Preliminary Inquiry Is Ordered When There Is Abnormal Delay In Initiating Criminal Prosecution: J&K&L HC

The Jammu and Kashmir and Ladakh High Court has held that a preliminary inquiry is ordered in the matter when there is abnormal delay or laches in initiating criminal prosecution.

A Single Bench of Justice Javed Iqbal Wani observed, “… the Magistrate while directing registration of the impugned FIR in the impugned order though has in detail referred to the contents of the application in the order, yet has overlooked the said principles in particular para 120.6 which risking repetition in explicit terms provides that cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over three months’ delay in reporting the matter without satisfactorily explaining the reasons for delay, a preliminary inquiry be ordered in the matter, as a bare perusal of the application filed by the complainant/respondent no. 3 alleged the acts/offences committed by the accused persons/petitioners in the year 2019 without there being any explanation offered by the complainant/respondent no. 3 as to what prevented him then from approaching the official respondents for an action against the accused persons/petitioners, in that in the application it is admittedly averred that the complainant/respondent no. 3 had submitted an application before the official respondents on 31.3.2022 for initiating an action against the accused persons/petitioners.”

The Court further held that the power to quash an FIR and consequential investigation is supposed to be exercised and used sparingly and rarely, but is required to be used when the High Court is satisfied that the same would result in the miscarriage of justice.

Advocate M. I. Dar appeared on behalf of the petitioner while Government Advocate Sajad Ashraf and Senior Advocate Faisal Qadiri appeared on behalf of the respondents.

In this case, the petitioner had raised issues with regard to the order passed by the Judicial Magistrate 1st Class and FIR for offences under Sections 506, 420, and 120-B of the IPC. The petitioner was alleged to have approached one of the respondents in 2017 for making investments in the construction business he had been in with his family and offered to invest in his three construction companies with an assurance of getting profits within six months.

The said respondent invested Rs. 1,75,76,961/- through Bank by way of RTGS and the said amount was extorted by the petitioner without making any payments in return. Upon making a demand by the respondent for the return of his money, the petitioner threatened him and his family and even tried to kill them whereupon a complaint was lodged before a police station requesting registration of an FIR but the same was not done as a result of which the respondent approached the SP who also did not take any action under Section 156(3) of Cr.PC.

The High Court in view of the facts and circumstances of the case noted, “After passing of the impugned order, the respondent 2 herein registered the impugned FIR against the petitioners herein on 10.6.2022. … The impugned order as also the FIR are being challenged on the grounds urged in the petition. … There apparently has been a considerable delay in seeking registration of FIR by complainant/respondent no. 3 against the accused persons/petitioners for the commission of offences allegedly committed against the complainant/respondent no. 3 and his family initially in the month of September, 2019.”

The Court asserted that the Magistrate in view of the facts and circumstances of the case was required to have directed holding of a preliminary inquiry in the matter and that the Magistrate apparently exhibited not only a lack of application of mind to the material on record but also approached the case very lightly and in a mechanical manner.

“The matter seemingly has not received appropriate consideration by the Magistrate thus requiring the remanding of the same back to the Magistrate for its revisiting and reconsideration”, said the Court.

Accordingly, the Court allowed the plea, quashed the order and FIR, and remanded back the matter to the Magistrate for reconsideration of the respondent’s application.

Cause Title- Harbachan Singh v. Sr. Superintendent of Police Srinagar and others

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