Habibullah Bhat & Ors. vs Commandant 5th BN IRP & Anr.

This petition under section 561A Cr.P.C has been filed by the petitioner for quashing the order passed by the Learned Chief Judicial Magistrate,

Ganderbal dated 13th of September, 2008 as also order dated 9th of January, 2008 passed by Judicial Magistrate/Duty Magistrate Srinagar. It

appears that a complaint under section 409 read with section 381 and 109 RPC was filed by petitioner against the respondents before the court of

Learned Duty Magistrate, Srinagar on the allegations summarized in the complaint. It is interalia alleged in the complaint that accused No. 2 has

friendly relations with the petitioner and on 1st of January, 2007 he approached the petitioner at Sumo stand, Lal Chowk, Srinagar and requested

him to provide him his vehicle so as to enable respondent No. 2 to carry his family to Tulmula shrine. On such request vehicle was given to

respondent No. 2 but even after lapse of 7 days vehicle was not returned and in turn the driver of the vehicle was told unless Rs. 10,000/ was paid

vehicle will remain in custody/possession of accused No. 2. It is alleged that accused committed criminal breach of trust.

The learned Duty Magistrate, Srinagar on 9th of January, 2008 passed the following order:

This complaint came to be presented by learned counsel for the complainant in present of the complainant. Statement of the complainant is

recorded alongwith one identifying witness. The complainant in his complaint interalia submits that he was in possession of Sumo bearing

registration No. 4997/JK02J having J&K route permit. The complainant was plying the vehicle on an authorization given vide attorney executed in

his name by the owner. The said vehicle came to be seized in terms of section550 Cr.P.C in the year 2006. The record is also forming part of the

complaint. The complainant approached the concerned Magistrate for its release which came to be released against the proper receipt, forming

part of the complaint. The complaint is full with the particulars of allegations spelledout however, without taking cognizance directly into the matter

complaint alongwith the statement of complainant and statement of one identifying witness and the record accompanying the complaint is

forwarded to SSP, Crime Branch for preliminary verification.

Thereafter order dated 13th of September, 2008 is passed vide which the application filed by the petitioner seeking direction to concerned

Police authorities to stop enquiry into the case was rejected. The learned Trial Magistrate, has made many remarks against the petitioner and while

dismissing the application, has also concluded that the complaint filed by the petitioner is frivolous.

Heard learned counsel for parties. Considered the matter.

Learned counsel for the petitioner Mr. G.A. Lone has vehemently argued that the orders impugned in this petition are illegal. The learned

counsel submitted that order dated 9th of January, 2008 is not in accordance with the law and statute does not permit passing of such order. The

Learned counsel further submitted that the learned Chief Judicial Magistrate has admitted that court was lacking territorial jurisdiction but still

decided the matter on merits.

Mr. M.A. Rathore, however was at pains to defend the orders impugned in this petition. The learned counsel submitted that the orders are in

accordance with the law.

Section 190 of Code of Criminal Procedure, Svt. 1989 (for short code) provides for taking of cognizance of offence by Magistrate. Subsection

(1)(a) of section 190 of the Code empowers Learned Magistrate to take cognizance of any offence on receiving a complaint. Section 200 of the

Code provides that a Magistrate taking cognizance of an offence on complaint shall at once examine the complainant and the witnesses present, if

any upon oath and the substance of the examination shall be reduced into writing and shall be signed by the complainant and the witnesses. Section

202 of the Code provides that any Magistrate on receipt of a complaint of an offence of which he is authorized to take cognizance, or which has

been transferred to him under section 192 may if it thinks fit for reasons to be recorded in writing, postpone the issuance of process, either enquire

into the case himself, or, direct an inquiry or investigation to be made by any Magistrate subordinate to him or by a Police Officer or by such other

person as he thinks fit for the purpose of ascertaining the truth or falsehood of the complaint. Section 204 of the code gives power to the Learned

Magistrate to issue process, when in the opinion of the Learned Magistrate taking cognizance of the offence, case for issuance of process is made

out.

Looking at the order dated 9th of January, 2008 the Learned Magistrate has declined to take cognizance of the offence and the complaint

alongwith statements recorded, as also the records enclosed therewith was sent to SSP, Crime Branch for preliminary verification. Subsection (3)

of section 156 of the code provides that any Magistrate empowered under section 190 may order such an investigation as mentioned in subsection

1 and sub section 2 of section 156 of the code. The order dated 9th of January, 2008 is neither covered by section 156 nor by section 202 of the

code. In terms of this scheme of the code contained in section 190 and 200 it becomes writ large on the face of the statute that the cognizance of

the offence is taken at the moment complaint is considered by the Learned Magistrate and any order as envisaged by the code is passed thereon.

The learned Magistrate in the impugned order has stated that without taking cognizance, the complaint alongwith other material is forwarded to

SSP, Crime Branch for Preliminary verification. The method followed by the Learned. Magistrate is unknown to statute. Referring the matter for

preliminary verification does not fit in the scheme of the provisions of the code. The said order is wholly illegal and in order to secure ends of

justice require to be quashed.

The subsequent order dated 13th of September, 2008 has been passed in application when the main matter was not listed. The impugned order

besides being without jurisdiction also suffers from gross illegalities. The Learned Magistrate has held that the application filed by the petitioner is

barred because it does not fall within the jurisdiction of the learned Magistrate. The learned Magistrate after recording such a finding shall not have

considered and decided the matter on its merits. This impugned order is also rendered illegal.

In the impugned order many remarks have been made which were not warranted to be made at that stage of the case. The learned Chief

Judicial Magistrate while passing the impugned order should have exhibited restraint.

For above stated discussions, this petition succeeds the orders impugned dated 9th of January, 2008 and 13th of September, 2008 are

quashed. The records of the case be send to the court of Learned Chief Judicial Magistrate, Srinagar who will deal with the case strictly in

accordance with the law.