HC quashes Magistrate order for FIR against DC

Excelsior Correspondent
Srinagar, Feb 22: Observing that the Judicial Magistrate has acted without jurisdiction, High Court quashed the order of Magistrate directing for registering of FIR against the then Deputy Commissioner Shopian and directed him to proceed in the case in accordance with the provision of Code of Criminal Procedure.
Justice Sanjay Dhar while allowing the petition of the then DC Shopian Mohammad Ajaz challenging the order of Judicial Magistrate Shopian whereby a direction was issued to SHO Shopian to register an FIR and investigate the matter.
The DC also challenged the FIR registered pursuant to the orders of the said Magistrate on the ground that the Magistrate while passing the order has not followed the provisions of law.
The complainant- Sajad Ahmad Dar submitted that he was travelling from Srinagar to Shopian on October 30, 2017 in his personal vehicle and the vehicle of the DC at that relevant time was proceeding behind his vehicle and was unable to allow the vehicle of DC to proceed ahead on account of traffic jam.
He alleged that he was stopped by the DC Shopian near Mini Secretariat, Shopian and thrashed by him. He also averred in the complaint that the DC Shopian also took away his five ATM cards and PAN card.
Justice Dhar while enunciating the law on the issue, said, it was not open to the Magistrate to go back to the pre-cognizance stage and exercise jurisdiction under section 156(3) of CrPC by directing registration of FIR, after having taken cognizance of the offence upon the complainant and recording his preliminary statement.
Counsel appearing for complainant urged the court that the direction of Magistrate for investigation of the case may be treated as a direction under 202 of CrPC and not a direction under Section 156(3).
The counsel also submitted that it is only an irregularity which deserves to be cured by adopting the due course. “The suggestion of the counsel cannot be accepted for the reason that the Magistrate while passing the impugned order has, in no uncertain terms, stated that the direction is being issued under Section 156(3) of CrPC for investigation and registering of FIR which is permissible only under 156(3) and not under Section 202 CrPC”, Justice Dhar clarified.
Court also recorded that the Magistrate has acted without jurisdiction by issuing a direction for registration of FIR and investigation of the case after having taken cognizance of the offence and recording preliminary statement of the complainant without waiting for the report of the police.
“The impugned order passed by the Magistrate is therefore not sustainable in law and is liable to be set aside. For the forgoing reasons, the petition is allowed. The impugned order and the FIR registered pursuant thereto are quashed with the direction to Magistrate to proceed further in the matter in accordance with the provisions of CrPC”, court directed.