HC dismiss petition seeking quashment of FIR
Jammu May-08-2023- The Jammu & Kashmir and Ladakh High Court dismissed the petition of Rajinder Singh seeking quashment of FIR against him for using extremely profane, vulgar, filthy and abusive language against the then Chief Minister.
Justice Rajnesh Oswal after hearing Advocate Jagpaul Singh for the petitioner whereas Deputy AG Deewakar Sharma for the UT, observed that it is evident that if the cognizable and non-cognizable offences arise out of the same facts, then the Police Officer is not debarred from investigating the non-cognisable offence. This issue may not arise now after the enactment of Reorganisation Act of 2019, providing for the applicability of Criminal Procedure Code 1973 in the Union Territory of Jammu and Kashmir, as is applicable in rest of India because Criminal Procedure Code as was applicable in the erstwhile State of J&K had no corresponding provision as 155(4) of the Central Criminal Procedure Code 1973. But it is also true that in terms of section 198 of the Criminal Procedure Code, the cognizance of any offence under Chapter XXI of the Criminal Procedure Code is permissible only upon the complaint made by the person aggrieved or by some other person with the leave of court, when the person aggrieved is unable to do so in view of the contingencies provided in the section (supra). Admittedly in the instant case, the person aggrieved is the Ex-Chief Minister and is not suffering from any disability as provided under section 198 of Criminal Procedure Code. Section 2(d) Cr.P.C provides that the complaint means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some persons, whether known or unknown has committed an offence but does not include police report. Thus, the police report does not amount to a complaint except where the police officer after investigation makes a report about the commission of a non-cognizable offence. So far as instant case is concerned, it is not the case of the petitioner that the Police has filed a complaint before the Magistrate as the matter is still under investigation.
Court further observed that it can be safely held that the bar as prescribed by section 198 Criminal Procedure Code would come in to play at the time of taking cognisance of offence and not before that. As the Police is investigating the allegations and stage of cognizance has not reached as yet, therefore the contention of the petitioner is rejected. It is clarified that FIR cannot be registered for commission of offence under section 501 RPC only and the Police can register an FIR and investigate the said offence only when there are allegations with regard to commission of cognizable offence as well. The other contention of the petitioner is that no offence under section 509 RPC is made out as the language allegedly used by the petitioner is only abusive but not intended to outrage the modesty of the Woman. The words uttered by the petitioner are not only abusive, but have the potentiality of outraging the modesty of the woman. More so, this contention of the petitioner cannot be appreciated at this stage particularly when the investigation is continuing and this court while exercising powers under section 561-A (Now 482) of Cr.P.C cannot conduct mini trial in respect of the allegations leveled against the petitioner while examining the validity of registration of FIR.
With these observations, Justice Rajnesh OSwal observed that the petition is found to be without merit and is dismissed and directed the Investigating Officer shall conclude the investigation as expeditiously as possible, preferably within the period of three months. JNF