Safiya Malik

The High Court of Jammu & Kashmir and Ladakh Single Bench of Justice Sanjay Dhar, quashed the registration of FIR No. 118/2023, holding that the revisional court’s direction for FIR registration was in contravention of mandatory procedural safeguards under the Code of Criminal Procedure. The Court stated that the complainant failed to adhere to statutory requirements under Sections 154(1) and 154(3) of the CrPC before invoking judicial directions under Section 156(3). The Court recorded: "the criminal prosecution initiated by the respondent/complainant against the petitioners is manifestly actuated with mala fides with an ulterior motive for wrecking vengeance."

The dispute originates from a complaint dated 17.01.2023 filed by Respondent No. 2 before the Special Excise Magistrate, Jammu. The complainant alleged that on 19.05.2022, at around 11 AM, while attending his office, the petitioners and several firm employees allegedly yelled at him, accused him of misappropriating company funds, and confined him in a room. It was alleged that the complainant was physically assaulted and coerced into signing documents under threat to his life. He was also allegedly ordered to arrange for an amount of Rs. 3.5 lakhs.

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The complaint further asserted that the complainant's father-in-law arrived at the office premises to secure his release, and was subsequently confined as well. Family members who gathered outside the building, including the complainant's wife, two sisters, sons, and brother-in-law, were allegedly denied entry. Later, the complainant was compelled to retrieve two vehicles from his father-in-law’s residence, which were allegedly retained by the petitioners.

At around 6 PM the same day, the father-in-law was allowed to leave with the other family members, but the complainant was allegedly forced to sign two blank cheques (Nos. 927071 and 927072) from J&K Bank. These cheques, later filled for Rs. 6 lakhs and Rs. 8 lakhs respectively, were reportedly drawn in favour of M/s ANN Agencies and presented for encashment. Upon being dishonoured, legal notices were issued by the petitioners and criminal proceedings under Section 138 of the Negotiable Instruments Act ensued.

According to the complainant, multiple efforts were made to involve the police. His elder sister reportedly visited Police Station Channi Himmat on the day of the incident. Later, on 01.10.2022, his wife and brother-in-law allegedly addressed a formal written complaint to the Senior Superintendent of Police, Jammu. The complainant asserted that the police failed to act on these complaints, and did not provide any update when approached.

The learned Trial Magistrate, upon receipt of the complaint, called for a police report. In the order dated 02.03.2023, the Magistrate dismissed the application under Section 156(3) CrPC. The order cited the complainant’s failure to comply with mandatory procedures under Sections 154(1) and 154(3) CrPC, and the unexplained delay of approximately seven months in filing the complaint. Additionally, the Magistrate noted that the allegations appeared to be a strategic defense in anticipation of proceedings under Section 138 NI Act initiated by the petitioners.

This dismissal was challenged before the Principal Sessions Judge through a criminal revision petition. On 15.07.2023, the revisional court set aside the Magistrate's order, holding that the complainant’s sister had approached the police, and that the complaint to the SSP fulfilled procedural prerequisites. Relying on the Supreme Court’s judgements in Lalita Kumari v. Government of Uttar Pradesh (2014) 2 SCC 1 and Upkar Singh v. Ved Prakash (2004) 13 SCC 292, the revisional court directed registration of the FIR.

Following this order, FIR No. 118/2023 was registered at Police Station Channi Himmat on 07.08.2023. The petitioners challenged both the revisional court’s directive and the subsequent FIR through CRM(M) Nos. 646/2023 and 710/2023 respectively.

Justice Sanjay Dhar examined the statutory requirements under Sections 154 and 156 of the CrPC, and the relevant precedents. Citing Lalita Kumari, the Court recorded that registration of an FIR is mandatory where cognizable offences are disclosed, but where there is a significant delay, a preliminary enquiry may be justified. The Court further cited Priyanka Shrivastava v. State of Uttar Pradesh (2015) 6 SCC 287, noting: "there has to be prior applications under Section 154(1) and 154(3) while filing a petition under Section 156(3) ...and necessary documents to that effect shall be filed."

Examining the facts, the Court found that the complainant failed to produce an affidavit from his sister to substantiate the claim that she orally reported the matter to SHO Channi Himmat. The Court remarked: "Even if, it is assumed that an oral complaint was made by the sister of the complainant...neither any affidavit of the said person nor any document to show that she had lodged any complaint...has been placed on record."

With respect to the communication addressed to the SSP by the complainant's wife and brother-in-law, the Court observed that it lacked reference to core allegations of illegal confinement or assault. The communication primarily sought recovery of the vehicles and made peripheral mention of coercive collection of cheques. The Court remarked: "there are no averments...with regard to the material incidents...There is no mention of allegations regarding illegal confinement of the complainant or illegal confinement of his father-in-law nor there is any mention of beating up and dragging of the complainant by the petitioners."

The Court held that both procedural requirements under Sections 154(1) and 154(3) CrPC had not been satisfied. Moreover, the Court criticized the revisional court’s reasoning, observing: "the observations of the learned revisional court that the petitioner could not file complaint before the Police because he was in the illegal confinement and thereafter arrested in FIR filed by the petitioner...is a figment of imagination without any basis."

Referring to the timeline, the Court noted that the incident allegedly occurred on 19.05.2022, and the complainant was arrested only on 24.07.2022 in connection with FIR No. 115/2022 registered by the petitioners. The Court stated that the complainant had ample time to initiate police or judicial action in the intervening period.

The Court also examined Supreme Court precedents in Babu Venkatesh v. State of Karnataka (2022 Live Law SC 181) and Ranjit Singh Bath v. Union Territory of Chandigarh, Cr. Appeal No. 4313 of 2024 (decided on 06.03.2025), affirming the view that procedural safeguards under Sections 154(1) and 154(3) are mandatory prior to invoking Section 156(3).

The Court further considered whether a second FIR could be registered regarding the same transaction. While affirming that distinct versions could justify separate FIRs as per Upkar Singh, the Court found that the allegations made by the complainant did not constitute a counter-version of the occurrence subject to FIR No. 115/2022, which pertained to alleged misappropriation of funds.

Assessing the conduct of the complainant, the Court recorded that the complaint appeared to be filed only after knowledge of pending Section 138 NI Act proceedings. The Court noted: "the respondent/complainant approached the learned Trial Magistrate by way of an application under section 156(3) Cr.P.C. immediately after...the criminal complaints under section 138...were filed against him."

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On this basis, the Court concluded that the complaint was driven by ulterior motives. It referred to judgements in Mr. Robert John D’Souza v. V. Gomes (2015) 9 SCC 96, Medchi Chemicals v. Biological E. Ltd (2000) 3 SCC 269, and Mohan Goswami v. State of Uttranchal (2007) 12 SCC 1, underscoring the principle that criminal law must not be misused to harass adversaries.

The Court allowed both petitions—CRM(M) Nos. 646/2023 and 710/2023. It quashed the order dated 15.07.2023 of the Principal Sessions Judge directing registration of FIR, and further quashed FIR No. 0118/2023 dated 07.08.2023 registered at Police Station Channi Himmat and all consequential proceedings.

Advocates Representing the Parties

For the Petitioners: Mr. Himanshu Beotra, Advocate
For the Respondents: Mr. P. D. Singh, Deputy Advocate General and Mr. Bhavesh Bhushan, Advocate

Case Title: Anil Gupta and another vs Union Territory of J&K and another
Case Number: CRM(M) Nos. 646/2023 and 710/2023
Bench: Justice Sanjay Dhar

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