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2019 DIGILAW 130 (JK)

Som Raj Dutta v. State of J&K

2019-03-15

SANJAY KUMAR GUPTA

body2019
JUDGMENT Heard. 2. Through the instant petition filed under Section 561-A Cr.P.C., petitioner seeks quashment of FIR No.88/2018 dated 04.07.2018 registered with Police Station, Bakshi Nagar, Jammu under Section 506 RPC against the petitioner. 3. The petitioner claims to be a retired Superintendent of Police and that on account of good name earned by him, he was offered many social and political assignments. The petitioner is presently residing at Subash Nagar, Jammu and right opposite to the house of the petitioner, the house of respondent No. 2 is situated. It is stated that the relationship between the petitioner and respondent No. 2 remained strained for the past few years. Although the petitioner has never given any opportunity or occasion to respondent No. 2 to complain about any of his activities, yet respondent No. 2 picks up quarrels and abuses the petitioner over non-issues and creates scene in the locality by harassing and victimizing the petitioner. It is further stated that in view of the hostility between the petitioner and respondent No. 2 and due to her ill will towards the petitioner and his family, a complaint was lodged before the court of learned Chief Judicial Magistrate by respondent No. 2. It is submitted that the said complaint has been filed under the provisions of Section 156(3) of Cr.P.C. without approaching the concerned SHO or District Superintendent of Police. 4. Learned counsel for the petitioner states that from the perusal of the complaint and in the endorsement made thereupon, it reveals that police of Bakshi Nagar, Jammu initially investigated the matter and found that case was non-cognizable as per Daily Diary Report No.32, dated 14.06.2018. A report in this regard was furnished to the learned CJM, Jammu. Thereafter, learned CJM, Jammu after going through the aforesaid report directed the SHO Police Station, Bakshi Nagar to conduct investigation in the matter. The order of learned Chief Judicial Magistrate is also recorded on the said application. The very fact that the offence disclosed as non-cognizable offence would mean that the police is barred from conducting the investigation in the matter and only recourse available to complainant was to file a regular complaint before the Magistrate/competent court. 5. The order of learned Chief Judicial Magistrate is also recorded on the said application. The very fact that the offence disclosed as non-cognizable offence would mean that the police is barred from conducting the investigation in the matter and only recourse available to complainant was to file a regular complaint before the Magistrate/competent court. 5. Learned counsel for the petitioner further contends that the learned Chief Judicial Magistrate, Jammu has acted in an arbitrary and illegal manner by directing the police to register an FIR against the petitioner on the basis of a complaint under Section 156(3) Cr.P.C. It is stated that compelled under the circumstances and findings itself cornered of the impugned order dated 04.07.2018 passed by the learned Chief Judicial Magistrate, Jammu, SHO Police Station, Bakshi Nagar, Jammu has registered FIR even though offence is non-cognizable. 6. The petitioner seeks quashment of the impugned order dated 04.07.2018 and registration of FIR No.88 of 2018 on the following grounds:- (a) That the FIR No. 88/2018 dated 04.07.2018 registered with Police Station, Bakshi Nagar, Jammu under Section 506 RPC against the petitioner is contrary to the provisions of law inasmuch as the offence which is non-cognizable has been allowed to be investigated by the Police by a cryptic incomplete order of the learned Chief Judicial Magistrate, Jammu. (b) That in the present case, admittedly the complainant had neither approached the SHO nor the District Superintendent of Police before approaching the learned Magistrate. The assumption of jurisdiction by the Chief Judicial Magistrate is contrary to the judgment and provisions of Hon’ble Supreme Court of India in Priyanka Srivastava’s case and is therefore, bad in law and consequently direction to register the FIR is also bad and contrary to the law laid down by the Hon’ble Supreme Court. (c) That the Magistrate could not have ordered inquiry under Section 202 and consequentially issue of jurisdiction under Section 156(3) Cr. P.C. without issuing to the applicant/petitioner and without following the mandate of law. Both the orders passed by the Magistrate on the same application and on the same page run contrary to each other and direction to register FIR is accordingly bad in law and the order along with FIR are liable to be quashed. (d) That the Magistrate has not applied his mind nor has given reasons for arriving at so called satisfaction with regard to the commission of non- cognizable offence. (d) That the Magistrate has not applied his mind nor has given reasons for arriving at so called satisfaction with regard to the commission of non- cognizable offence. Non speaking order passed by the Magistrate is in itself a ground seeking annulment of the order, the petitioner prays accordingly. 7. Status report has been filed by the respondent wherein it has been stated that on 04.07.2018, Police Station, Bakshi Nagar, Jammu received a complaint under Section 156(3) of the Cr.P.C. marked by the Chief Judicial Magistrate, Jammu with the direction to the Station House Officer Police Station, Bakshi Nagar, Jammu to register an FIR against the alleged accused, namely, Som Raj Dutta S/o Bishamber Dass R/o 7-A Subash Nagar, Jammu and for investigating the matter. It is further stated that while complying with the directions of the learned Chief Judicial Magistrate, Jammu an FIR No.88/2018 under Section 506 RPC came to be registered at the Police Station Bakshi Nagar Jammu and the investigation of the case came to be entrusted to Sub Inspector-Jatinder Singh, Incharge Police Post, Sarwal, Jammu. 8. I have considered the rival contentions and gone through the law on the subject. From the perusal of photocopy of complaint, it is evident that respondent filed a complaint before CJM Jammu on 09.06.2018; on same date it was forwarded to concerned police for registration of FIR in terms of section 156(3) Cr.P.C. Police did not lodge FIR and conducted investigation in terms of section 156(3) Cr.P.C., because as per police no cognizable offence appears to have been made out. A report in this regard was submitted to court after registering the report in concerned register i.e. Daily Diary dated 14.06.2018. The learned CJM on 04.07.2018 granted permission to the police to investigate the matter. After the order of CJM, police registered FIR No.88/2018 u/s 506 RPC dated 04.07.2018 and commenced the investigation. 9. The foremost question, thus, arises as to whether police was not competent to register the FIR in cognizable case after direction from CJM or not. 10. Chapter PART-XIV of Cr.P.C. deals with information with regard to cognizable and non-cognizable case to police and power of police to investigate the matter. In present case, we are concerned with non cognizable case. 11. 10. Chapter PART-XIV of Cr.P.C. deals with information with regard to cognizable and non-cognizable case to police and power of police to investigate the matter. In present case, we are concerned with non cognizable case. 11. Section 155 Cr.P.C. reads as under: “ Information in Non-cognizable cases.- (1) When information is given to an officer-in-charge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter in a book to be kept as aforesaid the substance of such information and refer the informant to the Magistrate *[having power to, try such case or commit the same for trial. (2) Investigation into non-cognizable cases.- No police officer shall investigate a non-cognizable case without the order of a Magistrate of the first or second class having power to try such case or commit the same for trial. (3) Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer-in-charge of a police station may exercise in a cognizable case. 12. From bare perusal of this section, it is evident that whenever report with regard to non cognizable offence is given to police, police shall enter the substance of information in concerned book and shall forward the same to concerned magistrate; police cannot register the FIR in such case without permission from magistrate. After receiving such order/permission to investigate the matter in non cognizable offence, police has same power to investigate the case as provided to an officer in charge of police station in cognizable case except power to arrest. 13. In Vipin Gulia v State ( Govt. of NCT of Delhi ), 2016 (4) JCC 2253, it is held as under:- 7. Even on merits, the present petition is not maintainable as in the present case, a perusal of charge sheet reflects that IO had obtained prior permission of Magistrate to investigate and arrest in the non-cognizable offence u/s 506 IPC. Therefore, compliance of Section 155(2) of Cr.P.C was duly made. 8. The judgment relied upon by the petitioner in Keshav Lai’s case (Supra) is distinguishable as in the facts before the Supreme Court of India, in a non-cognizable offence U/s 31 of the Representation of the People Act, 1950, the matter was investigated after registration of FIR without seeking any order from the Magistrate. 8. The judgment relied upon by the petitioner in Keshav Lai’s case (Supra) is distinguishable as in the facts before the Supreme Court of India, in a non-cognizable offence U/s 31 of the Representation of the People Act, 1950, the matter was investigated after registration of FIR without seeking any order from the Magistrate. Accordingly, proceedings arising from the FIR were quashed. However, in the present case as discussed hereinabove, the requisite permission U/s 155(2) of Cr.P.C was sought to investigate and arrest by the IO from the Magistrate, therefore, no illegality was committed. 9. The contention of the learned counsel for the petitioner that in a non-cognizable offence, no FIR could have been registered and no charge sheet could have been filed U/s 173 Cr.P.C also deserves to be rejected. The reason for the same is that as per Section 155(3) of Cr.P.C if the police has taken the permission from the Magistrate to investigate the non-cognizable offence, then officer in charge of the police station can exercise all the powers which are available to him in a cognizable case. Since in a cognizable case, police officer has the power to register a FIR and on completion of investigation, file a chargesheet U/s 173 Cr.P.C, therefore no illegality was committed in the present case in either registering the FIR u/s 154 Cr.RC or in filing the charge-sheet U/s 173 Cr.P.C Therefore, this contention is also accordingly rejected.” 14. The argument of counsel for petitioner that there is violation of the law laid down in Priyanka Srivastava’s case, is also not tenable as that case pertains to registration of FIR in cognizable offence; further petitioner during the course of argument has neither produced the citation nor stated that it is applicable in non-cognizable case. 15. In view of what has been discussed above and law on the subject as narrated above, this petition is devoid of any merits; it is dismissed accordingly. Stay, if any, is vacated. Rashid Ali Dar, J.—This judgment is pronounced by me in terms of Rule 138(3) of The Jammu & Kashmir High Court Rules, 1999.