1 Serial No. 23 Reg Cause List HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR CRM(M) 486/2024 SONAULLAH SHEIKH … Petitioner(s) Through: Mr. Faisal Javid, Advocate Vs. UNION TERRITORY OF J AND K AND ORS. ...Respondent(s) Through: Mr. Ilayas Laway, GA for R-1-2 Mr. Syed Irfan, Advocate for R-3 CORAM: HON’BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE ORDER 27.08.2025 (ORAL) 1. The petitioners herein has invoked inherent power of this Court enshrined under section 528 BNSS challenging order dated 26.06.2024 passed by the Court of learned Judicial Magistrate First Class, Anantnag and consequent FIR registered thereto being FIR No. 0053/2024 of P/S Ashmuqum for the commission of offences under section 147,341,323,354 IPC 2. Facts emerging from the record would reveal that the respondent-3 herein filed an application on 25.04.2024 under section 156(3) Cr PC now 175(3)BNSS before the Magistrate seeking a direction for registration of an FIR against the petitioners herein on the premise that on 09.04.2024, when she, the complainant-respondent- 3 2 herein was laying a bridge on a Koel for the purposes of having access to their land, in which the respondent -2 therein the said application and petitioner-2 herein rendered also his assistance thereof, however, on the very same day later in the evening while visiting the said land, she, the complainant-respondent-3 herein found that the petitioners herein have dismantled the said bridge inasmuch as disposed of the material of the said bridge and upon being asked by the complainant-resondent-3 herein the reason for dismantling of the bridge, the respondent-2/petitioner -2 herein caught hold of her by her collar joined by respondents 3-7/ petitioner 3-7 herein and ruthlessly beat the complainant/respondent herein dragged her and hit her arm with a stick besides tearing her head scarf out raging her modesty and that on account of her being wounded in the incident, she, the complainant/respondent-3 herein could not approach the police station concerned on the said date 09.04.2024, however, thereafter submitted written complaint supported with an OPD Ticket of SDH Seer Hamdan, pertaining to the injuries sustained by her, which complaint, however, was not entertained by the SHO-respondent-2 herein whereupon on 15.04.2024, the complainant-respondent -3 herein submitted an application before SSP Anantnag reporting the whole matter to him as also the inaction of the SHO concerned which application came to be endorsed by 3 the SSP concerned to the SHO, who, however, did not take any action thereof compelling the complainant- respondent -3 to approach the Magistrate through who after entertaining the said application in terms of order dated 25.04.2024 sought a report from the SHO concerned as to why he failed to lodge FIR in the matter, in response whereof the SHO reported that since no female was found to be present on the date of occurrence and no offence committed and as such FIR was not registered, and the Magistrate, however, not being convinced with the said right of the SHO and having regard to the contents of the application filed by the complainant-respondent 3 herein, directed registration of an FIR against the accused persons/petitioners herein and conducting of investigation thereof while clarifying it therein in the order that in the event the investigation reveals commission of offences by the accused persons, charge sheet be filed and in the event no offence is found to have been committed by the accused persons, the closure report thereof be filed, and pursuant to the said order dated 26.04.2024, passed by the Magistrate, FIR No. 0053/2024 dated 26.06.2024 for commission of offences under section 147, 341, 323, 354 IPC came to be registered against the accused persons thereof being petitioners herein. 4 3. Aggrieved of the said order dated 26.06.2024, by the Magistrate as also the consequential FIR dated 26.06.2024 registered thereunder, the petitioners have maintained the instant petition calling in question both on the premise that the same are patently bad and illegal and without jurisdiction inasmuch as against law besides being abuse of process of law and that the Court below failed to appreciate the mandate of section 210 Cr PC as the application filed by the complainant/respondent-3 herein under section 156(3) Cr PC ought to have been stayed by the Magistrate without conducting any proceeding thereof in presence of the counter FIR having got registered for the same incident by the petitioners herein against the respondent 3 herein. Heard learned counsel for the parties and perused the record. 4. Before proceeding to advert to the case set up by the petitioners in the instant petition it is significant to mention here that prior to the registration of the impugned FIR, the complainant/respondent- 3 herein while maintaining the application under section 156(3) Cr PC, before the Magistrate have had specifically pleaded that on the next date of occurrence she approached the concerned police station for registration of the FIR after having received treatment in the hospital which FIR, however, was not registered 5 whereafter the complainant/respondent-3 approached the SSP concerned on 15.04.2024, by way of an application wherein an endorsement was made to the SHO concerned for taking appropriate action which action was not taken as well by the SHO and finally the application came to be filed by the complainant/respondent-3 under section 156(3) of the Cr PC. 5. It is settled law that section 156(3) Cr PC empowers a Magistrate to order a police inquiry in a case, where the Magistrate does take cognizance or else issue process at once, thus, manifestly suggesting that the power under section 156(3) Cr PC is to be exercised by the Magistrate before taking cognizance of offence. The said power under section 156(3) Cr PC directing the police to investigate a case is however distinct and different from the power of the Magistrate contemplated in section 202 Cr PC as both sections operate in distinct spheres at different stages, while risking repetition, the power exercised under section 156(3) Cr PC is exercisable at the pre-cognizance stage, whereas the power exercised under section 202 Cr PC is exercisable at the post- cognizance stage when the Magistrate is in seizer of the case, and, in case the Magistrate chooses to exercise power under section 156 (3 ) Cr PC, the Magistrate is not required to examine the complainant on oath as the Magistrate is not taking cognizance of any offence, 6 whereas in case of an inquiry/investigation under section 202 Cr PC, the scope of the same is limited only to ascertain the truth or falsehood of the allegations made in the complaint on the material placed by the complainant before the Magistrate and for the limited purpose of finding out whether a prima facie case for issue of process is made out or not and for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have. 6. Before proceeding further in the matter, a reference to the provisions of section 210 Cr PC being heavily relied upon by the petitioners herein in the instant petition inasmuch as alleged to have observed in breach by the Court below also becomes imperative and same is reproduced hereunder. 210. Procedure to be followed when there is a complaint case and police investigation in respect of the same offence. (1)When in a case instituted otherwise than on a police report (hereinafter referred to as a complaint case), it is made to appear to the Magistrate, during the course of the inquiry or trial held by him, that an investigation by the police is in progress in relation to the offence which is the subject-matter of the inquiry or trial held by him, the Magistrate shall stay the 7 proceedings of such enquiry or trial and call for a report on the matter from the police officer conducting the investigation. .(2) If a report is made by the investigating police officer under section 173 and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report. .(3) If the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of this Code. The perusal of the aforesaid provisions of Section 210 Cr PC reveals that the condition precedent for application of the said section is the pendency of an inquiry or trial and for attracting the application of the said provision of section 210 Cr PC there must be a complaint case pending inquiry or trial before a Magistrate and during the course of such inquiry or trial in the complaint case it must be made appear to the Magistrate that an investigation by the police is in progress in relation to the offence which is the subject 8 matter of the inquiry or trial held by him in the said complaint case. 7. 7. Reverting back to the case in hand, it is also pertinent to mention here that the petitioners herein lodged FIR No. 22/2024 on 09.04.2024 against the respondent-3 besides other accused persons qua the incident dated 09.04.2024, and qua the said incident the respondent - 3 herein as well had sought registration of an FIR against the petitioners herein which FIR, however, came to be lately registered through intervention of the Magistrate upon an application filed wherein impugned order came to be passed and consequently FIR 53/2024 registered against the petitioners herein. Record indisputably tends to show that in both the FIRs the complainants are different so are the accused persons although the incident is of the same date and place as such in presence of the said factual position obtaining in the matter, the application of the provisions of Section 210 Cr PC cannot but be said to be misconceived and misplaced. A reference in this regard to the judgment of the Apex Court passed in case titled as “Pal Alias Palla Vs. State of Utter Pradesh reported 2010 (10) SCC 123, would also be relevant wherein it has been held the section 210(1) Cr PC contemplates a situation where having taken cognizance of an offence in respect of an accused in a complaint case, in a separate police investigation such person is again made an accused and not in case, where accused 9 person is different in the two separate proceedings, versions in the complaint case and police report are totally different, though arising out of the same incident. A further reference in this regard the judgment of the Apex Court passed in case titled as “Upkar Singh Vs. Ved Prakash decided on 10.09.2004, would be also relevant wherein following has been laid down:- 23. Be that as it may, if the law laid down by this Court in T.T. Antony’s case is to be accepted as holding a second complaint in regard to the same incident filed as a counter complaint is prohibited under the Code then, in our opinion, such conclusion would lead to serious consequences. This will be clear from the hypothetical example given herein below i.e if in regard to a crime committed by the real accused he takes the first opportunity to lodge a false complaint and the same is registered by the jurisdictional police then the aggrieved victim of such crime will be precluded from lodging a complaint giving his version of the incident in question consequently he will be deprived of his legitimated right to bring the real accused to books. This cannot be the purport of the Code. 10 8. Thus, the plea of the petitioners qua the application of the provisions of section 210 Cr PC to the case in hand in view of above is grossly misplaced and misconceived. 9. Insofar as the challenge thrown to the impugned FIR is concerned, the quashing of an FIR at its threshold by the High Court in exercise of inherent power has been deliberated upon by the Apex Court in a series of judgments including in case titled as “M/S Neeharika Infrastructure Private Limited Vs. State of Maharashtra 2021 SCC 315”, wherein it has been inter alia the consistent view of the Apex Court that a criminal prosecution should not be scuttled at its initial stage and that the inherent power vested in the High Court under section 528 BNSS has to be exercised rarely with circumspection, care and caution. 10. Viewed thus for the aforesaid reasons, this Court is not inclined to exercise inherent power in the instant matter. 11. Resultantly the petition fails and is dismissed. (JAVED IQBAL WANI) JUDGE SRINAGAR: 27.08.2025 “S.Nuzhat” Whether approved for reporting ? Yes