Lockdown Violation: Jammu & Kashmir High Court Refuses To Quash FIR U/S 188 IPC; Says S. 195 CrPC Not A Bar On Police Investigation
The Jammu and Kashmir High Court has held that Section 195 CrPC (Prosecution for contempt of lawful authority) only bars taking of cognizance by the Magistrate and not the investigation by the Police."Bar as prescribed by section 195 Cr.P.C is only with regard to taking of cognizance and it does not restrict the statutory power of Police to register FIR and investigate the same,"...
The Jammu and Kashmir High Court has held that Section 195 CrPC (Prosecution for contempt of lawful authority) only bars taking of cognizance by the Magistrate and not the investigation by the Police.
"Bar as prescribed by section 195 Cr.P.C is only with regard to taking of cognizance and it does not restrict the statutory power of Police to register FIR and investigate the same," Justice Rajnesh Oswal held.
The Judge explained that the bar is only on Magistrate taking cognizance of the offences mentioned in Section 195 CrPC, i.e. offences punishable under Sections 172 to 188 of IPC, except on a complaint in writing made by the public servant.
He clarified that since the word 'complaint' as defined under Section 2(d) CrPC would not include a police report, therefore, the Police can lodge an FIR and investigate the offences.
The High Court referred to the Supreme Court's judgment in State of Punjab vs. Raj Singh and Another (1998), where it was held that the statutory power of the Police to investigate under the Code is not in any way controlled or circumscribed by Section 195 CrPC. However, upon the charge-sheet (challan), if any, filed on completion of the investigation into such an offence, the Court would not be competent to take cognizance thereof given the embargo of Section 195(1)(b) CrPC.
Refusing to quash the FIR, the High Court remarked that the public servant whose order is violated or his superior officer might file a complaint based on FIR and material collected during the police investigation.
Background
The Court was hearing a petition for quashing an FIR lodged under Section 188 of IPC, for Lockdown violation.
The DM passed two orders on March 15 and 19, respectively, directing all shops and markets except those pertaining to essential services to remain closed till the end of the month. On March 23, 2020, the Petitioner was booked for offloading a truck at his premises, which the Petitioner claimed was a warehouse.
The petitioner's case is that the FIR has been registered on a misconceived premise that the warehouse was operating in violation of DM's order for Lockdown. It was further averred that the said orders did not restrict private transport or unloading of goods in warehouses for safekeeping; they pertained to shops and markets.
Senior Advocate Pranav Kohli, appearing for the petitioners, argued that: (a) the orders of the DM did not apply to the warehouse at it was not a shop/market; (b) the order of the Ministry of Home Affairs categorically excluded warehousing services from being shut; (c) there was absolutely no bar on inter-state movement of goods and cargo or for warehouse operation.
Thereafter, based on the contentions, the Court identified three-fold issues in this case: (a) Whether Section 195(1)(a) bars Police from registering an FIR for an offence under S. 188 of the IPC?; (b) Whether the business premises in question is a warehouse?; and (c) Whether the orders of the DM and MHA would apply on the present establishment or not?.
Findings
Having held that bar, as prescribed by section 195 CrPC, is only about the taking of cognizance; it does not restrict the statutory power of Police to register FIR and investigate the same, the Court also dealt with other two issues.
On the question of whether the business premises in question is a warehouse, the Court accepted the submission made by AAG Assem Sawhney, appearing for the Respondents, that the registration certificate placed on record by the petitioner clearly demonstrates that the premises in question has been registered under the J&K Shops and Establishment Act and the nature of business/trade is 'Courier Services'.
On the applicability of the orders said to be violated, the Court noted that all shops/markets except for groceries, fruits, vegetables, dairy products, medical shops, petrol pumps, and other establishments were ordered to be closed till the end of March. Hence, the petitioner's premise, involved in the 'Courier Services' business, also fell within the purview of the restrictions imposed by the DM vide orders mentioned above.
Based on the said observations, the High Court refused to quash the FIR and disposed off the matter.
Case Title: Gaurav Sharma v. Union Territory of J&K
Edited by Akshita Saxena
Click Here To Download The Order
Read The Order