Petitioners Were Acting Pursuant To Division Bench Judgment | J&K High Court Quashes FIR And Magistrate’s Order In Eviction Row
Isabella Mariam
The High Court of Jammu & Kashmir and Ladakh Single Bench of Justice Sanjay Dhar quashed an FIR registered under Sections 447, 354, and 506 of the Indian Penal Code, along with the order of the Judicial Magistrate, 1st Class, Vailoo, which had directed its registration. The Court held that the impugned criminal proceedings had arisen without compliance with mandatory procedural prerequisites and that the allegations lacked the specificity necessary to warrant prosecution. The Court concluded that the petitioners were acting in discharge of their official duties pursuant to the judgment of a Division Bench and that continuing the proceedings would amount to an abuse of the legal process. Accordingly, the petition was allowed, and all proceedings arising from the impugned order and FIR were quashed.
The matter arose from an order dated 25 March 2022 issued by the Judicial Magistrate, 1st Class, Vailoo, directing the Officer-in-Charge of Police Station, Kokernag, to register an FIR based on a complaint filed under Section 156(3) of the Criminal Procedure Code (CrPC). The complaint was lodged by the chairman of a trust known as Darul Arifa Hazrat Khadijatul Qubra (RA), which operates a hostel and educational facility for orphan girls at Tasspora Gadool, Tehsil Kokernag, District Anantnag.
The complainant alleged that on 11 March 2022, the petitioners, including revenue officials, forcibly entered the trust premises without prior notice or lawful authority. It was alleged that they harassed the female students, forcibly removed them from the kitchen and dining area, and locked those facilities. Further, the complaint claimed that the petitioners threatened students and staff with dire consequences.
Based on these allegations, the Judicial Magistrate issued the order that led to the registration of FIR No.55/2022 at Police Station, Kokernag, invoking Sections 447 (criminal trespass), 354 (assault or criminal force to woman with intent to outrage her modesty), and 506 (criminal intimidation) of the IPC.
The petitioners, all of whom were acting in their official capacities, challenged the order and the subsequent FIR on several grounds. They contended that the actions taken by them were part of an eviction drive ordered pursuant to the judgment of a Division Bench in S.K. Bhalla v. State of J&K and Others (PIL No.119/2011), which declared the ROSHNI Act unconstitutional and mandated the retrieval of State land.
According to the petitioners, Tehsildar Kokernag had issued an eviction notice on 9 March 2022 to the complainant, citing unlawful occupation of State land. The trust had reportedly resisted the eviction, prompting a second notice on 11 March 2022. Further notices and official communications followed, including letters to the Deputy Commissioner, Anantnag, and the Station House Officer of Kokernag, referencing the court’s directive and seeking assistance in executing the eviction.
The petitioners argued that the Magistrate’s order under Section 156(3) CrPC was issued without the complainant first adhering to Section 154(1) and 154(3), which mandate approaching the police and, if necessary, the Senior Superintendent of Police (SSP) before moving the Magistrate. They also contended that the complaint was devoid of material evidence or specificity and was motivated by a desire to obstruct the official duties of the revenue authorities.
The State responded by stating that the FIR was registered based on judicial direction and that investigation had begun, including recording witness statements and collecting revenue records. However, the State acknowledged that the land in question was recorded as State land and that, therefore, an offence under Section 447 IPC may not be made out.
Justice Sanjay Dhar began by considering the procedural framework applicable to applications under Section 156(3) of the CrPC. He referred to the Supreme Court judgment in Priyanka Shrivastava v. State of U.P., where it was held:
“There has to be prior applications under Section 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed.”
The Court recorded that: “In the present case, neither the complainant has spelt out as to which police authority he had approached and on which date he had done so. He has not placed on record any document to show that he had either approached the SHO concerned or the SSP concerned.”
On this basis, the Court held that the complainant had not complied with the mandatory prerequisites of Section 154(1) and 154(3) before filing the application under Section 156(3), rendering the Magistrate’s order unsustainable in law.
Turning to the merits, the Court considered the nature of the allegations and the context in which the petitioners acted. It stated: “From the allegations made in the application filed by the complainant before the learned Magistrate, it is clear that the petitioners were acting in pursuance of the judgment of the Division Bench of this court passed in S. K. Bhalla’s case.”
Quoting Section 78 of the IPC, which provides that acts done pursuant to a court judgment are not offences, the Court stated: “An act done by a person pursuant to the judgment of the Court cannot form basis for prosecuting such person as the same does not come within the definition of ‘offence’ as contained in IPC.”
On this ground, too, the complaint was found to be without legal basis.
Addressing the allegations of outraging modesty and criminal intimidation, the Court found them vague: “No particulars have been given in the complaint as to against whom such offences were committed by the petitioners.”
It further observed: “From the material on record, it appears that the complainant has, with a view to obstruct the petitioners from discharging their official functions pursuant to the directions of the Court, resorted to lodging of the impugned FIR so as to wreak vengeance upon them.”
The Court concluded: “Continuance of proceedings against the petitioners in these circumstances would not only discourage the public officials from discharging their lawful duties but it would also be detrimental to the rule of law.”
The Court allowed the petition and quashed the order dated 25.03.2022 passed by the Judicial Magistrate, 1st Class, Vailoo, along with FIR No.55/2022 registered pursuant to the said order and all proceedings arising therefrom.
Advocates Representing the Parties
For the Petitioners: Mr. Salih Pirzada, Advocate, with Mr. Bhat Shafi, Advocate
For the Respondents: Mr. Faheem Nisar Shah, Government Advocate
Full Case Title: Syed Muiz Qadri & Others v. UT of J&K and Others
Case Number: CRM(M) No.119/2022
Bench: Justice Sanjay Dhar
[Read/Download order]
