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Jammu & Kashmir High Court

Abdul Rashid vs Bhar Din on 29 May, 2024

Author: Rajnesh Oswal

Bench: Rajnesh Oswal

                                                                           Sr. No. 9
           HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                           AT JAMMU

CRM(M) No. 248/2022
CrlM No. 548/2022

Abdul Rashid                                        .....Appellant(s)/Petitioner(s)

                        Through: Mr. Bodh Raj Sharma, Advocate
                   Vs

Bhar Din                                                       ..... Respondent(s)
                        Through: Mr. Mohinder Kumar, Advocate

Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
                                     ORDER

29.05.2024

1. Through the medium of the present petition, the petitioner has impugned the order dated 20.11.2019 issued by the court of learned Munsiff, Gool (hereinafter to be referred as 'the trial court') in the complaint titled, 'Bahar Din vs. Abdul Rashid', by virtue of which, process has been issued against the petitioner for commission of offences under Sections 447, 427 and 504 RPC. It is urged that the dispute between the parties is civil in nature and before filing the complaint, the respondent/complainant was under obligation to approach the concerned Police Station and having not done so, the proceedings initiated by the respondent in the form of complaint, titled, 'Bahar Din vs. Abdul Rashid' are required to be quashed.

2. The respondent has filed the response stating therein the factual aspects of the case. It is further stated that the complaint was filed by the respondent under Sections 323, 341, 447, 427, 504 and 506 IPC before the learned trial court and after recording the preliminary statement of 2 CRM(M) No. 248/2022 the complainant, the matter was referred for enquiry/investigation under Section 202 Cr. P.C. and the Police submitted a report, stating therein that the petitioner has committed the offence under Sections 447, 427 and 504 RPC.

3. Learned counsel for the petitioner has vehemently argued that the list of witnesses has not been annexed with the complaint in utter disregard to the provisions contained in Section 204 Cr. P.C. and the mandatory guidelines of the Apex Court have also not been followed.

4. Per contra, learned counsel for the respondent submits that the complaint was filed by the respondent against the petitioner and in order to determine the truth of the allegations leveled in the complaint, the same was referred to SHO, Police Station, Gool for investigation/enquiry under Section 202 Cr. P.C. He has further submitted that the Police submitted a report and thereafter only, process was issued by the learned trial court against the petitioner.

5. Heard learned counsel for the parties and perused the record.

6. The first contention raised by the learned counsel for the petitioner is that the list of witnesses was not annexed with the complaint. A perusal of the complaint reveals that the list of witnesses is not there. The allegations leveled in the complaint are that on 30.06.2019, the petitioner trespassed into the land of the respondent comprising Survey No. 407 and cut grass from the land and when the respondent raised hue and cry, the petitioner thrashed him and also caused damage to the crops. Besides, he also threatened him that he would forcibly occupy his land. 3 CRM(M) No. 248/2022 The learned trial court recorded the statement of the complainant and one witness, namely, Ghulam Nabi S/o Mandu but postponed the issuance of process and in order to determine the veracity/truth of the allegations leveled in the complaint. The matter was referred to SHO, Police Station, Gool in terms of Section 202 Cr. P.C. The enquiry officer submitted a report on 20.11.2019. A perusal of the report reveals that the enquiry officer has stated that the land comprising Survey No. 407 belonged to Bahar Din and Abdul Rashid who are real brothers and from the land which was in occupation/cultivation of Bahar Din, the accused forcibly cut the grass and after returning this finding, the enquiry officer came to the conclusion that the petitioner has committed offences under Sections 447, 427 and 504 RPC. While conducting the enquiry, the enquiry officer has recorded the statement of complainant, Mohd. Akram and Mohd. Rafiq. The contention of the learned counsel for the petitioner that the complaint is required to be dismissed as it was not accompanied with the list of witnesses in terms as mandated in Section 204 Cr. P.C. is misconceived. If the list of witnesses is not annexed with the complaint, the same is curable defect. Reliance is placed upon the decision of this Court in case titled, "Ajay Singh vs Kuldeep Singh and others", CRMC No. 399/2015, decided on 28.07.2021.

7. The contention of the petitioner that dispute, if any, is civil in nature, is also not sustainable in light of investigation/enquiry conducted by the Inquiry Officer.

4

CRM(M) No. 248/2022

8. In view of the above, this Court is of the considered view that there is no merit in the present petition, as such, the same is dismissed.

(RAJNESH OSWAL) JUDGE Jammu 29.05.2024 Neha-II Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No NEHA KUMARI 2024.06.04 11:40 I attest to the accuracy and integrity of this document