Srinagar: Observing that they were not heard by the single bench, a division bench of High Court of J&K and Ladakh quashed an FIR that was registered against some accused in north Kashmir’s Police Station Kralpora for an alleged scuffle over a property dispute.
Allowing an appeal against its single bench order, division bench of Justice Ali Muhammad Magrey and justice Puneet Gupta set-aside the order. “Consequently, any FIR registered on the direction of the learned Single Bench shall also stand quashed,” the court said.
Observing that the appellants before it were not heard by the Single Bench before passing the order, the court said: “Law on the subject is no more res integra with reference to the power of the Court to pass positive orders without hearing the parties affected”.
While setting aside the order, the DB remanded the writ petition to the Single Bench for fresh decision on merits after hearing the parties and after completion of the pleadings. The appellants Ishfaq Ahmad Khan and others through Advocate Umar Mir had challenged the single bench order on the ground that they were not heard before the order was passed.
The single bench while directing the police to register the FIR had observed that allegations made in the petition and the written complaint lodged by the petitioner before the police authorities and Judicial Magistrate 1st Class, Kralpora, cognizable offences were disclosed.
“But it seems that not only the police authorities have refused to take action in the matter but even the Judicial Magistrate st Class, Kralpora has taken the matter casually by simply forwarding the application to concerned SHO for necessary action under law,” the bench had said.
The single bench had observed that in the instant case, it seemed the dictum of law laid down by the Constitution bench of the Supreme Court in a noted case had been observed in breach by not only the police authorities but even by the Judicial Magistrate 1st Class, Kralpora.
“Forwarding the complaint of the petitioner to SHO Police Station concerned with the remark that necessary action under law may be taken, is not what is expected of a Judicial Magistrate,” the single bench had said.
The bench had pointed out that “ When a complaint disclosing commission of cognizable offence, is laid down before a Judicial Magistrate 1st Class, it is his bounden duty to ask Incharge of the Police Station concerned to investigate the case”.
Consequantly, the bench had directed that SHO Police Station Kralpora to register FIR on the basis of complaint which had been received by him from the petitioner and thereafter conduct the investigation of the case in accordance with the law.