The Jammu & Kashmir and Ladakh High Court has held that there is no bar in approaching the Magistrate with a Criminal Complaint instead of approaching the Police even in cases where cognizable offences are disclosed from the contents of the criminal complaint.

The Court was considering a Petition challenging the Complaint filed by the Respondent against him for commission of offences under Section 420, 506 of the Indian Penal Code.

The single bench of Justice Sanjay Dhar observed, "A complainant has the option either to approach the Police agency with an application for registration of FIR under Section 154 Cr.P.C or he/she has option to approach the Magistrate with a complaint under Section 200 of the Cr.P.C. The discretion entirely lies with the complainant either to approach the Magistrate or to approach the Police and there is no bar to approach the Magistrate with a criminal complaint instead of approaching the Police even in cases where cognizable offences are disclosed from the contents of the criminal complaint."

The Petitioner was represented by Advocate Tariq Ahmad Lone.

Facts of the Case

As per the contents of the impugned complaint the Petitioner represented himself to be a worker of BJP and in the month of May, 2020 he approached the respondent and asked for a list of his un-employed relatives assuring him that they would be appointed as Class IV employees in Central Government Departments under a scheme meant for the party workers. It was further alleged in the impugned complaint that from May, 2020 to September, 2020, the Respondents after collecting an amount of ₹18,58,000/- from his relatives, handed over the same to the Petitioner against proper receipt. The Respondent was stated to have transferred further sum of ₹20,000/- to the account of the Petitioner. It was alleged in the Complaint that even after lapse of two years, the Petitioner/Accused has not employed the Respondent or any of his relatives and in this manner he has been duped by the Petitioner.

The Trial Magistrate, after recording preliminary evidence of the complainant, took cognizance of the offences issued process against the Petitioner after drawing satisfaction that offences under Section 420, 506 of the Indian Penal Code. are prima facie made against the Petitioner.

The Petitioner challenged the impugned complaint on the grounds that dispute between the parties is purely relating the financial transaction which has been given a criminal colour by the Respondent. It was further contended that the allegations made in the impugned complaint do not constitute offence of cheating against the Petitioner. It was also contended that the Respondent has not followed the procedure under Section 154 of Cr.P.C, in as much as he has filed the complaint against the Petitioner before the Magistrate instead of approaching the Police for registration of FIR. It was further contended that it was incumbent upon the learned Magistrate to hold an inquiry in terms of Section 202 of Cr.P.C before issuing process against the Petitioner.

Reasoning By Court

The Court held that there is no bar in approaching the Magistrate with a Criminal Complaint instead of approaching the Police even in cases where cognizable offences are disclosed from the contents of the criminal complaint.

With respect to the contention that the Trial Magistrate should have directed investigation in terms of Section 202 Cr.P.C before issuing process against the Petitioner, is also without any merit.

"It is only in the cases, where the Magistrate is unable to decide whether or not there is sufficient ground for proceeding that he is required to direct investigation of a case in terms of section 202 of Cr.P.C and postpone the issue of process against the accused. In a case of present nature, where the allegations made in the complaint supported by the preliminary evidence clearly disclose commission of offence under Section 420 of IPC, it was not at all necessary for the learned Magistrate to direct investigation in terms of Section 202 of Cr.P.C before issuing process against the petitioner. The ground urged by learned counsel for the petitioner is, therefore, without any merit," the Court observed.

It also rejected the ground relating to non-application of mind in issuing process against the Petitioner.

The Petition was accordingly dismissed.

Cause Title: Ghulam Mohammad Payer vs. Amanulla Khan

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Jammu & Kashmir and Ladakh High CourtJustice Sanjay Dhar

Sheetal Joon