SLJ in case titled Mst. Nazirain Bi v State, it is held as under :- “To appreciate the controversy it is apt to refer to section 196 Cr.P.C, which reads as under:- "196. Prosecution for offences 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 171F, so far as it relates to the offence of personation]) or punishable under section 108A or section 153A or section 294A [ or section 295A] 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. A plain reading" of the aforesaid provision makes it abundantly clear that no prosecution can be initiated under this section except on a complaint made by the District Magistrate. The expression "upon a complaint" used in the aforesaid provision is explicit and significant. 7. In the present case, the District Magistrate has asked the Police, vide his communication dated 26.7.2003, to register a case without indicating the offences committed by the petitioners. The Police report is not a substitute for a complaint in terms of Section 196 Cr. P. C. Cognizance taken by the learned Sessions Judge, Poonch in respect of the offences indicated in Section 196 Cr. P. C, in the absence of a complaint by the District Magistrate, would amount to defect of jurisdiction of the Court, which cannot be cured under law. In other words, the prosecution is primarily concerned to see that the prosecution in case of offences under sections 2/3-A EPIMCO, 120B/121,121A/123-212 RPC, covered by prohibition under Section 196 Cr. P. C, shall not commence without complying with the conditions contained therein. Under Section 196B Cr. P. C, the District Magistrate can order a preliminary investigation by a Police Officer. However, this provision empowers the District Magistrate to order preliminary investigation by a Police Officer before filing the complaint under Section 196 Cr. P. C for prosecution of the accused under sections 120B/121,121A/123-212 RPC. The communication dated 26.7.2003 could, at best, be treated a direction for preliminary investigation. In directing registration of a case, the District Magistrate has completely ignored the provisions of section 196 Cr. P. C for prosecution of the accused under sections 120B/121,121A/123-212 RPC. The communication dated 26.7.2003 could, at best, be treated a direction for preliminary investigation. In directing registration of a case, the District Magistrate has completely ignored the provisions of section 196 Cr. P. C. What was required by the Police in this case was to submit the report to the District Magistrate after receipt of the communication from him and, thereafter, on the basis of such report, the District Magistrate could have filed the compliant against the petitioners. 8. Mr. A. H. Qazi, learned AAG appearing for the State, has fairly admitted that the procedure under section 196B Cr. P. C has not been followed and no cognizance could be taken by the learned Sessions Judge in the aforesaid offences against the petitioners, without there being a complaint from the District Magistrate, Poonch, in compliance to the provisions of section 196 Cr. P. C. 9. In the facts and circumstances of the case, the inevitable conclusion reached is that, cognizance taken by the trial court on the basis of the FIR and charge framed, is without jurisdiction and an abuse of process of court, in view of the bar created under Section 196 Cr. P. C. 10. Accordingly, the petition is allowed and FIR and the charges framed vide order dated 15.1.2004, so far as they pertain to the petitioners, are quashed. The petitioners shall be released in the aforesaid FIR by the respondents forthwith provided they are not required in any other case or detained under Public Safety Act/Special Offences.” 11. In view of above law, I am of considered opinion that police of Police Station Mahore, Reasi, was not competent to register the FIR No.116/2010 under Section 295-A RPC on the instance of private party. Accordingly, this petition is allowed and FIR No.116/2010 registered by Police Station Mohore, District Reasi, under Section 295-A RPC, is quashed as it is without jurisdiction.