Sameena Azad Khan vs Mohd. Aslam Khan on 31 August, 2024

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Jammu & Kashmir High Court

Sameena Azad Khan vs Mohd. Aslam Khan on 31 August, 2024

01. Inherent power of this Court enshrined in Section 482 Cr. P.C. (now Section 528 Bhartiya Nagarik Suraksha Sanhita (BNSS)) is being invoked by the petitioners for quashment of complaint titled as, "Mohd. Aslam Khan Vs Tasmeena Azad Khan and others," 2 CRM(M) No. 433/2022 CrlM No. 889/2022 CrlM No. 377/2023

along with order dated 29.08.2018 pending before the court of Munsiff (JMIC), Mendhar (hereinafter referred to as the "Magistrate").

02. The facts giving rise to the filing of the instant petition reveals that the petitioner 1 herein filed a complaint against the respondent herein, resulting in registration of FIR being No. 100/2009 with the Police Station Gursai, Mendhar, Poonch for commission offences under Section 498-A RPC, having got culminated into a charge-sheet presented before the court of Munsiff (JMIC), Mendhar wherein after conducting trial, the accused person/respondent herein vide judgment and order dated 24.02.2018 came to be acquitted and consequently the said judgment and order of the said court dated 24.02.2018 assumed finality, in that, same was not thrown challenge to, whereupon, the respondent herein being the accused in the aforesaid criminal case filed the impugned complaint under Section 211 read with 500 RPC before the trial Court alleging therein that he came to be unnecessarily and illegally implicated in the criminal case, wherein the trial Court after entertaining the same and recording the statement of the complainant and one of his witnesses proceeded to pass the order of cognizance and summoning dated 29.08.2018 impugned in the instant petition as well.

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03. The petitioners being accused person in the impugned complaint have challenged the same and the proceedings initiated thereon, including the order dated 29.08.2015 on multiple grounds, including that the filing of the impugned complaint is an abuse of process of law.

04. Reply to the petition has been filed by the respondent herein, wherein the petition is being opposed inter-alia on the premise that the petition is not maintainable and is liable to be dismissed.

Heard learned counsel for the parties and perused the record.

05. Learned counsel for the petitioners while making his submissions invited the attention of this Court to section 211 RPC read with Section 195(1)(d) Cr. P.C. and would contend that in presence of the said provisions, the Magistrate could not have entertained the impugned complaint or else initiated any proceedings thereon. In this regard, learned counsel for the petitioners referred to judgment passed by this Court in case titled as "Kuldeep Singh and another Vs Pritam Lal and others" in CRMC No. 625/2018 decided on 17.05.2022.

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06. Before proceeding further in the matter, it would be pertinent to refer to the provisions of Section 211 RPC and Section 195(1)(b) Cr. P.C. hereunder being relevant:-

Section 211 RPC and Section 195(1)(b) Cr.P.C. reads as under:-

"Section 211. False charge of offence made with intent to injure -- Whoever, with intent to cause injury to any person, institutes or causes to be instituted any criminal proceeding against that person, or falsely charges any person with having committed an offence, knowing that there is no just or lawful ground for such proceeding or charge against that person, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; and if such, criminal proceeding be instituted on a false charge of an offence punishable with death, imprisonment for life, or imprisonment for seven years or upwards, shall be punishable with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."

"Section 195(1) - No Court shall take cognizance:-

(b) Of any offence punishable under any of the following sections of the same Code, namely, Sections 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211 and 228 when such offence is alleged to have been committed in, or in relation to any proceeding in any Court, [except on the complaint in writing of that Court or by such officer of the Court as that court may authorize in writing in this behalf, or of some other Court to which that Court is subordinate]."

As appears from above, offences under Section 211 RPC fall under two categories, the first is a complaint to a Magistrate and the second is a report of cognizable offence to a police officer. The essential ingredients of an offence under Section 211 RPC is to institute or cause to be instituted any 5 CRM(M) No. 433/2022 CrlM No. 889/2022 CrlM No. 377/2023 criminal proceedings against a person with intent to cause him injury or with similar intent to falsely charge any person with having committed any offence, knowing that there is no just or lawful ground for such proceedings.

Under Section 195(1)(b) (supra), the Magistrate is debarred from taking cognizance of the offence under Section 211 RPC in the absence of a complaint in writing of the Magistrate himself, in that, the offence must have been committed "in, or in relation to, any proceedings in any court."

A bare perusal of the aforesaid provisions of Section 195 Cr. P.C. would tend to show that the same lays down a rule to be followed relating to taking of cognizance of an offence specified therein, suggesting further that the provision does not provide for any guidance of the Court which desires to initiate prosecution in respect of an offence alleged to have been committed in or in relation to a proceeding in the later court. However, Section 340 Cr. P.C. provides for such guidance requiring a court to put the law into motion to prefer a complaint either suo-moto or an application made to it in that behalf.

Further perusal of Section 340 Cr. P.C. suggests that a prosecution under this section can be initiated only by the sanction of the court under whose proceedings an offence referred to in Section 195(1)(b) Cr. P.C. has been allegedly committed. Thus, the object of Section 340 Cr.P.C. emanating therefrom is to ascertain whether any offence affecting administration of justice has been committed.

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07. Having regard to the aforesaid position of law contained in the provisions supra and reverting back to the case in hand indisputably, the complainant/respondent herein has in the impugned complaint alleged his implication as an accused by the petitioners herein in the FIR registered at the instance of the petitioner 1 herein for commission of offence under Section 498-A RPC, wherein the said FIR the respondent herein indisputably has been acquitted.

Admittedly, it emerges from the record that the Magistrate in the instant case has entertained the impugned complaint filed by the respondent herein against the petitioners herein for commission of offence under Section 211 read with Section 500 RPC wherein the Magistrate has initiated proceedings and consequently passed the impugned order of cognizance and summoning dated 29.08.2018.

08. As has been noticed in preceding paras cognizance in respect of an offence under Section 211 RPC could be taken only on a complaint made by that court which tried the offence in which an accused is acquitted and not on the basis of a complaint filed by the said accused who had been acquitted by the said court. The Magistrate in terms of Section 195(1)(b) Cr. P.C. ought to have neither entertained the impugned complaint nor taken cognizance thereof, inasmuch as, issued process against the petitioners herein. The Magistrate, however, having done so in breach and violation of 7 CRM(M) No. 433/2022 CrlM No. 889/2022 CrlM No. 377/2023 aforesaid provisions of law has indisputably committed grave error and in the process abused the process of court, rendering not only the impugned complaint, but also the proceedings initiated thereon legally unsustainable, more so, in view of the law laid down by the Hon'ble Apex Court passed in case titled as "Sh. Narendra Kumar Srivastava Vs State of Bihar and others," reported in (2019)3 SCC 318.

09. Viewed thus, what has been observed, considered and analyzed hereinabove, the petition succeeds and is, accordingly, allowed, as a corollary whereof, the impugned complaint titled as, "Mohd. Aslam Khan Vs Tasmeena Azad Khan and others" and the impugned order dated 29.08.2018 are quashed .

(JAVED IQBAL WANI) JUDGE JAMMU 31.08.2024 Muneesh Whether the order is speaking : Yes Whether the order is reportable : Yes Muneesh Sharma 2024.09.03 16:44 I attest to the accuracy and integrity of this document

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Jammu & Kashmir High Court