Hon’ble Mr. Justice A.M. Mir, Judge

State of J&K Petitioner
versus
Sadaqat Hussain. Respondent

Cr. Ref. No. 22 / 2000 decided on 12.12.2000.

J&K State Ranbir Penal Code, Svt. 1989 (1932 AD), S. 505 - Section aimed at restraining public from making publication or circulating any statement which may cause fear or alarm to public or any section thereof and information with regard to presence of some militants - Ingredients of S. 505 found to be missing - Prosecution initiated held to be wrongly initiated.

Advocates who appeared in this case :
None appears for the state
Mr. R.S. Sharma, Advocate for the respondent

This reference has landed into this Court by virtue of an order passed by Session Judge, Poonch on 26-7-2000.

Police received an information from the accused that militants were hiding in a Nallah at village Kasaba of Poonch District. Police registered a case against the informer that he had submitted incorrect information and such information has caused fear and alram to the general public. FIR was registered and after holding "investigation" challan was prouced U/S 505 RPC before Munsiff Judicial Magistrate Ist. class Poonch who in turn committed the same to the session court.

Session Judge found two infirmities in the case. One that it was a special offence and was triable by a special court and that production of challan according to the Sessions Judge was erronous. He also found that the challan in the case did not originate from the authority as required under section 505 RPC. The manner in which the investigation agency and the Judicial Magistrate have conduct themselves requires a brief comment.

In the first instance the investigating officer did not even bother to go through the text of section 505 RPC so as to find out as to whether or not the provision of section 505 were attracted section 505 is aimed at restraining the public from making publication or circulating any such statement which may cause fear of alram to public or any section thereof or incite one community or class of the society to commit any offence against the other. An information with regard to presence of some militants could fall within the mischief of section 505 RPC. The police did not register the basic ingredients of section 505. Taking a judicial notice of the ground situation, this information would not do any of the thing which are required to be curbed by this provision of law. On the other hand this might put the public on vigil and alert and save them from the panic and alarm which any militants activity could have generated.

Be that as it may, I have no hesitation in observing that the investigating agency has conducted this case in a very rough shord manner. The same carelessness has been shown in production of challan. Nobody tried to bother as to which was the court which could try the case. While as the offence was to be tried by a Special Judge, the investigating officer produced the callan before the Judicial Magistrate Poonch on 13-3-1998 wherefrom it was committed to court of sessions. The Judicial Magistrate did not bother to find out as to which was the court which could try this offence. In taking cognizence and committed the case to the court of session, the Judicial Magistrate also committed an error. I am tempted to place on record that a Judicial Officer cannot deal with a case without following up the provision of Code of Criminal Procedure. The officer, who is on the threshold of his career, I hope, will not repeat such an error of proceedings ahead with the case without looking at the provision of law.

Going back to the merits of the case, I am constrained to make a reference with respect to the investigation of the case. Trial of special offences including one under section 505 of RPC is regulated by section 186 of the Code of Criminal Procedure, which reads as under :

" 196, prosecution for offences against the state:- No court shall take cognizence of any offence punishable under chapter VI or IX-A of the Ranbir Penal Code (Except section 127 and section 171-F, so far as it relates to the offence of personation), or punishable under section 108-A or section153-A or section 294-A, (or section 295-A) or section 505 of the Ranbir Penal Code, unless upon complaint made by the order of , or under authority from the Government or District Magistrate or such other officer as may be empowered bythe Government in this behalf."

A bird eye view of the above provision will show that a complaint in terms of section 505 must be made by the Govt. or District Magistrate or any other officer as may be empowered by the Govt. in this behalf. The object of confinding the power of making a complaint is to ensure that before inititaing such complaint proper application of mind is made and that police power of the state is not misused for setting individual scores or wrecking vengeance. This provision of State law marks a distinction from the Central Act where complaint can be filed after obtaining the sanction of the Central Govt. But here it is necessary that complaint itself should be made by the Govt. District Magistrate or an officer empowered in this behalf. Thus a police officer himself could not lodge an FIR or institute a complaint under section 505 RPC that is what has been done in the present case. In view of the complaint not being in confirmity with section 196, the court was not competent to take cognizance. Thus the complaint was fraught with the defect of not having been made by the competent authority and section 196 of the Code of Criminal Procedure places a bar for the court to take cognizance on such acomplaint.