Accused Cannot Insist On Chargesheet Under Statute Of His Choice When Acts Are Punishable Under Two Different Laws: J&K&L High Court

The High Court of Jammu & Kashmir and Ladakh has held that an accused cannot demand that charges be framed under a particular penal statute when the alleged acts constitute offences under more than one law. The Court emphasized that the choice of statute for initiating proceedings is a matter for the investigating and prosecuting authorities and not for the accused.The Court was hearing a criminal miscellaneous petition under Section 482 of the Criminal Procedure Code, filed by one Mushtaq Ahmad Ganie seeking quashment of First Information Report. The petitioner challenged the FIR alleging violation of lockdown restrictions during the Covid-19 pandemic and assault on police personnel, contending that cognizance should have been taken under the Disaster Management Act, 2005, or in accordance with Section 195 CrPC.Justice Shahzad Azeem, while examining the maintainability of the petition and the scope of Section 482 CrPC, observed, “.. an accused cannot insist for presentation of chargesheet under the penal statute of his choice, when such acts are punishable under two different statutes”The petitioner, a journalist by profession, was intercepted by police while travelling during the period of lockdown imposed under Section 144 CrPC and the Disaster Management Act, 2005. Allegedly, the petitioner failed to provide satisfactory explanation for being on the spot and allegedly assaulted the police party. Consequently, an FIR was registered against him under Sections 188, 269, and 353 of the Indian Penal Code.Following the investigation, a challan was submitted before the Judicial Magistrate First Class. The petitioner sought quashment of the FIR claiming procedural irregularities and asserting that cognizance should be taken only under the Disaster Management Act or through a complaint under Section 195 CrPC.The respondents opposed the petition, stating that the FIR was registered in accordance with law and that the petitioner's alleged actions were punishable under multiple penal provisions. Court's Observations:The Court noted that the extraordinary jurisdiction under Section 482 CrPC must be exercised sparingly and only in exceptional circumstances where miscarriage of justice is apparent. The Court highlighted that the correctness of the allegations against an accused is to be determined at trial.It was observed that the petitioner's contention regarding his profession as a journalist was unsupported by the record and did not exempt him from compliance with restrictions imposed under Section 144 CrPC. The Court remarked, “… To the contention of the petitioner that he is a Journalist by profession and at the relevant point of time, he was returning home, there is nothing on record to substantiate that either he is a Journalist or at the relevant point of time, he was permitted to perform his duty as such, despite imposition of restrictions under Section 144 Cr.P.C”The Court held that offences arising from a single set of acts may attract liability under more than one statute and the accused cannot dictate which statute should be invoked for prosecution. The petition under Section 482 CrPC was therefore not maintainable as the procedural safeguards and choices in framing charges rest with the prosecuting authority, not with the accused, the court underscored. Further, the Court clarified that while provisions like Section 60 of the Disaster Management Act and Section 195 CrPC prescribe conditions for cognizance, these cannot be construed to prevent prosecution under other relevant statutory provisions for acts constituting offences under the IPC.Critically, the Court reiterated that at the stage of framing of charge, its function is limited to assessing whether there is prima facie material to support the allegations in the chargesheet. It is not for the Court to determine which statute is most appropriate, nor to rewrite the chargesheet and if the material fails to show prima facie culpability, the accused may be discharged; otherwise, the Court frames the charge as presented in the chargesheet, the Court maintained. Concluding that the petitioner was not entitled to quash the FIR on the ground that the prosecution did not follow the penal statute of his choice the Court dismissed the petition. Case Title: Mushtaq Ahmad Ganie Vs Union Territory of J&K & Anr.Citation: 2026 LiveLaw (JKL)Click here to read/download Judgment

Accused Cannot Insist On Chargesheet Under Statute Of His Choice When Acts Are Punishable Under Two Different Laws: J&K&L High Court

LIVELAW NEWS NETWORK

Tags