Preliminary Inquiry Necessary When There Is Abnormal Delay By Complainant In Initiating Criminal Prosecution: Jammu & Kashmir High Court Reiterates

The bench was hearing a plea seeking quashing of a criminal complaint and a consequential FIR for offences under Section 506 (Criminal Intimidation), Sec 420 (Cheating) & Sec 120-B(Punishment for Criminal Conspiracy) IPC registered by official respondents against the petitioners upon an application filed by complainant/respondent 3 under Section 156 (3) of the Criminal Procedure Code.

In the instant case, the complainant/respondent 3 in his complaint to the Magistrate alleged that the accused petitioner approached him in 2017 and offered him to invest in his three construction companies with an assurance of profits within a year. The complainant/respondent 3 invested Rs. 1,75,76,961/- but didn't receive any returns. When he demanded his money back, the accused persons threatened and even attempted to kill him and his family.

As a consequence, the complainant/respondent 3 approached the police, but no action was taken, so he filed an application under Section 156(3) CrPC. The Magistrate ordered the respondent 2 to register an FIR and submit a compliance report, opining that the registration of FIR is mandatory under Section 154 CrPC if the information discloses the commission of a cognizable offence and that no preliminary inquiry is permissible in such a situation.

Justice Wani found it worthwhile to record the following observations of the Supreme Court in Lalita Kumari case (supra):

"As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under: a) Matrimonial disputes/ family disputes b) Commercial offences c) Medical negligence cases d) Corruption cases e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay."

Adverting the position of law to the case at hand, the bench pointed out that the application filed by the complainant/respondent no. 3 alleged the acts/offences committed by the accused persons/petitioners in the year 2019 without any explanation offered by the complainant/respondent no. 3 as to what prevented him then from approaching the official respondents for action against the accused persons/petitioners. In the application, it is admittedly averred that the complainant/respondent no. 3 had submitted an application before the official respondents on 31.3.2022 for initiating an action against the accused persons/petitioners.

"There apparently has been a considerable delay in seeking registration of FIR by complainant/respondent no. 3 against the accused persons/petitioners for the commission of offences allegedly committed against the complainant/respondent no. 3 and his family initially in the month of September, 2019. The Magistrate apparently has not considered this aspect of the matter while overlooking clause (e) of para 126.6 of Lalita Kumari’s case supra. The Magistrate in view of the aforesaid position, facts and circumstances of the case was required to have directed holding of a preliminary inquiry in the matter", the bench underscored.

In view of the said legal position the bench found that the matter has not received appropriate consideration by the Magistrate thus requiring the remanding of the same back to the Magistrate for its revisiting and reconsideration.

Accordingly the petitions were allowed and the FIR was quashed with a direction to the magistrate for revisiting and reconsidering the application filed by the complainant respondent 3 herein under Section 156(3) CrPC

Case Title: Harbachan Singh Vs Sr. Superintendent of Police Srinagar and others

Citation: 2023 LiveLaw (JKL) 112

Counsel For Petitioner: Mr. M. I. Dar, Advocate

Counsel For Respondent: Mr. Sajad Ashraf, GA with Investigating Officer Mr. Faisal Qadiri, Sr. Adv. with Mr. Salih Pirzada, Advocate

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