Jammu & Kashmir High Court - Srinagar Bench

Crlm (1024/2019) vs Manzoor Ahmad Bhat on 6 April, 2021

                                                           Supplementary List
                                                                  J1


         HIGH COURT OF JAMMU AND KASHMIR
                   AT SRINAGAR
                                                   Reserved On: 01/04/2021
                                                  Pronounced On: 06/042021

                                                      CRM (M) 296/2019
                                                       CrlM (1024/2019)
Tahira Manzoor and others
                                                ... Petitioner/Appellant(s)
                   Through: Mr. S. H. Thakur, Advocate

                        V/s
Manzoor Ahmad Bhat
                                                         ... Respondent(s)

Through: None

CORAM: HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE

1. Inherent jurisdiction is being invoked by the petitioner herein

through the medium of the instant petition for quashment of

proceedings initiated upon a complaint titled "Manzoor Ahmad

Bhat versus Tahira and others" along with impugned order dated

13.11.2019.

2. The background facts those emerge from the perusal of the petition

reveal that petitioners 2 to 7 are brothers and nephew of petitioner

No. 1 and all are stated to have been falsely implicated in a

complaint filed by the respondent. The respondent is stated to be

husband of petitioner No. 1 who is stated to have sold his half of

the family property belonging to petitioner No. 1 and her two

children and a house at Bemina in respect of which a civil suit is

stated to have been filed by petitioner No. 1 and her children before

the court of Additional Munsiff, Srinagar, which court is stated to

have passed an interim order directing maintenance of status quo

with respect to the suit property.

3. It is being stated that in order to counter the aforesaid suit filed by

petitioner No.1 and her children, the respondent herein filed a

complaint before the court of Chief Judicial Magistrate, Srinagar,

who is stated to have referred the same for inquiry/investigation.

The said complaint is stated to have been dismissed by the CJM

Srinagar upon receipt of a report of inquiry/investigation from the

police.

4. It is being next stated in the petition that after the dismissal of the

said complaint, the respondent herein filed another complaint on

same set of facts before the court of Munsiff Judicial Magistrate

Sub Registrar, Srinagar (hereinafter referred to as the court below)

without disclosing filing and dismissal of the earlier complaint.

The court is stated to have taken cognizance upon the said second

complaint and issued a process against the petitioners.

5. It is being stated further in the petition that an application came to

be filed by the petitioners before the court below under section 203

Cr.PC for dismissal of the complaint on the ground of res judicata

while invoking section 403 Cr.PC read with section 26 General

Clauses Act and section 70 of IPC.

6. The said application is being stated to have been dismissed by the

court below in terms of the impugned order which is being

challenged in the instant petition inter alia on the ground that the

court below passed the impugned order against the facts and

circumstances of the case and that the subsequent complaint filed

by the respondent herein and proceedings initiated thereupon are

grave misuse of judicial process and misuse of legal forum by the

complainant, respondent herein. It is being further urged in the

grounds that the court below failed to appreciate the fact while

passing the impugned order that the complainant/respondent

herein had earlier filed a similar complaint which had been

dismissed by CJM Srinagar on 1.9.2018 after referring the same

for inquiry/investigation to the police and after receiving a report

therefrom in this regard. The cognizance taken in the subsequent

complaint by the court below is urged to have been illegal. It is

being further urged in the grounds that in presence of a civil suit

pertaining to the title of a house and shop, the criminal proceedings

initiated by the respondent by way of a complaint in respect thereof

were not maintainable. It is further urged in the grounds that the

subsequent complaint has been filed by the respondent against

petitioner No. 1 and his brothers in law and their children who have

no concern with the property of the respondent. The complaint is

stated to have been filed by the respondent herein as a pressure

tactics and as a measure of misuse of judicial process, which

warranted dismissal of the complaint.

7. It is being further urged in the grounds that the complainant did not

disclose material facts before the court and had he done so, the

court below would not have issued the process against the

petitioners. The trial court is stated to have proceeded in the matter

in a very ordinary and routine manner without looking into gravity

of the case. The court below is stated to have closed its eyes while

passing the impugned order. The impugned order is also stated to

have been passed without application of mind by the court below.

The proceedings and the order passed in the complaint by the court

below along with the order of cognizance passed thereof are stated

to be bad in law, against social interest and family fabric of the

society.

8. None has appeared for the respondent despite service.

9. Heard learned counsel for the petitioners and perused the record

summoned pursuant to order of this court dated 16.12.2020.

Learned counsel for the petitioner while advancing his arguments

in essence reiterated the contentions raised and grounds urged in

the petition.

10. The moot points those beg consideration of this court in the instant

petition would be as to whether the subsequent complaint filed by

the complainant-respondent herein which is being under challenge

in the instant petition, is maintainable inasmuch as whether the

impugned order passed by the court below dated 13.11.2019 has

been passed validly and legally in the facts and circumstances of

the case. Before adverting to points as noticed above, it would be

appropriate to reflect the brief background/resume of the case.

i) A complaint is filed by the respondent herein against the

petitioners on 14.8.2018 alleging therein commission of

offences under section 120B, 506, 403, 447, 448, 147, 323

and 325 RPC before the CJM Srinagar. The said complaint

is forwarded by the court of CJM Srinagar to police post

Bemina for necessary action under rules in the light of the

application, with a direction to submit report by 28.8.2018.

Seemingly an inquiry is initiated by the police and report

thereof submitted to the court of CJM Srinagar, which

provides that the complainant is a resident of Hamdaniya

Colony and married to Mst. Tahira since 1995 having two

children out of said wedlock-- one being boy of 21 years

and a girl of 15 years, and that the husband and wife have

some matrimonial issues and differences for the last so many

years and are continuing till date, and that the elders of the

Hamdaniya colony tried to resolve the issues and differences

between the couple and that ten months before the brothers

of Mst. Tahira residents of Lal Bazar, approached the

complainant for resolving the dispute but instead of

resolving the dispute the complainant left from the house and

is putting up at Habba Kadal on rent basis and the

complainant Manzoor Ahmad has stated that he has divorced

his wife some one and a half months back and that the said

divorce has not been accepted by the wife and a copy of the

said divorce deed is annexed.

ii) The CJM Srinagar in terms of order dated 1.9.2018

dismissed the complaint while passing a very short order

which reads as under:

"Learned counsel for the applicant present.

Perused application and report submitted by concerned police station.

No offence as per report submitted is made out, as such application stands dismissed and shall go to records after its due completion."

iii) After dismissal of the said complaint by the CJM Srinagar,

the complainant/respondent herein instituted a subsequent

complaint on 6.9.2018 wherefrom the instant petition has

arisen.

11.Indisputably perusal of the said complaint reveals that the same is

maintained almost on same set of facts with a slight variation

inasmuch as no mention is made therein about the filing of the

earlier complaint and dismissal of the same by the court of CJM

Srinagar.

12.Perusal of the record of the subsequent complaint reveals that the

court below issued a process against the accused petitioners after

prima facie finding commission of offence in question whereupon

it is revealed that the petitioners herein, accused before the court

below, filed an application, supra, under section 203 Cr. P.C. for

dismissal of the complaint wherein the court below passed order

under challenge dated 13.11.2019.

13.Law is no more res integra on the subject and that there has been

a long line of decisions of the Apex Court on the issue as to

whether upon dismissal of first complaint a second complaint is

barred. The Apex Court in case titled Pramatha Nath Talukdar

v. Saroj Ranjan Sarkar, AIR 1962 SC 876 at para 48 noticed and

observed as under:

Under the Code of Criminal Procedure the subject of "Complaints to Magistrates" is dealt with in Chapter XVI of the Code of Criminal Procedure. The provisions relevant for the purpose of this case are ss.200, 202 and 203. Section 200 deals with examination of complainants and ss. 202, 203 and 204 with the powers of the Magistrate in regard to the dismissal of complaint or the issuing of process. The scope and extent of ss. 202 and 203 were laid down in Vadilal Panchal v. Dattatraya Dulaji Chadigaonker(1). The scope of enquiry under s. 202 is limited to finding out the truth or otherwise of the complaint in order to determine whether process should issue or not and s. 203 lays down what materials are to be considered for the purpose. Under s. 103 Criminal Procedure Code the judgment which Magistrate has to form must be based on the statements of the complainant and of his witnesses and the result of the investigation or enquiry if any. He must apply his mind to materials and from his judgment whether or not there is sufficient ground for proceeding. Therefore if he has not misdirected himself as to the scope of the enquiry made under s. 202, Criminal Procedure Code, and has judicially applied him mind to the material before him and then proceeds to make his order it cannot be said that he has acted erroneously. An order of dismissal under s. 203, Criminal Procedure Code, is, however, no bar to the entertainment of a second complaint on the same facts but it will be entertained only in exceptional circumstances, e.g, where the previous order was passed on an incomplete record or on a misunderstanding of the nature of the complaint or it was manifestly absurd, unjust or foolish or where new facts which could not, with reasonable diligence, have been brought on the record in the previous proceedings have been adduced. It cannot be said to be in the interests of justice that after a decision has been given against the complainant upon a full consideration of his case, he or any other person should be given another opportunity to have his complaint enquired into Allah Ditta v. Karam Baksh(1), Ram Narain Chaubey v. Panachand Jain(2), Hansabai v. Ananda(3), Doraisami v. Subramania (4). In regard to the adducing of new facts

for the bringing of a fresh complaint the Special Bench in the judgment under appeal did not accept the view of the Bombay High Court or the Patna High Court in cases above quoted and adopted the opinion of Macleam, C. J. in Queen Empress v. Dolegobinda Das (5) affirmed by a full Bench in Dwarka Nath Mandal v. Benimadhab Banerji (6). It held therefore that a fresh complaint can be entertained where there is manifest error, or manifest miscarriage of justice in the previous order or when fresh evidence is forthcoming.

14. The aforesaid position, proposition and principle of law has been

and is consistently being followed by the Apex Court. A reference

to Samta Naidu and others versus State of Madhya Pradesh

and others reported in AIR 2020 SC 2573 will be relevant and

germane herein.

15. Keeping in view the aforesaid proposition of law and the facts and

circumstances of the case in general and the order of dismissal of

the first complaint passed by the court of CJM Srinagar, in

particular, it can safely be concluded that the order of dismissal of

the first complaint had been passed on an incomplete record

inasmuch as on misappreciation of the complaint. The inquiry

conducted by the police and report submitted thereon which had