SHAH KHAN vs JAVED IQBAL and 2 others
The petitioner filed a criminal miscellaneous petition against the order of the Justice of the Peace Gilgit, which dismissed a petition under Section 22-A of the Code of Criminal Procedure 1898 seeking a direction for the registration of an FIR against the private respondents. The core legal question was whether the Justice of the Peace and the police were justified in refusing to order or register an FIR on the ground that no eye-witnesses were named or that the dispute was of a civil nature. The Gilgit Baltistan Chief Court held that the SHO is duty-bound under Section 154 of the Code of Criminal Procedure 1898 to register an FIR once information disclosing a cognizable offence is provided, without delving into deeper appreciation of merits such as the absence of eye-witnesses or the existence of civil litigation. Consequently, the court set aside the impugned order of the Justice of the Peace and directed the SHO to register the FIR and investigate the matter on merits.
- Whether the SHO is bound to register an FIR under Section 154 of the Code of Criminal Procedure 1898 when information discloses a cognizable offence?
- Is it permissible for a Justice of the Peace to refuse registration of an FIR on the ground that no eye-witnesses were named in the application?
- Does the existence of a civil dispute between the parties bar the registration of a criminal case if a cognizable offence is made out?
- Section 22-A, Code of Criminal Procedure 1898
- Section 154, Code of Criminal Procedure 1898
- Section 561-A, Code of Criminal Procedure 1898
- Section 435, Code of Criminal Procedure 1898
- Section 439, Code of Criminal Procedure 1898
ORDER
MALIK HAQ NAWAZ, J. The instant Cr. Misc. has been filed by the petitioner against the judgment/order of the learned Justice of the Peace Gilgit dated 26.02.2019, whereby the learned Justice of peace has been pleased to dismiss the petition filed by the petitioner under section 22-A, Cr.P.C. for issuance of directions to respondent No.3 for registration of FIR against respondents Nos.1 and 2.
2. The learned counsel for the petitioner submitted that the judgment/ order of the learned Justice of the Peace are not sustainable in the eyes of law and the learned justice of the peace misinterprete d and misapplied the provisions of law. The learned counsel further submitted that when from the bare reading of application submitted by the complainant if a cognizable offences was made out the SHO of a Police Station was duty bound to register an FIR as the language of section 154 Cr.P.C. suggest. The learned counsel further submitted that the findings of the learned Justice of the Peace that the petitioner failed to name any eye-witness of the occurrence in his application submitted to SHO Police Station City Gilgit, which amounts to deeper appreciation of the merits which is not permissible for lodging an FIR. The judgment/order passed by learned justice of peace be reserved. The learned counsel for the petitioner relied on 2019 PCr .LJ Note 28, 201 1 PCr .LJ 913 and 2013 PCr .LJ 1 17.
3. The learned counsel for the respondent submitted that the instant petition under section 561-A, Cr.P.C. is not maintainable by this Court as the remedy is available under sections 435/ 439, Cr.P.C. The learned counsel for the respondent further submitted that a civil suit between the parties is subjudice before the Civil Court, hence the judgment/order of learned justice of the peace has rightly been passed after full application of judicial mind.
4. Heard in detail and record of the case perused. A plain reading of section 154, Cr.P.C. suggests that the discretion for lodging of an FIR under section 154, Cr.P.C. does not lie with the SHO concerned. The SHO Police Station has to see tentatively see whether a cognizable offence seems to have been made out or not. Section 154, Cr.P.C. makes it obligatory for a Police Officer of Police Station that every information relating to commission of a cognizable offence if given in orally or in writing, he will reduce the same in to the FIR. Refusal of police to register a case is volition of section 154, Cr . P. C.
5. The judgment/order of learned justice of the peace that the occurrence took place in a thickly populated area but no eye-witness has been cited falls out of the purview of the learned justice of the peace. The learned Justice of the peace was only to see whether from the plain reading of the application of complainant, a cognizable offence was made out or not. Even if it was presumed that actual dispute between the parties was one of the civil nature and was to be decided by the Civil Court even than the learned Justice of the peace was bound under law to order a registration of FIR against the respondents Nos.1 and 2 when a cognizable of fence was made out.
6. In view of above the judgment/ order passed by the learned Justice of the peace dated 26-02-2019 set-aside.
Respondent No.3 SHO Police Station City Gilgit is directed to register an FIR again st respondents Nos.1 and 2 and after registration of FIR the SHO is direct ed to carry out the investigation of the case on merit in accordance with law.