In a fresh and significant development, the Jammu and Kashmir High Court has in a latest, landmark and laudable judgment titled Sami-ullah Naqashbandi V/s Sadaf Niyaz Shah in CRM(M) No. 113/2020 : Crim. No. 316/2020 has elegantly, explicitly and effectively held that once a Magistrate takes cognizance of an offence, he is, thereafter, precluded from ordering an investigation under Section 156(3) of the Code. It must be mentioned here that while taking serious note of the abuse of process of law by a Judicial Magistrate First Class, the Bench of Justice Ali Mohammad Magrey of Jammu and Kashmir High Court directed the Director of 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. Very rightly so!

To start with, the ball in set rolling first and foremost in para 1 of this notable judgment authored by Justice Ali Mohammad Magrey of Jammu and Kashmir High Court wherein it is observed that,  The instant petition, filed under Section 482 of Code of Criminal Procedure (for short Code) seeking quashment of order dated 25.06.2020 read with order dated 11.05.2020 passed by the Judicial Magistrate 1st Class (3rd Additional Munsiff/JMIC, Srinagar).

While setting out the brief facts of the case, it is then postulated in para 2 that:
Petitioner while performing his duties as Naib Tehsildar, Executive Magistrate, Khanyar, came to know about filing of the complaint by respondent against him as well as other accused persons. The said complaint stated to be filed for commission of offences under Section 166, 166-A and 167, 354, 201, 209 and 120-B IPC. The said complaint was assigned to the Court of Judicial Magistrate 1st Class (3rd Additional Munsiff/JMIC, Srinagar), by the learned CJM, Srinagar. In the said complaint, petitioner has prayed for registration of FIR or in the alternative cognizance of offence mentioned in the complaint.

It is stated that the grouse of respondent revolved around possession and dispossession of respondent herein from the property, violation of lease agreement, rights of respondent at the hands of non-applicant therein. It is stated that upon presentation of the complaint the Judicial Magistrate 1st Class (3rd Additional Munsiff/JMIC, Srinagar), passed the following order:
......After going through the averments made in the application, I deem it proper to get the matter investigated before issuing any process in the matter against the accused person. Since the applicant has put allegations against Tehsildar and Naib Tehsildar also, therefore, the investigation shall be conducted in the instant matter by the SSP, Srinagar. Accordingly, the SSP Srinagar is directed to investigate the matter either by himself or through any police officer not below the rank of SDPO in the earnest and submit his report before the undersigned......

To be sure, it is then stated in para 8 that, From the perusal of the complaint it is evident that the respondent has filed the complaint before the Magistrate on 11.05.2020, and on the same day, it was forwarded to SSP, Srinagar, for holding of enquiry and thereafter submitted the report, which report formed the basis for Magistrate to direct investigation in terms of Section 156(3), Cr.PC., because as per Police no cognizable offence appears to have been made out.

Truly speaking, it is then asked in para 9 that, The foremost question, thus, arises as to whether the Magistrate was right in issuing direction for investigating the matter in terms of Section 156(3) of Cr.PC., after the process was deferred till completion of enquiry in terms of Section 202 of Cr.PC.

To put things in perspective, it is then pointed out by the Bench in para 10 that, 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 receipt of the 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.
Be it noted, para 19 then states that:
Power under Section 202 is of different nature. Report sought under the said provision has the limited purpose of deciding whether or not there is sufficient ground for proceeding.

If this be the object, the procedure under Chapter XV of the Code of Criminal Procedure are required to be adhered to in letter and spirit.
As it turned out, it is then stipulated in para 20 that:
Admittedly the Magistrate has taken cognizance and find it necessary to postpone issuance of process, therefore, directed for enquiry by the Police and on receipt of the report from SSP, Srinagar, the Magistrate was required to proceed in terms of the provisions contained in Chapter XV of the Criminal Procedure Code. Thus, I answer the first question by holding that the direction under Section 156(3) is to be issued, only after application of mind by the Magistrate.

When the Magistrate does not take cognizance and does not find it necessary to postpone issuance 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. Subject to these broad guidelines available from the scheme of the Code, exercise of discretion by the Magistrate is guided by interest of justice from case to case.

To put it succinctly, it is then stated in para 21 that:
To reiterate for the guidance of all the Magistrates in the Union Territory of Jammu and Kashmir and Union Territory of Ladakh, it has become necessary to refer the Judgment reported in (2010) 4 Supreme Court Cases 185 titled Rameshbhai Pandurao Hedau Vs. State of Gujarat, 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.

Significantly, it is then pointed out in para 22 that, The settled legal position has been enunciated by the Hon'ble Supreme Court in several decisions and has observed that the Courts are ad idem on the question that the powers under Section 156(3) can be invoked by the Magistrate at a pre-cognizance stage, whereas powers under Section 202 of the Code are to be invoked after cognizance is taken on a complaint, but before issuance of process. Such a view has been expressed in Suresh Chand Jain case reported in (2001) 2 SCC 6218 : 2001 SCC (Cri) 377 as well as in Dharmeshbhai Vasudevbhai case, reported in (2009) 6 SCC 576 : (2009) 3 SCC (Cri) 76 and in Devarapalli Lakshminarayana Reddy case, reported in (1976) 3 SCC 252 : 1976 SCC (Cri) 380.

More significantly, without mincing any words, it is then aptly pointed out in para 23 that:
On examination of the trial Court records, what transpired is that the learned 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.

When the Magistrate does not take cognizance and does not find it necessary to postpone issuance of process and finds a case made out to proceed forthwith, direction under the said provision is issued. In other words, where on account of credibility of information available, or weighing the interest of justice it is considered appropriate to straightaway direct investigation, such a direction is issued. In the present case, the Magistrate takes cognizance and postpones the issuance of process, as the Magistrate has yet to determine existence of sufficient ground to proceed. Therefore, the Magistrate has abused the process of law by not adhering to the procedure.


Most significantly, it is then envisaged in para 24 that:
I feel it necessary to refer the decision of the Hon'ble Supreme Court delivered in Dilawar Singh V. State of Delhi case, reported in (2007) 12 SCC 641 : (2008) 3 SCC (Cri) 330, where the difference in the investigative procedure in Chapters XII and XV of the Code has been recognized and in that case the Hon'ble Supreme Court also appears to have taken the view that any Judicial Magistrate, before taking cognizance of an offence, can order investigation under Section 156(3) of the Code and in doing so, he is not required to examine the complainant since he was not taking cognizance of any offence therein for the purpose of enabling the police to start investigation.

Reference has been made to the decision of the Court in Suresh Chand Jain case reported in (2001) 2 SCC 628 : 2001 SCC (Cri) 377. In other words, as indicated in the decisions referred to hereinabove, once a Magistrate takes cognizance of the offence, he is, thereafter, precluded from ordering an investigation under Section 156(3) of the Code.

As a corollary, what then follows is stated in para 25 that, In view of the above discussion, this petition is allowed and order dated 25.06.2020, passed by the Judicial Magistrate 1st Class (3rd Additional Munsiff/JMIC, Srinagar) is set aside, however, the Magistrate shall proceed from the stage on receipt of report in terms of Chapter XV of the Code, viz Section 202(1) onwards.

Finally, it is then held in the last para 26 that:
Since the Court has taken a view that the approach adopted by the learned Magistrate in conducting the case in hand, has not been in consistent with law, rather is an abuse of the 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. Disposed of. Registry to send down the records along with copy of order to the Judicial Magistrate 1st Class (3rd Additional Munsiff/JMIC), Srinagar, for enabling him to proceed in the matter in accordance with law.

To conclude, this latest, landmark and laudable judgment by a single Judge Bench of Jammu and Kashmir High Court of Justice Ali Mohammad Magrey has clearly, categorically and convincingly held that once a Magistrate takes cognizance of an offence, he is, thereafter, precluded from ordering an investigation under Section 156(3) of the Code. It also directed the Director of 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. This was considered imperative so that no Judge in future errs gravely on this!

Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh