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

The Jammu and Kashmir and Ladakh High Court has quashed an FIR and all consequential proceedings against few persons who were charged under Sections 447 and 186 of the Indian Penal Code and Section 18 of the J&K State Evacuees (Administration of Property) Act, Svt. 2006, holding that the Trial Court had no jurisdiction to take cognizance of the said offences on the basis of a police report in the absence of a written complaint by the 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...

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

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

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