Jammu & Kashmir High Court
Robkar vs Tahir Jandial on 17 February, 2022
Author: Sanjay Dhar
Bench: Sanjay Dhar
Sr. No. 17
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
ROBCR No. 03/2018 in
CRMC No. 411/2017
IA No. 01.2017
CrlM No. 465/2021
ROBKAR ..... Petitioner/Appellant(s)
Ranjeeta Kour
Through: Mr. Rahul Pant, Sr. Advocate with
Mr. Anirudh Sharma, Advocate.
Vs
Tahir Jandial ..... Respondent(s)
State of J&K and ors.
Through: Mr. Amit Gupta, AAG.
Coram: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
ORDER
17.02.2022 CRMC No. 411/2017
1. Petitioner has challenged complaint/proceedings under Section 107 read with Section 117 of the Cr.P.C titled, "Gurmeet Kour Vs. Gurjeet Singh and Anr.", pending before the Executive Magistrate, 1st Class (Tehsildar), Jammu South (hereinafter referred to as the 'Executive Magistrate'), as also the proceedings emanating therefrom.
2. It is averred in the petition that she received summons from the Court of Executive Magistrate, asking her to appear before the said Court and file her objections on 23.05.2017, on which date, she appeared before the said Court but no proceedings were conducted and the matter was adjourned from time to time.
3. The main contention, that has been raised by the petitioner is that there is no order in the complaint file pending before the Court of Executive 2 ROBCR No. 03/2018 in CRMC No. 411/2017 Magistrate, pursuant to which the summons have been issued to the petitioner. In order to ascertain the merits of this contention, the official respondents were directed to produce the record pertaining to the complaint, which is subject matter of this petition. Photo copy of the record has been produced by Mr. Amit Gupta, learned AAG.
4. I have heard learned counsel for the parties and perused the record.
5. A perusal of the record of the complaint pending before the concerned Executive Magistrate would show that no order has been passed by the learned Magistrate for summoning the petitioner. The record also reveals that only summons have been issued against the petitioner under the hand and seal of the Court of concerned Executive Magistrate without there being any order to this effect.
6. Section 107 of the Jammu and Kashmir Criminal Procedure Code, which is applicable to the instant case, clearly provides that the Magistrate has to form an opinion that there is sufficient ground for proceeding before issuing a show cause notice against a person. The procedure in this regard has been prescribed under the subsequent provisions of Chapter VIII Para-B of the Code. Thus, unless the Magistrate forms an opinion that there is sufficient ground for proceeding against a person, no show cause notice can be issued by him.
7. In the instant case, as is clear from the record, there is not even an order directing issuance of show cause notice to the petitioner. Thus, the question whether the Magistrate had framed an opinion that there is sufficient ground for proceeding against the petitioner does not arise at all. The issuance of 3 ROBCR No. 03/2018 in CRMC No. 411/2017 notice by the respondent No. 2 against the petitioner, in these circumstances, is without any legal basis and the same deserves to be quashed.
8. Normally, the matter could have been remanded back to the Magistrate to pass an order and frame his opinion as regards the merits of the case, but as per the provisions of Section 117(6) of the Cr.P.C, the proceedings on expiry of period of six months stand terminated unless, for special reasons to be recorded in writing, the Magistrate, otherwise directs and it further provides that in no case, these proceedings can continue beyond the period of one year. Since the proceedings against the petitioner were initiated way back in the year 2017, as such, the aforesaid period has expired. Therefore, no fruitful purpose will be served by remanding the case back to the Magistrate, as the proceedings by now have automatically terminated.
9. For the foregoing reasons, the petition is allowed and the proceedings against the petitioner before the Court of the Executive Magistrate shall stand quashed. Record is returned to the learned AAG.
10. Petition is, accordingly, disposed of along with connected applications.
ROBCR No. 03/2018
The instant Robkar was framed against the Executive Magistrate, 1st Class Tehsildar, Jammu South and Incharge Police Station, Women Cell, Jammu for having defied the order dated 13.11.2017 passed in the main petition, whereby they were directed to send the record of the proceedings under Sections 4 ROBCR No. 03/2018 in CRMC No. 411/2017 107 and 117 Cr.P.C for perusal of the Court. The respondents have filed their response to the notice of show cause issued by this Court and in their response, they have submitted that the original record was submitted to the Government Counsel vide No. TJS/OQ/2018-19/235 dated 03.12.2018 for its production before the Court and that there has been no willful dereliction on the part of the respondents.
It appears that there has been some communication gap between the then State counsel and the respondents, which has resulted in non-production of record before the Court as per its directions. The conduct of the respondents in not producing the requisite record before the Court cannot be stated to be an intentional defiance of the Court order. The show cause notice issued against the respondent is, therefore, discharged. ROBKAR is dropped.
(Sanjay Dhar) Judge Jammu 17.02.2022 Ram Krishan