J&K Police Rules | Prosecution Of Police Officer For On-Duty Offence Without Reporting Complaint To District Magistrate Vitiates Proceedings: J&K High Court
Sanchayita Lahkar
The High Court of Jammu & Kashmir and Ladakh, Single Bench of Justice Sanjay Dhar, has held that the procedural safeguards governing prosecution of police officers for offences allegedly committed in the discharge of their duties are mandatory in nature, and that failure to report the substance of such a complaint to the District Magistrate before initiating proceedings renders the action of the police or the Magistrate invalid. The case arose from an incident where two accused escaped from police custody, leading to prosecution of the concerned police officials without adherence to the prescribed procedure.
The petition before the High Court of Jammu & Kashmir and Ladakh arose from criminal proceedings initiated against two police officials following the escape of accused persons from custody. The petitioners invoked the inherent jurisdiction of the High Court under Section 561-A of the Jammu and Kashmir Code of Criminal Procedure seeking quashment of an order passed by the Sessions Judge, Kishtwar, which had set aside an earlier order of the Chief Judicial Magistrate discharging them from prosecution.
The background of the case traces to an incident where the first petitioner, who was the investigating officer in a criminal case registered for offences under the Ranbir Penal Code, produced several accused persons before the trial Magistrate. During this process, two accused persons escaped from police custody. A report regarding the escape was received by the police station and a separate FIR was registered for offences relating to escape from custody and negligence by public servants. Investigation revealed that the accused had not actually been brought to the court premises but had been kept within the police station premises, from where they fled while the concerned officials were engaged in official duties. Consequently, a charge-sheet was filed alleging commission of offences against the police officials as well as the escaped accused.
When the petitioners appeared before the trial Magistrate, they sought discharge contending that the mandatory procedure under Rule 349 of the Jammu & Kashmir Police Rules had not been followed and that sanction under Section 197 of the Code of Criminal Procedure had not been obtained before launching prosecution. Accepting these submissions, the trial Magistrate discharged the petitioners while proceedings continued against the escaped accused. The State challenged this order before the revisional court, which allowed the revision and directed continuation of proceedings against the petitioners, leading to the present petition before the High Court.
The Court examined whether the trial Magistrate possessed authority to discharge the accused in a summons case and whether the prosecution could proceed without adherence to Rule 349 of the Jammu & Kashmir Police Rules. While considering the procedural issue in summons trials, the Court recorded that “in summons cases, no formal charge is required to be framed as in warrants cases.” It further stated that “the procedure prescribed under Chapter XX of J&K CrPC… has to be followed,” and at that stage the Magistrate must examine whether the allegations disclose an offence.
The Court noted that under the statutory scheme the accused is entitled to be heard when the particulars of the offence are put to him. It observed that “if there are no particulars of the offence discernible from the allegations made in the chargesheet then there is no need to read over the same to the accused.” The Court further recorded that “if a Magistrate at the stage of framing a notice… is of the opinion that no offence is made out against the accused… the Magistrate is vested with power to stop the proceedings.”
Addressing the reasoning adopted by the revisional court, the High Court stated that “the finding of the learned Revisional Court that the learned trial Magistrate has travelled beyond his jurisdiction in discharging the accused/petitioners is not in accordance with the law.”
The Court then considered the requirement of Rule 349 of the Jammu & Kashmir Police Rules in cases where a police officer is alleged to have committed an offence under the colour of duty. The Court observed that the rule requires the complaint against the police officer to be reported to the District Magistrate. It recorded that “the provisions contained in Rule 349 of the J&K Police Rules is mandatory in nature.” The Court further stated that “unless the substance of complaint against a police officer… is reported to the District Magistrate… the action of the police or the Judicial Magistrate first class would become invalid.”
The judgment also explained the purpose behind the rule. The Court stated that “provisions contained in Rule 349 of the J&K Police Rules have been incorporated with the definite purpose to provide protection to police officers against frivolous and vexatious complaints.” It further recorded that the rule acts as “a filter against motivated complaints that may be lodged against the police officers.”
Applying these principles to the present case, the Court observed that both the police authorities and the trial Magistrate had failed to follow the mandatory procedure of reporting the substance of the complaint to the District Magistrate before initiating prosecution. Consequently, the Court concluded that the revisional court had failed to consider this mandatory requirement while setting aside the discharge order.
The Court directed: “the petition is allowed and the impugned order passed by the Revisional Court is set aside. The order passed by the learned trial Magistrate is up-held. Disposed of accordingly.”
Advocates Representing the Parties
For the Petitioners: Mr. Sumant Sudan, Advocate
For the Respondents: Mr. Adarsh Bhagat, GA
Case Title: Mohammad Yaseen and Another v. State of J&K
Neutral Citation: 2026:JKLHC-JMU:709
Case Number: CRMC No. 461 of 2018
Bench: Justice Sanjay Dhar
