Zabir Ahmed vs State and Another

J.P. Singh, J.—Investigation carried out in FIR No. 52/2009 registered at Police Station Bus Stand, Jammu, found the Petitioner involved in

commission of offences punishable under Sections 124- A, 212 RPC. A Final Police Report, with the permission of District Magistrate, Jammu

was, therefore, laid againsthim with the Chief Judicial Magistrate, Jammu, who, finding a prima facie case, charged him under Sections 124-A, 212

RPC, for having incited the members of Muslim Community against the Government of India and the State of Jammu and Kashmir besides for

harbouring and providing logistic support to the militants in general and Mr. Dawood, the Area Commander of Jash-e-Mohd. who was engaged in

war against India, in particular, thus sabotaging the peace and stability of the Country.

His counsel Mr. Saddiqui seeks quashing of the proceedings and the charge framed against the Petitioner saying that the learned Magistrate had

erred in taking cognizance of the offences in the absence of requisite Complaint u/s 196 of the Code of Criminal Procedure Svt. 1989, by the

District Magistrate. Learned Counsel refers to Mst. Naziran Bi and Ors. v. State and or 561-A Code of Criminal Procedure No. 22/2004

decided by this Court on May 28, 2004, Master Mohamad Saleem v. State of J&K 561-A Code of Criminal Procedure No. 21/04 decided on

February 04, 2005, and State v. Ahmed Din and Ors. Criminal Revision No. 26/05 decided on 31.07.2009 to support his submissions.

I have considered the submissions of Petitioner's counsel as also the learned State Counsel.

The Petitioner has been charged pursuant to the investigation of FIR No. 52/09 registered at Police Station Bus Stand, Jammu under Sections

124-A, 212 RPC on the basis of the material produced in the Court through the Final Police Report.

One of the offences for which the Petitioner has been charged is Sedition punishable u/s 124-A RPC falling in Chapter VI of the Ranbir Penal

Code Svt. 1989.

In terms of Section 196 of the Code of Criminal Procedure, No Court can take cognizance of any offence punishable under Chapter VI or IX-

A of the Ranbir Penal Code and under other Sections of the Ranbir Penal Code appearing in this Section unless upon a Complaint made, by the

order, of or under Authority from the Government or District Magistrate or such other officer as may be empowered by the Government in this

behalf.

The expression ""Complaint"" contemplated by the Section is defined in Section 4 (1) (e) of the Code of Criminal Procedure to mean the

allegation made orally or in writing to a Magistrate, with a view to his taking action under the Code, that some person, whether known or unknown

has committed an offence. This in terms of the definition would not include the report of a Police Officer.

The District Magistrate having not authorized any one to file requisite Complaint and the prosecution having been initiated on the basis of the

Final Police Report i.e. the Police Challan and not on a Complaint contemplated by Section 196 of the Code of Criminal Procedure, may not thus

be justified and the State Counsel, therefore, rightly concedes the legal position in view of the law laid down by this Court in the judgments referred

to by Mr. Siddiqui.

Learned Magistrate's lacking jurisdiction in taking cognizance for the offence punishable u/s 124-A RPC against the Petitioner, in the absence of

requisite Complaint, would not, however, affect the cognizance taken by him in proceeding against the Petitioner for the commission of the offence

punishable u/s 212 RPC.

This Petition, therefore, succeeds only in part in so far as the Petitioner's challenge to his prosecution u/s 124-A RPC is concerned.

Accordingly, quashing the charge framed against the Petitioner u/s 124-A RPC, the learned Magistrate is left free to proceed with the case

treating the charge against the Petitioner to be one u/s 212 RPC.

Parties are directed to appear before the trial Court for further proceedings on April 17, 2010.