Excelsior Correspondent
JAMMU, Sept 19: The High Court of Jammu & Kashmir and Ladakh has set aside an order passed by a Mendhar Magistrate in a case involving allegations under Sections 376 and 341 RPC, observing that the trial court had “fallen into grave error of law” by creating evidence and taking cognizance in a closure report.
Justice Rajesh Sekhri, while allowing the petition of Ali Haider Shah, ruled that a Magistrate cannot rely upon fresh statements or affidavits produced by a complainant to resurrect a case closed by the police. The High Court emphasized that if a Magistrate intends to consider such additional material, the matter must be treated as a private complaint under Chapter XV of the Criminal Procedure Code (CrPC) and proceeded accordingly.
The controversy stemmed from an FIR lodged at Police Station Gursai in 2016, in which the petitioner was arrested. However, after four separate investigations found no evidence, he was released under Section 169 CrPC and a closure report was submitted to the trial court. Despite this, the Munsiff (Judicial Magistrate First Class), Mendhar, recorded the statement of the complainant and admitted an affidavit of one Haji Manzoor Hussain, before taking cognizance and issuing process against the accused in 2017.
The High Court observed that while a Magistrate is empowered to disagree with a closure report and take cognizance under Section 190(1)(b) CrPC, he cannot go beyond the case diary and introduce fresh evidence at that stage.
Justice Sekhri noted that by admitting the affidavit of an independent witness and relying on the complainant’s statement, the Magistrate had “misdirected himself and embarked upon an unchartered territory.”
The High Court clarified that in such circumstances, the only lawful course available was to treat the case as a private complaint under Section 190(1)(a) CrPC, after following the procedure prescribed under Sections 200 and 202.
Holding that the trial court had usurped the powers of the investigating agency, the High Court quashed the impugned order dated 08.08.2017. However, it granted liberty to the Magistrate to proceed afresh strictly in accordance with law under Chapter XV CrPC, if so warranted.
The High Court made it clear that its observations should not be construed as an opinion on the merits of the allegations.
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