Jammu & Kashmir High Court
Smt. Geeta Devi vs Sudesh Kumar Sharma on 5 May, 2006
Equivalent citations: 2007CRILJ433
Author: J.P. Singh
Bench: J.P. Singh
ORDER J.P. Singh, J.
1. Sudesh Kumar Sharma, respondent, a practising Advocate at Chenani, filed a complaint before Munsiff, Judicial Magistrate First Class, Chenani, saying that he had conducted the Claim Petition of one Geeta Devi before Motor Accidents Claims Tribunal, Udhampur for 15 years, final Judgment wherein was delivered on 10-11-2003.
2. It was on 5-12-2005 that the complainant, Sudesh Kumar Sharma. along with his Clerk Ikhlaq Ahmed, and two others, namely Ram Singh s/o. Mathura and ; Makhan Singh, went to the house of Geeta Devi to demand payment of the fee due to the Advocate. Geeta Devi is alleged to have refused to acknowledge the complainant and Instead used defamatory and unparliamentary language by calling him thief, thug and fraudulent lawyer. On this basis, a complaint under Section 500, RPC was filed before Judicial Magistrate First Class, Chenani, who vide his order dated 6-12-2003, issued process against Geeta Devi under Section 500, R.P.C.
3. Geeta Devi, petitioner, has questioned the process issued against her by learned Judicial Magistrate First Class, Chenani. She says that the allegations in the complaint were inherently improbable and that process of the Court had been misused by the Advocate. She submits that her husband died in a motor accident in Chenani in 1987. Left with no source of income, she had been putting hard labour, day and night to make a living for herself and her four minor children. She further says that an interim compensation of Rs. 15,000/- was awarded by Motor Accidents Claims Tribunal, Udhampur, and out of this amount, an amount of Rs. 9,000/- was taken by the learned Advocate. She says that on every date of hearing, the respondent would charge her between Rs. 2,000/- to Rs. 1,000/-. She further submits that the award of the Claims Tribunal was questioned in this Court, but she could not engage any counsel because of paucity of funds. The appeals, it is alleged, were clubbed together and, accordingly, decided on 17th of October, 2001. Petitioner submitted that neither had she engaged the respondent as her counsel In the High Court nor any counsel on her behalf appeared in the High Court before the LPA Bench. The Insurance Company having been refused stay by the Supreme Court of India, facilitated the petitioner to file an execution petition before the Motor Accidents Claims Tribunal, Udhampur. Petitioner submits that she had not engaged the respondent either in the High Court or in the Supreme Court or at the time of the filing the execution application. Despite all this, the respondent had been demanding an amount of Rupees 30,000/- from the petitioner and it was because of petitioner's not responding to the illegal demand of the respondent that he had initiated criminal proceedings before the Court of Judicial Magistrate First Class, Chenani.
4. Respondent, though served, has chosen not to appear in this Court, despite having appeared in the Registry through Shri K.J. Singh, Advocate.
5. Shri Rahul Pant, learned Counsel for the petitioner, submits that the complainant and his witnesses had not made any statement on oath before the learned Magistrate, who had, thus, erred in issuing process against the petitioner by passing a mechanical order.
6. I have considered the submission of Shri Pant and find substance therein, for the statements recorded by the Magistrate do not indicate any oath having been administered either to the complainant or to the witness at the time of recording their statements.
7. Section 200 of the Code of Criminal Procedure dealing with examination of complainant, mandates the recording of statements of the complainant and his witnesses upon oath. It is only after administering oath that the substance of the examination has to be reduced to writing, It is this material, i.e., statements on oath of the complainant and his witnesses, on which the Judicial Magistrate may consider the issuance or otherwise of the process contemplated by Section 204 of the Code of Criminal Procedure. Section 204, in my opinion, would not come into operation unless requisites contemplated by Section 200 were complied with by the learned Magistrate.
8. Learned Magistrate has, thus, erred in omitting to record the statements of the complainant and his witness, on oath.
9. This apart, the order of the learned Magistrate appears to be a routine order. This order does not indicate either the nature of complaint or the evidence led in support thereof, muchless reflection of the opinion of the Magistrate supported by reasons as to the existence of sufficient grounds for proceeding in the case.
10. It has been noticed that learned Judicial Magistrates, do not reflect the nature of allegations of the complaint and the basis on which opinion was formed by them before proceeding to issue process against the accused. Such an approach of the Judicial Magistrates, is not contemplated by Chapter XVII of the Code of Criminal Procedure, for, the exercise of such jurisdiction affects the liberty of the person against whom process is issued by the Magistrate. In all those cases, where the liberty of a person is to be curtailed by a judicial order, it is mandatorily required that the Magistrate must give reasons on the basis whereof he had formed the opinion in holding that sufficient ground for proceeding, as contemplated by Section 204, existed on the material on records in the shape of evidence of the complainant and his witness/s.
11. For all what has been said above, the process initiated by the learned Magistrate, in my opinion, has resulted in abuse of the process of the Court. I, accordingly, quash the proceedings pending before learned Judicial Magistrate First Class, Chenani, in case titled Sudesh Kumar Sharma v. Geeta Devi.
12. Registrar Judicial shall circulate a copy of this judgment to all Judicial Magistrates for their guidance.