High Court of Jammu & Kashmir, Srinagar
High Court of Jammu & Kashmir, Srinagar
Litigation News

Magistrate's casual approach in handling case where police failed to act draws J&K HC's censure

Once the case discloses a cognizable offence and the police fail to act, the Court emphasised that it is the Magistrate's duty to direct the police to investigate, rather than simply forwarding the complaint to the SHO

Mohsin Dar

The Jammu and Kashmir High Court at Srinagar recently took critical note of a Judicial Magistrate's abdication of duty in a case where the police had failed file an FIR despite a cognizable offence being disclosed (Sher Ahmad Khan v. UT of J&K and Ors).

As such, the High Court had to intervene to direct the SHO of the Police Station at Kralpora to register an FIR in the matter in terms of the law laid down by the Supreme Court in Lalita Kumari's case.

Justice Sanjay Dhar passed the order in a case involving allegations of trespass and physical attacks by the accused on account of a property dispute.

The petitioner contended that he had approached Kralpora Police Staton with a written complaint against the accused about the occurrence, to no avail.

The petitioner further submitted that on no response forthcoming from the police authorities, he filed a complaint on June 29 with a Judicial Magistrate at Kralpora for the registration of an FIR in the matter.

However, the Magistrate confined to forwarding his complaint to the Kralpora Police Station SHO for necessary action. With no action being taken by the police after this, the petitioner approach the High Court for aid.

The High Court, in turn, took critical note that the Supreme Court's dictum for ensuring the registration of an FIR where a cognizable offence is disclosed as per the Lalita Kumari case has been breached not only by the police but also by the Magistrate.

In particular, the High Court remarked that the Judicial Magistrate has taken the matter casually by simply forwarding the application to SHO for necessary action under the law, thereby abdicating his duty of passing a specific direction to the police authorities to register the FIR and investigate the case.

The law pertaining to the nature of the action required to be taken when a complaint discloses the commission of a cognizable offence has been elucidated by the Supreme Court in Lalita Kumari v, Government of UP, the High Court reiterated.

In that case, it has been held that registration of FIR is mandatory under Section 154 of the CrPC if the commission of a cognizable offence is disclosed. No preliminary inquiry is required in such a situation.

As such the High Court emphasised,

"Forwarding the complaint of the petitioner to SHO Police Station concerned with the remark that necessary action under law may be taken, is not what is expected of a Judicial Magistrate. When a complaint disclosing commission of cognizable offence, is laid down before a Judicial Magistrate 1st Class, it is his bounden duty to ask Incharge of the Police Station concerned to investigate the case."

The Court went on to direct the SHO concerned to register an FIR in the petitioner's case.

The petitioner was represented by Advocate TA Lone. A copy of the order was also forwarded to the Judicial Magistrate who passed the earlier order in the matter.

Read the Order:

Sher Ahmad Khan v. UT of J&K and Ors.pdf
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