Jammu & Kashmir High Court – Srinagar Bench
Abdul Rashid Dar & Ors vs Union Territory Of J&K& Ors on 5 August, 2025
Author: Javed Iqbal Wani
Bench: Javed Iqbal Wani
Serial No.15
Regular List
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT
SRINAGAR.
CRM(M) No. 68/2023
CrlM No. 358/2024
Abdul Rashid Dar & Ors.
..... Petitioner(s)
Through: -
Mr. Mohammad Ashraf Bhat, Advocate.
V/s
Union Territory of J&K& Ors.
..... Respondent(s)
Through: -
Ms. Ahra Syed, Advocate (R-3).
Ms. Maha Majid, Assisting counsel vice
Mr. Mohsin Qadri, Sr. AAG ( 1 & 2).
CORAM: HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
O R D E R (ORAL)
05.08.2025.
1. In the instant petition, the petitioner herein has invoked the
inherent power of this Court enshrined under Section 482
Cr.P.C.(Now Section 528 BNSS), for quashing of FIR No. 01/2023,
under Sections 447, 427 and 468 IPC, registered with Police Station,
Ahmad Nagar, Srinagar. .
2. The facts giving rise to the filing of the instant petition as
stated in the petition are that the petitioners 1 to 4 herein as plaintiffs
filed a suit for permanent injunction against the respondent 3 herein
along with one Ali Ahmad Jan S/o Ali Mohammad Jan R/o Magarmal
Bagh, Srinagar, being defendant 3 therein stating therein that they,
the plaintiffs inherited from their ancestors land measuring 29 Kanals
falling under Khasra No. 103, 109 situated at Devipora Elllahi Bagh,
Srinagar and out of the said land sold 15 Kanals and that over the
remaining land, the defendants in the suit encroached thereupon as
CRM(M) No. 68/2023 Page 1 of 12
the said defendants also possess an adjacent piece of land falling
under Khasra Nos. 112, 113, 114 and 115 and have started illegal and
unauthorized construction over the said encroached land including
the common pathway falling under Survey No. 109, that too, without
obtaining any prior permission from the competent authority, and in
the process blocked the ingress and egress to the land of the
plaintiffs-petitioners herein and upon the failure of the defendants in
the suit to stop the said encroachment and illegal construction, the
plaintiffs-petitioners herein were left with no option but to file the
suit.
In the said suit, accompanied with the application for grant of
ad-interim relief, the trial court being the court of 2 nd Additional
Munsiff, Srinagar passed an interim order on 1st of August, 2022,
directed the maintenance of status-quo with respect to the suit
property, followed by another order dated 26th September, 2022,
whereby the Tehsildar Eidgah came to be directed to make spot
inspection of the suit property and submit a report, whereafter was
submitted on 18th of November, 2022 before the trial court, stating
therein that the plaintiff-Abdul Rashid Dar is the owner in possession
of land measuring 4 Kanals, 03 Marlas falling under survey No. 103
and the defendant-Ahmad Ali Jan is the owner of land measuring 61
Kanals, 13 Marlas, falling under Survey Nos. 143, 113, 114, 115,
116, 117, 141/112 and 118, however, the said defendant instead is in
possession of 60 Kanals, 13 Marlas and 238 Sft, and that a general
pathway measuring 1 Kanal and 12 Marlas, exists under Survey No.
CRM(M) No. 68/2023 Page 2 of 12
109 between the plot of the plaintiffs and defendants which pathway
stands encroached upon by the plaintiffs-petitioners herein.
3. The trial court in the meantime passed order on 3rd August,
2022, directing the SHO Ahmad Nagar to implement the interim
order dated 1st August, 2022, upon an application filed by the
plaintiffs.
4. On 31st December, 2022, the trial court passed another order
wherein, the trial court clarifying that the basic interim order dated 1st
August, 2022 of status quo must maintained with respect to the suit
property covered under Survey Nos. 103 and 109.
5. During the pendency of the aforesaid suit and the aforesaid
orders passed therein, an application under Section 156(3) Cr.P.C.,
came to be filed by the respondent 3 herein before Chief Judicial
Magistrate, Srinagar (CJM, Srinagar) for and on behalf of one Raziya
Fazili D/O Ali Mohammad Jan Fazili R/O 57-A Government Housing
Colony Rawalpora, Sanatnagar, Srinagar, alleging therein in the said
application that the applicant owns land measuring 61 Kanals, 13
Marlas at Devipora, Ellahi-Bagh, Eidgah, Srinagar and that
attempts are being made by the accused persons-petitioners herein to
encroach upon the said land of the applicant with the purpose to sell
the said land to some third person as the accused persons-petitioners
are the land brokers/land mafia in the area and with their muscle
power intend to grab the properties of the innocent persons and that
though the accused persons-petitioners herein were requested by the
applicant not to encroach upon her land, the said accused persons-
petitioners however, in turn told the applicant that they have
CRM(M) No. 68/2023 Page 3 of 12
documents viz-a-viz, the said land of the applicant and as such, have a
right to use the same for their personal use, suggesting that the
accused persons-petitioners have manipulated and forged the fake
documents with respect to the land of the applicant, although a civil
suit is pending before the court of 2nd Additional Munsiff, Srinagar,
filed by the accused persons petitioners herein pertaining to the land
in question and in fact under the garb of an interim order obtained
therein in the said suit, the accused persons-petitioners herein are
trying to take forcible possession of the land of the applicant which
the accused persons have no right or interest thereof, whereupon the
applicant approached the concerned Police Station for lodgment of
an FIR against the accused-petitioners herein which however, was
not registered, where after the applicant approached the SSP,
Srinagar who too failed to look into the matter and consequently,
compelled the applicant to maintain the application, supported by an
affidavit for directing the registration of the FIR in the matter against
the accused-petitioners herein.
6. The aforesaid application upon being entertained came to be
forwarded by the CJM, Srinagar, to the SDPO Hazratbal for enquiry
in terms of order dated 19th December, 2022, consequent upon which
a report came to be submitted before the CJM, Srinagar on 13th
December, 2022, providing therein in the said report that during the
course of holding of enquiry, Tehsildar Eidgah has examined the
matter who stated that on ground verification and demarcation of
the land by a team consisting of Naib-Tehsildar, Girdawar, Patwari
and Settlement Assistant, it got revealed that Ali Ahmad Jan Fazili
CRM(M) No. 68/2023 Page 4 of 12
S/O Ali Mohammad Jan Fazili is the owner of the land measuring 61
Kanals, 13 Marlas falling Survey Nos. 143, 113,114, 115,116, 117,
141/112 and 118, however, at present is in possession of 60 Kanals,
13 Marlas, 238 Sft, whereas from amongst the accused persons, only
one Abdul Rashid Dar S/o Sonaullah Dar is found to be owning land
measuring 4 Kanals, 03 Marlas under Survey No. 103, and that the
revenue extract issued by Patwari on 8th July, 2022 wherein the said
Patwari had provided that under Khasra No. 103 Mohammad and
Sona (father of Abdul Rashid Dar, Abdul Aziz Dar, Bashir Ahmad
Dar Ss/o Jamal Dar R/o Devipora Ellahibagh) showing them the
owners of land measuring 39 Kanals, 13 Marlas, however, does not
get corroborated by the present demarcation done under the
supervision of Tehsildar Eidgah wherein only 4 Kanals and 03
Marlas of land under survey No. 103 were found to be owned by
Abdul Rashid Dar S/o Sonaullah Dar and that during the enquiry on
ground as per the revenue records/statement of Tehsildar and Naib-
Tehsildar, Soura, the claim of the accused persons is not made out
and on ground only 04 Kanlas, 03 Marlas of land under Khasra No.
103 belongs to Abdul Rashid Dar S/o Sonaullah Dar and that as per
the statement recorded, the accused persons are interfering with the
property of Ali Ahmad Jan being taken care of by one Irfan Ahmad
Baba and on number of times, the accused persons trespassed into the
said land and removed the fencing and damaged the concrete block
under the garb of the revenue extract dated 08th July, 2022 issued by
patwari Bashir Ahmad Bhat.
CRM(M) No. 68/2023 Page 5 of 12
7. The trial court upon receipt of the aforesaid report in terms of
order dated 13th December, 2022, observed and opined that there is
incriminating material against the accused persons qua the land in
question in regard to which no action seems to have been taken by
the concerned police, as such, directed the Police Station concerned
to investigate the matter thoroughly and go ahead with the
proceedings in terms of the status report filed by them and register an
FIR against the accused persons.
8. The accused persons-petitioners herein feeling aggrieved of
order dated 13th December, 2022, preferred a revision petition before
the 3rd Additional Sessions Judge, Srinagar on 23rd January, 2023,
wherein as an interim measure while admitting the said revision
petition, the said court stayed the order dated 13th December, 2022.
The said revision petition is stated to be pending as on date and as per
counsel for the parties during the pendency of the said revision
petition, the accused-petitioners have maintained the instant petition
having been filed on 23rd February, 2023.
9. Petitioners have maintained the instant petition inter alia on
the grounds that the impugned order is illegal as in the application
filed under Section 156(3) Cr.P.C., there was no incriminating
material against the petitioners herein and that the impugned order
has violated the liberty of the petitioners leaving them at the mercy of
the SHO concerned and that the applicant-Irfan Ahmad had no
authority to file the application when the owner of the land in
question was contesting the civil suit in the matter pending before the
court of 2nd Additional Munsiff, Srinagar and that since the impugned
CRM(M) No. 68/2023 Page 6 of 12
order is bad in law and its correctness and proprietary is challenged
in the revision petition separately having been stayed in the said
revision petition and yet on the basis of the said impugned order, FIR
under challenge has been lodged, compelling the petitioners to
challenge the impugned FIR separately and that the report submitted
by the police before the Magistrate in the matter does not substantiate
any incriminating material against the petitioners and that the FIR is
false and frivolous and that in presence of the civil dispute in the
matter pending between the parties before the court of 2 nd Additional
Munsiff, Srinagar, the impugned FIR could not have been registered
against the petitioners herein and that the respondent 2 has misused
his powers while registering the impugned FIR and same is being
used as a weapon of harassment against the petitioners.
10. Respondent 2 has filed two status reports pursuant to the
orders of this Court wherein in the status report dated 22nd March,
2024, it is being reiterated that the accused persons-petitioners herein
have encroached upon the land of Ali Ahmad Jan under the garb of a
revenue extract provided to them by the Patwari and that the
investigation in the case has been completed, however, challan could
not been laid before the competent court in view of the order of this
Court dated 01st of March, 2023.
Heard learned counsel for the parties and perused the record.
11. Having regard to the facts and circumstances of the instant
case, the moot question to be adverted to would be whether the
exercise of inherent power vested unto to this Court is warranted or
not in the case in hand.
CRM(M) No. 68/2023 Page 7 of 12
12. Law is settled in regard to the exercise of said inherent power
by the Apex Court in a series of judgments, wherein it has been the
consistent view that the power possessed by the High Court under
Section 482 of the Code, though is very wide, yet the very plentitude
of the power requires great caution in its exercise and that the Courts
must be careful to see that its decision to exercise the said power is
based on sound principles and the exercise thereof should not stifle a
legitimate prosecution and that when a prayer is made for quashing
of an FIR by the accused, the Court while exercising inherent power
has only to consider whether the allegations under the FIR disclose
the commission of a cognizable offence or not and that the Court
must keep its hands off to allow the investigating agency to complete
the investigation without any fetter and also refrain from passing any
order which may impede the trial with a further rider that the Court
should not go into the merits or demerits of the allegations simply
because the accused alleges malus animus against the author of the
FIR.
13. Keeping in mind the aforesaid principles of law and reverting
back to the case in hand, it is not in dispute that before passing the
order dated 13.12.2022, the Magistrate upon entertaining the
application of the complainant filed under section 156(3) Cr.P.C.
have had directed holding of an enquiry into the matter by the SDPO
Ahmad Nagar in terms of order dated 19th December, 2022 in which
enquiry, various revenue officials including Tehsildar Eidgah, had
been examined as also a report drawn and framed under his
supervision by a team of revenue officers/officials consisting of
CRM(M) No. 68/2023 Page 8 of 12
Naib-Tehsildar, Girdawar, Patwari and Settlement Assistant framed
upon a demarcation, inspection and enquiry conducted with respect
to the subject land and wherein it had specifically been concluded
that amongst the accused persons Abdul Rashid Dar S/o Sonaullah
Dar only is the owner in possession of land measuring 4 Kanals, 03
Marlas covered under Survey No.103 and none other accused
persons-petitioners herein and that Ali Ahmad Jan Fazili S/o Ali
Mohammad Jan Fazili owns the land measuring 61 Kanals, 13
Marlas, covered under Khasra Nos.143, 113,114, 115,116, 117,
141/112 and 118, though at present is in possession of land
measuring 60 Kanals, 13 Marlas 238 Sft and that the accused
persons-petitioners herein under the garb of a revenue extract issued
by one Patwari namely Bashir Ahmad Bhat on 8th July, 2022 in
favour of the accused persons, showing them to be the owners of
land measuring 39 Kanals and 13 Marlas, under Survey No. 103 was
found to be uncorroborated as per the relevant revenue records while
providing further that the accused persons-petitioners herein had in
fact trespassed into the proprietary land of said Ali Ahmad Jan Fazili,
number of times, and removed fencing of the said land besides
damaging the concrete block laid around the said land.
14. Record reveals that based upon the said report of enquiry
furnished by the police agency to the Magistrate, the Magistrate
rightly ordered registration of FIR in terms of provisions of Section
156(3) Cr.P.C. and order came to be passed and consequently
impugned FIR registered.
CRM(M) No. 68/2023 Page 9 of 12
The Apex Court in case tilted as Vinubhai Haribhai Malaviya
and others versus State of Gujrat and another, reported in (2019)
17 SCC 1 has in regard to ambit and scope of Section 156(3) Cr.P.C.
held at paragraphs 24 and 25 as under:-
“24. Likewise, in Sakiri Vasu v. State of U.P. and Ors. (2008)
2 SCC 409, this Court held:
“12. Thus in Mohd. Yousuf v. Afaq Jahan [(2006) 1 SCC
627: (2006) 1 SCC (Cri) 460: JT (2006) 1 SC 10] this Court
observed: (SCC p. 631, para 11)
“11. The clear position therefore is that any Judicial
Magistrate, before taking cognizance of the offence, can
order investigation under Section 156(3) of the Code. If he
does so, he is not to examine the complainant on oath
because he was not taking cognizance of any offence therein.
For the purpose of enabling the police to start investigation it
is open to the Magistrate to direct the police to register an
FIR. There is nothing illegal in doing so. After all
registration of an FIR involves only the process of entering
the substance of the information relating to the commission
of the cognizable offence in a book kept by the officer in
charge of the police station as indicated in Section 154 of the
Code. Even if a Magistrate does not say in so many words
while directing investigation under Section 156(3) of the
Code that an FIR should be registered, it is the duty of the
officer in charge of the police station to register the FIR
regarding the cognizable offence disclosed by the
complainant because that police officer could take further
steps contemplated in Chapter XII of the Code only
thereafter.”
13. The same view was taken by this Court in Dilawar Singh
v. State of Delhi [(2007) 12 SCC 641 : JT (2007) 10 SC 585]
(JT vide para 17). We would further clarify that even if an
FIR has been registered and even if the police has made the
investigation, or is actually making the investigation, which
the aggrieved person feels is not proper, such a person can
approach the Magistrate under Section 156(3) Cr.PC, and if
the Magistrate is satisfied he can order a proper
investigation and take other suitable steps and pass such
order(s) as he thinks necessary for ensuring a proper
investigation. All these powers
a Magistrate enjoys under Section 156(3) Cr.PC. 14. Section
156(3) states:
“156. (3) Any Magistrate empowered under Section 190 may
order such an investigation as abovementioned.” The words
“as abovementioned” obviously refer to Section 156(1),
which contemplates investigation by the officer in charge of
the police station.
CRM(M) No. 68/2023 Page 10 of 12
15. Section 156(3) provides for a check by the Magistrate on
the police performing its duties under Chapter XII Cr.PC. In
cases where the Magistrate finds that the police has not done
its duty of investigating the case at all, or has not done it
satisfactorily, he can issue a direction to the police to do the
investigation properly, and can monitor the same.
16. The power in the Magistrate to order further
investigation under Section 156(3) is an independent power
and does not affect the power of the investigating officer to
further investigate the case even after submission of his
report vide Section 173(8). Hence the Magistrate can order
reopening of the investigation even after the police submits
the final report, vide State of Bihar v. J.A.C. Saldanha
[(1980) 1 SCC 554: 1980 SCC (Cri) 272 : AIR 1980 SC 326]
(SCC: AIR para 19).
17. In our opinion Section 156(3) Cr.PC is wide enough to
include all such powers in a Magistrate which are necessary
for ensuring a proper investigation, and it includes the power
to order registration of an FIR and of ordering a proper
investigation if the Magistrate is satisfied that a proper
investigation has not been done, or is not being done by the
police. Section 156(3) CrPC, though briefly worded, in our
opinion, is very wide and it will include all such incidental
powers as are necessary for ensuring a proper investigation.
18. It is well settled that when a power is given to an
authority to do something it includes such incidental or
implied powers which would ensure the proper doing of that
thing. In other words, when any power is expressly granted
by the statute, there is impliedly included in the grant, even
without special mention, every power and every control the
denial of which would render the grant itself ineffective. Thus
where an Act confers jurisdiction it impliedly also grants the
power of doing all such acts or employ such means as are
essentially necessary for its execution.”
25. It is thus clear that the Magistrate’s power under Section
156(3) of the Cr.PC is very wide, for it is this judicial
authority that must be satisfied that a proper investigation by
the police takes place. To ensure that a “proper
investigation” takes place in the sense of a fair and just
investigation by the police – which such Magistrate is to
supervise – Article 21 of the Constitution of India mandates
that all powers necessary, which may also be incidental or
implied, are available to the Magistrate to ensure a proper
investigation which, without doubt, would include the
ordering of further investigation after a report is received by
him under Section 173(2); and which power would continue
to ensure in such Magistrate at all stages of the criminal
proceedings until the trial itself commences. Indeed, even
textually, the “investigation” referred to in Section 156(1) of
the CrPC would, as per the definition of “investigation”
under Section 2(h), include all proceedings for collection of
CRM(M) No. 68/2023 Page 11 of 12
evidence conducted by a police officer; which would
undoubtedly include proceedings by way of further
investigation under Section 173(8) of the Cr.PC.
15. Having regard to what has been noticed, considered and
analyzed hereinabove including the position of law, this Court is of
the considered opinion that the exercise of inherent power is not
warranted. Resultantly, the petition fails and is, accordingly,
dismissed. As a consequence of aforesaid discussion and dismissal of
the instant petition, the aforesaid revision petition filed by the
petitioners herein and claimed to be pending before the court of
learned 3rd Additional Sessions Judge, Srinagar, wherein the order
dated 13th December, 2022, passed by the Magistrate pursuant to
which the FIR under challenge has been got registered shall also
stands dismissed.
16. Registry to send down a copy of this order to the court of 3 rd
Additional Sessions Judge, and 2nd Additional Munsiff, Srinagar for
information.
(Javed Iqbal Wani)
SRINAGAR Judge
05.08.2025
"Abdul Rashid"
Whether the order is speaking? Yes/No
Whether approved for reporting? Yes/No
Abdul Rashid Ganaie
I attest to the accuracy and
CRM(M) No. 68/2023
authenticity of this document Page 12 of 12
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