Jammu & Kashmir High Court
2026:Jklhc-Jmu:709 vs State Of J&K on 6 March, 2026
Author: Sanjay Dhar
Bench: Sanjay Dhar
2026:JKLHC-JMU:709
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on: 24.02.2026
Pronounced on: 06.03.2026
Uploaded on 06.03.2026
Whether the operative part or full
order is pronounced: Full
Case No.:- CRMC No. 461/2018
Mohammad Yaseen and anr
.....Petitioner(s)
Through: Mr. Sumant Sudan, Advocate.
Vs
State of J&K
..... Respondent(s)
Through: Mr. Adarsh Bhagat, GA
Coram: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1. The petitioners, through the medium of the present
petition, have invoked inherent jurisdiction of this Court under
Section 561-A of the Jammu and Kashmir Code of Criminal
Procedure (now Section 528 of BNSS) seeking quashment of order
dated 29.05.2018 passed by learned Sessions Judge, Kishtwar
(“Revisional Court”) whereby order dated 13.06.2017 passed by
learned Chief Judicial Magistrate, Kishtwar (“Trial Magistrate”)
has been set aside and the learned trial Magistrate has been
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directed to proceed against the petitioners/accused in accordance
with law.
2. Briefly stated the facts leading to the filing of the present
petition are that on 23.04.2012, petitioner No. 1-Mohd Yaseen,
who was Investigating Officer in case FIR No. 03 of 2012 for
offences under sections 376/363/109 RPC registered with Police
Station, Kishtwar, brought seven accused including accused
Shah Nawaz and Hussain Dar in proper custody before the court
of learned trial Magistrate for the purpose of presentation of
challan in the aforesaid case. When he opened the handcuffs of
the accused, above named two accused fled away from the
custody of the police and a report in this regard was received by
the Police Station, Kishtwar on 24.04.2012. On the basis of the
said report, FIR No. 93/2012 for offences under Sections
223/224 came to be registered by the police.
3. It also appears that learned trial Magistrate while
entertaining the challan in case FIR No. 03 of 2012 of Police
Station, Kishtwar, after noticing the fact that accused Hussain
Dar and Shah Nawaj had escaped from the custody of the police
during their production before the Court, directed SHO, Police
Station, Kishtwar to lodge an FIR against the accused, who had
escaped from the custody as also against the police officials
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responsible for their escape. This was done in terms of order
dated 24.04.2012 passed by the learned trial Magistrate.
4. After registration of the FIR, the investigation of the case
was conducted. During investigation of the case, it came to the
fore that the accused, who had escaped, were in fact not brought
to the Court. It was found that the concerned police officials
instead of confining the two escaped accused in the lockup of the
police station, had kept them in the premises of the police station.
While petitioner No. 1- ASI Mohammad Yaseen and Munshi of the
police station, namely, petitioner No. 2-Waris Hussain Shah were
busy in their official business, the two accused, namely, Shah
Nawaz and Hussain Dar fled away from the premises of the police
station. Thus, offence under Section 223 RPC was found
established against the petitioners, who happen to be police
officials and offence under section 224 RPC was found
established against the accused Hussain Dar and Shah Nawaj.
Accordingly, the challan was laid before the learned trial
Magistrate.
5. Since the challan was presented before the court after
the expiry of prescribed period of limitation, the learned trial
Magistrate vide its order dated 06.04.2016, after recording the
satisfaction that it is necessary to condone the delay in the
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interests of justice, took cognizance of the offences and proceeded
to issue process against the petitioners and the co-accused.
When the petitioners appeared before the learned trial Magistrate,
they sought their discharge on the grounds that provisions of
Rule 349 of J&K Police Rules have not been adhered to in the
present case and that previous sanction of the competent
authority in terms of Section 197 CrPC has not been obtained
before presentation of the challan against them. The learned trial
Magistrate, vide his order dated 13.06.2017, accepted the
contention of the petitioners and discharged them while
proceeding against the other two accused, namely, Shah Nawaj
and Hussain Dar.
6. The aforesaid order was challenged by the respondent-
State by way of a revision petition before the Revisional Court.
Vide impugned order dated 29.05.2018, the learned Revisional
Court allowed the revision petition and set aside the order passed
by the learned trial Magistrate of 13.06.2017. While doing so, the
learned Revisional Court concluded that provisions of Section 197
CrPC have no applicability to the case of the petitioners as they
are not public servants, who cannot be removed without the
sanction of the Government. It has also been observed by the
learned Revisional Court that the learned trial Magistrate did not
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have power to discharge the petitioners as it was not a warrant
trial case but it was a summons trial case and there is no
provision in the Code of Criminal Procedure that vests power with
a Magistrate to discharge the accused in a summons trial case.
7. The petitioners have challenged the impugned order
passed by the learned Revisional Court on the grounds that Rule
349 of the J&K Police Rules is mandatory in nature and a police
official against whom there is an allegation with regard to
commission of offence under any of the provisions of Ranbir Penal
Code cannot be prosecuted without the consent of the District
Magistrate and this aspect of the matter has been overlooked by
learned Revisional Court. It has been further contended that
Section 249 of the J&K CrPC vests power with the Magistrate to
close the proceedings at any stage if the Magistrate feels so. Thus,
the observation of the learned Revisional Court that learned trial
Magistrate did not have jurisdiction to discharge the petitioners is
contrary to the legal position.
8. I have heard learned counsel for the parties and I have
also gone through the material on record including the record of
the trial Magistrate.
9. Before dealing with the merits of the case, it is necessary
to deal with the objection of the respondents, which has found
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favour with the learned Revisional Court that it was not open to
the learned trial Magistrate to discharge the petitioners in a
summons trial case as there is no provision in the Code of
Criminal Procedure, which vests such power with the Magistrate.
10. It is not in dispute that the petitioners are facing
prosecution for offence under Section 224 RPC, which carries a
maximum punishment of two years simple imprisonment and,
therefore, is governed by the procedure prescribed for summons
trial cases. Chapter XX of J&K Code of Criminal Procedure, which
would be applicable to the present case, governs the procedure
for trial of summons cases by Magistrates.
11. In summons cases, no formal charge is required to be
framed as in warrants cases. Once an accused appears before
the Magistrate pursuant to filing of challan against him, the
procedure prescribed under Chapter XX of J&K CrPC, which
starts with Section 242 of the J&K CrPC has to be followed. As
per the said provision, the substance of accusation is to be put to
accused, which is technically similar to the framing of a charge in
warrant cases. At this stage, it is mandatory for the Magistrate to
hear the accused if he does not plead guilty. This is clear from
the language of Section 244 of the J&K CrPC. Thus, accused is
entitled to hearing at the stage of framing of a notice under
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Section 242 of the J&K CrPC. At this stage, the trial Magistrate
has to consider whether allegations leveled in the chargesheet
would amount to an offence and if no offence is made out, then
there are no particulars of the offence, which have to be read-over
to the accused. Therefore, proceedings cannot proceed beyond
the stage of Section 242 of the J&K CrPC.
12. This is clear from the plain reading of Section 242 of the
J&K CrPC, which is reproduced as under:
Substance of accusation to be stated.-When the accused
appears or is brought before the Magistrate, the particulars of the
offence of which he is accused shall be stated to him, and he shall
be asked if he has any cause to show why he should not be
convicted; but it shall not be necessary to frame a formal charge.
13. From the afore-quoted provision, it is manifest that
when an accused is brought before the Magistrate, the particulars
of the offence of which he is accused, have to be stated to him. 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.
14. Section 249 of the J&K CrPC which falls under Chapter
XX and, therefore, is applicable to summons cases vests power
with a Magistrate to stop the proceedings. It reads as under:
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“249. Power to stop proceedings, when no complaint.- In any case
instituted otherwise than upon complaint, [a Judicial Magistrate of
the first class, or with the previous sanction of the Chief Judicial
Magistrate, any Judicial Magistrate of the second class] may, for
reasons to be recorded by him, stop the proceedings at any stage
without pronouncing any judgment either of acquittal or conviction
and may there upon release the accused.”
15. From a plain reading of the aforesaid provision, it is
clear that in a case instituted otherwise than upon complaint i.e.,
in a case where police has filed the challan, the trial Magistrate is
vested with power to stop the proceedings at any stage without
pronouncing any judgment either of acquittal or conviction and
release the accused but for doing so the Magistrate has to record
reasons.
16. If we read the provisions contained in Section 242 of the
J&K CrPC in conjunction with Section 249 of the J&K CrPC, it
becomes manifest that if a Magistrate at the stage of framing a
notice under Section 242 of the J&K CrPC is of the opinion that
no offence is made out against the accused, particulars of which
have to be read over to him, the Magistrate is vested with power
to stop the proceedings in terms of Section 249 of the J&K CrPC.
17. In the above context, reliance is placed upon the ratio
laid down by the Supreme Court in the case of Bhushan Kumar
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& Ors Vs. State (NCT of Delhi) & ors, (2012) 5 SCC 422. In
the said case, the Supreme Court has observed that it is the duty
of the trial Magistrate under Section 251 of the Central CrPC
(which is in pari materia with Section 242 of the J&K CrPC) to
satisfy himself as to whether the offence against the accused is
made out or not and to discharge the accused, if no case is made
out against him. Para (20) of the said judgment is relevant to the
context and the same is reproduced as under:
20) It is inherent in Section 251 of the Code that when an
accused appears before the trial Court pursuant to summons
issued under Section 204 of the Code in a summons trial
case, it is the bounden duty of the trial Court to carefully go
through the allegations made in the charge sheet or
complaint and consider the evidence to come to a conclusion
whether or not, commission of any offence is disclosed and if
the answer is in the affirmative, the Magistrate shall explain
the substance of the accusation to the accused and ask him
whether he pleads guilty otherwise, he is bound to discharge
the accused as per Section 239 of the Code.
18. It would also be apt to refer to the observations of the
High Court of Delhi in the case of S.K. Bhalla Vs. State & ors,
2011 SCC Online Del 2254 wherein the Court after noticing the
ratio laid down by Supreme Court in Adalat Prasad vs Roop Lal
Jindal (2004) 7 SCC 338, drew a distinction between dropping of
proceedings after issuance of process against accused and
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discharge of an accused at the stage of framing of notice under
Section 251 of Central CrPC. The relevant extracts of the
judgment are reproduced as under:-
13. From the above, it is obvious that the Supreme Court has
held that once a process under Section 204 CrPC has been
issued, the Trial Court cannot revert back to the stage
of Section 203 CrPC and recall the issue of process against
the accused as the Trial Court has no powers to review under
the Code of Criminal Procedure.
14. The facts of this case are distinct from the facts of Adalat
Prasad Case (supra). In Adalat Prasad case (supra), learned
Metropolitan Magistrate had recalled the summoning order
by allowing the application under Section 203 CrPC after the
issue of process under Section 204 CrPC. However, in the
instant case, respondents No. 2 to 4 have been discharged
by the learned Trial Court at the stage of serving of notice
under Section 251 CrPC. At this subsequent stage, learned
Metropolitan Magistrate was of the view that the charge
sheet/complaint did not disclose necessary ingredient of the
offence under Section 509 IPC, as such, he discharged the
respondents No. 2 to 4 for the commission of abetment of
offence under Section 509 IPC.
15. Section 251 of the Code of Criminal Procedure deals with
the stage subsequent to issue of process under Section
204 CrPC in a summons trial case. This section casts a duty
upon the Magistrate to state to the accused person the
particulars of offence allegedly committed by him and ask
him whether he pleads guilty. This can be done by the
Magistrate only if the charge sheet/complaint/preliminary
evidence recorded during enquiry disclose commission of aCRMC No. 461/2018 Page 10 of 24
2026:JKLHC-JMU:709punishable offence. If the charge sheet/complaint does not
make out a triable offence, how can a Magistrate state the
particulars of non-existing offence for which the accused is to
be tried. Therefore, it is inherent in Section 251 of the Code of
Criminal Procedure that when an accused appears before the
Trial Court pursuant to summons issued under Section
204 CrPC in a summons trial case, it is bounden duty of the
Trial Court to carefully go through the allegations made in the
charge sheet/complaint and consider the evidence to come to
a conclusion whether or not, commission of any offence is
disclosed and if the answer is in the affirmative, the
Magistrate shall explain the substance of the accusation to
the accused and ask him whether he pleads guilty,
otherwise, he is bound to discharge the accused.
19. Again the High Court of Delhi has, in the case titled
Arvind Kejriwal & Ors Vs. Amit Sibal and anr, 2014 SCC
Online Del 212, after noticing the ratio laid down in the aforesaid
judgments, explained the legal position on the issue at hand in
the following manner:-
7. If the Magistrate cannot discharge the accused at the
stage of framing of notice, the whole proceedings at the stage
of framing of notice under Section 251 Cr.P.C. shall be
reduced to mere formality and the accused would be
compelled to approach the High Court to challenge the notice
which would lead to multiplicity of litigation. It is for this
reason, the Supreme Court in Bhushan Kumar (supra)
and Krishan Kumar Variar (supra) has observed that the
accused should approach the Trial Court instead of rushing
to the higher Court. The Supreme Court has not restricted the
directions in the aforesaid two cases to be applicable only toCRMC No. 461/2018 Page 11 of 24
2026:JKLHC-JMU:709the warrant cases and therefore, the same are applicable to
all summons cases including those arising out of
complaints. In Bhushan Kumar (supra), the Supreme Court
has specifically referred to Section 251 Cr.P.C. which deals
only with summons cases. Relying on the aforesaid
judgments, this Court, in Raujeev Taneja (supra) and Urrshila
Kerkar (supra), has directed the accused to urge his
objections before the Trial Court at the stage of framing of
notice under Section 251 Cr.P.C.
20. In view of the authoritative pronouncements of the
Supreme Court in Bhushan Kumar (supra), Krishna Kumar
Variar (supra) and Maneka Gandhi (supra) and of this Court
in Raujeev Taneja (supra), Urrshila Kerkar (supra)
and S.K.Bhalla (supra), the accused are entitled to hearing
before the learned Metropolitan Magistrate at the stage of
framing of notice under Section 251 Cr.P.C in all summons
cases arising out of complaints and the Magistrate has to
frame the notice under Section 251 Cr.P.C. only upon
satisfaction that a prima facie case is made out against the
accused. However, in the event of the learned Magistrate not
finding a prima facie case against the accused, the
Magistrate shall discharge/drop the proceedings against the
accused. Since there is no express provision or prohibition in
this regard in the Code of Criminal Procedure, these
directions are being issued in exercise of power under
Section 482 read with Section 483 Cr.P.C. and Article 227 of
the Constitution to secure the ends of justice; to avoid
needless multiplicity of procedures, unnecessary delay in
trial/protraction of proceedings; to keep the path of justice
clear of obstructions and to give effect to the principles laid
down by the Supreme Court in Bhushan
Kumar (supra), Krishna Kumar Variar (supra) and Maneka
Gandhi (supra).”
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20. In view of the foregoing analysis of legal position, it can
safely be concluded that in a summons case instituted otherwise
than upon a complaint, Section 242 of the J&K CrPC read with
Section 249 of the J&K CrPC clothes the trial Magistrate with the
requisite power to discontinue further proceedings and release
the accused at the stage of Section 242 of the J&K CrPC or later if
the trial Magistrate feels that the allegations and the material
placed before him do not justify continuance of the proceedings
against the accused. A similar view has been taken by coordinate
Benches of this court in the cases of Mohan Singh Vs. State,
1988 SCC Online J&K 26 and State of J&K Vs. Qasim Ali &
anr, 2003 SLJ 419.
21. In view of aforesaid legal position, 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.
22. That takes us to the second contention raised by the
petitioners, which relates to applicability of the provisions
contained in Rule 349 of the J&K Police Rules and the
consequences of non-adherence to the said provisions. In the
first instance, it would be necessary to notice the provisions
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contained in Rule 349 of the J&K Police Rules. The same are
reproduced as under:
Criminal offence by police officers and strictures by Court (1)
Whenever a Superintendent of Police receives a complaint
against a police officer that under colour of his duties he had
committed an offence, as defined in the Ranbir Penal Code,
the substance of the complaint shall be reported immediately
to the District Magistrate who will decide whether the
investigation of the complaint shall be conducted by a police
Officer or by a Magistrate. If he decides that the investigation
of a trial or an inquiry under the Criminal Procedure Code
should be held by a Magistrate, he shall proceed according to
the instructions laid down in the Guidance of Courts
subordinate to the High Court. These instructions are quoted
in Appendix XII.
(2) When the District Magistrate decides that the matter shall
be disposed of departmentally, the procedure prescribed in
these rules for the holding of department enquiries shall be
followed.
(3) An inquiry shall be made in every case in which the
conduct of a police officer is censured by a court (vide
Appendix XIII). In all such cases, a copy of the judgment shall
be sent to the District Magistrate who shall decide whether
an inquiry is to be made departmentally or by a Magistrate.
When such inquiry indicates the commission of an offence as
defined in the Ranbir Penal Code, the procedure laid down in
sub-rule (1) shall be followed. Where departmental inquiry is
ordered, the result of the departmental inquiry shall be
communicated to the District Magistrate.
(4) Under rule 1(6) of Chapter XVI of the Rules and Orders
(Criminal) for the Guidance of Courts Subordinate to the High
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Court, Magistrates are required to exercise care in making
entries of censure on police officers in their judgments, and it
is desirable that they should make remarks in criminal cases
censuring the action of police officers only if they are
supported by evidence given in the course of trial and are
material to the decision. If remarks to which exception can be
taken come to notice, they should be referred in the first
instance to the District Magistrate.”
23. From a perusal of the aforesaid rule, it comes to the fore
that where a Superintendent of Police receives a complaint
against a police officer that under the colour of his duties he has
committed an offence as defined in the Ranbir Penal Code, he has
to submit a report to the District Magistrate, who has to decide
whether the investigation of the complaint has to be conducted by
a police officer or by a Magistrate. If the District Magistrate
decides that investigation or trial or an inquiry should be
conducted by a Magistrate in that case, the Magistrate has to
proceed in accordance with the instructions laid down in the
rules and orders (Criminal) for guidance of courts subordinate to
the High Court which are quoted in the appendix of J&K Police
Rules. The relevant portion of the appendix is reproduced as
under:
“Whenever a complaint is filed against police officer that
under the colour of his duties he has committed an offence as
defined in the Ranbir Penal Code, the Magistrate, unless heCRMC No. 461/2018 Page 15 of 24
2026:JKLHC-JMU:709is himself a first class Magistrate, shall record the statement
of the complainant and report the case at once to the District
Magistrate to whom he may be subordinate. He will direct
the complainant to appear before him on a date to be fixed
with due regard to the time by which he may hear from the
District Magistrate. On the appearance of the complainant,
the Magistrate shall inform the complainant of orders passed
by the District Magistrate. The District Magistrate on receipt
of such a report as to a complaint will either hear the case
himself or transfer it to a Magistrate with first class powers
who will proceed according to law.
If the Magistrate be himself a Magistrate of the first class he
will report the substance of the complaint against the police
officer to the District Magistrate and will proceed with the
case in accordance with the law.
The Magistrate hearing the complaint shall send the copy of
it to the Deputy Inspector General of Police for his
information.
No case against the police officer shall be tried summarily.”
24. As per the afore-quoted instructions, if the Magistrate
before whom a complaint is filed against a police officer that he
has committed an offence defined in Ranbir Penal Code under the
colour of his duties, such Magistrate has to record statement of
the complainant and report the substance of the complaint
against the police officer to the District Magistrate to whom he
may be subordinate and thereafter proceed with the case in
accordance with law.
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25. Turning to the facts of the present case, it appears that
FIR against the petitioners came to be lodged on the basis of
report received by the SHO with regard to escape of two accused,
namely, Shah Nawaj and Hussain Dar. It is amply clear from a
perusal of the challan that the FIR has not been registered
pursuant to the directions of the learned trial Magistrate but it
has been registered on the basis of the report received by the SHO
with regard to escape of two accused, namely, Shah Nawaz and
Hussain Dar. Thereafter, the SHO also received copy of order
dated 24.04.2012 passed by the learned trial Magistrate but the
fact of the matter remains that the FIR has been registered on the
basis of report received by the SHO from a source other than the
order of the trial Magistrate. In these circumstances, it was
incumbent upon SHO of police Station, Kishtwar to inform
Superintendent of police concerned who, in turn, was duty bound
to place the substance of complaint immediately before the
District Magistrate.
26. It is pertinent to mention here that the petitioners, who
are police officials, are alleged to have committed offence under
section 223 of RPC which, by its nature, is an offence, which can
be committed by a police officer only under the colour of his
duties. However, in the present case, the Superintendent of
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police has not laid the report with regard to commission of offence
by the petitioners before the District Magistrate and therefore,
there was no occasion for the District Magistrate to take a
decision whether the investigation of the complaint should be
conducted by a police officer or the investigation, trial or inquiry
under the Code of Criminal Procedure should be held by a
Magistrate. In these circumstances, the provisions contained in
Rule 349 of the J&K Police Rules have been observed in breach
by the police authorities.
27. Learned counsel for the respondents has contended that
the FIR in the instant case has been registered pursuant to the
directions of the learned trial Magistrate issued in terms of
Section 156(3) of the CrPC and, therefore, there was no option for
the police authorities but to register an FIR and undertake
investigation of the same. The argument appears to be attractive
at its first blush but when analyzed closely, the same does not
hold any water. This is so because the FIR in the instant case
has not been registered on the basis of directions of Magistrate
but it has been registered on the basis of information received by
the police prior to receipt of directions of the Magistrate.
28. Even if it is assumed that the FIR has been registered
under the directions of the Magistrate, still then the learned trial
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Magistrate while issuing such directions has observed the
provisions of Rule 349 of the J&K Police Rules in breach.
Appendix to the said rules clearly provides that if the Magistrate
happens to be the Magistrate of first class, he has to report the
substance of complaint against the police officer to the District
Magistrate and thereafter proceed in accordance with law.
Admittedly, in the instant case, the learned trial Magistrate while
directing registration of the FIR against the police officers, who
had committed dereliction of duty, did not report the substance of
complaint against such police officers to the District Magistrate.
Without doing so, he proceeded to pass directions upon the police
to register an FIR. Thus, even the learned trial Magistrate has
flouted the provisions of Rule 349 of the J&K Police Rules read
with appendix thereto.
29. The question that arises for determination is as to
whether mere non-adherence to provisions contained in Rule 349
of the J&K Police Rules would be a good enough ground to quash
the prosecution against the petitioners.
30. In the above context, if we have a look at the provisions
contained in Rule 349 of the J&K Police Rules, it becomes clear
that same are mandatory in nature. Sub Rule (1) of Rule 349
clearly uses the expression “shall”, thereby making it incumbent
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upon the Superintendent of Police to report substance of the
complainant against a police officer, who has committed an
offence under Ranbir Penal Code under the colour of his duties,
to the Magistrate. Similarly, appendix to said Rule also uses the
expression “will” thereby making it incumbent upon the
Magistrate of first class to report the substance of complaint
against the police officer to the District Magistrate while
proceeding in the case in accordance with law. The use of
expressions “shall” and “will” clearly indicate the intention of
the framers of the Rules that the said Rule is mandatory in
nature.
31. In my aforesaid view, I am supported by the Division
Bench judgment of this Court in the case of State of J&K Vs.
Gula Khan, 1981 (2) SLR 278. In the said case, the Division
Bench, wile answering the question whether the provisions of
Rule 349 of J&K Police Rules are mandatory in nature, has
observed as under:
11. The use of the words “shall be reported
immediately to the District Magistrate” in sub-rule (1) is
significant. They are strongly imperative. The implication
clearly is that the appropriate authority is not left with any
discretion, in a proper case, to refer or not to refer the case to
the District Magistrate. The principle to be applied to the
construction of this sub-rule should be that if the statuteCRMC No. 461/2018 Page 20 of 24
2026:JKLHC-JMU:709requires a thing to be done in a particular manner, then it
must be done in that manner and in no other manner. In this
view we are of the opinion that sub-rule (1) is mandatory
and that its non-compliance would render the action invalid.
32. A Single Bench of this Court in the case of G.S. Broca
Vs. State of J&K & ors, 1974 J&KLR 350 has, while holding
that provisions of Rule 349 of the J&K Police Rules are
mandatory, observed that there is a definite purpose behind the
enactment of the said rule. While holding so, the court observed
as under:
“Mr. Anil Dev Singh, however, argued that rule 349 of the
Police Rules is only directory and not mandatory and an
enquiry held in violation thereof cannot be allowed to
frustrate and that no challenge could be thrown to the
validity of the order impugned in the petition on that point.
This contention of the Assistant Advocate General, (Mr.
Anil Dev Singh), cannot be allowed to prevail. There was a
definite purpose behind the enactment of Rule 349 of the
Police Rules. The discretion given to the District Magistrate
to decide as to the forum and the manner of the enquiry
was intended to serve as a check against on arbitrary
action of a superior police officer against a subordinate
officer. The District Magistrate had to decide on a
consideration of the facts of the case as to whether the
enquiry should be held departmentally under the Police
Rules or not and in case his decision was against the
holding of a departmental enquiry there would have been
no occasion for departmental enquiry having been held at
all. This view regarding the provisions of the Rule 349 ofCRMC No. 461/2018 Page 21 of 24
2026:JKLHC-JMU:709the Police Rules being mandatory is supported by a
judgment of the Supreme Court in Union of India V. Ram
Kishan. In that case the Supreme Court was called upon to
decide as to whether Rule 16.38 Sub-rule (1) of the Punjab
Police Rules was mandatory or directory. Relying on an
earlier judgment of the Court the Supreme Court held that
the non-compliance with the provisions of that Rule
rendered the order of dismissal passed against the
servant wholly illegal. Rule rendered the order of dismissal
passes against the servant wholly illegal. Rule 16.38 of
the Punjab Police Rules is on the same lines as Rule 349 of
the State Police Rules. The Judgment of the Supreme
Court, therefore, applies with full force to the facts of the
present case. I have no option therefore but to hold that the
enquiry which formed the basis of the impugned order in
this petition was in violation of Rule 349 of the Police Rules
and therefore the enquiry as also the order based
thereupon must fall.”
33. From the foregoing analysis of legal position, it is clear
that provisions contained in Rule 349 of the J&K Police Rules is
mandatory in nature and unless the substance of complaint
against a police officer, who is alleged to have committed an
offence under Ranbir Penal Code under the colour of his duties, is
reported to the District Magistrate either by the police or by the
Judicial Magistrate first class before whom the complaint against
such police officer is made, the action of the police or the Judicial
Magistrate first class would become invalid.
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34. It is to be noted 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. The District Magistrate has been
vested with the vital role to decide, on consideration of the facts
and circumstances of the case, whether the matter requires to be
dealt with by a Magistrate in accordance with the provisions of
Code of Criminal Procedure or a case is required to be registered
or in the alternative whether it is a case where departmental
proceedings are required to be initiated against the concerned
police officer. The provisions of Rule 349 of the J&K Police Rules
acts as a filter against motivated complaints that may be lodged
against the police officers. False and vexatious complaints are
generally expected to be filed against the police officers having
regard to nature of their duties, which they are discharging. Rule
349 of the Police Rules is a protection made available to the police
officers against false and frivolous complaints. Without adhering
to the provisions contained in Rule 349 of the J&K Police Rules,
prosecution cannot be launched against a police officer, who is
alleged to have committed an offence as defined in the Ranbir
Penal Code under the colour of his duties.
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35. In the present case, the provisions contained in Rule
349 of the J&K Police Rules have been given a complete departure
by the Superintendent of Police concerned as also by a learned
trial Magistrate while proceeding against the petitioners. This
aspect of the matter has not been considered by the learned
Revisional Court at all while entertaining challenge to the order
passed by the learned trial Magistrate. The impugned order
passed by the Revisional Court is, therefore, not sustainable in
law.
36. For what has been discussed hereinbefore, the petition
is allowed and the impugned order passed by the Revisional
Court is set aside and the order passed by the learned trial
Magistrate is up-held.
37. Disposed of accordingly.
(SANJAY DHAR)
JUDGE
JAMMU
06.03.2026
Naresh/Secy
Whether order is speaking: Yes
Whether order is reportable: Yes
****
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