A Magistrate cannot order any police officer conduct the investigation : Jammu and Kashmir High Court

HIGH COURT OF JAMMU AND KASHMIR AT JAMMU CRMC No. 134 2018 IA No. 01 2018 Pronounced on: 23rd.06.2020 …. Petitioner(s) Through: Mr. F. S. Butt Advocate Tanveer Ahmed Zargar and another V s Surinder Kumar and another Through: Mr. Koshal Parihar Advocate Coram : HON’BLE MRS. JUSTICE SINDHU SHARMA JUDGE Petitioners seek quashing of the complaint bearing File No. 71 Complaint dated 08.11.2017 titled ‘Surinder Kumar V s Tanveer Ahmed Zargar and others’ and the order dated 08.11.2017 passed by the learned Chief Judicial Magistrate Kishtwar directing the Senior Superintendent of Police Crime Branch Jammu to investigate the case under section 156(3) Cr.PC. The operative portion of the order reads as under: “.............This being so SSP Crime Brach Jammu is directed to investigate the case u s 156(3) Cr. PC. Copy of this order alongwith the copy of the complaint and the documents annexed with the complaint shall be forwarded to SSP Crime Branch Jammu through I C C.P.O for compliance. Put up on 19 12 2017”. It is not necessary to refer to all the grounds of challenge except ground No. 6 which is quite elaborate and comprehensive because it alleges that: The order is illegal arbitrary and against the law ii) The demarcation report which is subject matter of challenge and bone of contention in the complaint has been so carried as per the order of 2 CRMC No. 134 2018 the Sub Judge Kishtwar dated 04.08.2017 passed in Civil Suit titled ‘Ravi Kumar V. Jagdish Raj and others’ the Chief Judicial Magistrate Kishtwar who has directed the Senior Superintendent of Police Crime Branch Jammu to investigate the complaint. iii) That for investigation of the case registration of the FIR is necessary but there is no commission of offence disclosed in the complaint except para 8 which shows “that accused have committed offence under sections 109 167 504 and 506 RPC as such are required to be dealt under law” 03. Barring this statement there is nothing on the file that ingredients of the offence mentioned have not been disclosed much less the ingredients and how and against whom these offences are made out. 04. No offence is made out against petitioner No. 1 because what abuse was hurried at respondents is not disclosed. These are some of the grounds of challenge. Learned counsel for the petitioners has argued that there is no application of mind by the Trial Court in the absence of offence section 156(3) Cr. PC is not applicable. He has also argued that the Trial Court has simply translated the complaint and not taken into account the said fact before directing the Senior Superintendent of Police Crime Branch Jammu to investigate the matter as such the said order is illegal. 06. Learned counsel for the respondent Surinder Kumar has argued that petition is not maintainable in view of the law laid down by Hon’ble the Supreme Court in ‘HDFC Securities Ltd. Vs State of Maharashtra and another’ 2017(1) SCC 640. 07. After hearing the learned counsel for the parties I am of the opinion that the order impugned is illegal being without jurisdiction in view of the law laid 3 CRMC No. 134 2018 down by Hon’ble the Supreme Court in ‘Kolakkadan Mossa Haji V. State of Kerala and others’ 3 SCC 340 holding that: “................In our view the High Court has rightly held that the Magistrate was not competent to give such direction to cause inquiry by the Inspector General of Police while exercising powers under sub section 156(3) of the Code of Criminal Procedure because sub section of Section 156 indicates that the Magistrate may order such investigation as mentioned in sub section of Section 156 of the Code of Criminal Procedure. Sub sectionof Section 156 of the Code of Criminal Procedure contemplates that any officer in charge of a police station may without the order of a Magistrate investigate any cognizable case which a court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. Sub sectionof Section 156 in our view only indicates that a police officer in charge of the police station within the local limits of the jurisdiction of the Magistrate may cause investigation without any direction from the Magistrate and the Magistrate under sub sectionof Section 156 may direct such police officer to cause inquiry. Such power of the Magistrate under sub sectiondoes not authorize the Magistrate to give direction to any other superior officer to cause inquiry even though under Section 36 of the Code of Criminal Procedure a superior police officer can make investigation in respect of the complaint where an officer in charge of the police station may make inquiry. Therefore no interference is called for in this appeal and the same is disposed of ..” 08. The judgment has been relied by Hon’ble the Supreme Court in case titled ‘Central Bureau of Investigation V. State of Rajasthan and another 2001) 3 SCC 333 para 12 of which reads as under: “12. In a decision rendered by the Kerala High Court the complaint was forwarded by a Magistrate to the Inspector General of Police for investigation under section 156(3) of the CRMC No. 134 2018 Code. When the State challenged the said order of the Magistrate the High Court held that a Magistrate cannot order any police officer other than one who is in charge of a police station to conduct the investigation though the Government in exercise of their executive powers can authorize any superior police officer to investigate a case and such direction can be issued by the higher officer to his subordinate officer in the police department. The said decision is reported in State of Kerala Kolakkacan Moosa Haji. A two Judge Bench of this Court(G.N. Ray and G. B. Pattanaik JJ). Has affirmed the said decision of the Kerala High Court as per order dated 8 4 1997 in Criminal Appeal No. 410 of 1994. The principle involved in the said case would as well be applicable when the Magistrate is approached to direct CBI for conducting So the judgment of Hon’ble the Supreme Court in ‘HDFC Securities Ltd. Vs State of Maharashtra and another’ 2017(1) SCC 640 cannot applied to this case because impugned order is illegal and without jurisdiction. Since the order of Chief Judicial Magistrate Kishtwar dated 08.11.2017 directing the SSP Crime Branch Jammu to investigate the case under section 156(3) Cr.P.C is without jurisdiction and as such illegal and it is accordingly quashed. 10. Disposed of alongwith IA. Sindhu Sharma) 23rd .06.2020 SUNIL II Whether the order is speaking : Yes Whether the order is reportable : 

Summary: Only the Government in exercise of their executive powers can authorize any superior police officer to investigate a case and such direction can be issued by the higher officer to his subordinate officer in the police department. This was held in the judgment passed by a single judge bench comprising of HON’BLE MRS. JUSTICE SINDHU SHARMA, in the matter Tanveer Ahmed Zargar and another V. Surinder Kumar and another [IA No. 01/2018], dealt with an issue where the petitioner filed a petition seeking to quash of the complaint titled, ‘Surinder Kumar V/s Tanveer Ahmed Zargar and others’ and the order, passed by the learned Chief Judicial Magistrate. Grounds of challenge alleged that: (i) The order is illegal, arbitrary and against the law; (ii) The demarcation report which is subject matter of challenge and bone of contention in the complaint has been so carried as per the order of the Sub-Judge, Kishtwar passed in Civil Suit titled, ‘Ravi Kumar V. Jagdish Raj and others’, the Chief Judicial Magistrate, Kishtwar, who has directed the Senior Superintendent of Police, Crime Branch, Jammu to investigate the complaint. (iii) That for investigation of the case, registration of the FIR is necessary but there is no commission of offence disclosed in the complaint except para 8 which shows “that accused have committed offence under sections 109, 167, 504 and 506 RPC as such are required to be dealt under law”.No offence is made out against petitioner No. 1, because what abuse was hurried at respondents is not disclosed. These are some of the grounds of challenge. Counsel for the petitioners argued that there is no application of mind by the Trial Court in the absence of offence, section 156(3) Cr. PC is not applicable. He has also argued that the Trial Court has simply translated the complaint and not taken into account the said fact before directing the Senior Superintendent of Police, Crime Branch, Jammu to investigate the matter, as such, the said order is illegal. Counsel for the respondent-Surinder Kumar has argued that petition is not maintainable in view of the law laid down by Hon’ble the Supreme Court in ‘HDFC Securities Ltd. Vs State of Maharashtra and another’. After hearing both sides, the Hon’ble High Court of Jammu and Kashmir allowed the petition and held that the order impugned is illegal being without jurisdiction in view of the law laid down by Hon’ble the Supreme Court in ‘Kolakkadan Mossa Haji V. State of Kerala and others. It also held that the order of Chief Judicial Magistrate, directing the SSP, Crime Branch, Jammu to investigate the case under section 156(3) Cr.P.C is without jurisdiction and, as such, illegal and it is accordingly quashed. Click here to view judgement