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A Magistrate cannot order any police officer conduct the investigation : Jammu and Kashmir High Court

Only the Government in exercise of their executive powers can authorize any superior police officer to investigate a case and such direction can be issued by the higher officer to his subordinate officer in the police department. This was held in the judgment passed by a single judge bench comprising of HON’BLE MRS. JUSTICE SINDHU SHARMA, in the matter Tanveer Ahmed Zargar and another V. Surinder Kumar and another [IA No. 01/2018], dealt with an issue where the petitioner filed a petition seeking to quash of the complaint titled, ‘Surinder Kumar V/s Tanveer Ahmed Zargar and others’ and the order, passed by the learned Chief Judicial Magistrate.

Grounds of challenge alleged that: (i) The order is illegal, arbitrary and against the law; (ii) The demarcation report which is subject matter of challenge and bone of contention in the complaint has been so carried as per the order of the Sub-Judge, Kishtwar passed in Civil Suit titled, ‘Ravi Kumar V. Jagdish Raj and others’, the Chief Judicial Magistrate, Kishtwar, who has directed the Senior Superintendent of Police, Crime Branch, Jammu to investigate the complaint. (iii) That for investigation of the case, registration of the FIR is necessary but there is no commission of offence disclosed in the complaint except para 8 which shows “that accused have committed offence under sections 109, 167, 504 and 506 RPC as such are required to be dealt under law”.No offence is made out against petitioner No. 1, because what abuse was hurried at respondents is not disclosed. These are some of the grounds of challenge.

Counsel for the petitioners argued that there is no application of mind by the Trial Court in the absence of offence, section 156(3) Cr. PC is not applicable. He has also argued that the Trial Court has simply translated the complaint and not taken into account the said fact before directing the Senior Superintendent of Police, Crime Branch, Jammu to investigate the matter, as such, the said order is illegal.

Counsel for the respondent-Surinder Kumar has argued that petition is not maintainable in view of the law laid down by Hon’ble the Supreme Court in ‘HDFC Securities Ltd. Vs State of Maharashtra and another’.

After hearing both sides, the Hon’ble High Court of Jammu and Kashmir allowed the petition and held that the order impugned is illegal being without jurisdiction in view of the law laid down by Hon’ble the Supreme Court in ‘Kolakkadan Mossa Haji V. State of Kerala and others. It also held that the order of Chief Judicial Magistrate, directing the SSP, Crime Branch, Jammu to investigate the case under section 156(3) Cr.P.C is without jurisdiction and, as such, illegal and it is accordingly quashed.

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Judgement reviewed by – Vaishnavi Raman

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