S. Balbir Singh vs Ishar Dass

Gh. Hasnain Massodi, J.—Two petitions u/s 561-A Code of Criminal Procedure -- one by Shri S. Balbir Singh, Advocate, District Court

Kathua and another by S/Shri Basant Singh and others came to be filed on 27.12.2006 and 13.5.2009 respectively, to seek quashment of order

of Learned Chief Judicial Magistrate dated 19th December 2006, whereby Learned Chief Judicial Magistrate in exercise of powers u/s 156(3)

Cr.P.C, on a complaint presented by Shri Isher Das son of Late Anant Ram resident of Chhan Lal Din Tehsil Hiranagar, District Kathua, directed

SHO P/S Crime Branch Jammu to register a case and investigate the matter, alleged in the complaint.

As inherent jurisdiction of the Court u/s 561-A Cr.P.C. in both the petitions, is invoked on similar grounds and subject matter of both the

petitions is the order dated 19.12.2006, passed by Learned Chief Judicial Magistrate, Kathua, in exercise of powers u/s 156(3) Cr.P.C, the

petitions are taken up together. The petition filed by Shri S.Balbir Singh and registered as 561-A No. 144/2006, stands admitted vide order dated

17th July 2008. The petition -- 561-A No. 76/2009 is also admitted to hearing. Mr. Shukla, appearing for the respondent -- Shri Ishar Dass in

both the petitions, accepts post admission notice in Petition -- 561-A No. 76/2009.

The petitions, accordingly on consensus are taken up for final disposal.

The petitioners assailed the impugned order as amounting to abuse of process of court, on the following grounds:

That the learned Chief Judicial Magistrate Kathua has failed to give reasons in support of the order and in the process rendered the order

illegal and liable to be set aside. It is urged that whenever a complaint, alleging commission of offence/s, is presented before the Magistrate and the

Magistrate is of the opinion that the complaint deserves to be forwarded to the Officer Incharge of Police Station, having jurisdiction over the area,

on which Magistrate has jurisdiction, the Magistrate is duty bound to spell out the reasons for opting for such a course and not order investigation

in a mechanical and slipshod manner.

That the Magistrate, while exercising powers u/s 156(3) Cr.P.C, is empowered to direct investigation by Officer Incharge of Police Station,

the local limits of which fall within jurisdiction of the Magistrate and that the Chief Judicial Magistrate in the present case has no power to ask SHO

Police Station Crime Branch, Jammu to register the case as Police Station Crime Branch was not situate within territorial jurisdiction of the Chief

Judicial Magistrate.

That the offence alleged in the complaint fell beyond jurisdiction of Police Station Crime Branch in terms of SRO 133 dated 2.4.1991 and

SRO 202 dated 3.6.1999 that superseded the former notification.

That the matter in controversy viz. alleged forgery of the will deed, being subject matter of civil proceedings, no parallel criminal proceedings

could be initiated in terms of settled legal position.

Heard and considered.

Before dilating on the grounds urged in the petitions, it may be appropriate to have an overview of the relevant facts discernible from the record.

The respondent--Ishar Dass presented written complaint before the Learned Chief Judicial Magistrate on 19th December 2006, alleging therein

commission of offences punishable u/s 465, 467, 471 read with 120-B 109 RPC and section 82 of J&K Registration Act. The case set up by the

respondent/complainant -- Ishar Dass, was that his father -- Late Anant Ram on his death on 24th September 2003, has left the

respondent/complainant as his sole legal heir, as was evident from the certificate, issued by SHO PS Hiranagar, appended to the complaint as

Annexure 'A'. The respondent/ complainant's case was that as the relation between his parents were not cordial, the respondent/complainant's

mother left for her parental home at Bandhwal Tehsil Akhnoor, where the respondent/complainant grew up under the care of his mother; that the

petitioner/ accused -Jodh Singh, intending to take benefit of absence of the respondent/complainant and grab the Estate, left by Late Anant Ram

got a Will, forged on 16th June 2003 in the name of the deceased -- Anant Ram, in favour of the petitioner/accused--Jodh Singh and on the

strength of the said Will succeeded in obtaining a Succession Certificate on 10th of June 2004 and withdrew an amount of Rs.63,892.35, lying in

the name of deceased -Anant Ram with Post Office Kore Punnu and Rs.43,328.00, deposited with J&K Bank Limited and the

respondent/complainant immediately after getting information of the fraud, instituted a Civil Suit in a Court at Kathua, challenging validity of the Will

dated 16th of June 2003. The respondent/complainant further alleged that in August 2006, he came to know that besides the Will dated 16th June

2003, the petitioner/accused -Jodh Singh had also got forged a Will Deed attributed to Late Anant Ram and even got it registered on 8th of

January 2004, after death of deceased -- Anant Ram. The respondent/ complainant alleged that all the petitioners/ accused, after hatching a

conspiracy, manufactured the Will by forging the thumb impression of Late Anant Ram who had since died and got the Will registered by

impersonation and forgery on 8th February 2004. Elaborating on individual roles of the petitioners/accused in the alleged conspiracy, it was stated

that one of the petitioners/ accused affixed thumb impression and attributed it to deceased -- Anant Ram and the petitioners / accused got it

registered. S. Balbir Singh, Advocate, drafted the Will and identified the impersonator as Shri Anant Ram before the Registering Officer. The

petitioner/ accused--S. Balbir Singh is also said to have appeared on behalf of the petitioner/ accused -- Jodh Singh before Learned District Judge,

Kathua, and laid claim to the amount left by the deceased Anant Ram and persuaded Court to grant succession certificate on the basis of earlier

Will dated 16th June 2003 and the Death Certificate of the deceased Anant Ram. The petitioners accused according to respondent by acting in the

aforesaid manner had committed offence punishable u/s 465, 467, 471 read with 120-B 109 RPC and section 82 of J&K Registration Act The

respondent/complainant asked the Learned Chief Judicial Magistrate to take cognizance of the offences alleged, summon the petitioners/accused

and punish them in accordance with law. Learned Chief Judicial Magistrate on receipt of the complaint decided not to take cognizance much less

issue process against the petitioners/ accused and instead decided to order registration of FIR ATp/s Crime Branch Jammu and investigation of the

complaint by SHO Police Station Crime Branch. The Chief Judicial Magistrate passed the following order:

This criminal complaint has been presented by complainant in presence of learned counsel. Complaint in original is forwarded to S.H.O. Police

Station Crime Branch Jammu through C.P.O. of this Court for registration of F.I.R. and investigation in terms of Section 156(3) Cr.P.C, under

Rules. Copy of the complaint has been retained in this Court. S.H.O. Police Station Crime Branch Jammu is further directed to furnish report of

investigation in the Court

What warrants consideration, is whether Learned Chief Judicial Magistrate was having power to direct investigation and in the event such power

was there whether that power was exercised in accordance with law.

Section 156 Cr.P.C. finds place in Part V Chapter XIV of the Code that deals with information to the Police and their powers to investigate.

Section 154 Cr.P.C. provides that every information relating to the commission of cognizable offence if given to Officer Incharge of a Police

Station, shall be entered in the book, maintained in the prescribed format at the Police Station and a copy of the information, called First

Information Report, provided to the informer. Section 155 Cr.P.C. deals with information in respect of non-cognizable offence. Section 156 deals

with investigation into cognizable offence. Section 156(1) empowers Officer Incharge of a Police Station to investigate any cognizable case even

without order of Magistrate, that a Court having jurisdiction over the local area within the local limits of such jurisdiction, would have power to

enquire into or try under the provisions of Chapter XV relating to the place of inquiry or trial. In other words Officer Incharge of the police station

can only investigate such cognizable offence, that having regard to the place of occurrence falls within his jurisdiction. Section 156(3), without

repeating whatever is laid down u/s 156(1) as regards territorial jurisdiction, empowers the Magistrate, having powers u/s 190 of the Code, to

order such an investigation. It is pertinent to mention that Section 190 of the Code empowers Magistrate to take cognizance of any offence upon a

complaint or police report. It follows that once in terms of section 154 Cr.P.C. information relating to commission of cognizable offence, is given to

the Officer Incharge of the Police Station and the information registered as provided u/s 154, Officer Incharge of the Police Station may investigate

the case, provided the Court having jurisdiction over the local area within local limits of such police station, would have power to inquire into or try

the case relating to the place of inquiry or trial. Independent of power of the Officer Incharge of the Police Station to investigate cognizable

offence, section 156(3) Cr.P.C, confers power on a Magistrate to investigate. The power u/s 156(3) Cr.P.C. is limited by the restrictions as are

laid down u/s 156(1), that is to say that the Magistrate must have power to take cognizance of the offence u/s 156(3) and further Magistrate shall

order investigation, by the Officer Incharge of the Police Station, within the territorial jurisdiction of such Magistrate. The Magistrate, once a

complaint as in the present case, alleging commission of cognizable offence is presented before him, has powers to take cognizance in terms of

Section 190 Cr.P.C. and thereafter proceed in the matter as laid down in Chapter XVI & XVII of the Code. The other option available to the

Magistrate is to direct the investigation u/s 156(3) Cr.P.C. The ambit and scope of inquiry to be made by the Magistrate after receipt of the

complaint and before the Magistrate, decides to issue process against the accused, is laid down in Sections 200 to 204 Cr.P.C. and such

procedure is not to be followed by the Magistrate when the Magistrate decides not to take cognizance of the offence, direct inquiry to ascertain

truthfulness and falsehood of the complaint or issue process against the accused but directs investigation in the matter. The Magistrate, while

directing investigation, does not take cognizance of the offence alleged in the complaint but merely asks the Officer Incharge of the Police Station

to investigate the matter, which is otherwise his duty under the Code.

It is argued by the learned counsel for the petitioners that the Magistrate even when deciding to direct investigation in terms of Section 156(3)

Cr.P.C. is expected to apply his mind to the allegations set out in the complaint and in either case --whether the Magistrate decides to take

cognizance and proceed in the matter or the Magistrate decides to direct investigation -- order of the Magistrate must indicate application of mind.

Reliance is placed on law laid down in Ram Babu Gupta and Another Vs. State of U.P. and Others, and S.P. Shenbagamoorthy Vs. Mr. Mu. Ka.

Stalin and The Director, Directorate of Vigilance and Anti-Corruption, Chennai, . In later case it has been held that the Magistrate without looking

into complaint and ascertaining whether the complaint requires investigation at all cannot in a mechanical manner direct investigation.

There is no scope for any disagreement with the argument advanced by Ld. Counsel for the respondents /complainant, that the Magistrate in

terms of section 156(3) Cr. P.C is competent to forward the complaint to Officer-Incharge of Police Station with a direction to register the case

and investigate the matter. It is, however, important for the Magistrate not to make use of the power u/s 156(3) Cr. P.C in a mechanical manner.

The Magistrate is expected to be discrete enough not to exercise powers under aforesaid provision in a routine and lifeless manner. Though the

Magistrate at the pre-cognizance stage is not required to record statements of the witnesses or make a deep and threadbare inquiry, yet having

regard to consequences of registration of an FIR and investigation for the person against whom a case is sought to be registered, the Magistrate is

expected to go through the complaint, apply his mind to the averments and allegations set out in the complaint and only when on such perusal the

Magistrate is satisfied that a direction u/s 156(3) Cr. P.C is warranted the Magistrate is expected to make an order directing registration of FIR

and investigation. The fact that the Magistrate did go through the complaint, made an objective appraisal of the allegation leveled arid thereafter

found it necessary to pass a direction u/s 156(3) Cr. P.C must be discernible and apparent from the order.

In the present case no mention is made in the order in question that the complaint was gone through, let alone that the averments and

allegations detailed in the complaint warranted a direction u/s 156(3) Cr. P.C. The CJM has in the circumstances exercised the power u/s 156(3)

Cr. P.C in a mechanical and routine manner and against mandate of law. The case law relied upon by Ld. Counsel for the petitioners/accused

extends support to the case set up in the petition.

Section 4 sub section (1) Clause (o) of Code of Criminal Procedure Samvat 1989, empowers the Government to declare any post or place to

be a police station for any area, specified by the Government. The Government in exercise of aforesaid powers vide Notification dated 2nd of

April 1991 (SRO No. 133), declared the office of Superintendent of Police Crime Branch Kashmir and Office of Superintendent of Police Crime

Branch Jammu to be the police stations within their respective jurisdiction for the purposes of investigation of offence under local and special laws

and sections of RPC as indicate in Annexure ""A"" to the Notification. The said Notification was superseded by Notification dated 3rd June 1999

(SRO 202). The Notification dated 3rd June 1999 confers power on Government and Director General of Police to refer such cases to, as they

may chose, to the Police Station Crime Branch for investigation, in addition to the offences mentioned in the Annexure to the said Notification. In

other words, in Notification dated 3rd of June 1999 not only that some additions were made to the list of offence in respect of which the police

station Crime Branch had the jurisdiction and thus the jurisdiction of police station Crime Branch enlarged but the Government and Director

General of Police were also given power to refer the matters, not otherwise identified in the Annexure. The offence alleged in the complaint in

question admittedly do not find place in Annexure to SRO 202 and obviously did not fall within the jurisdiction of Police Station Crime Branch.

Learned Chief Judicial magistrate had no powers to direct Incharge Police Station Crime Branch to investigate a matter that did not fall within its

jurisdiction under Notification-SRO 202 dated 3rd of June 1999.

There can be no disagreement with the legal preposition that the trial in a criminal case must not get frustrated only because there has been a

defect or illegality in the investigation. It is equally true that it would not be proper to acquit an accused merely on the ground of defective

investigation. The aforesaid preposition, however, merits to be followed and acted upon when trial has commenced or witnessed some progress or

reached its logical end. In such an eventuality, it would not be proper to terminate the trial midway or acquit the accused merely on the ground of

defective investigation or the Investigating Officer having no jurisdiction to investigate the matter. But, where the person aggrieved is vigilant enough

to approach competent court at an earliest with a complaint that investigation being commenced, was not in accordance with law, the right course

is not to permit the investigation to proceed notwithstanding irregularity but to afford an opportunity to the concerned to rectify the error at the

earliest and take investigation on right track and handed it over to the Officer otherwise having jurisdiction to investigate the matter.

In the present case the petitioner in petition -561 A No. 144/2006 has approach this Court immediately after the registration of FIR and

investigation was directed, in violation of the procedure and the investigation was directed by this Court not to proceed qua the petitioner. The

petitioner thus cannot be said to have allowed the investigation to conclude and allow filing of the charge sheet and commencement of the trial and

on conclusion of the trial or at an advance stage of the trial, complained of defective investigation. So viewed order of Learned Chief Judicial

Magistrate dated 19.12.2006 is not in conformity with law and so is not the registration of FIR and ensuing investigation.

The ground that in presence of civil proceedings, awaiting disposal before the competent civil Court, touching validity of the Will, alleged to

have been forged by the petitioners/ accused, the investigation or proceedings emanating there from, cannot be allowed, does not sound

convincing. If mere pendency of civil proceedings is held to debar criminal prosecution, in every case of alleged, forgery, criminal prosecution can

be thwarted by the perpetrator of crime by merely filing civil suit insisting on assailing or questioning genuineness of the document in question. An

occurrence may have many dimensions and some of the dimensions may prompt civil litigation and other dimensions call for investigation and trial.

The criminal proceedings cannot be terminated or blocked only because civil proceedings are awaiting disposal, touching the controversy that has

something to do with the criminal prosecution.

In Lalmuni Devi v. State of Bihar & Ors., (2000) 9 AD (SC) 562, where in exercise of inherent powers, a criminal complaint alleging

commission of offence punishable u/s 419, 420, 467 & 120-B IPC, was quashed on the ground that the complaint spelt out civil wrong and

continuance of criminal proceedings would be abuse of process of court. The Supreme Court observed:

However, it is also settled law that facts may give rise to a civil claim and also amount to an offence. Merely because a civil claim is maintainable

does not mean that the criminal-complaint cannot be maintained.

In Maratt Rubber Ltd v. J.K. Marattukalam, 2000 7 AD (S.C.) 34, it has been held that scrutiny and weighing of the material by the High

Court to opine that the matter pertained to civil proceedings between the parties, was certainly in excess of the inherent jurisdiction, conferred on

the High Court and the High Court exceeded its jurisdiction in quashing criminal proceedings.

The principle was reiterated in Kamaladevi Agarwal v. State of West Bengal, 2001 9 AD (S.C.) 122, where the Magistrate issued process in

a complaint, alleging commission of offence u/s 465, 467, 468, 471 & 120-B IPC and the High Court quashed the complaint, on the ground that a

civil case is pending between the parties before a superior court and therefore it would not be proper to try the matter. Supreme Court held:

Criminal prosecution cannot be thwarted at the initial stage merely because civil proceedings are also pending. After referring to judgments in

State of Haryana v. Bhajan Lal [1992 Suppl. (1) SCC 335], Rajesh Bajaj Vs. State NCT of Delhi and Others, this Court in Trisuns Chemical

Industry v. Rajesh Agarwal & Ors. [1999(8) SC 687] held:

Time and again this Court has been pointing out that quashing of FIR or a complaint in exercise of the inherent powers of the High Court should be

limited to very extreme exceptions [vide State of Haryana and others Vs. Ch. Bhajan Lal and others, and Rajesh Bajaj Vs. State NCT of Delhi

and Others, . In the last referred case this court also pointed out that merely because an act has a civil profile is not sufficient to denude it of its

criminal outfit. We quote the following observations: (SCC p.263, para 10)

It may be that the facts narrated in the present complaint would as well reveal a commercial transaction or money transaction. But that is hardly

a reason for holding that the offence of cheating were committed in the course of commercial and also money transaction.

The Court, after making review of catena of judicial pronouncements on the subject, observed:

In view of the preponderance of authorities to the contrary, we are satisfied that the High Court was not justified in quashing the proceedings

initiated by the appellant against the respondents. We are also not impressed by the argument that as the civil suit was pending in the High Court,

the Magistrate was not justified to proceed with the criminal case either in law or on the basis of propriety. Criminal cases have to be proceeded

with in accordance with the procedure as prescribed under the Code of Criminal Procedure and the pendency of a civil action in a different court

even though higher status and authority, cannot be made a basis for quashing of the proceedings.

The plea that Learned Chief Judicial Magistrate, Kathua could not have directed Officer Incharge Police Station Crime Branch to investigate

the matter as the local limits of police station Crime Branch did not fall within local limits/jurisdiction of Chief Judicial Magistrate Kathua, is devoid

of any merit and to be ignored. The grounds is urged, oblivious to the fact that the Police Station Crime Branch Jammu has jurisdiction over whole

of the Jammu Province, which includes area of territorial jurisdiction of Chief Judicial Magistrate Kathua. Learned Chief Judicial Magistrate by

directing investigation by Officer Incharge of Police Station Crime Branch Jammu cannot be said to have asked an Officer Incharge of Police

Station to investigate the matter, the local area of which did not fall within territorial jurisdiction of Chief Judicial Magistrate Kathua. The Chief

Judicial Magistrate Kathua and for that matter any Magistrate within Jammu Province is empowered to direct investigation by Officer Incharge of

Police Station Crime Branch Jammu, provided of course the Police Station Crime Branch Jammu has jurisdiction to investigate the matter, having

regard to SRO 202 dated 3rd of June 1999 and the order is made unconformity with mandate of Section 156(3) of Code of Criminal Procedure.

For the reasons discussed above, the order of Chief Judicial Magistrate Kathua, amounts to abuse of process of the Court within meaning of

law laid down in State of Haryana v. Bhajan Lal [1992 Suppl. (1) SCC 335] and calls for exercise of inherent powers u/s 561-A Cr.P.C.

Viewed thus the order dated 19th December 2006, of Learned Chief Judicial Magistrate Kathua on complaint titled Isher Dass v. Jodh Singh

and others, directing investigation by SHO P/S Crime Branch Jammu, is quashed. The matter being yet at its infancy, the complaint is sent back to

Learned Chief Judicial Magistrate, Kathua, for passing necessary orders in accordance with law. The Learned Magistrate shall, on going through

the complaint, be free to follow any of the courses open to the Magistrate u/s 156(3) Cr.P.C. or under Chapter XIV & XVI. The parties shall

appear before the Chief Judicial Magistrate Kathua on 15.05.2010.

Disposed of.