J&K&L High Court Quashes FIR Over Alleged Encroachment On Evacuee Property, Says Cognisance Barred Without Complaint By Competent Authority

A Single Bench of Justice Sanjay Parihar while observing that “a conjoint reading of Section 195 CrPC and Section 23 of the J&K State Evacuees (Administration of Property) Act, Svt. 2006 makes it manifest that the bar against taking cognizance is absolute unless the procedure prescribed therein is strictly complied with,” held that “where a statute creates a special offence and simultaneously prescribes a special mode for taking cognizance, the ordinary procedure under the Code stands excluded to that extent.”

The Court was hearing a petition invoking the inherent jurisdiction of the High Court seeking quashing of the order passed by a Judicial Magistrate, First Class, in the case whereby the petitioners had been charged for offences under Sections 447 and 186 IPC and Section 18 of the J&K State Evacuees (Administration of Property) Act, Svt. 2006, to which they had pleaded not guilty.

The dispute arose from land situated at village Shanker Pora. The petitioners claimed that their predecessors-in-interest had been in possession of the land as tenants and that the land was never notified by the Custodian Department as evacuee property belonging to Raja Faquirullah Khan, who had migrated in 1947.

In 2015, the Custodian Evacuee Property Department issued notices alleging that the land had been allotted to the petitioners on lease for residential purposes for forty years and that the lease period had expired. The petitioners denied the existence of any such lease agreement and approached the High Court through a writ which was disposed of with a direction to appear before the Custodian.

The petitioners alleged that despite repeated appearances, no decision was taken and pressure was exerted through police authorities. Consequently, an FIR was registered against them for offences under Section 447 IPC and Section 18 of the Act.

The petitioners contended that the dispute was essentially civil in nature concerning possession and title over land, but the same had been given a criminal colour. They argued that offences under Section 186 IPC and Section 18 of the Act are non-cognizable and the police could not have filed a charge-sheet. They placed reliance on the order passed by the High Court protecting their possession.

The respondents, on the other hand, submitted that the investigation revealed that the petitioners had illegally occupied evacuee land and had violated the directions issued by the Evacuee Department. They contended that the land in question stood vested in the Evacuee Department and that although the property had not been formally notified, it constituted land left behind by evacuees. The respondents further maintained that the petitioners were unauthorized occupants and that the Trial Court had rightly framed charges against them.

Court's Observations:

The High Court undertook a detailed examination of the statutory framework governing taking of cognizance for offences under Section 186 IPC and Section 18 of the J&K State Evacuees (Administration of Property) Act, Svt. 2006. It held that a conjoint reading of Section 195 of the Code of Criminal Procedure and Section 23 of the said Act makes it manifest that the bar against taking cognizance is absolute unless the procedure prescribed therein is strictly complied with.

The Court observed,

“... In respect of an offence under Section 186 IPC, cognizance can be taken only upon a complaint in writing by the concerned public servant or by a public servant to whom he is administratively subordinate. Likewise, for an offence under Section 18 of the aforesaid Act, prosecution can be instituted only on the basis of a written complaint made by a competent public servant with the previous sanction of the Government.”

The Court noted that in the present case, the record did not disclose compliance with either of the mandatory requirements. The police, on its own, could not have validly investigated or presented a charge-sheet for these offences in the absence of a complaint by the competent authority. The FIR was registered on the basis of information furnished by the Custodian, Evacuee Property, alleging illegal construction over evacuee land. Pursuant thereto, investigation was conducted and a charge-sheet was filed, the Court recorded.

Referring to the decision of the Supreme Court in Daulat Ram v. State of Punjab, AIR 1962 SC 1206, as reaffirmed in Saloni Arora v. State (NCT of Delhi), (2017) 3 SCC 286, the Court held that prosecution for an offence under Section 186 IPC, in the absence of a written complaint by the concerned public servant, is void ab initio and the court lacks jurisdiction to take cognizance on the basis of a police report.

The Court reproduced the principle,

“. there is an absolute bar against the court taking seisin of the case under Section 182 IPC except in the manner provided by Section 195 CrPC” and “the complaint must be in writing by the public servant concerned. The trial under Section 182 without the Tahsildar's complaint in writing is, therefore, without jurisdiction ab initio”.

The Court further clarified that a police report consequent upon investigation cannot be equated with a “complaint” within the meaning of Section 2(d) of the CrPC, for the provision itself excludes a police report from the ambit of a complaint. It observed,

“... The Trial Court admittedly took cognizance against the petitioners on the basis of the police report and proceeded to frame charges for offences under Sections 186 and 447 IPC as well as Section 18 of the J&K State Evacuees (Administration of Property) Act, Svt. 2006. However, so far as the offences punishable under Section 186 IPC and Section 18 of the Act are concerned, cognizance thereof could have been taken only upon a complaint in writing by the public servant concerned.”

The Court also examined the argument of the respondents that the Custodian had lodged a complaint before the police station. It held that what the Custodian had done was merely to furnish information to the police, on the basis whereof the police conducted investigation and filed a charge-sheet. That did not satisfy the requirement of a “complaint” as defined under Section 2(d) CrPC.

Noticing that the petitioners and their predecessors-in-interest had been in possession of the evacuee property for a long time, the Court held, “Admittedly, it stands established that the petitioners, and prior to them their predecessors-in-interest, had been in possession of the evacuee property for a long time. Once that position is accepted, even the independent commission of offence under Section 447 IPC was not made out.”

The Court thus concluded that the proceedings initiated against the petitioners for offences under Section 186 IPC and Section 18 of the Act were rendered void ab initio, being contrary to the law laid down in Daulat Ram (supra).

Accordingly, it quashed the FIR along with the charge-sheet arising therefrom. The petition was disposed of.

Case Title: Assadullah Wagay and Others v. State

Citation: 2026 LiveLaw (JKL)

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