Jammu & Kashmir High Court – Srinagar Bench
Jitendra Narayan Tyagi @ Syed Waseem … vs Ut Of J&K & Anr on 11 April, 2025
Author: Rahul Bharti
Bench: Rahul Bharti
Serial No. 115
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
Case:- CRM(M) No. 174/2025
CM No. 382/2025
Jitendra Narayan Tyagi @ Syed Waseem Rizvi
.....Appellant(s)/Petitioner(s)
Through: Mr. Ankur Sharma, Advocate
(Through Virtual Mode)
Vs
UT of J&K & Anr.
.....Respondent(s)
Through:
Coram: HON'BLE MR. JUSTICE RAHUL BHARTI, JUDGE
ORDER
(11.04.2025)
01. Heard learned counsel for the petitioner through virtual
mode.
02. The petitioner has come up with the present petition
thereby invoking inherent jurisdiction of this Court
preserved under section 482 of the Code of Criminal
Procedure, 1973 [now section 528 of the Bharatiya Nagarik
Suraksha Sanhita (BNSS), 2023] thereby seeking
quashment of the very entertainment of a criminal
complaint filed by the respondent No. 2-Danish Hassan Dar
and taken cognizance by the court of Judicial Magistrate 1st
Class (2nd Additional Munsiff), Srinagar but also the
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CM No. 382/2025
cognizance taking order with respect to the complaint so
filed by the respondent No. 2.
03. The respondent No. 2 filed the criminal complaint against
the petitioner bearing allegations that the petitioner upon
his conversion from ‗Islam’ to ‗Hinduism’ has made
utterances denigrating ‗Islam’ as religion and also
maligning the religious scripture of ‗Islam’ i.e. ‗Quran’. In
the complaint, the respondent No. 2 has contextualized as
to what alleged offending manner the petitioner has
presented ‗Islam’ as a religion and it its ‗Prophet
Muhammad’.
04. It is alleged in the complaint that the utterances of the
petitioner, which came up in Public Domain through
statements made to the newspapers and on the news
channels, were objected and reprehended by various Ulmas
and Muslim Bodies throughout the India.
05. It is in this context that the respondent No. 2, as a
complainant, in his complaint alleged that the acts of
omission and commission on the part of the petitioner
render him liable to face the prosecution under sections
153-A, 295-A, 298, 504 & 505 of the Indian Penal Code
(IPC) but in the same breath averred in the complaint that
prima facie the petitioner has committed offences under
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CM No. 382/2025
sections 153-A, 295, 295-A, 504 & 505 of IPC leaving out
section 298 IPC.
06. The cause for the petitioner to file the complaint was
actually for seeking registration of FIR and investigation of
the matter by alleging that the respondent had first
approached the Police Station concerned for the purpose of
lodging FIR but the petitioner was not entertained leaving
him to approach the Senior Superintendent of Police (SSP),
Srinagar by sending complaint for registration of FIR
through registered post but getting no response and, thus,
lastly approaching the court of Chief Judicial Magistrate for
seeking registration of FIR in the matter and investigation.
07. Thus, from the tone and tenor of the complaint so filed, the
respondent No. 2 did not intend to have a complaint taken
cognizance by the court but instead solicited a direction
unto the Police for registration of FIR.
08. Upon institution of the complaint before the court of Chief
Judicial Magistrate, the same came to be transferred and
assigned to the Judicial Magistrate 1st Class (2nd Additional
Munsiff), Srinagar and the complaint was taken on file No.
131/2nd Addl. on 15.12.2021.
09. From the material placed on record by the petitioner
alongwith his petition, it is discernable that the court of
Judicial Magistrate 1st Class (2nd Additional Munsiff),
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CM No. 382/2025
Srinagar positioned itself in the manner as if that the
respondent No. 2 was seeking cognizance of his complaint
under section 190 read with section 200 of the Code of
Criminal Procedure, 1973 whereas the fact of the matter is
that the tone and tenor of the complaint is for a direction
under section 156(3) of Code of Criminal Procedure, 1973
for registration of FIR.
10. The court of Judicial Magistrate 1st Class (2nd Additional
Munsiff), Srinagar at its end, by virtue of an order dated
09.02.2022, acting suo moto initiated an enquiry
purportedly ascertaining the truthfulness or otherwise of
the matter in hand. This Court has borrowed the recital as
set out by the court of Judicial Magistrate 1st Class (2nd
Additional Munsiff), Srinagar. In this regard, the
respondent was directed to produce the evidence and other
material before the court which resulted in examination of
witnesses and also of the respondent which came to be
verbatim reproduction of the contents of the complaint.
11. Upon the purported enquiry, the court of Judicial
Magistrate 1st Class (2nd Additional Munsiff), Srinagar came
to prima facie opinion that a case for cognizance is made
out against the petitioner for commission of offences under
sections 153-A, 295-A & 505 of Indian Penal Code and,
therefore, directed issuance of process.
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CM No. 382/2025
12. It is against this course and alleged action that the
petitioner, feeling himself aggrieved, has approached this
Court with the present petition.
13. Learned counsel for the petitioner has asserted that the
Judicial Magistrate 1st Class (2nd Additional Munsiff),
Srinagar has mis-conducted the entire legal exercise being
in sheer ignorance of the Code of Criminal Procedure, 1973
and also of the Indian Penal Code.
14. In this regard, the learned counsel for the petitioner
submits that the offence under section 153-A IPC is
figuring in Chapter-VIII which deals with Offences against
the Public Tranquility. Section 295-A IPC figures in
Chapter-XV which deals with Offences relating to Religion
and section 505 IPC falls under Chapter XXII bearing
heading ―Criminal Intimidation, Insult and Annoyance‖.
15. By reference to these Chapters of IPC, the learned counsel
for the petitioner refers to section 196 of the Code of
Criminal Procedure, 1973 falling in Chapter XIV which
prescribes ―Conditions requisite for initiation of
Proceedings‖.
16. Section 196 of the Code of Criminal Procedure, 1973 reads
as under:-
―196. Prosecution for offences against the State and for
criminal conspiracy to commit such offence.–(1) No Court
shall take cognizance of–
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CM No. 382/2025
(a) any offence punishable under Chapter VI or under
section 153A, 2 [section 295A or sub-section (1) of
section 505] of the Indian Penal Code (45 of 1860), or
(b) a criminal conspiracy to commit such offence, or
(c) any such abetment, as is described in section 108A of
the Indian Penal Code (45 of 1860),
except with the previous sanction of the Central
Government or of the State Government.
[(1A) No Court shall take cognizance of–
(a) any offence punishable under section 153B or sub-
section (2) or sub-section (3) of section 505 of the Indian
Penal Code (45 of 1860), or
(b) a criminal conspiracy to commit such offence,
except with the previous sanction of the Central
Government or of the State Government or of the District
Magistrate.]
(2) No Court shall take cognizance of the offence of any
criminal conspiracy punishable under section 120B of the
Indian Penal Code (45 of 1860), other than a criminal
conspiracy to commit 4 [an offence] punishable with death,
imprisonment for life or rigorous imprisonment for a term of
two years or upwards, unless the State Government or the
District Magistrate has consented in writing to the initiation of
the proceedings:
Provided that where the criminal conspiracy is one to
which the provisions of section 195 apply, no such consent
shall be necessary.
(3) The Central Government or the State Government may,
before according sanction [under sub-section (1) or sub-
section (1A) and the District Magistrate may, before according
sanction under sub-section (1A)] and the State Government or
the District Magistrate may, before giving consent under sub-
section (2), order a preliminary investigation by a police officer
not being below the rank of Inspector, in which case such
police officer shall have the powers referred to in sub-section
(3) of section 155.‖
17. By reference to the section 196 of the Code of Criminal
Procedure, 1973, learned counsel for the petitioner submits
that the Judicial Magistrate 1st Class (2nd Additional
Munsiff), Srinagar has lached on to take cognizance of the
complaint of the respondent No. 2 without bothering to
have even an elementary reading of section 196 of the Code
of Criminal Procedure, 1973 which mandates previous
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CM No. 382/2025
sanction of the Central Government or of the State
Government for facilitating cognizance of an offence under
sections 153-A, 295-A & 505(1) of the Indian Penal Code,
1860.
18. Learned counsel for the petitioner submits that there is a
legislative purpose inhering in section 196 of Code of
Criminal Procedure, 1973 in prescribing previous sanction
of the Central Government/State Government/and/or of
the District Magistrate concerned so as to set a safe
reference in the institution of the criminal complaint
alleging offences under the aforesaid sections so that the
prior attention of the Central Government/State
Government or the District Magistrate concerned is duly
engaged to adjudge as to whether the offences of above
description are amounting to creation of effects for which
such offences have been created and warranting
cognizance.
19. Prima facie case is made out.
20. The Judicial Magistrate 1st Class (2nd Additional Munsiff),
Srinagar in the cognizance taking order dated 09.02.2022
has not laboured to consult the Code of Criminal
Procedure, 1973, as it was then obtaining and, thus, erred
in taking the cognizance by by-passing the Central
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CM No. 382/2025
Government’s consent in the context of UT of Jammu &
Kashmir.
21. Issue notice to the respondent No. 2 only.
22. Petitioner to furnish registered postal cover by or before 1st
of May, 2025 before the learned Registrar Judicial,
Srinagar, whereupon notice to go to respondent No. 2.
23. List on 07.07.2025.
24. In the meantime, the proceedings in the case titled –
―Danish Hassar Dar vs Jitender Narayan Singh Tyagi‖
before the court of Judicial Magistrate 1st Class (2nd
Additional Munsiff), Srinagar on file No. 131/2nd Addl. shall
remain stayed.
25. Learned Registrar Judicial, Srinagar to send for the original
record of the complaint from the court below.
(RAHUL BHARTI)
JUDGE
SRINAGAR
11.04.2025
Bunty
Bunty Kumar
2025.04.29 19:23
I attest to the accuracy and
integrity of this document
Jammu
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