Jammu & Kashmir High CourtFarooq Ahmad And Ors vs State Of J&K And Another on 10 March, 2023Author:Sanjay DharBench:Sanjay DharHIGH COURT OF JAMMU & KASHMIR AND LADAKH\n                      AT JAMMU\n\n                                    Reserved on: 20.02.2023\n                                   Pronounced on: 10.03.2023\n\n                                                CRM(M) No. 827/2021\n                                                c/w\n                                                CRM(M) No. 208/2022\n\n\nFarooq Ahmad and ors.                       .....Appellant(s)/ Petitioner(s)\n\n      Through: - Mr. K. S. Johal, Sr. Advocate with\n                 Mr. Karman Singh Johal, Advocate\n                 Mr. Rahul Pant, Sr. Advocate with\n                 Mr. Anirudh Sharma, Advocate\nVs.\n\n\nState of J&K and another             ...Respondent(S)\n\n      Through: - Mr. Sumeet Bhatia,GA\n                 Mr. Gagan Kohli, Advocate\n\nCORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE\n\n                              JUDGMENTCRM(M) No. 827/20211)    The petitioners have challenged FIR No. 162/2021 for offences underSections 458,323,149,341,504,506,427IPC and 4/25Arms Actregistered with the Police Station, Udhampur.2)    As per the impugned FIR, on 29.04.2021, at about 6.00 PM, petitioner\n\nNo. 1/accused misbehaved with the complainant/respondent No. 4 while he\n\nwas standing on the gate of his house. Petitioner No. 1 is alleged to have\n\nused abusive and vulgar language against the family of the complainant, who2               CRM(M) No. 827/2021c/w CRM(M) No. 208/2021objected to the same but in the meantime, while the complainant was\n\nproceeding towards his house, petitioner No. 1 came from behind, armed\n\nwith a baseball bat and he gave a beating to the complainant. It is alleged\n\nthat petitioner No. 1 went back to his house after extending threats to the\n\ncomplainant and he came back after sometime alongwith other\n\npetitioners/accused, who are alleged to have criminally trespassed into the\n\nhouse of the complainant armed with lathies, baseball bat and tokas. The\n\ncomplainant was slammed and kicked by the petitioners/accused and even\n\nthe ladies present in the house were also attacked and beaten up. It is further\n\nalleged that son of the complainant, Abuzar was also attacked by the\n\npetitioners. When brother of the complainant, Saleem Banday came to\n\nrescue him from the clutches of the petitioners, his vehicle was also attacked\n\nwith weapons by the petitioners and in the process, the petitioners also\n\nreceived injuries.3)    It appears that the complainant had presented an application\n\ncontaining the aforesaid allegations before the Special Mobile Magistrate\n\n(Sub Judge), Udhampur with a prayer to direct registration of the FIR. The\n\nlearned Magistrate, it seems, passed an order dated 05.05.2021, whereby\n\nSHO, Police Station, Udhampur was directed to verify the allegations made\n\nin the application and send the report by the next date of hearing\n\ni.e.17.05.2021. The Police of Police Station, Udhampur instead of sending\n\nthe report to the learned Magistrate proceeded to register the impugned FIR.4)     The petitioners have challenged the impugned FIR on the grounds\n\nthat the said FIR is a counterblast to the FIR bearing No. 146/2021 lodged3               CRM(M) No. 827/2021c/w CRM(M) No. 208/2021by Talib Hussain (petitioner No. 8) against the complainant party in respect\n\nof the same occurrence. It has been further submitted that the impugned FIR\n\nhas been lodged with a view to wreck vengeance upon the petitioners as the\n\ncomplainant has long standing enmity with them. The petitioners have\n\nfurther contended that the Police instead of submitting a report to the learned\n\nMagistrate, on its own registered the impugned FIR, thereby circumventing\n\nthe process of law initiated by the Magistrate.5)    I have heard learned counsel for the parties and perused the record\n\nincluding the case diaries of the two FIRs.6)    A perusal of the record shows that in order to get the FIR registered\n\nwith the Police, the complainant/respondent No. 4 initially approached the\n\nPolice Station and thereafter, the SSP concerned. It has been stated that\n\nwhen the complainant failed to get the desired result of registration of FIR,\n\nhe filed an application underSection 156(3)Cr.P.C. before learned Judicial\n\nMagistrate 1st Class (Sub Judge) Udhampur. The learned Magistrate vide\n\norder dated 05.05.2021 directed the SHO, Udhampur to verify the\n\nallegations and submit his report by the next date of hearing i.e. 17.05.2021.\n\nA perusal of the minutes of the proceedings of the learned Magistrate would\n\nreveal that on 17.05.2021, an application was made by the SHO, Police\n\nStation, Udhampur before the learned Magistrate seeking extension of 15\n\ndays time in submitting his report. While these proceedings were going on,\n\nthe impugned FIR came to be registered by SHO, Police Station, Udhampur\n\non 18.05.2021.4               CRM(M) No. 827/2021c/w CRM(M) No. 208/20217)    The question that arises for consideration is as to whether the action of\n\nthe Police to register the impugned FIR when there was no direction from\n\nthe learned Magistrate to register the case is in accordance with law,\n\nparticularly when the learned Magistrate had specifically directed the SHO\n\nconcerned to submit his report after verifying the allegations made in the\n\napplication.8)    Learned counsel for the petitioners has submitted that the course\n\nadopted by the Police in registering the impugned FIR, without waiting for\n\nthe direction of the learned Magistrate amounts to usurping the jurisdiction\n\nof the learned Magistrate and the same cannot be countenanced in law.9)    Per contra, learned counsel for the respondents has submitted that the\n\nPolice have otherwise got power to register an FIR once it comes to its\n\nnotice that a cognizable offence has been committed. It has been submitted\n\nthat an order underSection 156(3)Cr.P.C. is only a preemptory reminder to\n\nthe SHO of a Police Station to perform its statutory duty of registration of\n\nFIR and that no particular form of order is needed for such purpose.10)   It is true that the incharge of a Police Station is vested with the power\n\nto register an FIR once information with regard to cognizable offence is\n\ngiven to him. It is also not in dispute that a Magistrate while passing a\n\ndirection underSection 156(3)Cr.P.C. is only reminding the officer incharge\n\nof a Police Station about his statutory duty to register an FIR in respect of a\n\ncognizable offence. However, in the instant case, when the complainant had\n\napproached the Police for registration of FIR, they did not deem it5                  CRM(M) No. 827/2021c/w CRM(M) No. 208/2021appropriate to register the FIR presumably because already an FIR had been\n\nregistered by the Police relating to the same occurrence on the basis of the\n\nversion given to the Police by the petitioners herein.11)   When the application was made by the complainant before the learned\n\nMagistrate, options available to the learned Magistrate were, either to direct\n\nthe officer incharge of a Police Station to straightway register an FIR and\n\nundertake the investigation or to direct preliminary verification of the\n\nallegations made in the application. The third course that was open to the\n\nMagistrate was to treat the application as a private complaint and take\n\ncognizance of the offence and proceed in accordance with the provisions\n\ncontained in Chapter XV of the Cr. P.C.12)   In the instant case, the learned Magistrate appears to have chosen the\n\nsecond option of directing the preliminary verification with regard to the\n\nallegations made in the complaint. The power to direct preliminary\n\nverification of the allegations made in an application underSection 156(3)Cr.P.C. has been recognized by the Supreme Court inLalita Kumari v.\n\nGovt. of U.P, (2014) 2 SCC 1 as also in the case ofMrs. Priyanka\n\nSrivastava and Anr. Vs. State of UPand ors., 2015 2 Crimes (SC) 179.In this regard paragraph 27 of thePriyanka Srivastava's case (supra) is\n\nrelevant to the context, the same is reproduced as under:"27. In our considered opinion, a stage has come in this country\n               whereSection 156(3)Cr.P.C. applications are to be supported\n               by an affidavit duly sworn by the applicant who seeks the\n               invocation of the jurisdiction of the Magistrate. That apart, in an\n               appropriate case, the learned Magistrate would be well advised\n               to verify the truth and also can verify the veracity of the\n               allegations. This affidavit can make the applicant more\n               responsible. We are compelled to say so as such kind of6                 CRM(M) No. 827/2021c/w CRM(M) No. 208/2021applications are being filed in a routine manner without taking\n               any responsibility whatsoever only to harass certain persons.\n               That apart, it becomes more disturbing and alarming when one\n               tries to pick up people who are passing orders under a statutory\n               provision which can be challenged under the framework of said\n               Act or underArticle 226of the Constitution of India. But it\n               cannot be done to take undue advantage in a criminal court as if\n               somebody is determined to settle the scores. We have already\n               indicated that there has to be prior applications under Section\n               154(1) and 154(3) while filing a petition under Section 156(3).\n               Both the aspects should be clearly spelt out in the application\n               and necessary documents to that effect shall be filed. The\n               warrant for giving a direction that an the application\n               under Section 156(3) be supported by an affidavit so that the\n               person making the application should be conscious and also\n               endeavour to see that no false affidavit is made. It is because\n               once an affidavit is found to be false, he will be liable for\n               prosecution in accordance with law. This will deter him to\n               casually invoke the authority of the Magistrate under Section\n               156(3). That apart, we have already stated that the veracity of\n               the same can also be verified by the learned Magistrate, regard\n               being had to the nature of allegations of the case. We are\n               compelled to say so as a number of cases pertaining to fiscal\n               sphere, matrimonial dispute/family disputes, commercial\n               offences, medical negligence cases, corruption cases and the\n               cases where there is abnormal delay/laches in initiating criminal\n               prosecution, as are illustrated in Lalita Kumari are being filed.\n               That apart, the learned Magistrate would also be aware of the\n               delay in lodging of the FIR."(Emphasis supplied)13)   InRamdev Food Products Pvt. Ltd vs. State of Gujarat, 2015 3\n\nCrimes (SC) 354, the Supreme Court has again emphasized the fact that\n\nprompt registration of FIR is mandatory but checks and balances on power\n\nof police are equally important. The Court further went on to observe that\n\npower of investigation is not mechanical. It requires application of mind in\n\nthe manner provided. The Court further observed that existence of power\n\nand its exercise are different. According to the Supreme Court delicate\n\nbalance has to be maintained between the interest of society and liberty of an\n\nindividual.14)   Again, the Supreme Court in the case ofAnil Kumar vs. M. K.\n\nAiyappa, (2013) 10 SCC 705 has observed as under:7                  CRM(M) No. 827/2021c/w CRM(M) No. 208/2021"11. The scope ofSection 156(3)CrPC came up for\n               consideration before this Court in several cases. This Court in\n               Maksud Saiyed case [(2008) 5 SCC 668] examined the\n               requirement of the application of mind by the Magistrate before\n               exercising jurisdiction under Section 156(3) and held that where\n               jurisdiction is exercised on a complaint filed in terms of Section\n               156(3) orSection 200CrPC, the Magistrate is required to apply\n               his mind, in such a case, the Special Judge/Magistrate cannot\n               refer the matter under Section 156(3) against a public servant\n               without a valid sanction order. The application of mind by the\n               Magistrate should be reflected in the order. The mere statement\n               that he has gone through the complaint, documents and heard\n               the complainant, as such, as reflected in the order, will not be\n               sufficient. After going through the complaint, documents and\n               hearing the complainant, what weighed with the Magistrate to\n               order investigation underSection 156(3)CrPC, should be\n               reflected in the order, though a detailed expression of his views\n               is neither required nor warranted. We have already extracted the\n               order passed by the learned Special Judge which, in our view,\n               has stated no reasons for ordering investigation."15)   For the foregoing analysis of law on the subject, it is clear that a\n\nMagistrate does have power to direct preliminary verification into the\n\nallegations made in an application underSection 156(3)Cr.P.C. so as to\n\nascertain whether any cognizable offence is made out. Such course has to be\n\nadopted by a Magistrate in appropriate cases, if the Magistrate feels that it\n\nnot a clear-cut case where FIR should be straightway registered. The order\n\nof the learned Magistrate passed on 05.05.2021 directing preliminary\n\nverification into allegations made in the application filed by the complainant\n\nis, therefore, in accordance with law.          Even otherwise, discretion of a\n\nMagistrate in directing preliminary verification in a particular case cannot be\n\ngone into by a superior court, unless it is shown that there is perversity in the\n\nexercise of discretion by the Magistrate.16)   In the instant case, a lawful direction passed by the learned\n\nMagistrate, it seems, has been circumvented by the Police by registering the\n\nFIR, inasmuch as, the Police in spite of getting a direction regarding8               CRM(M) No. 827/2021c/w CRM(M) No. 208/2021preliminary verification of the allegations, registered the FIR straightway. It\n\nseems that the Police in the instant case at the initial stage did not thought it\n\nappropriate to straightway register an FIR, keeping in view the fact that an\n\nFIR relating to the occurrence had already been registered, but when the\n\nlearned Magistrate was seized of the matter, the Police did not allow the\n\nlearned Magistrate to apply her mind to the material prior to passing an\n\nappropriate direction. It is to be noted that a direction regarding registration\n\nof an FIR has to be passed only after application of the mind. In the present\n\ncase before the learned Magistrate could apply her mind to the application of\n\nthe complainant and the report the Police, the proceedings pending before\n\nher were rendered redundant by the action of the Police. This amounts to an\n\nillegality which is writ large on the face of the record.17)   Another question that arises for consideration is as to what should be\n\nthe future course of action in these circumstances. One option would be to\n\nallow the investigation to go on, on the basis of the impugned FIR already\n\nregistered and thereby perpetuate the illegality committed by the Police and\n\nthe other option would be to find a way-out so as to cure this illegality.18)   In the case ofN. H. Rishbud and Inder Singh vs. State of Delhi,\n\nAIR 1955 SC 196, the Supreme Court has ruled thatSection 5Aof the\n\nPrevention of Corruption Act, 1947 is mandatory and not directory and went\n\non to hold that the illegality committed in the course of an investigation does\n\nnot affect the competence and jurisdiction of the Court for trial. TheCourt\n\nfurther heldthat where cognizance of the case has been taken and the case9               CRM(M) No. 827/2021c/w CRM(M) No. 208/2021has proceeded to termination the validity of the preceding investigation does\n\nnot vitiate the result unless miscarriage of justice has been caused thereby.19)   InState of Harayana and others vs. Bhajan Lal and others, 1992\n\nSupp (1) SCC 335, the Supreme Court after noticing theratiolaid down inN. H. Rishbud and Inder Singh's case (supra) explained that in the case\n\nbefore it the question relating to legal authority of SHO was raised at the\n\ninitial stage, therefore, it would be proper and desirable that the investigation\n\nshould proceed only on the basis of the valid order in strict compliance of\n\nthe mandatory provision ofSection 5A(1)of the Prevention of Corruption\n\nAct,1947.20)   It is thus clear that if the illegality in undertaking the investigation is\n\npointed out at the earliest when the investigation is at its inception, it cannot\n\nbe brushed aside as the Investigating Agency as well as the complainant\n\nwould be free to take appropriate steps for proceeding in accordance with\n\nlaw but if the investigation has culminated in filing of charge sheet before\n\nthe competent Court then unless it is shown that prejudice would be caused\n\nto any party by quashing the investigation, an order setting aside the\n\ninvestigation would not be desirable.21)   Coming to the facts of the instant case, the petitioners approached the\n\nCourt immediately after the registration of the impugned FIR. In fact, the\n\nimpugned FIR, as already noted, has been lodged on 18.05.2021 and instant\n\npetition has been filed on 13.12.2021 i.e. within a few months of lodging of\n\nthe impugned FIR. The case diary shows that the investigation in the instant10                 CRM(M) No. 827/2021c/w CRM(M) No. 208/2021case has not proceeded substantially because of the stay order passed by this\n\nCourt on 15.12.2021. Thus, the investigation of the case is still at its\n\ninception and as such, illegality committed by the Police in registering the\n\nimpugned FIR, can be cured at this stage by passing appropriate directions.22)   In view of what has been discussed herein before, interests of justice\n\nwould be served by quashing the impugned FIR and passing appropriate\n\ndirections to the Investigating Agency to place its report before the learned\n\nJudicial Magistrate 1st Class (Sub Judge), Udhampur, who after considering\n\nthe report of the Police would be at liberty to pass orders in accordance with\n\nlaw. Needless to mention here that the learned Magistrate may either direct\n\nthe Police to register the FIR afresh and proceed to conduct the investigation\n\nin the case or he can proceed in terms of Chapter XIV of theCr.P.Cand\n\ntake cognizance of the offences on the basis of the police report together\n\nwith the preliminary evidence.23)   Accordingly, the impugned FIR is quashed and the respondent, SHO,\n\nPolice Station, Udhampur is directed to place the material collected by him\n\nduring investigation of the impugned FIR before the learned Special Mobile\n\nMagistrate (Sub Judge), Udhampur, who shall, after reviving the application\n\nof the complainant under Section 156(3) Cr. P.C., pass appropriate directions\n\nin accordance with law, of course, upon application of his mind to the\n\nmaterial that may be placed before him.24)   The petition stands disposed of in above terms.11              CRM(M) No. 827/2021c/w CRM(M) No. 208/2021CRM(M) No. 208/202225)    The petitioners have challenged FIR No. 146/2021 for offences underSections 382,323,34of IPC and 4/25 ofArms Actregistered with Police\n\nStation Udhampur.26)    As per FIR No. 146/2021, on 29.04.2021 at about 6.30 p.m. the\n\npetitioners/accused   Mohd     Saleem     Banday,       Mohd      Rafi        and\n\nMohd Najeem Din launched an attack upon Mohd Farooq, petitioner No. 1\n\nin CRM(M)       No. 827/2021 with a sharp edged weapon and when the\n\ncomplainant/Talib Hussain came to know it, he rushed to the spot but the\n\nabove named petitioners hit him as well as his wife with the car and\n\ninflicted injuries upon them. It is further alleged that Mohd Din, who was\n\narmed with stick and his grandson also came on spot and they gave a beating\n\nto Mohd Farooq, who has suffered grievous injuries. A gold chain, one\n\nwatch and cash amounting to Rs. 20,000/- are also alleged to have been\n\nsnatched by the accused from Mohd Farooq.27)    The petitioners, Mohd Saleem Banday etc. have challenged the\n\naforesaid FIR on the grounds that the same has been lodged by the\n\ncomplainant party in order to wreck vengeance upon them. It has been\n\nsubmitted that the complainant party has long standing enmity with the\n\npetitioners, therefore, they want to involve them in the false and frivolous\n\nlitigation.12              CRM(M) No. 827/2021c/w CRM(M) No. 208/202128)    A perusal of the allegations made in the two impugned FIRs prima\n\nfacie shows that the rival parties have given two contrary versions of the\n\nsame occurrence. It appears that time and place of occurrence in both the\n\nFIRs is the same. It is a settled law that counter FIR in respect of an\n\noccurrence giving a version contrary to the version given by the other party,\n\nis permissible in law. However, it would be appropriate if the final reports in\n\nthe two cases are examined by the same Court together.29)    In view the above, the decision in this petition is deferred till the\n\noutcome of the proceedings before the learned Special Mobile Magistrate\n\n(Sub Judge), Udhampur, which relate to the allegations in FIR No.\n\n162/2021. Accordingly, this petition is directed to be listed on 20.04.2023\n\nfor awaiting the directions that may be passed by learned Special Mobile\n\nMagistrate 1st Class (Sub Judge), Udhampur, as indicated herein before.30)    Case diaries in both the cases be returned to the learned counsel\n\nappearing for the State.(SANJAY DHAR)\n                                                          JUDGE\nJammu\n10.03.2023\nKaram Chand/Secy.Whether the order is speaking:       Yes/No\n                    Whether the order is reportable:     Yes/No