Jammu & Kashmir High Court - Srinagar Bench
Surinder Kumar Bhat And Another vs Rajni Koul on 18 December, 2018
Author: Rashid Ali Dar
Bench: Rashid Ali Dar
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
CRMC No. 431/2018
IA No. 01/2018
Date of Order: 18.12.2018
Surinder Kumar Bhat and Another
Vs.
Rajni Koul
Coram:
Hon'ble Mr Justice Rashid Ali Dar, Judge
Appearance:
For petitioner(s): Mr. J. H. Reshi, Advocate
For respondent(s): Mr. M. A. Makhdoomi, Advocate
i/ Whether to be reported in Yes/No
Press/Media?
ii/ Whether to be reported in Yes/No
Digest/Journal?
1. In this petition, filed under Section 561-A of Criminal Procedure Code, the petitioners are seeking quashment of the impugned order dated 21.07.2017, passed by the 3rd Additional Munsiff (JMIC), Srinagar, in case titled Rajni Koul v. Surinder Kumar Bhat and Another and order dated 26.10.2018, passed by the 1st Additional Sessions Judge, Srinagar, in case titled Surinder Kumar Bhat v. Rajni Koul.
2. The facts, as these stem out from the petition, are that the petitioners herein and respondent herein are closely related to each other as the petitioner No. 1 and the respondent are brother and sister while as the petitioner No. 2 is the son of the petitioner No. 1 and the nephew of the respondent. The respondent has filed private complaint as against the petitioners for the commission of offences under the provisions of Section 419, 420, 465, 467, CRMC No. 431/2018 Page 1 of 11 468 & 471 RPC, which is pending in the Court of 3 rd Additional Munsiff (JMIC), Srinagar. The said Court has taken cognizance in the case on 21.07.2017 and summoned the accused in the case by an order dated 21.07.2017. Aggrieved by the said order, the petitioners herein challenged the same before the learned Principle Sessions Judge, Srinagar, in a revision petition, which on transfer came to be dismissed by the Court of 1 st Additional Sessions Judge, by his judgment dated 26.10.2018.
3. Aggrieved by the aforesaid orders, the petitioners challenged the same before this Court, inter alia on the following grounds:
(i) That the basic complaint filed by the respondent is frivolous and vexatious in nature. As further canvassed, it is admitted by the respondent in the statement recorded before the trial Court in support of her complaint that her basic grudge is that she has not been given her due share from the estate left behind by her erstwhile father after his death way back as on 06.01.1986. It is evident according to petitioner from the complaint itself that it is the outcome of a dispute which essentially is a dispute of civil nature and has nothing whatsoever to do with the offences that are alleged to have been committed by the petitioners.
(ii) That the complaint has been filed by the respondent after a lapse of more than 30 years now after the death of her father. The petitioner No. 2, was born on 17.10.1994, that is, more than eight years after the death of the aforesaid deceased estate holder so there is no question of him having committed any of the offences mentioned whereof has been made in the aforesaid complaint.
(iii) That the bone of contention between the petitioner No. 1 and respondent is the estate left behind by their father for which respondent has initiated proceedings almost in all Courts and before different forums. The deceased estate holder at the time of his death was survived by as many as two sons, five daughters and his widow, but none other than the respondents has raised the dispute vis-à-vis property left behind by him that tool after a long delay of 30 years now, which is impermissible under the law. It is further submitted that the trial Court has wrongly taken cognizance of the commission of offences mentioned in the complaint without any application when CRMC No. 431/2018 Page 2 of 11 none of the offences alleged to have been committed by the petitioners are made out in the complaint or on the basis of the documents placed on record.
(iv) That the learned trial Court has taken cognizance of even those offences which cannot be tried by a Judicial Magistrate at all and taken cognizance of the offences of which cognizance is barred as per bar of limitation prescribed under the provisions of Section 538-B of Cr. PC. The respondent is in particular bent upon to spoil the career of the petitioner No. 2, who is working hard and doing very well in his life, so to blackmail the petitioners by naming them as accused in the aforesaid complaint and other such complaints with an ulterior motive to obtain an unconscionable bargain from them although she stands already compensated by the petitioner No. 1, for whatever may have been due to her under the law. The other signatories and witnesses to the mutations referred to in the complaint, Patwari concerned and the attesting authority concerned have not been made as accused in the aforesaid complaint which speaks volumes about the actual intention of the complaint.
4. The learned counsel for the petitioner contended that the order of taking cognizance is manifestly bad as there in non-application of mind on the part of Magistrate in passing the impugned order. The averments of the complaint made a general mention of the allegations levelled against the petitioner and there was no accusations to infer prima facie the commission of offences. It is further stated that even the date on which particular act or omission had been made by the accused is not referred to in the complaint or the particulars of the documents which has been forged and converted as a valuable security, to reap benefits illegally. The petitioner has placed the reliance on following judgments in support of the contention.
(i) Poonam Chand Jain and Another v. Fazru", reported in 2005 CRI.
L. J. 100 SC,
(ii) (ii) State of Kerala and Others v. Unnikrishnan Nair and Others", reported in 2015 SAR (Criminal) 1073 SC
(iii) (iii) Sanjay Singh v. State of U.P".
CRMC No. 431/2018 Page 3 of 11
In case referred at S. No. (i) (Poonam Chand Jain and Another v. Fazru), the Apex Court had held that the process cannot be reviewed or reconsidered by learned Magistrate. In a given case, Section 482 can be pressed into service.
In case referred at S. No. (ii) (State of Kerala and Others v. Unnikrishnan Nair and Others), the Apex Court has observed that jurisdiction under exercise and scope of where no prima facie case is made out against the accused, then the High Court is obliged in law to exercise the jurisdiction under Section 482 of the Code and quash the proceedings.
In case referred at S. No. (iii) (Sanjay Singh v. State of U.P), the Allahabaad High Court has taken note of various judgments of Hon'ble Apex Court and framed the opinion that the order of summoning the accused is quasi-final and so amenable to revisory jurisdiction. It is further stated in the said judgment that the revisional Court has proceeded beyond jurisdiction in holding the order of summoning is an interlocutory order and, therefore, revision is not maintainable. The wrong interpretation so made has manifestly caused injustice to the petitioners and so the order impugned was quashed, while the parties were directed to appear before the revisional Court.
5. He has thus canvassed that the opinion of the learned Additional Sessions Judge, is not correct in stating that the order challenged in revision is interlocutory one.
6. On the other hand, Mr. Makhdoomi, learned appearing counsel for the respondent submitted that the petitioner has already challenged the order before the Sessions Judge in revision and the said Court has on a proper appreciation of the matter that the action taken by Magistrate is proper one.
7. Considered rival arguments and perused the material available on record.
8. In the light of judgments relied on by the learned counsel for the petitioners herein, it can quite vividly be said that the learned 1st Additional Sessions Judge, Srinagar, has not noticed the law properly regarding the nature of the CRMC No. 431/2018 Page 4 of 11 order passed by the learned Magistrate dated 21.07.2017. The order cannot said to be as interlocutory one as it does fall within the meaning of quasi- final or intermediate orders. The order substantially affects the rights of the petitioners. The petitioners have to appear in the Court and face the trial because of this order. It is not a trivial or insignificant act so. The bar under section 435 Cr. PC is intended to be applicable viz such orders which do not affect the parties materially. Order directing a party to face the trial need to be amenable to supervisory jurisdiction. Learned Magistrate cannot himself nullify such an order, maybe he finds later a ground to recall it. The remedy of revision provides an opportunity to revisory authority to see whether prima facie there was scope for issuance of process on the basis of the evidence available before the learned Magistrate. In such view of the mater the order passed on 26.10.2018 passed by the 1st Additional Sessions judge is to be treated as erroneous and is liable to be set aside.
9. Since the petitioners herein have also questioned that the legality of order dated 21.07.2017, passed by learned 3rd Additional Munsiff (JMIC), Srinagar, so that the relevant facts and the material available before the learned Magistrate for issuance of the process are required to be gone into to test the merit of contention so raised.
10. On perusal of the complaint annexed with the petition, it is revealed that the Court of Judicial Magistrate, Srinagar, had been approached by the CRMC No. 431/2018 Page 5 of 11 respondent herein in the form of complaint against, petitioners herein. In the complaint the allegations had been levelled against the petitioners herein as:
(i) That the complainant is a permanent resident of State of Jammu and Kashmir, hailing from Durga Nagar, Bantalab Jammu and presently residing at Chand Pora, Harwan, Srinagar, Kashmir.
(ii) That the accused No. 1 fraudulently and mischievously has caused wrongful gain to himself and wrongful loss to the complainant by suppressing the vital facts before the Acquisition Authorities as a result of which the accused No. 1 has grabbed the lawful share of the complainant to which she was entitled as being one of the daughter of Jia Lal.
(iii) That the accused No. 1 submitted fraud and forged documents before LAWDA and thereby made them to believe a thing as genuine which was otherwise fraud and forged thereby committing serious offences relating to the offences of valuable securities.
(iv) That the accused No. 1 managed to take undue advantage of his uncle namely Prithvi Nath Bhat by showing accused No. 2 as the adopted son of Prithvi Nath Bhat while as the matter of fact is that the affidavits and other documents submitted by the accused No. 1 before Relief Commissioner, Jammu depict different story all together as the accused No. 1 has shown accused No. 2 as his real son.
(v) That the shifting of stands by accused No. 1 vis-à-vis accused No. 2 for the purpose of depriving the complaint of her lawful entitlement speaks volumes about the mischievous and ill designs of the accused No. 2 which has caused tremendous sufferings to the complainant. As the matter being sensitive for the reason that accused No. 1 has washed his hands by conveying with the Revenue officials and getting the mutation attested without the consent and knowledge of complainant who being the equal stakeholder.
(vi) That accused No. 1 mischievously manipulated some forged documents thereby reflected accused No. 2 as adopted son of Prithvi Nath Bhat. While as the matter of fact is that the dates in which the impugned adoption is shown to have taken place is only two months before the death of Prithvi Nath Bhat and that too when the alleged accused No. 1 was only two months old. The conspiracy woven by accused No. 1 in league with various revenue officials and relief officials at Jammu need to be thoroughly investigated.
(vii) That the accused No. 1 is caught in his own web, on one hand, t accused No. 1 claims that accused No. 2 is the adopted son of Prithivi Nath Bhat in order to expiate his case for compensation and on the other hand, the accused No. 1 reflects accused No. 2 as his own son to the Registry himself for various Govt. subsidies before the Relief Commissioner/Migrant, Jammu.CRMC No. 431/2018 Page 6 of 11
(viii) That it would be apt to state that the accused No. 1 being an employee of SMC, Sgr. deriving a limited salary has invested all the money in raising a fallacious house at Jammu and Faridabad Haryana to which the accused No. 1 was not entitled as the money that was supposed to fall the share of the complainant has been taken away mischievously by accused No. 1.
(ix) That the accused No. 2 being the beneficiary on account of being reflected as adopted son of accused No. 1 while as the matter of fact is that the academic record of accused No. 2 all along reflects that the accused No. 2 is the real son of accused No. 1.
(x) That the accused No. 1 and accused No. 2 have hatched a criminal conspiracy to seep the legitimate money of the complainant by two ways, first by non-reflection of complaint in the mutatioin records, and secondly, by getting the compensation through the channel of bogus claim of adoptive son of Prithvi Nath Bhat and the accused persons have forged a series of documents which were valuable securities in favour of the complainant.
11. The complaint appears to have been presented before the ld. Magistrate on 21.07.2017 in which order has been passed on 21.07.2017 as under:
"I have gone through the complaint as well as premilinary statements of the complainant and his witness recorded on oath and have applied my mind into the present fact and circumstances of the case. Prima facie, if the allegations levelled in the complaint and the preliminary statements of the complaint and his witness are to be taken into consideration in their entirely, there is sufficient evidence to proceed against the accused persons under Sections 419, 420, 465, 467, 468, 471 RPC. Accordingly, the cognizance is taken against the accuse person(s) for the offences under Section 419, 420, 465, 467, 468, 471 RPC. The accused shall be summoned for the purpose of facing the trial in the aforesaid offences. The summons be issued through SHO concerned. Le the file shall come up on 24.08.2017."
12. As stated above, challenge to this order proved abortive as learned 1st Additional Sessions Judge, Srinagar, rejected the revision petition filed against the order by observing same being an interlocutory order.
13. In the complaint filed before the learned Magistrate, the respondent has admitted that she having close relationship with the petitioners. Her assertion is that the accused (petitioners) fraudulently and mischievously CRMC No. 431/2018 Page 7 of 11 have caused wrongful gain to them and wrongful loss to her. The date on which the fraud was committed to bestow upon themselves the wrongful gain has not been spelled out in complaint. Similarly, the particulars of the documents and affidavits filed before the Land Acquisition Authority is not quoted. Nature of documents presented before the Relief Commissioner, Jammu, have not been given or it made intelligible what was alleged "different story" projected before the Relief Commissioner. Allegation has been made that the manipulation has been in some documents to reflect accused No. 2 as adopted son of Prithivinath Bhat, while as only two months before Prithivinath's adoption took place. The learned Magistrate has in terms of the cognizance taken referred above, prima facie, held the petitioners guilty of the commission of offences under Section 419 (cheating by personation), 420 (cheating and thereby dishonestly inducing delivery of property, or making alteration or destruction of a valuable security), 465 (forgery), 467 (forgery of a valuable security will, or authority to make or transfer any valuable security, or to receive any money etc.), 468 (forgery for the purpose of cheating), 471(Using as genuine a forged document which is known to be forged). In the title of the complaint, the complainant and one of the accused is shown to be putting up at places other than the Srinagar. The complainant has stated that she is resident of Bantalab, Jammu and petitioner No. 2 of Maharashtra. The residential address of petitioner No. 1 has not been quoted in the complaint CRMC No. 431/2018 Page 8 of 11 but his address is shown C/o Commissioner, Srinagar Municipal Corporation.
14. It would be highly improper for this Court to record any findings on the basis of documents referred in the petition about the merit of the allegation of the complainant. Be it so, it needs to be underscored that on presentation of a complaint, the learned Magistrate is required to proceed very carefully. The material available before him at the relevant time and stated to have been considered should not suggest that he was unmindful of his duty. Chapter XIV imposes an obligation on him to find whether a prima facie, case is made out against the accused. The evidence produced at that stage though may not have to be weighed a golden scales yet, it should summarily show that issuance of process has direct nexus with it. It has been noted supra that the allegations levelled against the petitioners were general in nature and the particulars necessary to opine, prima facie, commission of offences on a particular date, with regard to particular property or fabrication of a particular document is not deducible. The statement of the complainant recorded by the Magistrate also does not given a necessary details to infer the date of commission of offence or in general terms indicate the basic ingredients of offences alleged to have been committed were prima facie satisfied. Examination of the complainant or his witness had not to be an idle formality and the requirement had to be attended in the spirit it had. In her statement, she (the CRMC No. 431/2018 Page 9 of 11 complainant) only has stated that in pursuance of conspiracy, her property has been sold though the petitioners herein were assuring her that they would give her due share. In such situation of the matter, it would have been proper for the learned Magistrate to examine the truthfulness or otherwise of the complaint either by making an inquiry or investigating the same through police in terms of Section 202. One of the accused according to her on showing was putting up at Maharashtra and she had been currently putting up at Jammu. The learned Magistrate had thus to be alive to this situation and had to see someone should not be vexed by issuance of process unnecessarily.
15. The issuance of process on the basis of material available on this count is found improper, necessitating same to be set side. Same is set aside.
16. The learned Magistrate would, however, be free to have a fresh examination of the complainant and witnesses, if any, produced by the complainant along with other material and pass fresh orders which may include if to the satisfaction of the learned Magistrate, it is necessary to have the inquiry or investigation in terms of Section 202 Cr. PC.
17. The erroneousness of order passed by the learned 1st Additional Sessions Judge, Srinagar, has already been noted herein above and same too is, accordingly, set aside. With this observation the instant petition along with connected IA(s) is disposed of.
CRMC No. 431/2018 Page 10 of 11
18. A copy of this order be forwarded to learned 1st Additional Sessions Judge, Srinagar and learned 3rd Additional Munsiff Judicial Magistrate (JMIC), Srinagar for information and further action.
(Rashid Ali Dar) Judge Srinagar 18.12.2018 "Manzoor"
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