Ali Mohammad Najar & Ors vs Bashir Ahmad Najar

1) The petitioners, through the medium of instant petition, have invoked inherent jurisdiction of this Court vested by Section 561-A of the Jammu & Kashmir Criminal Procedure Code seeking quashing of the order dated 20th of October, 2017, passed by learned Judicial Magistrate 1st Class (2nd Additional Munsiff), Srinagar (hereinafter referred to as the Trial Magistrate) and an order dated 11th of May, 2018, passed by Principal Sessions Judge, Srinagar (the Revisional Court).

2) Before adverting to the grounds of challenge urged by learned counsel for the petitioners to assail the impugned orders, it is necessary to first set out the material facts.

3) The respondent filed a complaint before the Trial Magistrate against the petitioners alleging therein that the father of the respondent had filed a civil suit before the learned City Munsiff, Srinagar, seeking a decree of declaration declaring him the owner of land measuring 12½ marlas falling under Khasra No.316 situated at Umerhair Srinagar. In the aforesaid suit pending adjudication before the Court of City Munsiff, Srinagar, an interim order dated 12th of November, 2015, has been passed temporarily restraining the petitioners herein from creating any third party interest with respect to the suit property. It is submitted in the complaint that the petitioners despite being well aware of and having been served with the Court order, executed an agreement to sell wherein father of the respondent was shown present as one of the executants of the agreement. The agreement has been executed by the accused persons after the death of father of the respondents by forging his signatures and impersonating him.

4) On the presentation of the aforesaid complaint before the Trial Magistrate, the Trial Magistrate forwarded the same to SHO, P/S, Soura, to investigate the matter in the light of contents of the complaint. The police investigated the matter and submitted its report to the learned Trial Magistrate. The Trial Magistrate, after taking note of the contents of the complaint and the report submitted by the police, was, prima facie, of the view that the commission of offence of cheating and forgery had been made out but observed that since only photocopies of the agreement and death certificate had been appended with the complaint and also that the evidence of the scribe and witnesses to the document was also essential in the case to throw light upon facts and circumstances relating to the actual occurrence, as such, the learned Trial Magistrate in its wisdom though it proper to direct SHO, P/S, Soura, to lodge a formal FIR and investigate the matter thoroughly. This was done by the learned Trial Magistrate by passing an elaborate order on 20th of October, 2017, which is the first order impugned in this petition.

5) Feeling aggrieved and dissatisfied with the order of the Trial Magistrate, the petitioners filed a revision petition before the Revisional Court. The revision petition was dismissed on 11th of May, 2018, which is the second order impugned in this petition.

6) The petitioners are still aggrieved and have filed this petition to assail both the impugned orders. The impugned order passed by the Trial Magistrate is challenged by the petitioners, fundamentally, on the ground that the Trial Magistrate, after having deferred the issuance of process and directing the enquiry to be made by the police in terms of Section 202 Cr. P. C, was not competent in law to direct the registration of FIR. It is submitted that the learned Trial Magistrate after receiving the report from the police was required to proceed under Section 203 of Cr.P.C. However, instead of following due process of law, the Trial Magistrate without any authority of law directed registration of FIR in terms of impugned order dated 20th of October, 2017. It is submitted that the Revisional Court also committed the same error and upheld the order of the learned Trial Magistrate without considering the points raised before him. It is argued that the Revisional Court went to the extent of holding the revision petition against the interlocutory passed under Section 156 of Cr. P. C not maintainable.

7) Having heard learned counsel for the petitioners and perused the record, it is seen that a criminal complaint was filed by the respondent against the petitioners for commission of offences under Section 420, 423, 421, 463, 468 and Section 24 of the Ranbir Penal Code. As is further seen, the learned Trial Magistrate, before whom the complaint came to be presented after its transfer from the Court of Chief Judicial Magistrate, Srinagar, did not take cognizance nor did it record the preliminary statement of the complainant and the witness, if any present. That being the position, it is difficult to accept the contention of the learned counsel for the petitioners that the Trial Magistrate had proceeded in the matter under Section 200 Cr. P. C.

8) It is true that the Trial Magistrate while referring the matter for investigation of the police noted in the impugned order that the issuance of process was postponed. This observation of the Trial Magistrate was, undoubtedly, uncalled for and not in consonance with law but that does not vitiate the proceedings which otherwise do not contravene any provision of the Code of Criminal Procedure. The investigation directed by the Trial Magistrate through SHO, P/S, Soura, was only in the nature of a preliminary enquiry to find out as to whether the allegations made in the complaint disclosed the commission of cognizable offences. On receipt of report from the police the Trial Magistrate considered the matter threadbare and was of the view that there was some evidence of technical nature required to be collected by the police and, therefore, directed registration of FIR. The reasoning of the learned Trial Magistrate for directing registration of FIR contended in the last but one para of the impugned order dated 20th of October, 2017, is just and proper and cannot be faulted with.

9) In the police investigation/enquiry it has surfaced that the document in question has been executed on 15th of March, 2016, whereas the executants of the document i.e. father of the respondent had died on 21st of February, 2016. The Trial Magistrate, thus, rightly observed that some more evidence is required to be collected to connect the petitioners with the offences alleged against them and, therefore, it was a fit case for directing the police to register the FIR. The Revisional Court has rightly concurred with the Trial Magistrate though for reasons different from those given by the Trial Magistrate.

10) Be that as it may, the fact remains that in the instant case the Trial Magistrate never took cognizance in terms of Section 190 of the Code of Criminal Procedure nor did it record the preliminary statement of the complainant and his witness, if any present. That being the situation, it is clear that the Trial Magistrate never decided to proceed under Chapter XV of the Code. The direction to the police to investigate the matter in the light of contents of the complaint was only in the nature of preliminary enquiry, as is provided for in the judgment of the Supreme Court in Lalita Kumari v. Government of Uttar Pradesh & others, (2008) 14 SCC 337.

11) I, therefore, find no illegality or infirmity in both the orders impugned in this petition. The petition being without any merit is, accordingly, dismissed.

12) No order as to costs.