2026:Jklhc-Jmu:709 vs State Of J&K on 6 March, 2026

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    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

    SPONSORED

    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 a

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    punishable 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 to

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    the 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 he

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    is 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 statute

    CRMC No. 461/2018 Page 20 of 24
    2026:JKLHC-JMU:709

    requires 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 of

    CRMC No. 461/2018 Page 21 of 24
    2026:JKLHC-JMU:709

    the 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.

    CRMC No. 461/2018 Page 22 of 24

    2026:JKLHC-JMU:709

    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.

    CRMC No. 461/2018 Page 23 of 24

    2026:JKLHC-JMU:709

    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
    ****

    CRMC No. 461/2018 Page 24 of 24



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