Srinagar: The J&K High Court on Monday directed the Director, Judicial Academy to arrange training sessions for all the Magistrates in Jammu and Kashmir and Ladakh on the applicability of the Criminal Procedure code (CrPc) in the light of Supreme Court judgements and guidelines.
The court of Justice Ali Mohammad Magrey passed the direction after hearing a case wherein a Srinagar magistrate had issued an order for inquiry into the alleged possession and dispossession of property, violation of lease agreements done by Tehsildar and Naib Tehsildar, Khanyar.
The petitioner, Samiullah Naqashbandi while challenging the order passed by District Magistrate Srinagar on 25 June, 2020 wherein the court had directed SSP, Srinagar to conduct an enquiry into the matter and had also directed to take action under the provisions of Section 156(3), of Criminal Procedure Code.
The challenge was based on that the magistrate could not have ordered enquiry under Section 202, as there was no material available in the complaint and consequentially issue of jurisdiction under Section 156(3) Cr. P.C. is without jurisdiction and without following the mandate of law.
“Both the orders passed by the Magistrate on the same application run contrary to each other and direction to register FIR is, accordingly, bad in law and the orders are liable to be quashed,” the petitioner said.
The court of Justice Ali Mohammad Magrey while hearing the matter noted that the direction under Section 156(3) is to be issued only after application of mind by the Magistrate.
The court remarked that 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, direction under the said provision is issued, when Magistrate takes cognizance and postpones issuance of process, the Magistrate has yet to determine “existence of sufficient ground to proceed” and these cases fall under Section 202.
The court while setting aside the order of the District Magistrate recorded the Judgment reported in (2010) 4 Supreme Court Cases 185 titled Rameshbhai Pandurao Hedau Vs. State of Gujrat, which postulates 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.
Justice Magrey said that on examination of the trial Court records, what transpired is that the 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, 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 direction under Section 156(3) is to be issued, only after application of mind by the Magistrate.
The court said, “Since the Court has taken a view that the approach adopted by the Magistrate in conducting the case in hand, has not been in consistent with law, rather is an abuse of process of law, therefore, it has become necessary to send 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 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,” court directed.