A police officer cannot investigate a non-cognizable offence without the order of a Magistrate of the first or second class having power to try such case: High Court of J&K and Ladakh

HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT Item No.80 Advance List CRMC No.51 2018 AASIM FAROOQ SHAH ...PETITIONER(S) Through: Mr. Salih Pirzada Advocate. MOHAMMAD YOUSUF HAKEEM & ANR. …RESPONDENT(S) Through: Mr. Shakir Haqani Advocate for R 1. Mr. B. A. Dar Sr. AAG for R2. CORAM: HON’BLE MR. JUSTICE SANJAY DHAR JUDGE Petitioner has challenged order dated 29.12.2017 passed by Chief Judicial Magistrate Srinagar whereby learned Magistrate has directed respondent No.2 to enquire into the matter relating to the complaint filed by respondent No.1 against the petitioner. Briefly stated the facts emerging from the material on record are that a complaint came to be filed by respondent No.1 against the petitioner before the Chief Judicial Magistrate Srinagar wherein it was alleged that the petitioner had forged a document purportedly issued by Ethical Committee on Human Animal Subjects Research SKIMS Hospital Soura Srinagar bearing No.SKIMS ETC Dent 2015 04 dated 09.04.2015 with seal and signature of Dr. Imtiyaz Ali Chairman and 2 CRMC No.51 2018 bearing the embossed logo of the SKIMS testifying a certificate in the name of petitioner herein that the research project mentioned therein has been granted ethical approval. According to the respondent No.1 the complainant had obtained information under Right to Information Act from the Department of Community Medicine SKIMS Soura Srinagar informing that the certificate of Ethical Committee had not been issued by the SKIMSHospital. It was further informed that as per records no IEC Committee ever existed in SKIMS. Respondent No.1 also placed on record a copy of the research article bearing the title “Transition in Dental Treatment Utilization in Jammu and Kashmir Indian A ten years retrospective study” by petitioner published in “Nepal Journal of Epidemiology” referring to the clearance of aforesaid Ethical Committee. It appears that the respondent No.1 had approached Police Station Crime Branch prior to filing of application before Chief Judicial Magistrate Srinagar but the Crime Branch after obtaining report from SKIMS Soura Srinagar closed the complaint as no cognizable offence was found to have been made out against the petitioner herein. The petitioner has challenged the impugned order dated 29.12.2017 passed by learned Chief Judicial Magistrate Srinagar on the grounds that once complaint of respondent No.1 against the petitioner was closed it was not open to the learned Magistrate to direct enquiry into the same that from the contents of the complaint made by respondent No.1 no offence is made out against the petitioner that the publication which is subject matter of the complaint stands already retracted by the petitioner 3 CRMC No.51 2018 and that the same has not been used by the petitioner to get any benefit as such no offence is made out against the petitioner and that the impugned order has been passed by the learned Magistrate in a mechanical manner and without application of mind. I have heard learned counsel for the parties and perused the record including the preliminary verification record submitted by Crime Branch The allegation in complaint that was made by the respondent No.1 before the Chief Judicial Magistrate Srinagar is that the petitioner had forged a document purportedly issued by Ethical Committee on Human Animal Subjects Research SKIMS Hospital Soura Srinagar bearing No.SKIMS ETC Dent 2015 04 dated 09.04.2015. According to the petitioner the information obtained by him under Right to Information Act reveals that the said document is forged and has not been issued by the Ethical Committee. It is not the case of the complainant that the petitioner has used this document for getting any benefit or that any benefit has been obtained by him on the basis of the said document. In fact there is material on record of the preliminary verification file to show that the petitioner has retracted the paper which was published in Nepal Journal of Epidemiology and while closing the case on the basis of earlier complaint made by respondent No.1 the Crime Branch has concluded that the publication would not have been of any help to the petitioner as on that date the publication had been withdrawn and as such it had become irrelevant. Even otherwise contents of the complaint if 4 CRMC No.51 2018 taken at their face value disclose commission of offence of forgery punishable under Section 464 RPC. The said offence is non cognizable in nature. So the Crime Branch rightly did not entertain the complaint of respondent No.1 Now the question arises as to whether learned Chief Judicial Magistrate had the jurisdiction to direct the Crime Branch Kashmir to undertake enquiry into the complaint alleging commission of a non cognizable offence. In order to decide this issue it will be profitable to notice the provisions contained in Section 155 of Cr. P. C: “155. 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. From a perusal of sub sectionquoted above it is clear that a police officer cannot investigate a non cognizable offence without the order of a Magistrate of the first or second class having power to try such case. In the instant case the learned Magistrate vide the impugned order has asked the Crime Branch to enquire into the matter. There is no direction or permission granted by the Magistrate to investigate the case. 5 CRMC No.51 2018 The expression “inquiry” is quite distinct from the expression “investigation”. The expression “inquiry” is defined in Section 4(g) of Cr. P. C as including every inquiry other than a trial conducted under the Code by a Magistrate or a Court meaning thereby that “inquiry” includes only such type of proceedings which are sanctioned by any provision of the Code. Section 202 of Cr. P. C empowers a Magistrate either to inquire into the case himself or direct an enquiry 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. Such an enquiry can be directed by a Magistrate only after taking cognizance of an offence on the basis of a complaint and after recording substance of examination of complainant and his witnesses on 10) The expression “investigation” has different connotations than the expression “inquiry”. Section 4(h) of Cr. P. C defines “investigation” as proceedings under the Code or the collection of evidence conducted by a police officer or by any person other than a Magistrate who is authorized by a Magistrate in this behalf. 11) So there is a clear distinction between expression “inquiry” and “investigation”. While the inquiry can be directed by a Magistrate after taking cognizance of an offence and after recording preliminary statements of complainant and the witnesses the investigation into a non cognizable offence can be directed by a Magistrate at pre cognizance stage authorizing the police to undertake investigation. 6 CRMC No.51 2018 12) The impugned order passed by the learned Chief Judicial Magistrate cannot be treated to be one under Section 155(2) of the Code as it does provide for investigation of the case but it only directs inquiry into the matter. Such a direction could have been passed by the learned Magistrate only after taking cognizance of the offence. Therefore the impugned order passed by the learned Magistrate is without jurisdiction and the same exhibits non application of mind on the part of learned 13) For the foregoing reasons the petition is allowed and the impugned order passed by the learned Magistrate is set aside. However it shall be open to the complainant to approach the learned Magistrate for getting his statement and those of his witnesses recorded whereafter the learned Magistrate may proceed further in the complaint in accordance with law. 14) Copy this judgment be sent to learned Magistrate for information. 15) Record of preliminary verification be returned to the learned counsel for the respondent No.2. Sanjay Dhar) Judge “Bhat Altaf PS” Whether the order is speaking: Yes No Whether the order is reportable: Yes No 

Summary: The expression “investigation” has different connotations than the expression “inquiry”. Section 4(h) of Cr. P. C defines “investigation” as proceedings under the Code or the collection of evidence conducted by a police officer or by any person other than a Magistrate who is authorized by a Magistrate in this behalf as observed by the Hon’ble High Court of J&amp;K through the learned bench of Justice Sanjay Dhar in the case of Aasim Farooq Shah Vs Mohammad Yousuf Hakeem &amp; Anr [CRMC No.51/2018] Briefly stated, the facts emerging from the material on record are that a complaint came to be filed by respondent No.1 against the petitioner before the Chief Judicial Magistrate, Srinagar, wherein it was alleged that the petitioner had forged a document purportedly issued by Ethical Committee on Human/Animal Subjects Research SKIMS Hospital, Srinagar. According to respondent No.1, the complainant had obtained information under the Right to Information Act from the Department of Community Medicine, SKIMS, Srinagar, informing that the certificate of Ethical Committee had not been issued by the SKIMS (Trust) Hospital. Also, respondent No.1 had approached Police Station, Crime Branch, prior to the filing of the application before Chief Judicial Magistrate, Srinagar, but the Crime Branch, after obtaining a report from SKIMS, Srinagar, closed the complaint as no cognizable offense was found to have been made out against the petitioner herein. The petitioner has challenged the impugned order dated 29.12.2017 passed by learned Chief Judicial Magistrate, Srinagar, on the grounds that once a complaint of respondent No.1 against the petitioner was closed, it was not open to the learned Magistrate to direct inquiry into the same; that from the contents of the complaint made by respondent No.1, no offense is made out against the petitioner; that the publication which is the subject matter of the complaint stands already retracted by the petitioner and that the same has not been used by the petitioner to get any benefit, as such, no offense is made out against the petitioner and that the impugned order has been passed by the learned Magistrate in a mechanical manner and without application of mind. After hearing the learned counsels for the parties and perusing the facts on record, the High court observed that as per section 155(2) of Cr. P. C, it is clear that a police officer cannot investigate a non-cognizable offense without the order of a Magistrate of the first or second class having the power to try such a case. The Hon’ble High Court stated that “The expression “inquiry” is quite distinct from the expression “investigation”. The expression “inquiry” is defined in Section 4(g) of Cr. P. C as including every inquiry other than a trial conducted under the Code by a Magistrate or a Court, meaning thereby that “inquiry” includes only such type of proceedings which are sanctioned by any provision of the Code. Section 202 of Cr. P. C empowers a Magistrate either to inquire into the case himself, or direct an inquiry 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. Such an inquiry can be directed by a Magistrate only after taking cognizance of an offense on the basis of a complaint and after recording substance of examination of the complainant and his witnesses on oath.”