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Jammu & Kashmir High Court - Srinagar Bench

Farooq Ahmad Lone vs Mirza Sajad Ahmad Beigh on 28 November, 2018

Author: Rashid Ali Dar

Bench: Rashid Ali Dar

  Serial No.17
 Supplementary
      List
                   HIGH COURT OF JAMMU AND KASHMIR
                             AT SRINAGAR

CRMC No.435/2018
                                                     Date of Order:28.11.2018

Farooq Ahmad Lone                    vs.             Mirza Sajad Ahmad Beigh

Coram:
             Hon'ble Mr Justice Rashid Ali Dar, Judge.

Appearance:
For the Petitioner(s):    Mr. Azhar-ul-Amin
For the Respondent(s): None.

i)    Whether approved for reporting in                     Yes/No
       Law journals etc.:
ii)   Whether approved for publication
      in press:                                             Yes/No

1. Petitioners has, in terms of instant petition, prayed for quashing the order dated 03.10.2018 passed by Judicial Magistrate 1st Class, Baramulla, in criminal complaint titled "Farooq Ahmad Lone Vs. Mirza Sajad Ahmad Beigh". It is also prayed that a direction be issued to the learned Judicial Magistrate to execute the process against the respondent in accordance with law.

2. Perusal of the petition reveals that a complaint had been filed by the petitioner before learned Judicial Magistrate 1st Class, Baramulla under Section 138 of Negotiable Instruments Act which was related to cheque No.05142202 for an amount of Rs.6,00,000(rupees six lakhs). The respondent, as is stated further in the petition, has been declared as an absconder and a proclamation had been issued in this regard. Instead of causing appearance before the ld. Magistrate, the respondent is stated to have filed a petition bearing CRMC No.235/2018 before the High Court which has been disposed of on 19.06.2018 with the following directions/observation:

"This petition is disposed of with the direction that the petitioner shall present himself before the competent courts of jurisdiction i.e. the Court of learned Sub Judge, Judicial Magistrate, Baramulla, on 6th July, 2018, and he shall also present himself before the Court of the learned Munsiff Judicial Magistrate 1st Class, Baramulla, on 9th July, 2018. The operation of the orders forming annexure C, D, D1 and D2 to the petition shall stay and the police agencies are commended to refrain from arresting the petitioner in pursuance to the warrants of arrest/proclamation issued by the Court of Sub Judge, Judicial Magistrate, Baramulla, in case FIR No.38/2018 vide order dated 18.4.2018, and Munsiff Judicial Magistrate 1st Class Baramulla by him order dated 9.5.2018 passed in criminal complaint no.0000140/2013 titled Farooq Ahmad Lone versus Mirza Sajad Ahmad Beigh, criminal complaint no.0000141/2013 titled Manzoor Ahmad Dar versus Mirza Sajad Beigh and criminal complaint no.0000139/2013 titled Ghulam Mohiuddin Wani versus Sajad Ahmad Beigh. The trial courts shall decide the fate of the petitioner in light of the law and the rules governing the subject on his physical appearance before them."

3. After the copy of order was received by the concerned Magistrate, he has passed the order which is challenged herein. Learned Magistrate, in terms of the said order, has observed that since the High Court has restrained the police agencies from arresting the accused in pursuance to the warrants of arrest and proclamation issued in this regard, therefore, if the accused feels it convenient to cause appearance before that Court, he shall accordingly appear. It has also been referred in the order that same accused (respondent herein) is involved in causing theft of three files in the Courts at Baramulla and in this regard FIR No.38/2018 is also lodged against him. The learned Magistrate has also noted in the order that the respondent had presented two applications on two on two different dates through counsel for extension of time to surrender before the Court which had not been accepted by the Court. The said respondent, as such, according to learned Magistrate, has obtained an order from the High Court for liberty to surrender before the Court and has misused the said order by not appearing before the Court.

4. The record of the petition bearing CRMC No.235/2018 has been put up along with this file. It appears from the perusal of the said petition that the petitioner therein (respondent herein) had pleaded that he is a political activist having contested Assembly/Parliamentary elections of 2014. It is further stated therein that political opponents of the petitioner (respondent herein) in league and connivance with Farooq Ahmad Lone (petitioner herein), Manzoor Ahmad Dar and Ghulam Mohiuddin Wani hatched a conspiracy while taking money from the common people for getting political favours, got a cheque book issued in his name and few cheques issued in their name and on being presented reportedly before the J&K Bank Branch Lal Bazar, same got bounced and filed criminal complaints under Section 138 of Negotiable Instrument Act, against the respondent herein before the Court of Munsiff Judicial Magistrate, Baramulla. On receiving summons, as has been further pleaded in that petition, the respondent appeared before the said Court and in his statement under Section 242 refuted the contents of the complaint, allegations therein as also issuance of any cheque. It is further pleaded therein somewhere in the year 2015, on a date fixed in the matter, the concerned clerk of the court told the clerk of the counsel engaged by the respondent herein that the files are not traceable in the Court and the date in the matter would be fixed later on, however, on said date, next date was not provided and instead matter had been reported to the police by the Court about the missing of the file. The respondent herein, it has further been pleaded therein, on the next date could not cause his appearance before the said court on account of security reasons. The respondent herein did not have any information about the aforesaid matter which had been reported to the police about the missing of the file till such time he, of late, reliably learnt that FIR No.38/2018 has been registered against him along with his lawyer, clerk of the lawyer and one peon of the Court of Baramulla. He filed a bail application which was dismissed. The respondent herein aggrieved by the order dated 18.04.2018 passed by the court of Sub Judge, Judicial Magistrate, Baramulla, in case FIR No.38/2018 and orders dated 09.05.2018 passed by the Court CRMC No.435/2018 Page 3 of 4 of Munsiff/Judicial Magistrate 1st Class, Baramulla, in three criminal complaints filed by petitioner herein and two other persons, in CRMC No.235/2018 which came before disposed of by order dated 19.06.2018 referred above.

5. Heard learned counsel for the petitioner and also perused the record available on the file. On a cursory examination of the record, it is apparent that the order passed by the Coordinate Bench has been misused by the respondent herein, with the result proceedings pending before the learned Magistrate, referred above, have been stalled and obstructed. Therefore, the petition in hand is disposed with the direction that the learned Magistrate shall be free to proceed ahead in the matter strictly in accordance with law for procuring the attendance of accused/respondent herein in case the respondent herein does not appear hereinafter before the learned Magistrate. The concerned police agencies shall also be free to execute the warrant, if any, issued or to take necessary steps in the light of the process initiated by the concerned Court in terms of the provision of the Code of Criminal Procedure for securing presence of the accused/respondent herein. The direction passed on 19.06.2018 by the Court for non-executing warrant and staying the operation of the orders questioned therein, shall stand recalled.

6. Copy of this order be sent to the learned Magistrate for information and compliance.

(Rashid Ali Dar) Judge Srinagar 28.11.2018 "Bhat Altaf, PS"