Sr. No.
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
ATJAMMU
CRMC No. 603/2018
Reserved on 21.02.2024
Pronounced on:29. 02.2024
1. Imran, aged 23 years, S/O Mohd Farooq
R/O Village Salwa, Tehsil Mendhar,
District Poonch.
2. Basad Ali, age 22 years, S/O Mohd Israr,
R/O Village Sakhi Maidan, Tehsil Mendhar,
District Poonch.
3. Asif Farooq Mirza, age 19 years,
S/O Farooq Mirza, R/O Village Goladh,
Tehsil Mendhar, District Poonch.
4. Anzar Ahmed, age 20 years, S/O Mohd Taj,
R/O Village Kottan, Tehsil and District Poonch .....Petitioner(s)
Through :- Mr. Altaf H Janjua, Advocate
v/s
1. The State of J&K through its
Principal Secretary (Home), Civil Secretariat,
Jammu/Srinagar.
2. The District Magistrate (Deputy Commissioner)
Poonch
3. The Senior Superintendent of Police, Poonch
4. The Station House Office, Police Station,
Mendhar, District Poonch .....Respondent(s)
Through :- Mr. Pawan Dev Singh, Dy AG
CRMC No. 635/2018
1. Mohd Arif, aged 30 years S/O Mohd Sadiq,
2. Mohd Shafiq, aged 26 years S/O Mohd Aziz,
Both R/O Uchaad Tehsil Mankote, District Poonch
….Petitioner(s)
Through:- Mr. Lawanya Sharma, Advocate
V/s
1. State of J&K through Principal Secretary to Govt.,
Home Department, Civil Secretariat, Srinagar.
2. District Magistrate, Poonch
3. Senior Superintendent of Police, Poonch
4. Station house Office, Police Station, Poonch
….Respondent(s)
Through:- Mr. Pawan Dev Singh, Dy AG
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CRMC Nos. 603 & 635/2018
CORAM: M A CHOWDHARY, JUDGE
HON’BLE MR. JUSTICE
JUDGMENT
1. Petitioners in both the above titled petitions filed under Sec 561-A of J&K
CrPC (akin to Section 482 of Central CrPC) seek quashment of FIR Nos.
145/2018 and 153/2018 registered at Police Station, Mendhar on
01.09.2018 for the commission of offences punishable under sections 124-
A/120-B RPC.
2. It is pleaded that the registration of the FIR against the petitioners is misuse
of the process in view of the fact that as per Section 196-B of CrPC which
is mandatory the District Magistrate has to hold a preliminary investigation
by a police officer not below the rank of Inspector before making a formal
complaint for the registration of FIR and that no prosecution can be
initiated for offences punishable under Chapter VI of Ranbir Penal Code
except on a complaint made by the District Magistrate, in terms of section
196 of J&K CrPC.
3. Pursuant to notice, the respondents filed status report asserting therein that
on a protest was carried out in Mendhar Town in favour of Article 35-A of
the Indian Constitution on 31.08.2018 and the participants of the protest
moving from Bus-stand towards Dak Bungalow raised pro-freedom slogans
which tantamount to disaffection towards the State and the Country and
eleven persons including the petitioners were identified; that a report was
compiled by Police Station Mendhar and was forwarded to District Police
Office, Poonch and on receiving instructions, a case was registered at
Police Station Mendhar and the investigation was assigned to Inspector
Mohd Ameen, SHO Police Station, Mendhar; that during the course of
investigation, five persons were arrested, whereas the others including the
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petitioners absconded and the arrested accused persons were admitted to
bail by Sessions Court Poonch, on 13.09.2018.
4. Respondents have also filed objections in both the petitions asserting
therein that these petitions are not maintainable as the same involve factual
disputes, which can be adjudicated by leading evidence in the cases as this
Court cannot appreciate the evidence/statements recorded by the
Investigating Agency,
in view of the settled law by the Hon’ble Supreme
Court; that a case
Hon’ble the Supreme Court in “Kurukshetra University
while discussing the scope of Section 482 CrPC, has held that the
vs State”
powers can be exercised very sparingly as there is very bleak scope of
interference into the investigation.
5. Learned Counsel for the petitioners argued that the registration of the FIRs
is misuse of the process of law against the petitioners as for an offence
under Section 124 IPC of India has stayed
Hon’ble Supreme Court
proceedings of all the cases involving this offence in a case, where
constitutional validity of section 124-A IPC has been challenged, asserting
its infringement on freedom of speech. He has further argued that the
impugned FIRs requires to be quashed, in view of the fact that no FIRs
could have been registered and it was only the District Magistrate who was
competent to order preliminary investigation before laying a complaint that
too by the District Magistrate himself. As such, no charge-sheet can be
formulated by the police after investigation of the case for being presented
to the Court of law. He has finally prayed that the petitions be allowed and
the impugned FIRs be quashed in the interest of justice. In support of his
arguments, learned counsel for the petitioners has relied upon the
judgments of this Court in cases titled Zabir Ahmed vs State of J&K &
“
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CRMC Nos. 603 & 635/2018
Anr , reported as 2010(2) JKJ 6[HC], Ahali Manhassan vs Financial
” “
, reported as 2010(2) JKJ 7[HC],
Commissioner & Ors” “Mst. Naziran
Bi & Ors vs State & Ors 2005(1) SLJ
”, reported as , “ Sheikh Imran &
reported as 2013 (4) JKJ 520,
Anr vs State of J&K & Ors”, “Munir
reported as 2015(2) JKJ 743 and
Hussain & Ors vs State & Ors”, “S G
reported as 2022 Live Law (SC) 470.
Vombatkere vs Union of India”,
ex-adverso,
6. Mr. Pawan Dev Singh, learned Dy AG, argued that in view of
the allegations in the police report, the District Magistrate had authorised
the concerned police to investigate the matter and during investigation, the
petitioners have challenged registration of the FIRs and the plea that the
cognizance cannot be taken or a police report based on investigation cannot
be entertained by the Court of law is an arguments in advance as the police
has not concluded the investigation or laid charge-sheet so as to sustain the
arguments. He has further argued that the petitioners being involved in the
commission of serious offence of sedation and a criminal conspiracy
cannot be let off as there is no case made out for quashment of the FIRs at
this stage.
7. Heard, perused and considered.
8. The plea raised by the petitioners with regard to not taking cognizance of
the offence punishable under section 124-A IPC, in view of Section 196-A
of the CrPC shall be available to them before the trial Court as and when
the charge-sheet is laid. Since that stage has not come, this plea cannot be
raised in a petition under Section 482 CrPC before this Court seeking
quashing of the FIRs itself, which is stated to be investigated under the
orders of the District Magistrate concerned. The citations relied upon by
the learned counsel for the petitioners, being distinguishable in view of the
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CRMC Nos. 603 & 635/2018
facts and circumstances of the case are not applicable and are of no help to
them. It will be for the police to submit the report to the District Magistrate
and in case the District Magistrate does not file a complaint, this plea can
be raised before the trial Court by the petitioners which can be considered
as and when that stage comes. Moreover, the plea that the Supreme Court
has stayed the proceedings for the commission of offence punishable under
Section 124-A RPC is concerned, as there is no proceeding before any
Court, this plea is also not available at this stage and the Trial Court can
take note of the direction of the Apex Court passed in a case titled S G
“
Vombatkere vs Union of India , as and when charge sheet is laid after
”
investigation. The Apex Court, in the aforestated case reported as 2022
Live Law (SC) 470, was pleased to direct to keep in abeyance all pending
trials, appeals and proceedings with respect to the charge framed under
section 124-A RPC, besides putting an embargo on fresh registration of
FIR, by the police.
9. For the reasons discussed hereinabove, both the petitions having been filed
pre-maturely in absence of any charge-sheet/complaint filed before the
Court of law and the cognizance having not been taken, these petitions are
not maintainable at this stage on the basis of pleaded grounds. Both the
petitions thus being grossly mis-conceived are dismissed. Interim
direction, if any, shall stand vacated/revoked.
10. Both the petitions along with pending application(s) are, accordingly,
disposed of as dismissed.
(M A Chowdhary)
Judge
JAMMU
29.02.2024
Vijay Whether the order is speaking: Yes
Whether the order is reportable: Yes