The Jammu and Kashmir and Ladakh High Court recently held that once a Magistrate decides to examine the complainant on oath and proceeds to adopt the procedure prescribed under Section 202 of CrPC by directing an inquiry into the truth of the allegations, it is not permissible to revert to the pre cognizance stage and exercise power under Section 156(3).

The petitioners approached the High Court, challenging an FIR registered under Sections 461 and 31 of the IPC on the basis of a complaint filed against them before the Court of Special Mobile Magistrate (Electricity), Jammu.

The Single Bench of Justice Sanjay Dhar explained, “Section 200 of the Cr.P.C. which falls under Chapter XV pertains to post cognizance stage and once a Magistrate decides to examine the complainant on oath and proceeds to adopt the procedure prescribed under Section 202 of Cr.P.C. by directing an inquiry into the truth or otherwise of the allegations made in the complaint/information laid before him/her, it is not permissible in law to revert back to the pre cognizance stage and exercise power under Section 156(3) of the Cr.P.C.”

Advocate Amarveer Singh Manhas represented the Petitioners, while Government Advocate Mohd. Irfan Inqlabi represented the Respondents.

Factual Background

In the application filed by the second respondent under Section 156(3) Cr.P.C., it was mentioned that the second respondent-complainant had been residing as a tenant in a flat since September 2015 based on a rent agreement executed by the petitioner. It was alleged that in April 2022, when the respondent-complainant came back to the flat after a short visit to his native place, he found that house trespassing, house breaking, theft, and burglary had taken place in his aforesaid premises. Some unknown persons had entered his flat and changed the main entrance door lock. After making an inquiry and going through the CCTV footage, it was confirmed that the petitioners had illegally trespassed into the flat in question and changed the main entrance lock.

When the aforesaid complaint was filed, the Trial Magistrate, after recording the preliminary statement of respondent-complainant, thought it appropriate to get a detailed enquiry conducted. In the report, the enquiry officer concluded that the tenant had not been paying rentals and other dues regularly, whereas the landlord has put his locks on the premises without the consent of the tenant. In light of such a report, the trial Magistrate passed the impugned order directing the SHO to register an FIR. Aggrieved thereby, the Petitioners approached the High Court.

Reasoning

The Bench explained that a direction for registration of an FIR can be issued by a Magistrate in exercise of his power under Section 156(3) of the Cr.P.C. Section 156 Cr.P.C. does not contemplate the recording of the preliminary statement of a complainant at the time of issuing a direction for registration of an FIR. A direction in terms of Section 156(3) Cr.P.C is issued at the pre-cognizance stage. “Once a Magistrate examines a complainant on oath in terms of Section 200 of the Cr.P.C., it means that he has taken cognizance of an offence”, it added.

Placing reliance upon its judgment in Mohd. Aijaz Vs. Sajad Ahmad Dar & Anr. (2021), the High Court observed that it is not permissible for the Magistrate to revert back to the pre cognizance stage and exercise power under Section 156(3) of the Cr.P.C once he decides to examine the complainant on oath and proceeds to adopt the procedure prescribed under Section 202 of Cr.P.C.

On a perusal of the facts of the case, the Bench noted that the trial Magistrate had taken cognizance of the offences by recording the preliminary statement of the complainant and thereafter directed SSP, Jammu to hold an enquiry. “Having undertaken recourse to the aforesaid procedure it was not open to learned trial Magistrate to direct the police to register an FIR after receiving the report of enquiry from the police. The order dated 29.03.2022 passed by the learned trial Magistrate in this regard is, therefore, unsustainable in law”, it held.

Thus, allowing the petition, the Bench set aside the impugned order of the trial Magistrate and the consequent FIR. “The learned trial Magistrate shall, however, proceed further in the complaint filed by respondent-complainant by treating it is a private complaint and follow the procedure as laid down in chapter XV of the Cr.P.C”, it concluded.

Cause Title: Renu Sharma and another v. Union Territory of J&K and another (Case No.: CRM(M) No.275/2022)

Appearance:

Petitioners: Advocate Amarveer Singh Manhas

Respondents: Government Advocate Mohd. Irfan Inqlabi, Advocate Satinder Gupta

Click here to read/download Order


Jammu & Kashmir & Ladakh High CourtJustice Sanjay Dhar

Tulip Kanth

Assistant Editor

Tulip Kanth is an Assistant Editor at Verdictum having over 5 years of experience in the field of legal journalism and editing. She extensively covers judgments of the Supreme Court, High Courts as well as Tribunals. She has previously worked with a legal publishing website where she oversaw the work of other editors and has also created updates on notifications of different Government Ministries. She holds an English Honours Degree from SGTB Khalsa College, Delhi University and has completed her LLB course with specialisation in Corporate Law from Amity University.