The Jammu and Kashmir High Court has clarified that a complainant alleging a cognizable offence is not obligated to first approach the police for registering an FIR. Instead, they can directly file a criminal complaint before the Magistrate under Section 200 of the Criminal Procedure Code (CrPC). The court emphasized that such a procedure is legally valid, and the Magistrate can take cognizance based on the complaint.
Justice Sanjay Dhar stated:
"There is no bar to approach the Magistrate with a criminal complaint instead of approaching the Police, even in cases where cognizable offences are disclosed."
Read also:- Delhi High Court to Hear YouTuber Mohak Mangal’s Plea to Transfer ANI’s Copyright Suit to IP Division
The ruling came in response to a petition challenging the trial court’s summons issued against the accused for offences under Sections 420 (cheating) and 506 (criminal intimidation) of the Indian Penal Code (IPC).
Background of the Case
The complainant, Amanulla Khan, alleged that the petitioner, Ghulam Mohammad Payer, falsely represented himself as a BJP worker and promised government jobs to his relatives in exchange for money. Between May and September 2020, the petitioner collected Rs. 18,58,000 in cash and an additional Rs. 20,000 via bank transfer. However, no jobs were provided, and when the complainant demanded a refund, the petitioner allegedly threatened him.
Read also:- Supreme Court Rejects BCCI and Riju Ravindran’s Pleas Against NCLT Order in Byju’s Insolvency Case
The trial Magistrate, after recording preliminary evidence, took cognizance of the offences and issued process against the petitioner. The petitioner challenged this order, arguing that:
- The dispute was purely financial and lacked criminal intent.
- The complainant should have first approached the police under Section 154 CrPC instead of filing a complaint before the Magistrate.
- The Magistrate failed to conduct a preliminary inquiry under Section 202 CrPC before issuing summons.
- The Magistrate acted mechanically without proper application of mind.
Court’s Observations and Ruling
1. Allegations Clearly Disclose Offence of Cheating
The court noted that the complaint contained specific allegations of false representation and deception, which prima facie established the offence of cheating under Section 420 IPC. The contention that it was merely a financial transaction was rejected.
2. Complainant Has Discretion to Approach Magistrate Directly
The court held that a complainant has the option to either approach the police for an FIR under Section 154 CrPC or file a complaint directly before the Magistrate under Section 200 CrPC. There is no legal requirement to first go to the police.
Read also:- Kerala High Court Rules Motorbike as 'Dangerous Weapon' Under IPC If Used to Intentionally Harm
3. No Mandatory Preliminary Inquiry Under Section 202 CrPC
The petitioner relied on the Lalita Kumari vs. Govt. of U.P. (2014) judgment, arguing that a preliminary inquiry was necessary. However, the court clarified:
"Section 202 CrPC applies only when the Magistrate is unsure about proceeding. If the complaint and preliminary evidence clearly disclose an offence, further inquiry is not required."
4. Magistrate Applied Judicial Mind While Issuing Process
Though the Magistrate’s order was brief, it referred to witness statements and complaint contents, indicating proper judicial scrutiny. The court cited Anil Kumar vs. M.K. Aiyappa (2013) and Pepsi Foods Ltd. vs. Special Judicial Magistrate (1998) to reinforce that the order reflected due application of mind.
Case Title: GHULAM MOHAMMAD PAYER Vs AMANULLA KHAN, CRM(M) No.389/2025
Appearances:
Mr. Tariq Ahmad Lone, Advocate for the Petitioner.