w w w . L a w y e r S e r v i c e s . i n

Som Raj Taroch & Others v/s State & Another

Company & Directors' Information:- RAJ CORPORATION LIMITED [Active] CIN = U74900UP2008PLC035742

Company & Directors' Information:- RAJ COMPANY PRIVATE LIMITED [Active] CIN = U74999PB1949PTC000515

Company & Directors' Information:- G RAJ & COMPANY PVT LTD [Active] CIN = U67120WB1993PTC058140

Company & Directors' Information:- R M RAJ AND CO PRIVATE LIMITED [Strike Off] CIN = U99999DL1952PTC002146

Company & Directors' Information:- RAJ & RAJ PVT. LTD. [Active] CIN = U51109WB1991PTC052055

    CRMC. No. 180 of 2019, (CRM(M). Nos. 180 of 2019), Crl. M. Nos. 889 of 2020 & 446 of 2019 (1 of 2019)

    Decided On, 12 November 2020

    At, High Court of Jammu and Kashmir


    For the Petitioners: Sunil Sethi Sr. Advocate with Navyug Sethi, Advocate. For the Respondents: Aseem Sawhney, AAG., P.N. Raina, Sr. Advocate with Basit Manzoor Keng, Advocate.

Judgment Text

1. Through the medium of instant petition, the petitioners have challenged the order dated 18.03.2019 passed by the learned Judicial Magistrate First Class (Sub-Judge), Katra (hereinafter referred to as the 'Magistrate') whereby the learned Magistrate has, while exercising powers under Section 156(3) of J&K Cr.P.C, directed respondent No.1 to undertake the investigation of the complaint filed by respondent No.2/complainant.2. The case of the petitioners is that petitioners No.1 and 4 happen to be the parents of petitioner No.3, whereas petitioner’s No. 2 and 5 happen to be the brother and sister of petitioner No.3. Respondent No.2/complainant happens to be the mother-in-law of petitioner No.3,whereas petitioners No. 6 to 8 are close relatives of the petitioners. It is averred that petitioner No.3 had entered into wedlock with deceased Rajesh Kumar, who happens to be the son of respondent No.2 and out of the said wedlock, two children, a daughter and a son were born. The marital relationship between petitioner No.3 and her husband remained strained, as according to the petitioners, the deceased husband of petitioner No.3 was a drug addict. It is further averred that petitioner Nos. 3 and her late husband were disinherited by respondent No.2. Reference is also made in the instant petition to the matrimonial litigation that has taken place between petitioner No.3 and her deceased husband. It is averred that on 31.01.2019, marriage ceremony of daughter of petitioner No.8 was being celebrated at Katra and, in order to attend the said marriage ceremony, petitioner No.3 and her deceased husband went to Katra with petitioner No.1. The other family members including petitioner No.2 and petitioners No. 4 to 7 were already present over there to attend the said marriage.3. It is further averred that during the intervening night of 31.01.2019 and 01.02.2019, late Rajesh Kumar developed some pain in his chest and he was rushed to the Hospital at Katra, wherefrom he was referred to Government Medical College Hospital, Jammu for treatment, but by the time he reached the Hospital, he had already breathed his last. It is averred that, upon the death of the deceased, the police of Police Station, Katra initiated inquest proceedings under Section 174 of J&K Cr.P.C and the dead body of the deceased was subjected to post mortem. However, during the pendency of inquest proceedings, respondent No.2 approached the learned Magistrate by way of an application under Section 156(3) of J&K Cr.P.C, urging the learned Magistrate to direct registration of FIR. It was alleged in the complaint that the deceased Rajesh Kumar had been murdered by hatching a criminal conspiracy.4. Upon receipt of the complaint, the learned Magistrate called report from the Police Station, Katra and thereafter directed registration of FIR by passing the impugned order.5. The petitioners have challenged the impugned order mainly on the grounds that the learned Magistrate, while passing the impugned order, overlooked the guidelines laid down by the Supreme Court in the case titled Priyanka Srivastava & anr vs State of U.P.& ors, AIR 2015 SC 1758, inasmuch as the complainant had not made any application before the SHO and the SSP concerned in accordance with Section 154(1) and Section 154(3) of J&K Cr.P.C. It has been further contended that the approach of the learned Magistrate in passing the impugned order is absolutely illegal because the inquest proceedings regarding death of the deceased were still under way and without waiting for its result, the learned Magistrate jumped the gun and directed investigation of the case. Lastly, it has been contended that passing of impugned order by the learned Magistrate is nothing, but an abuse of process of law.6. Respondent No.1, in answer to the petition, has filed its status report. As per the status report, on 01.02.20149, an information was received at Police Station, Katra that during the intervening night of 31.01.21019 and 01.02.2019 a person namely Rajesh Kumar, who had come to Katra to attend marriage, had felt sudden pain in his chest, where after he was shifted to Community Health Centre, Katra for treatment, by his wife and other relatives. It further goes on to state that the said Rajesh Kumar, while on way to Government Medical College Hospital, Jammu, died under mysterious circumstances. Accordingly, the police initiated inquest proceedings under Section 174 of J&K Cr.PC. The status report reveals that during the inquest proceedings, the dead body was taken into custody, its post mortem was conducted and statements of witnesses under Section 175 Cr.P.C were recorded. It further states that viscera of the deceased was sent to Jammu for chemical analysis and expert opinion. The status report goes to show that as per the statements of sisters, brother and mother of the deceased, there was conspiracy of in-laws and wife of the deceased, which resulted into death of the deceased. As per the status report, on 14.03.2019, FSL report was received by the Police, according to which, the cause of death of the deceased was due to organo phosphorus poisoning. The report further reveals that the police has also taken note of the proceedings pertaining to matrimonial litigation between the deceased and his wife.7. I have heard learned counsel for the parties and perused the record of the case.8. The subject matter of the instant petition is the order dated 18.03.2019 passed by the learned Magistrate whereby the learned Magistrate has directed SHO of Police Station, Katra to undertake investigation into the complaint filed by respondent No.2 in terms of Section 156(3) of J&K Cr.P.C. According to the learned counsel for the petitioners, respondent No.2/complainant in this case prior to approaching the learned Magistrate, did not exhaust the remedy available to her under Sections 154(1) and 154(3) of Cr.P.C, inasmuch as she had neither approached the SHO nor the SSP concerned for registration of FIR. According to the learned counsel, there are mandatory requirements and without their adherence, the learned Magistrate could not have entertained the application of the complainant. In this regard, the learned counsel has relied upon the judgment of Supreme Court rendered in Priyanka Srivastava's case (supra).9. In the aforesaid judgment, the Supreme Court has, in categoric terms, stated that the applications under Sections 154(1) and 154(3) of Cr.P.C have to be in existence while filing the petition under Section 156(3) of Cr.P.C and these aspects should be clearly spelt out in the application under Section 154 of Cr.P.C and necessary documents to that effect have to be filed.10. Adverting to the facts of the instant case, if we have a look at the complaint, that was filed by respondent No.2 before the learned Magistrate, it has been stated by the respondent No.2/complainant in para No. 14 of the complaint that she had lodged a complaint with SHO Police Station, Katra, but she was not given any receipt by him. She has further stated that she had approached the Dy. Inspector General of Police,, Udhampur-Reasi range with a complaint for directing SHO concerned for registration of FIR and the said authority, in turn, directed the SSP concerned to look into the matter and take necessary action under law. The complaint is supported by an affidavit of the complainant. A copy of the complaint stated to have been made to the DIG has also been annexed to the complaint. The question arises as to whether this constitutes compliance to the guidelines laid down by the Supreme Court in Priyanka Srivastava's case (supra).11. As already noted, the complainant has categorically made an assertion in her complaint that she had approached the SHO concerned with a complaint, but no receipt of the said complaint was given to her by the said authority and thereafter she approached the Dy. Inspector General of Police, Udhampur-Reasi range, who in turn, forwarded her complaint to SSP concerned. These assertions of the complainant are supported by her affidavit and she has also placed on record a copy of the complaint which she had delivered to Dy. Inspector General of Police.12. Apart from the above, the learned Magistrate before passing the impugned order had issued a notice to the SHO as well as to the SSP concerned, who filed their reports in answer to the said notice. A perusal of those reports, one in Urdu language and other in English language, does not anywhere deny the receipt of complaint from respondent No.2. If the complaint from respondent No.2 was not received by the police authorities, they could have easily taken a plea before the Magistrate that the complainant did not approach them in the first instance and thereby the provisions contained in Sections 154(1) and154(3) of CrPC were not complied with. Instead before the learned Magistrate, they took up a stand that the inquest proceedings relating to the death of the deceased are under way and as soon as the same are concluded, further course of action will be taken.13. In view of the aforesaid circumstances, it can be safely stated that the respondent No.2/complainant prior to filing of complaint before the learned Magistrate has made substantial compliance to the guidelines of the Supreme Court contained in Priyanka Srivastava's case (supra).14. The other ground urged by the learned counsel for the petitioners is that the learned Magistrate while passing the impugned order has jumped the gun, inasmuch as he has not waited for the conclusion of inquest proceedings and rushed to pass the directions to SHO to undertake the investigation of the case in terms of Section 156(3) of Cr.PC. The learned counsel has contended that the purpose of inquest proceedings is only to ascertain the apparent cause of death of the deceased so as to conclude, whether in a given case, the death was accidental, suicidal and homicidal or caused by animal. He has also contended that the scope of inquest proceedings cannot be extended to ascertain the identity of the persons, who are responsible for causing death of a person. In this regard, the learned counsel has relied upon the judgments of Supreme Court in the cases of Radha Mohan Singh vs. State of U.P, 2006 (1) SCC 371 and Sri Shambu Das vs. State of Assam, 2010 (6) Supreme 475.15. On the other hand, learned counsel for respondent No.2/complainant has contended that, once a complaint was made by respondent No.2 before the learned Magistrate containing allegations disclosing commission of cognizable offences, the learned Magistrate had no option, but to direct the concerned SHO to undertake investigation of the case. He has further submitted that even otherwise, after receipt of report of FSL, according to which, the death of deceased has occurred due to poisoning, no option is left with the Police, but to register the FIR and undertake investigation of case.16. In order to test the merits of rival contentions of learned counsel for the parties, it is necessary to understand the scope of inquest proceedings and the proceedings pertaining to investigation of case.17. There is no dispute to the proposition of law that scope of inquest proceedings is limited to ascertain the apparent cause of death of a person who has died under suspicious circumstances. So far as the investigation is concerned, the same commences with the recording of an information pertaining to commission of a cognizable offence. Any step taken by the investigating officer pursuant to recording of such an information towards detection of the crime would be a part of investigation under the Code of Criminal Procedure. So these are two distinct types of proceedings. The inquest proceedings relate to ascertainment of apparent cause of death of a person who has died in mysterious circumstances, whereas proceedings pertaining to investigation relate to detection of the crime and all attending matters including the apprehension of the culprits.18. Thus, inquest proceedings cannot be a substitute or an alternative for the investigation conducted pursuant to registration of FIR under Section 154 of Code of Criminal Procedure. The pendency of inquest proceedings will not, in any manner, have any adverse impact upon the right of a complainant to get his complaint investigated, if it discloses the commission of a cognizable offence. This question came up before the Division Bench of Delhi High Court in the case of Abhay Nath Dubey vs. State of Delhi and ors, 2002 (64) DRJ 126. The Court while drawing a distinction between scope of inquest proceedings and scope of investigation of a case held as under:"We accordingly hold that inquest proceedings and report have a limited purpose of ascertaining the apparent cause of death in given cases and the investigation in these is not a substitute or alternative for investigation conducted pursuant to registration of FIR under Section 154(1) and the nature of inquest report has no bearing on the registration of a case/FIR on the complaint/information so long as it prima facie discloses commission of non-cognizable offence. It is also held that the course adopted by respondents first to conduct a full-fledged local inquiry and then to resort to inquest proceedings would not militate against petitioner's right to seek registration of an FIR for investigation into the alleged death of his son. Respondent's communication dated 14.12.1999 is accordingly quashed and they are directed to register an FIR on petitioners complaint (Crl.W.No. 714/96) and hand over the investigation of the same to Crime Branch. Respondents-SHO is directed to handover the record of inquiry/inquest to DCP, Crime Branch forthwith for necessary and expeditious follow up action under law".19. From the aforesaid discussion of law on the subject, it is clear that merely because the inquest proceedings were pending before the police at the time when the impugned order was passed by the learned Magistrate would not make the said order unsustainable in law. In fact, the learned Magistrate while passing the impugned order has taken pain

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s to deal with this aspect of the matter and has come to right conclusion by holding that the complaint filed by respondent No.2 contains clear and precise facts disclosing the commission of cognizable offence. While doing so, the learned Magistrate has noticed the background of matrimonial discord between the deceased and his wife as also the previous complaints made from time to time by the deceased against his in- laws. In the backdrop of these circumstances as also the fact that the petitioners were present on the spot when the death of the deceased had taken place in mysterious circumstances, there was sufficient material before the learned Magistrate to conclude that cognizable offences had taken place which required investigation by the police.20. For the foregoing reasons, I do not find any infirmity or illegality in the impugned order passed by the learned Magistrate. The order impugned is, therefore, upheld and the petition is dismissed.21. Having regard to the fact that the occurrence has taken place more than one and a half years ago and the police is yet to investigate into the circumstances in which the death of the deceased has taken place, it is directed that respondent No.1 shall, after registration of the FIR, hand over the investigation of the case to some efficient police officer so that the investigation of the case is concluded expeditiously after taking into consideration all aspects of the matter.The petition along with connected applications stands disposed of accordingly. Interim directions, if any, shall stand vacated.