CRM(M) No. 68/2023 Page 1 of 12 Serial No.15 Regular List IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR. CRM(M) No. 68/2023 CrlM No. 358/2024 Abdul Rashid Dar & Ors. ….. Petitioner(s) Through: - Mr. Mohammad Ashraf Bhat, Advocate. V/s Union Territory of J&K& Ors. ….. Respondent(s) Through: - Ms. Ahra Syed, Advocate (R-3). Ms. Maha Majid, Assisting counsel vice Mr. Mohsin Qadri, Sr. AAG ( 1 & 2). CORAM: HON’BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE O R D E R (ORAL) 05.08.2025. 1. In the instant petition, the petitioner herein has invoked the inherent power of this Court enshrined under Section 482 Cr.P.C.(Now Section 528 BNSS), for quashing of FIR No. 01/2023, under Sections 447, 427 and 468 IPC, registered with Police Station, Ahmad Nagar, Srinagar. . 2. The facts giving rise to the filing of the instant petition as stated in the petition are that the petitioners 1 to 4 herein as plaintiffs filed a suit for permanent injunction against the respondent 3 herein along with one Ali Ahmad Jan S/o Ali Mohammad Jan R/o Magarmal Bagh, Srinagar, being defendant 3 therein stating therein that they, the plaintiffs inherited from their ancestors land measuring 29 Kanals falling under Khasra No. 103, 109 situated at Devipora Elllahi Bagh, Srinagar and out of the said land sold 15 Kanals and that over the remaining land, the defendants in the suit encroached thereupon as CRM(M) No. 68/2023 Page 2 of 12 the said defendants also possess an adjacent piece of land falling under Khasra Nos. 112, 113, 114 and 115 and have started illegal and unauthorized construction over the said encroached land including the common pathway falling under Survey No. 109, that too, without obtaining any prior permission from the competent authority, and in the process blocked the ingress and egress to the land of the plaintiffs-petitioners herein and upon the failure of the defendants in the suit to stop the said encroachment and illegal construction, the plaintiffs-petitioners herein were left with no option but to file the suit. In the said suit, accompanied with the application for grant of ad-interim relief, the trial court being the court of 2nd Additional Munsiff, Srinagar passed an interim order on 1st of August, 2022, directed the maintenance of status-quo with respect to the suit property, followed by another order dated 26th September, 2022, whereby the Tehsildar Eidgah came to be directed to make spot inspection of the suit property and submit a report, whereafter was submitted on 18th of November, 2022 before the trial court, stating therein that the plaintiff-Abdul Rashid Dar is the owner in possession of land measuring 4 Kanals, 03 Marlas falling under survey No. 103 and the defendant-Ahmad Ali Jan is the owner of land measuring 61 Kanals, 13 Marlas, falling under Survey Nos. 143, 113, 114, 115, 116, 117, 141/112 and 118, however, the said defendant instead is in possession of 60 Kanals, 13 Marlas and 238 Sft, and that a general pathway measuring 1 Kanal and 12 Marlas, exists under Survey No. CRM(M) No. 68/2023 Page 3 of 12 109 between the plot of the plaintiffs and defendants which pathway stands encroached upon by the plaintiffs-petitioners herein. 3. The trial court in the meantime passed order on 3rd August, 2022, directing the SHO Ahmad Nagar to implement the interim order dated 1st August, 2022, upon an application filed by the plaintiffs. 4. On 31st December, 2022, the trial court passed another order wherein, the trial court clarifying that the basic interim order dated 1st August, 2022 of status quo must maintained with respect to the suit property covered under Survey Nos. 103 and 109. 5. During the pendency of the aforesaid suit and the aforesaid orders passed therein, an application under Section 156(3) Cr.P.C., came to be filed by the respondent 3 herein before Chief Judicial Magistrate, Srinagar (CJM, Srinagar) for and on behalf of one Raziya Fazili D/O Ali Mohammad Jan Fazili R/O 57-A Government Housing Colony Rawalpora, Sanatnagar, Srinagar, alleging therein in the said application that the applicant owns land measuring 61 Kanals, 13 Marlas at Devipora, Ellahi-Bagh, Eidgah, Srinagar and that attempts are being made by the accused persons-petitioners herein to encroach upon the said land of the applicant with the purpose to sell the said land to some third person as the accused persons-petitioners are the land brokers/land mafia in the area and with their muscle power intend to grab the properties of the innocent persons and that though the accused persons-petitioners herein were requested by the applicant not to encroach upon her land, the said accused persons- petitioners however, in turn told the applicant that they have CRM(M) No. 68/2023 Page 4 of 12 documents viz-a-viz, the said land of the applicant and as such, have a right to use the same for their personal use, suggesting that the accused persons-petitioners have manipulated and forged the fake documents with respect to the land of the applicant, although a civil suit is pending before the court of 2nd Additional Munsiff, Srinagar, filed by the accused persons petitioners herein pertaining to the land in question and in fact under the garb of an interim order obtained therein in the said suit, the accused persons-petitioners herein are trying to take forcible possession of the land of the applicant which the accused persons have no right or interest thereof, whereupon the applicant approached the concerned Police Station for lodgment of an FIR against the accused-petitioners herein which however, was not registered, where after the applicant approached the SSP, Srinagar who too failed to look into the matter and consequently, compelled the applicant to maintain the application, supported by an affidavit for directing the registration of the FIR in the matter against the accused-petitioners herein. 6. The aforesaid application upon being entertained came to be forwarded by the CJM, Srinagar, to the SDPO Hazratbal for enquiry in terms of order dated 19th December, 2022, consequent upon which a report came to be submitted before the CJM, Srinagar on 13th December, 2022, providing therein in the said report that during the course of holding of enquiry, Tehsildar Eidgah has examined the matter who stated that on ground verification and demarcation of the land by a team consisting of Naib-Tehsildar, Girdawar, Patwari and Settlement Assistant, it got revealed that Ali Ahmad Jan Fazili CRM(M) No. 68/2023 Page 5 of 12 S/O Ali Mohammad Jan Fazili is the owner of the land measuring 61 Kanals, 13 Marlas falling Survey Nos. 143, 113,114, 115,116, 117, 141/112 and 118, however, at present is in possession of 60 Kanals, 13 Marlas, 238 Sft, whereas from amongst the accused persons, only one Abdul Rashid Dar S/o Sonaullah Dar is found to be owning land measuring 4 Kanals, 03 Marlas under Survey No. 103, and that the revenue extract issued by Patwari on 8th July, 2022 wherein the said Patwari had provided that under Khasra No. 103 Mohammad and Sona (father of Abdul Rashid Dar, Abdul Aziz Dar, Bashir Ahmad Dar Ss/o Jamal Dar R/o Devipora Ellahibagh) showing them the owners of land measuring 39 Kanals, 13 Marlas, however, does not get corroborated by the present demarcation done under the supervision of Tehsildar Eidgah wherein only 4 Kanals and 03 Marlas of land under survey No. 103 were found to be owned by Abdul Rashid Dar S/o Sonaullah Dar and that during the enquiry on ground as per the revenue records/statement of Tehsildar and Naib- Tehsildar, Soura, the claim of the accused persons is not made out and on ground only 04 Kanlas, 03 Marlas of land under Khasra No. 103 belongs to Abdul Rashid Dar S/o Sonaullah Dar and that as per the statement recorded, the accused persons are interfering with the property of Ali Ahmad Jan being taken care of by one Irfan Ahmad Baba and on number of times, the accused persons trespassed into the said land and removed the fencing and damaged the concrete block under the garb of the revenue extract dated 08th July, 2022 issued by patwari Bashir Ahmad Bhat. CRM(M) No. 68/2023 Page 6 of 12 7. The trial court upon receipt of the aforesaid report in terms of order dated 13th December, 2022, observed and opined that there is incriminating material against the accused persons qua the land in question in regard to which no action seems to have been taken by the concerned police, as such, directed the Police Station concerned to investigate the matter thoroughly and go ahead with the proceedings in terms of the status report filed by them and register an FIR against the accused persons. 8. The accused persons-petitioners herein feeling aggrieved of order dated 13th December, 2022, preferred a revision petition before the 3rd Additional Sessions Judge, Srinagar on 23rd January, 2023, wherein as an interim measure while admitting the said revision petition, the said court stayed the order dated 13th December, 2022. The said revision petition is stated to be pending as on date and as per counsel for the parties during the pendency of the said revision petition, the accused-petitioners have maintained the instant petition having been filed on 23rd February, 2023. 9. Petitioners have maintained the instant petition inter alia on the grounds that the impugned order is illegal as in the application filed under Section 156(3) Cr.P.C., there was no incriminating material against the petitioners herein and that the impugned order has violated the liberty of the petitioners leaving them at the mercy of the SHO concerned and that the applicant-Irfan Ahmad had no authority to file the application when the owner of the land in question was contesting the civil suit in the matter pending before the court of 2nd Additional Munsiff, Srinagar and that since the impugned CRM(M) No. 68/2023 Page 7 of 12 order is bad in law and its correctness and proprietary is challenged in the revision petition separately having been stayed in the said revision petition and yet on the basis of the said impugned order, FIR under challenge has been lodged, compelling the petitioners to challenge the impugned FIR separately and that the report submitted by the police before the Magistrate in the matter does not substantiate any incriminating material against the petitioners and that the FIR is false and frivolous and that in presence of the civil dispute in the matter pending between the parties before the court of 2nd Additional Munsiff, Srinagar, the impugned FIR could not have been registered against the petitioners herein and that the respondent 2 has misused his powers while registering the impugned FIR and same is being used as a weapon of harassment against the petitioners. 10. Respondent 2 has filed two status reports pursuant to the orders of this Court wherein in the status report dated 22nd March, 2024, it is being reiterated that the accused persons-petitioners herein have encroached upon the land of Ali Ahmad Jan under the garb of a revenue extract provided to them by the Patwari and that the investigation in the case has been completed, however, challan could not been laid before the competent court in view of the order of this Court dated 01st of March, 2023. Heard learned counsel for the parties and perused the record. 11. Having regard to the facts and circumstances of the instant case, the moot question to be adverted to would be whether the exercise of inherent power vested unto to this Court is warranted or not in the case in hand. CRM(M) No. 68/2023 Page 8 of 12 12. Law is settled in regard to the exercise of said inherent power by the Apex Court in a series of judgments, wherein it has been the consistent view that the power possessed by the High Court under Section 482 of the Code, though is very wide, yet the very plentitude of the power requires great caution in its exercise and that the Courts must be careful to see that its decision to exercise the said power is based on sound principles and the exercise thereof should not stifle a legitimate prosecution and that when a prayer is made for quashing of an FIR by the accused, the Court while exercising inherent power has only to consider whether the allegations under the FIR disclose the commission of a cognizable offence or not and that the Court must keep its hands off to allow the investigating agency to complete the investigation without any fetter and also refrain from passing any order which may impede the trial with a further rider that the Court should not go into the merits or demerits of the allegations simply because the accused alleges malus animus against the author of the FIR. 13. Keeping in mind the aforesaid principles of law and reverting back to the case in hand, it is not in dispute that before passing the order dated 13.12.2022, the Magistrate upon entertaining the application of the complainant filed under section 156(3) Cr.P.C. have had directed holding of an enquiry into the matter by the SDPO Ahmad Nagar in terms of order dated 19th December, 2022 in which enquiry, various revenue officials including Tehsildar Eidgah, had been examined as also a report drawn and framed under his supervision by a team of revenue officers/officials consisting of CRM(M) No. 68/2023 Page 9 of 12 Naib-Tehsildar, Girdawar, Patwari and Settlement Assistant framed upon a demarcation, inspection and enquiry conducted with respect to the subject land and wherein it had specifically been concluded that amongst the accused persons Abdul Rashid Dar S/o Sonaullah Dar only is the owner in possession of land measuring 4 Kanals, 03 Marlas covered under Survey No.103 and none other accused persons-petitioners herein and that Ali Ahmad Jan Fazili S/o Ali Mohammad Jan Fazili owns the land measuring 61 Kanals, 13 Marlas, covered under Khasra Nos.143, 113,114, 115,116, 117, 141/112 and 118, though at present is in possession of land measuring 60 Kanals, 13 Marlas 238 Sft and that the accused persons-petitioners herein under the garb of a revenue extract issued by one Patwari namely Bashir Ahmad Bhat on 8th July, 2022 in favour of the accused persons, showing them to be the owners of land measuring 39 Kanals and 13 Marlas, under Survey No. 103 was found to be uncorroborated as per the relevant revenue records while providing further that the accused persons-petitioners herein had in fact trespassed into the proprietary land of said Ali Ahmad Jan Fazili, number of times, and removed fencing of the said land besides damaging the concrete block laid around the said land. 14. Record reveals that based upon the said report of enquiry furnished by the police agency to the Magistrate, the Magistrate rightly ordered registration of FIR in terms of provisions of Section 156(3) Cr.P.C. and order came to be passed and consequently impugned FIR registered. CRM(M) No. 68/2023 Page 10 of 12 The Apex Court in case tilted as Vinubhai Haribhai Malaviya and others versus State of Gujrat and another, reported in (2019) 17 SCC 1 has in regard to ambit and scope of Section 156(3) Cr.P.C. held at paragraphs 24 and 25 as under:- “24. Likewise, in Sakiri Vasu v. State of U.P. and Ors. (2008) 2 SCC 409, this Court held: “12. Thus in Mohd. Yousuf v. Afaq Jahan [(2006) 1 SCC 627: (2006) 1 SCC (Cri) 460: JT (2006) 1 SC 10] this Court observed: (SCC p. 631, para 11) “11. The clear position therefore is that any Judicial Magistrate, before taking cognizance of the offence, can order investigation under Section 156(3) of the Code. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. For the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After all registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the officer in charge of the police station as indicated in Section 154 of the Code. Even if a Magistrate does not say in so many words while directing investigation under Section 156(3) of the Code that an FIR should be registered, it is the duty of the officer in charge of the police station to register the FIR regarding the cognizable offence disclosed by the complainant because that police officer could take further steps contemplated in Chapter XII of the Code only thereafter.” 13. The same view was taken by this Court in Dilawar Singh v. State of Delhi [(2007) 12 SCC 641 : JT (2007) 10 SC 585] (JT vide para 17). We would further clarify that even if an FIR has been registered and even if the police has made the investigation, or is actually making the investigation, which the aggrieved person feels is not proper, such a person can approach the Magistrate under Section 156(3) Cr.PC, and if the Magistrate is satisfied he can order a proper investigation and take other suitable steps and pass such order(s) as he thinks necessary for ensuring a proper investigation. All these powers a Magistrate enjoys under Section 156(3) Cr.PC. 14. Section 156(3) states: “156. (3) Any Magistrate empowered under Section 190 may order such an investigation as abovementioned.” The words “as abovementioned” obviously refer to Section 156(1), which contemplates investigation by the officer in charge of the police station. CRM(M) No. 68/2023 Page 11 of 12 15. Section 156(3) provides for a check by the Magistrate on the police performing its duties under Chapter XII Cr.PC. In cases where the Magistrate finds that the police has not done its duty of investigating the case at all, or has not done it satisfactorily, he can issue a direction to the police to do the investigation properly, and can monitor the same. 16. The power in the Magistrate to order further investigation under Section 156(3) is an independent power and does not affect the power of the investigating officer to further investigate the case even after submission of his report vide Section 173(8). Hence the Magistrate can order reopening of the investigation even after the police submits the final report, vide State of Bihar v. J.A.C. Saldanha [(1980) 1 SCC 554: 1980 SCC (Cri) 272 : AIR 1980 SC 326] (SCC: AIR para 19). 17. In our opinion Section 156(3) Cr.PC is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation, and it includes the power to order registration of an FIR and of ordering a proper investigation if the Magistrate is satisfied that a proper investigation has not been done, or is not being done by the police. Section 156(3) CrPC, though briefly worded, in our opinion, is very wide and it will include all such incidental powers as are necessary for ensuring a proper investigation. 18. It is well settled that when a power is given to an authority to do something it includes such incidental or implied powers which would ensure the proper doing of that thing. In other words, when any power is expressly granted by the statute, there is impliedly included in the grant, even without special mention, every power and every control the denial of which would render the grant itself ineffective. Thus where an Act confers jurisdiction it impliedly also grants the power of doing all such acts or employ such means as are essentially necessary for its execution.” 25. It is thus clear that the Magistrate’s power under Section 156(3) of the Cr.PC is very wide, for it is this judicial authority that must be satisfied that a proper investigation by the police takes place. To ensure that a “proper investigation” takes place in the sense of a fair and just investigation by the police - which such Magistrate is to supervise - Article 21 of the Constitution of India mandates that all powers necessary, which may also be incidental or implied, are available to the Magistrate to ensure a proper investigation which, without doubt, would include the ordering of further investigation after a report is received by him under Section 173(2); and which power would continue to ensure in such Magistrate at all stages of the criminal proceedings until the trial itself commences. Indeed, even textually, the “investigation” referred to in Section 156(1) of the CrPC would, as per the definition of “investigation” under Section 2(h), include all proceedings for collection of CRM(M) No. 68/2023 Page 12 of 12 evidence conducted by a police officer; which would undoubtedly include proceedings by way of further investigation under Section 173(8) of the Cr.PC. 15. Having regard to what has been noticed, considered and analyzed hereinabove including the position of law, this Court is of the considered opinion that the exercise of inherent power is not warranted. Resultantly, the petition fails and is, accordingly, dismissed. As a consequence of aforesaid discussion and dismissal of the instant petition, the aforesaid revision petition filed by the petitioners herein and claimed to be pending before the court of learned 3rd Additional Sessions Judge, Srinagar, wherein the order dated 13th December, 2022, passed by the Magistrate pursuant to which the FIR under challenge has been got registered shall also stands dismissed. 16. Registry to send down a copy of this order to the court of 3rd Additional Sessions Judge, and 2nd Additional Munsiff, Srinagar for information. (Javed Iqbal Wani) SRINAGAR Judge 05.08.2025 “Abdul Rashid” Whether the order is speaking? Yes/No Whether approved for reporting? Yes/No Abdul Rashid Ganaie I attest to the accuracy and authenticity of this document :14.08.2025 10:26