Jammu & Kashmir High Court - Srinagar Bench
Umesh Sharma & Others vs Rekha Wangnoo on 15 April, 2021
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
IN THE HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
(THROUGH VIRTUAL MODE)
Reserved on: 08.04.2021
Pronounced on: 15.04.2021
CRMC No.242/2017
Umesh Sharma & others ...Petitioner(s)
Through: - None.
Vs.
Rekha Wangnoo ...Respondent(s)
Through: - Mr. M. A. Qayoom, Advocate.
CORAM: HON‟BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
JUDGMENT
1) The petitioners have invoked inherent powers of this Court vested by Section 561-A of the Code of Criminal Procedure for seeking quashment of the criminal complaint entitled "Rekha Wangnoo vs. Umesh Sharma and others" as also orders dated 14 th of December, 2015, and 20th of April, 2017, passed by Chief Judicial Magistrate, Budgam ("the Trial Magistrate" for short).
2) Briefly put, the facts leading to the filing of this petition are that the respondent herein, who shall be hereinafter referred to as the complainant, filed a complaint before the Trial Magistrate against the petitioners for commission offences under Section 193, 199, 209, 463, MOHAMMAD ALTAF BHAT 464, 466, 469 and 120-B of Ranbir Penal Code for some alleged 2021.04.15 17:01 I attest to the accuracy and integrity of this document 2 CRMC No.242/2017 forgery committed with the Court. As per the complaint, the petitioners are related to each other. The daughter of petitioner No.3, namely, Preeti Sharma, is married to one Rajesh Qazi, brother of the complainant. Owing to strained relations and matrimonial dispute between the two, there is litigation pending in different courts at Ghaziabad, Jammu and Srinagar.
3) It is alleged that in the dispute between husband and wife, the petitioners along with the couple have also involved the complainant in ruinous litigation. It is further claimed that the complainant too has filed an FIR in Police Station Women Cell, Srinagar, as well as a criminal complaint before the Court Chief Judicial Magistrate, Srinagar. The Chief Judicial Magistrate, Srinagar, took cognizance of the offences under Section 323, 341, 354, 392 and 506 RPC, which order of cognizance was challenged by the petitioners in a 561-A Cr. P. C petition bearing No.143/2011 filed before this Court. It is pleaded that the aforesaid quashment petition was dismissed by this Court.
4) After facing dismissal of their petition, the petitioners filed a criminal transfer application bearing No.15/2012 before the Jammu wing of this Court seeking transfer of the complaint from the Court of Chief Judicial Magistrate, Srinagar, to a Court at Jammu. The criminal transfer application too was dismissed by this Court on 04.09.2012. It is alleged that in the criminal transfer application filed before the Jammu wing of this Court, the petitioners urged incorrect and false assertions and one of the false assertions was that a compromise had been arrived MOHAMMAD ALTAF BHAT 2021.04.15 17:01 I attest to the accuracy and integrity of this document 3 CRMC No.242/2017 between the parties in Allahabad. There are further allegations in the complaint that the petitioners had sworn in false affidavit before the Jammu wing of this Court and also made wrong statements before the Hon‟ble Supreme Court in SLP No.9692-9693 of 2012 etc. etc.
5) On these factual assertions and allegations, the complainant filed a written complaint before the Trial Magistrate. The Trial Magistrate, on perusal of the complaint, found that the offences alleged in the complaint were exclusively triable by the Court of Sessions and, accordingly, committed the same to the Court of learned Sessions Judge, Budgam, vide impugned order dated 14 th of December, 2015. However, the Court of learned Sessions Judge, Budgam, vide its order dated 10.02.2017 set aside the order dated 14th of December, 2015 to the extent of committal and remanded the case back to the learned Trial Magistrate to proceed in accordance with law. The case, on remand, was received by the Trial Magistrate on 1st of April, 2017, on which date there was no appearance by the parties and, accordingly, the same was posted on 20th of April, 2017. On 20th of April, 2017, the Trial Magistrate, after recording presence of the complainant and her counsel, issued summons to the petitioners herein. It is this order of summoning as also the initial order passed by the Trial Magistrate on 14th of December, 2015, which are assailed by the petitioners in this petition.
6) The impugned orders have been assailed by the petitioners, inter alia, on the following grounds:
MOHAMMAD ALTAF BHAT2021.04.15 17:01 I attest to the accuracy and integrity of this document 4 CRMC No.242/2017
i) That the offences alleged in the complaint cannot be taken cognizance by the Trial Magistrate in view of the express bar created under Section 195 of Cr. P. C and, therefore, taking of cognizance and issuance of process by the Trial Magistrate is in contravention of the mandate of Section195 of Cr.
P. C;
ii) That the order of cognizance is non-speaking and no reasons whatsoever have been indicated by the Trial Magistrate on the basis of which he has derived, prima facie, satisfaction with regard to commission of the offences alleged in the complaint;
iii) That the complaint is totally motivated and has been filed only with a view to un-necessarily harass the petitioners who are residents of Ghaziabad UP by forcing them to appear in a court in the turmoil hit Kashmir.
7) Having heard learned counsel for parties and perused the record, it needs to be noted at the outset that having regard to the averments made in the complaint, no offence can be said to have been committed within the territorial jurisdiction of learned Trial Magistrate. The allegations alleged in the complaint, which I have adverted to in brief MOHAMMAD ALTAF BHAT hereinbefore, pertain to filing of a false affidavit in criminal transfer 2021.04.15 17:01 I attest to the accuracy and integrity of this document 5 CRMC No.242/2017 application No.15/2012 filed in Jammu wing of this Court or in SLP Nos.9692-9693 of 2012 and 5714 of 2013 statedly filed before the Hon‟ble Supreme Court but there is no allegation of any act of omission or commission attributable to the petitioners that has taken place or happened anywhere in the district of Budgam. It is, thus, not understandable as to how a complaint on the facts narrated therein could have been filed by the complainant in the Court of Chief Judicial Magistrate, Budgam, on the ground that the complainant is temporarily residing at Sheikhpora Budgam. Interestingly, the complainant has not even given her complete address.
8) I am in agreement with the petitioners that the complaint in question is an outcome of litigation between the brother of the complainant and his wife who is daughter of petitioner No.3 and the object of filing of this complaint is to put the petitioners to maximum harassment. It is on record that the petitioners are residents of Ghaziabad UP and for a resident of Ghaziabad UP to appear in a complaint in a court in District Budgam would serve the purpose for which the complaint has been filed. The filing of complaint by the complainant in the Court of Chief Judicial Magistrate, Budgam, is a sheer abuse of process of law.
9) The Criminal Courts and their processes cannot be used to settle civil or matrimonial disputes. The tendency of the litigants to file complaints at places which are far off and sensitive in view of law and order to put the opponent to harassment needs to be nipped in the buds MOHAMMAD ALTAF BHAT 2021.04.15 17:01 I attest to the accuracy and integrity of this document 6 CRMC No.242/2017 Instant case is a perfect example of how the processes of criminal law are manipulated by the shrewd litigants. Lack of territorial jurisdiction of the Trial Magistrate is itself a sufficient ground to allow this petition and quash the proceedings before the Trial Magistrate.
10) In view of the above, the question as to whether for the offences alleged in the complaint, compliance of Section 195 of the Code of Criminal Procedure is mandatory or not pales into insignificance. It is true and as is held by a Constitution Bench of the Supreme Court in the case of Iqbal Singh Marwah and another vs. Meenakshi Marwah and another, (2005) 4 SCC 370, Clause b(ii) of Section 195(1) of Cr. P. C. contemplates a situation where the offences enumerated therein are committed with respect to a document subsequent to its production or giving in evidence in a proceeding in any Court. The scheme of Clause
(a) and (b)(i) of Section 195(1) being that the offence described therein should be such which has direct bearing or affects functioning or discharge of lawful duties of a public servant or has a direct correlation with the proceedings in a court of justice. The expression "when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court" occurring in Clause b(ii) should normally mean commission of such an offence after the document has actually been produced or given in evidence in a Court. The situation or contingency where an offence as enumerated in the clause has already been committed earlier and later on the document produced or is given in evidence in a Court, does not appear MOHAMMAD ALTAF BHAT 2021.04.15 17:01 I attest to the accuracy and integrity of this document 7 CRMC No.242/2017 to be in tune with Clause a(i) and (b)(i) and consequently with the scheme of Section 195 Cr. P. C.
11) In view of the aforesaid Constitution Bench judgment of the Supreme Court, it is beyond any pale of doubt that if the offence referable to Section 195 of Cr. P. C has been committed in respect of the document before it is produced or given in evidence in a proceeding in a Court, the bar under Section 195 of Cr. P. C would not come into play and a private complaint in such matter would be maintainable. The complainant is not very clear in her complaint as to whether any document forged earlier has been used by the petitioners in any proceeding in the Court or the allegations only pertain to the making of false affidavit in different proceedings before this Court as well as the Supreme Court.
12) Be that as it may, I am inclined to quash the proceedings simply on the ground that no Court in the District of Budgam has jurisdiction to entertain the complaint for no offence is alleged to have been committed by the petitioners in any part of the territory constituting the District of Budgam. Section 177 of the Code of Criminal Procedure clearly provides that every offence shall ordinarily be enquired into and tried by a court within whose local jurisdiction it was committed. The subsequent Sections of Chapter XIII, which lay down rules of jurisdiction, also do not permit filing of a complaint before a court within whose jurisdiction the offence was not committed. MOHAMMAD ALTAF BHAT 2021.04.15 17:01 I attest to the accuracy and integrity of this document 8 CRMC No.242/2017
13) There is another important aspect in this case which also deserves the attention of this Court. As noticed above, the complaint in the instant case was filed on 14th of December, 2015, when Trial Magistrate without recording statement of the complainant and the witness, if any, in terms of Section 200 of Cr. P. C straightway committed the case to the Court of Sessions, Budgam, meaning thereby no cognizance of the offences alleged in the complaint was taken. This order was set aside by the learned Sessions Judge, Budgam, on 10 th of February, 2017, only to the extent of committal and the complaint was remanded back to the Trial Magistrate. The Trial Magistrate upon receipt of the complaint from the Court of Sessions straightway proceeded to issue process for the presence of the petitioners. In this way, the very basis of assuming jurisdiction in the matter i.e. taking of formal cognizance is totally missing.
14) It is true that the term "cognizance" is not defined in the Code of Criminal Procedure but the same has been interpreted by the Supreme Court time and again in many matters which landed before it. The judgment of the Supreme Court in the case of General Officer Commanding vs. CBI and another, AIR 2012 SC 1890. relied upon by Mr. Qayoom, learned counsel for the respondent, in paragraph 39 to 41 provides thus:
"39. In broad and literal sense `cognizance‟ means taking notice of an offence as required under Section 190 Cr.P.C. `Cognizance‟ indicates the point when the court first takes judicial notice of an offence. The court not only applies its mind to MOHAMMAD ALTAF BHAT the contents of the complaint/police report, but also 2021.04.15 17:01 I attest to the accuracy and integrity of this document 9 CRMC No.242/2017 proceeds in the manner as indicated in the subsequent provisions of Chapter XIV of the Cr.P.C. (Vide: R.R. Chari v. The State of Uttar Pradesh, AIR 1951 SC 207; and State of W.B. & Anr. v. Mohd. Khalid & Ors., (1995) 1 SCC 684).
40. In Dr. Subramanian Swamy v. Dr. Manmohan Singh & Anr., AIR 2012 SC 1185, this Court dealt with the issue elaborately and explained the meaning of the word „cognizance‟ as under:
"In legal parlance cognizance is „taking judicial notice by the court of law‟, possessing jurisdiction, on a cause or matter presented before it so as to decide whether there is any basis for initiating proceedings and determination of the cause or matter judicially."
(Emphasis added) (See also: Bhushan Kumar v. State (NCT of Delhi), (2012) 4 SCALE 191)
41. In State of Uttar Pradesh v. Paras Nath Singh, (2009) 6 SCC 372, this Court explained the meaning of the term „the very cognizance is barred‟ as that the complaint cannot be taken notice of or jurisdiction or exercise of jurisdiction or power to try and determine causes. In common parlance, it means taking notice of. The court, therefore, is precluded from entertaining a complaint or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have been committed during discharge of his official duty."
15) Viewed in the light of the legal position adumbrated in the aforesaid judgment, it is very difficult to accept the contention of Mr. Qayoom, learned counsel for the respondent, that there is enough material on record to assume that the Trial Magistrate has applied its mind to the facts of the case and proceeded in the matter and, therefore, cognizance shall be deemed to have been taken. That apart, even if contention of Mr. Qayoom is accepted, it remains to be seen as to whether he Trial Magistrate can straightway issue the process without MOHAMMAD ALTAF BHAT 2021.04.15 17:01 first recording statement of the complainant and the witness, if any I attest to the accuracy and integrity of this document 10 CRMC No.242/2017 present, under Section 200 of the Code of Criminal Procedure. The statements of the complainant and her witness recorded by the learned Sessions Judge, Budgam, who remained seized of the matter for some time after it was wrongly committed by the Trial Magistrate, are of no consequence. On this score also, the orders impugned are liable to be quashed.
16) In view of the foregoing analysis, I find merit in this petition and, accordingly, quash the complaint pending on the files of learned Chief Judicial Magistrate, Budgam, as also all the subsequent proceedings taken thereon.
17) Parties to bear their own costs.
18) Copy of this order be sent to the trial court.
(Sanjeev Kumar)
Judge
Srinagar;
15.04.2021
"Bhat Altaf, PS"
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
MOHAMMAD ALTAF BHAT
2021.04.15 17:01
I attest to the accuracy and
integrity of this document