Serious note taken of abuse of process of law by JMIC
Says procedure need to be adhered to in letter & spirit
Mohinder Verma
JAMMU, Aug 31: Taking serious note of the abuse of process of law by a Judicial Magistrate Ist Class, the High Court has issued directions for providing training to all the Magistrates in the Union Territory of Jammu and Kashmir and Union Territory of Ladakh on the use of vital provisions of the Code of Criminal Procedure (CrPC) so that delicate balance is maintained between the interest of the society and protecting the liberty of an individual.
Moreover, the High Court has asked for circulating its latest judgment as well as those of the Supreme Court on use of Code of Criminal Procedure amongst all the Magistrates for their reference and to ensure that procedure is adhered to in letter and spirit in future.
The directions have been passed by Justice Ali Mohammad Magrey while dealing with a petition filed under Section 482 of the Code of Criminal Procedure seeking quashment of orders dated May 11, 2020 and June 25, 2020 passed by the Judicial Magistrate Ist Class (3rd Additional Munsiff/JMIC) Srinagar.
The case before the High Court was that Sami-ullah Naqashbandi while performing his duties as Naib Tehsildar, Executive Magistrate Khanyar, came to know about filing of a complaint against him as well as other persons for alleged commission of offences under Sections 166, 166-A, 167, 354, 202 and 209 and 120-B IPC.
The complaint was assigned to the Court of Judicial Magistrate Ist Class Srinagar by the Chief Judicial Magistrate Srinagar seeking registration of FIR or in the alternative cognizance of the offences mentioned in the complaint.
After presentation of the complaint, the Judicial Magistrate Ist Class directed SSP Srinagar to investigate the matter either by himself or through any police officer not below the rank of Sub-Divisional Police Officer (SDPO) and submit report. The SSP Srinagar, in the report submitted to the Judicial Magistrate Ist Class, mentioned that the allegations levelled against the Naib Tehsildar and other persons were not substantiated.
Thereafter, the Judicial Magistrate Ist Class directed the SSP Srinagar to take action under the provisions of Section 156(3) of Criminal Procedure Code and get the matter investigated through SP concerned. Both the orders of the Judicial Magistrate Ist Class (JMIC) were challenged before the High Court by Sami-ullah Naqashbandi.
“The impugned orders passed by JMIC directing SSP Srinagar to investigate the matter and to take action under the provisions of Section 156(3) of Criminal Procedure Code is contrary to the provisions of the law inasmuch as the offence which is non-cognizable has been allowed to be investigated by the police by a cryptic incomplete order of the Magistrate”, the counsel for Sami-ullah Naqashbandi submitted.
Stating that complainant had neither approached the SHO concerned nor SSP Srinagar before approaching the Magistrate, the counsel further submitted, “the assumption of jurisdiction by the Magistrate is contrary to the judgment and provisions of the Supreme Court in several cases”, adding “the consequential direction to register the FIR is also bad and contrary to the law laid down by the Apex Court of the country”.
It was further submitted that the Magistrate could have ordered enquiry under Section 202 as there was no material available in the complaint and consequentially issue of order under Section 156(3) CrPC was without jurisdiction and without following the mandate of the law.
After hearing both the sides, Justice Ali Mohammad Magrey observed, “the foremost question arises as to whether the Magistrate was right in issuing direction for investigating the matter in terms of Section 156(3) of CrPC after the process was deferred till completion of enquiry in terms of Section 202 of CrPC”.
“Perusal of the order reveals that the Magistrate had on the consideration of the complaint on motion hearing, deferred the issuance of process and directed enquiry to get satisfied about the correctness of the allegations. On the receipt of report, the Magistrate instead of proceeding further in tune with the mandate of law, has in terms of Section 156(3) of CrPC directed investigation, which is the question as to whether the Magistrate has abused the powers of the court or not”, Justice Magrey further said.
Pointing towards relevant provisions of CrPC and various judgments of the Supreme Court, the High Court said, “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-cognisance stage”.
Stating that Magistrate has in 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, Justice Magrey said, “the Magistrate has ignored the very spirit of the law and abused the process of law by not adhering to the procedure”.
While setting aside the order passed by the Judicial Magistrate 1st Class, the High Court directed the Magistrate to proceed from the stage on receipt of report in terms of Chapter XV of the Code, viz Section 202(1) onwards.
As the approach adopted by the Magistrate in conducting the case was not in consistent with law, rather was an abuse of process of law, Justice Magrey issued directions for providing training to all the Magistrates in the Union Territory of Jammu and Kashmir and Union Territory of Ladakh on the use of vital provisions of the Code of Criminal Procedure (CrPC) through Judicial Academy so that delicate balance is maintained between the interest of the society and protecting the liberty of an individual.
He further issued directions for circulating this judgment as well as those of the Supreme Court on use of Code of Criminal Procedure amongst all the Magistrates for their reference and to ensure that procedure is adhered to in letter and spirit.
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