When Can Magistrate Order Investigation U/S 156(3): J&K HC Orders Training For All Magistrates In J&K, Ladakh UTs [Read Judgment]

While taking serious note of the abuse of process of law by a Judicial Magistrate Ist Class, the bench of Justice Ali Mohammad Magrey also directed the Director, Judicial Academy to arrange the training session on the subject for all the Magistrates in Union Territory of Jammu and Kashmir and Union Territory of Ladakh in phased manner.

The Background of the case

The Petitioner herein, while performing his duties as Naib Tehsildar, Executive Magistrate, Khanyar, came to know about the filing of the complaint by the respondent against him as well as other accused persons.

The said complaint was filed for alleged commission of offences under Section 166, 166-A, and 167, 354, 201, 209 and 120-B IPC.

Thereafter, the said compliant was assigned to the Court of Judicial Magistrate 1st Class (3rd Additional Munsiff/JMIC, Srinagar), by the learned CJM, Srinagar.

Upon the presentation of the complaint, the Judicial Magistrate 1st Class (3rd Additional Munsiff/JMIC, Srinagar) ordered the SSP, Srinagar, to get the matter enquired.

The enquiry in the matter was done through SDPO, Nehru Park, Srinagar, and the report of the said enquiry was submitted before the Court of Judicial Magistrate 1st Class on 23.05.2020.

The said enquiry report reflected that the matter and allegations levelled against the petitioner and other accused persons were not substantiated.

The Judicial Magistrate 1st Class on receipt of this report from SSP, Srinagar, and on consideration of the matter and while recording that the SSP, had not taken any action in the matter, directed the SSP, Srinagar, to take action under the provisions of Section 156(3), of Criminal Procedure Code in the earnest and get the matter investigated through SP concerned vide order dated 25.06.2020.

Now, in this context, a plea was filed under Section 482 of the Code of Criminal Procedure, seeking quashment of order dated 25.06.2020 read with the order dated 11.05.2020 passed by the Judicial Magistrate 1st Class.

Arguments put forth by the parties

The counsel for the complainant sought dismissal of the petition as having no merit with further support of the order of Magistrate being consisting with law.

Learned counsel averred that the Court had the power to ensure impartial and honest investigation once the Police was seemingly not fair in investigating the complaint.

On the other hand, counsel for the petitioner, sought quashing of impugned orders on the ground that the Magistrate's order, directing the investigation under Section 156(3) is permissible at pre-cognizance stage only, while enquiry under Section 202 is at post cognizance stage, therefore, he called the orders issued by the Judicial Magistrate 1st Class to be against the procedure and in his opinion, it was deserved to be quashed.

The observation of the court

The High Court was concerned with the question – 'Whether the Magistrate ought to have proceeded under Section 156(3), after receipt of enquiry report from Senior Superintendent of Police, Srinagar, sought on taking cognizance of the complaint and after deferment of process or was required to proceed under Section 202 (1)?'

In this context, the court observed that the Magistrate had taken cognizance and found it necessary to postpone the issuance of the process; therefore, directed for an enquiry by the Police and on receipt of the report from SSP, Srinagar, the Magistrate was required to proceed in terms of the provisions contained in Chapter XV of the Criminal Procedure Code.

Thus, the court answered the question by holding that,

"The direction under Section 156(3) is to be issued, only after application of mind by the Magistrate. When the Magistrate does not take cognizance and does not find it necessary to postpone instance of process and finds a case made out to proceed forthwith, a direction under the said provision [S. 156 (3)] is issued."

However, as the court noted, when the Magistrate takes cognizance and postpones issuance of process, the Magistrate is yet to determine "the existence of sufficient ground to proceed" and so these cases fall under Section 202.

While referring to the Judgment of the Supreme Court in the case of Rameshbhai Pandurao Hedau Vs. State of Gujrat (2010) 4 SCC 185, the Court came to the conclusion that,

"While the power to direct a police investigation under Section 156(3) is exercisable at the pre-cognizance stage, the power to direct an investigation or an enquiry under Section 202(1) is exercisable at the post-cognizance stage when the Magistrate is in seisin of the case."

Coming to the facts of this case, the Court examined the trial court records and stated that the learned Magistrate had in a very mechanical manner and as a result of non-application of mind, issued directions to the Senior Superintendent of Police, Srinagar, for investigation under Section 156(3) of the Code, ignoring the very spirit of the law, in terms whereof the Magistrates have been authorized/empowered to issue directions for investigation under Section 156(3) of the Code.

Thus, the court opined,

"The direction under Section 156(3) is to be issued, only after application of mind by the Magistrate. When the Magistrate does not take cognizance and does not find it necessary to postpone instance of process and finds a case made out to proceed forthwith, a direction under the said provision [S. 156(3)] is issued. In other words, where on account of the credibility of information available, or weighing the the interest of justice it is considered appropriate to straightway direct the investigation, such a direction is issued." (emphasis supplied)

In view of the above discussion, this petition was allowed and order dated 25.06.2020, passed by the Judicial Magistrate 1st Class (3rd Additional Munsiff/JMIC, Srinagar) was set aside, however, the Magistrate was ordered to proceed from the stage on receipt of the report in terms of Chapter XV of the Code, viz Section 202(1) onwards.

Lastly, since the Court in this matter had taken a view that the approach adopted by the Magistrate in conducting the case in hand was not in consistent with law, rather it was an abuse of process of law, therefore, the court stated and ordered,

"It has become necessary to send a copy of the order to Registrar General of this Court for requesting the Director, Judicial Academy to arrange the training session on the subject for all the Magistrates in Union Territory of Jammu and Kashmir and Union Territory of Ladakh in a phased manner. He shall also request the Director, Judicial Academy to circulate the Judgment amongst all the Magistrates well in advance of the training session." (emphasis supplied)

Case Details:

Case Title: Sami-Ullah Naqashbandi v. Sadaf Niyaz Shah

Case No.: CRM (M) No.113/2020

Quorum: Justice Ali Mohammad Magrey

Appearance: Advocate Mohsin Qadri (for the Petitioner); Advocate Azhar-ul-Amin (for the respondent).

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