Jammu & Kashmir High Court
Pawan Singh Rathore vs Union Territory Of J&K And Others on 2 February, 2021
Author: Puneet Gupta
Bench: Puneet Gupta
Suppl-2 List
Sr. No. 106
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
(Through Virtual Mode)
Pronounced on 02.02.2021
CRM (M) No. 33/2021
CrlM No. 127/2021
Pawan Singh Rathore ......Petitioner(s)
Through :- Mr. P.N.Raina, Sr. Advocate with
Mr. Asheesh Singh Kotwal, Advocate.
v/s
Union Territory of J&K and others ......Respondent(s)
Through :- Mr. K.S.Johal, Sr. Advocate with
Mr. Karman Singh Johal, Advocate for
R-2 to 4.
Coram: HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE
::: : ORDER
CrlM No. 127/2021 :
1. The petitioner seeks stay of order dated 15.03.2019, passed by the Court of learned Chief Judicial Magistrate, Jammu whereby the learned Court has directed Station House Officer, Bahu Fort, Jammu to lodge FIR against the petitioner, on the grounds mentioned in the petition. The learned Senior Counsel appearing for the petitioner has taken the court through the annexures filed with the main petition in order to impress upon the Court that the order impugned is not as per law. The learned counsel for the petitioner while arguing the petition has submitted that the order impugned in the present petition has been passed ignoring the earlier order dated 31.10.2018 passed by the Court 2 CRM (M) No. 33/2021 CrlM No. 127/2021 in the complaint filed against the petitioner herein. As per the order dated 31.10.2018 the complaint filed against the petitioner herein was referred to S.H.O, Police Station, Bahu Fort, Jammu for verifying the fact as to whether the petitioner herein had acted in discharge of official duty and if sanction is also required for the prosecution. The reliance on the letter of the Jammu Development Authority as mentioned in the impugned order is misplaced is what is argued on behalf of the petitioner.
2. It appears from the record that revision petition was filed against the order dated 15.03.2019, passed by the C.J.M, Jammu, before the Court of learned Principal Sessions Judge, Jammu and the revision petition filed against the order dated 15.03.2019 was allowed vide order dated 01.05.2019. The petition filed under Section 561-A of the Jammu and Kashmir of Criminal Procedure Code against the order dated 01.05.2019 passed by the learned Principal Sessions Judge, Jammu was allowed and the order impugned dated 15.03.2019 was set aside.
This court while disposing of the petition observed thus :
"....this Court is not making any observation with regard to the merits of the order passed by the learned C.J.M, Jammu."
3. The learned Senior Counsel appearing for the petitioner has submitted that the order dated 17.12.2020 passed in CRM(M) No. 259/2019 by this court whereby the order dated 01.05.2019 passed by the learned Principal Sessions Judge, Jammu was set aside does not debar the petitioner herein to challenge the merits of the order impugned in the present petition as the order of learned Principal Sessions Judge, 3 CRM (M) No. 33/2021 CrlM No. 127/2021 Jammu was set aside only on the ground that the revision petition was not maintainable against the order impugned in the present petition.
4. The learned Senior Counsel appearing on behalf of the private respondents in the present petition has argued that the order passed by this Court in the CRM (M) (supra) has attained finality and cannot be challenged by the petitioner through the present petition. The present petition is in fact review of the order passed by this Court in CRM (M) (supra) and has referred to the judgment passed by the Hon‟ble Supreme Court in Criminal Appeal No. 1389 of 2008 decided on 02.09.2008 titled „State rep. by D.S.P., S.B.C.I.D.,Chennai vs. K.V.Rajendran and others‟. The learned Magistrate passed the impugned order against the petitioner herein also keeping in view the facts mentioned in the complaint. The learned counsel for the petitioner has, however, countered the argument, as mentioned above, by stating that the order passed in CRM (M) (supra) has left open the option to the petitioner herein to challenge the order impugned in the present petition on merits.
5. The learned counsels for both the sides have referred to the back ground of the complaint and argued the matter from their respective point of view. The learned counsels have also referred to judgments in support of their contentions. As the Court is only dealing with the application and not the main petition for final consideration, the Court need not touch upon the merits of the main petition.
6. The Court is of the opinion that the grounds raised in the petition and the arguments raised on behalf of the private respondents in response to the same do require detailed examination. The consequence of the 4 CRM (M) No. 33/2021 CrlM No. 127/2021 order dated 31.10.2018 passed by the C.J.M, Jammu and the order passed by this Court in CRM (M) (supra) are also the issues which require determination by the Court in the present petition.
7. Keeping in view the facts and circumstances of the case, the Court is of the view that interim directions are required to be passed by the Court. Accordingly, the order impugned in the present petition is stayed only till next date of hearing before the Bench.
8. List the main petition for consideration on 09.03.2021 as per Roster.
(Puneet Gupta) Judge Jammu 02.02.2021 Pawan Chopra Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No PAWAN CHOPRA 2021.02.02 16:36 I attest to the accuracy and integrity of this document