J&K High Court Stays Criminal Proceedings Against Jitendra Tyagi Over Alleged Derogatory Remarks on Islam; Flags Magistrate’s ‘Ignorance’ of Mandatory Sanction Under Section 196 CrPC
Isabella Mariam
The High Court of Jammu & Kashmir and Ladakh Single Bench of Justice Rahul Bharti held that the cognizance taken by the Judicial Magistrate First Class (2nd Additional Munsiff), Srinagar, in a criminal complaint involving alleged offences under Sections 153-A, 295-A, and 505 of the Indian Penal Code, was contrary to statutory requirements. The Court stayed the proceedings before the Magistrate and directed issuance of notice to the complainant, observing that prior sanction from the Central Government had not been obtained before the cognizance was taken. Further directions were issued concerning the case record and service of notice.
The petitioner, appearing through virtual mode, invoked the inherent jurisdiction of the High Court under Section 482 of the Code of Criminal Procedure, 1973—now Section 528 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023. The petitioner challenged the entertainment and cognizance of a criminal complaint filed by the second respondent before the Judicial Magistrate First Class (2nd Additional Munsiff), Srinagar.
The complaint, filed by the second respondent, alleged that the petitioner, after converting from Islam to Hinduism, made public utterances denigrating the Islamic faith and its religious scripture, the Quran. These statements were alleged to have appeared in news publications and on television channels. According to the complainant, various Islamic scholars and religious bodies throughout India condemned the petitioner’s remarks.
The complaint claimed that the petitioner’s statements amounted to offences under Sections 153-A (promoting enmity between different groups), 295-A (deliberate and malicious acts intended to outrage religious feelings), 298 (uttering words with deliberate intent to wound religious feelings), 504 (intentional insult), and 505 (statements conducing to public mischief) of the Indian Penal Code. However, only Sections 153-A, 295, 295-A, 504, and 505 were asserted in the concluding paragraph of the complaint.\
The complainant initially approached the local police station to seek registration of a First Information Report (FIR), followed by a written complaint to the Senior Superintendent of Police, Srinagar, via registered post. Receiving no response, the complainant ultimately filed the criminal complaint before the Chief Judicial Magistrate, seeking a direction to the police under Section 156(3) of the Code of Criminal Procedure for investigation and FIR registration.
The case was transferred to the Judicial Magistrate First Class (2nd Additional Munsiff), Srinagar, and assigned File No. 131/2nd Addl., where the Magistrate, by order dated 9 February 2022, took cognizance of the offences and initiated an enquiry. The Court directed the complainant to submit evidence, resulting in examination of witnesses whose statements were found to be verbatim reproductions of the complaint.
Subsequently, the Magistrate formed a prima facie view that offences under Sections 153-A, 295-A, and 505 IPC were made out against the petitioner and issued process accordingly.
Challenging this order, the petitioner contended that the Magistrate had misunderstood the complaint’s prayer, which sought a direction for FIR registration and not direct cognizance. It was further argued that the cognizance was taken in violation of the mandatory procedure under Section 196 of the Code of Criminal Procedure, 1973.
The Court recorded, “The petitioner has come up with the present petition thereby invoking inherent jurisdiction of this Court preserved under section 482 of the Code of Criminal Procedure, 1973 [now section 528 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023] thereby seeking quashment of the very entertainment of a criminal complaint… and the cognizance taking order with respect to the complaint so filed by the respondent No. 2.”
On the nature of the complaint, the Court stated, “From the tone and tenor of the complaint so filed, the respondent No. 2 did not intend to have a complaint taken cognizance by the court but instead solicited a direction unto the Police for registration of FIR.”
Referring to the Magistrate’s actions, the Court recorded, “The court of Judicial Magistrate 1st Class (2nd Additional Munsiff), Srinagar positioned itself in the manner as if that the respondent No. 2 was seeking cognizance of his complaint under section 190 read with section 200… whereas the fact of the matter is that… [it] is for a direction under section 156(3).”
In regard to the legal position under Section 196 CrPC, the Court recorded, “Section 196 of the Code of Criminal Procedure, 1973 reads as under: ‘No Court shall take cognizance of… section 153A, section 295A or sub-section (1) of section 505… except with the previous sanction of the Central Government or of the State Government.’”
It further observed, “The Judicial Magistrate 1st Class (2nd Additional Munsiff), Srinagar has lached on to take cognizance of the complaint of the respondent No. 2 without bothering to have even an elementary reading of section 196 of the Code of Criminal Procedure, 1973.”
On the requirement for prior sanction, the Court noted, “There is a legislative purpose inhering in section 196… so that the prior attention of the Central Government/State Government or the District Magistrate concerned is duly engaged to adjudge as to whether the offences… warrant cognizance.”
Summarising its finding, the Court recorded, “The Judicial Magistrate… has not laboured to consult the Code of Criminal Procedure, 1973, as it was then obtaining and, thus, erred in taking the cognizance by by-passing the Central Government ‘s consent in the context of UT of Jammu & Kashmir.”
The Court directed that notice be issued to respondent No. 2 only. It further ordered the petitioner to furnish a registered postal cover on or before 1st May 2025 before the learned Registrar Judicial, Srinagar, upon which notice shall be issued to respondent No. 2.
The matter was directed to be listed on 07.07.2025. In the meantime, the Court ordered that the proceedings in the case titled “Danish Hassar Dar vs. Jitender Narayan Singh Tyagi” pending before the Court of Judicial Magistrate 1st Class (2nd Additional Munsiff), Srinagar, on file No. 131/2nd Addl., shall remain stayed.
learned Registrar Judicial, Srinagar, was directed to send for the original record of the complaint from the court below.
Advocates Representing the Parties
For the Petitioners: Mr. Ankur Sharma, Advocate
Case Title: Jitendra Narayan Tyagi @ Syed Waseem Rizvi v. UT of J&K & Anr.
Case Number: CRM(M) No. 174/2025; CM No. 382/2025
Bench: Justice Rahul Bharti
[Read/Download order]
