Ali Mohammad Najar & Ors vs Bashir Ahmad Najar
2021 Latest Caselaw 401 j&K/2

                                 IN THE HIGH COURT OF JAMMU AND KASHMIR
                                               AT SRINAGAR
                                              (THROUGH VIRTUAL MODE)

                                                                     Reserved on: 06.04.2021
                                                                     Pronounced on: 07.04.2021

                                                                            CRMC No.218/2018

                      Ali Mohammad Najar & Ors.                                    ...Petitioner(s)
                                     Through: - Mr. Asif Ahmad, Advocate.
                               Vs.

                      Bashir Ahmad Najar                                        ...Respondent(s)

                                     Through: - None.


                      CORAM:         HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE.


                                                  JUDGEMENT

1) The petitioners, through the medium of instant petition, have

invoked inherent jurisdiction of this Court vested by Section 561-A of

the Jammu & Kashmir Criminal Procedure Code seeking quashing of the

order dated 20th of October, 2017, passed by learned Judicial Magistrate

1st Class (2nd Additional Munsiff), Srinagar (hereinafter referred to as the

Trial Magistrate) and an order dated 11th of May, 2018, passed by

Principal Sessions Judge, Srinagar (the Revisional Court).

2) Before adverting to the grounds of challenge urged by learned

counsel for the petitioners to assail the impugned orders, it is necessary

to first set out the material facts.

MOHAMMAD ALTAF BHAT 2021.04.08 10:27 I attest to the accuracy and integrity of this document

3) The respondent filed a complaint before the Trial Magistrate

against the petitioners alleging therein that the father of the respondent

had filed a civil suit before the learned City Munsiff, Srinagar, seeking a

decree of declaration declaring him the owner of land measuring 12½

marlas falling under Khasra No.316 situated at Umerhair Srinagar. In the

aforesaid suit pending adjudication before the Court of City Munsiff,

Srinagar, an interim order dated 12th of November, 2015, has been

passed temporarily restraining the petitioners herein from creating any

third party interest with respect to the suit property. It is submitted in the

complaint that the petitioners despite being well aware of and having

been served with the Court order, executed an agreement to sell wherein

father of the respondent was shown present as one of the executants of

the agreement. The agreement has been executed by the accused persons

after the death of father of the respondents by forging his signatures and

impersonating him.

4) On the presentation of the aforesaid complaint before the Trial

Magistrate, the Trial Magistrate forwarded the same to SHO, P/S, Soura,

to investigate the matter in the light of contents of the complaint. The

police investigated the matter and submitted its report to the learned

Trial Magistrate. The Trial Magistrate, after taking note of the contents

of the complaint and the report submitted by the police, was, prima facie,

of the view that the commission of offence of cheating and forgery had

been made out but observed that since only photocopies of the

agreement and death certificate had been appended with the complaint

MOHAMMAD ALTAF BHAT 2021.04.08 10:27 and also that the evidence of the scribe and witnesses to the document I attest to the accuracy and integrity of this document

was also essential in the case to throw light upon facts and circumstances

relating to the actual occurrence, as such, the learned Trial Magistrate in

its wisdom though it proper to direct SHO, P/S, Soura, to lodge a formal

FIR and investigate the matter thoroughly. This was done by the learned

Trial Magistrate by passing an elaborate order on 20 th of October, 2017,

which is the first order impugned in this petition.

5) Feeling aggrieved and dissatisfied with the order of the Trial

Magistrate, the petitioners filed a revision petition before the Revisional

Court. The revision petition was dismissed on 11 th of May, 2018, which

is the second order impugned in this petition.

6) The petitioners are still aggrieved and have filed this petition to

assail both the impugned orders. The impugned order passed by the Trial

Magistrate is challenged by the petitioners, fundamentally, on the ground

that the Trial Magistrate, after having deferred the issuance of process

and directing the enquiry to be made by the police in terms of Section

202 Cr. P. C, was not competent in law to direct the registration of FIR.

It is submitted that the learned Trial Magistrate after receiving the report

from the police was required to proceed under Section 203 of Cr.P.C.

However, instead of following due process of law, the Trial Magistrate

without any authority of law directed registration of FIR in terms of

impugned order dated 20th of October, 2017. It is submitted that the

Revisional Court also committed the same error and upheld the order of

the learned Trial Magistrate without considering the points raised before

him. It is argued that the Revisional Court went to the extent of holding MOHAMMAD ALTAF BHAT 2021.04.08 10:27 I attest to the accuracy and integrity of this document

the revision petition against the interlocutory passed under Section 156

of Cr. P. C not maintainable.

7) Having heard learned counsel for the petitioners and perused the

record, it is seen that a criminal complaint was filed by the respondent

against the petitioners for commission of offences under Section 420,

423, 421, 463, 468 and Section 24 of the Ranbir Penal Code. As is

further seen, the learned Trial Magistrate, before whom the complaint

came to be presented after its transfer from the Court of Chief Judicial

Magistrate, Srinagar, did not take cognizance nor did it record the

preliminary statement of the complainant and the witness, if any present.

That being the position, it is difficult to accept the contention of the

learned counsel for the petitioners that the Trial Magistrate had

proceeded in the matter under Section 200 Cr. P. C.

8) It is true that the Trial Magistrate while referring the matter for

investigation of the police noted in the impugned order that the issuance

of process was postponed. This observation of the Trial Magistrate was,

undoubtedly, uncalled for and not in consonance with law but that does

not vitiate the proceedings which otherwise do not contravene any

provision of the Code of Criminal Procedure. The investigation directed

by the Trial Magistrate through SHO, P/S, Soura, was only in the nature

of a preliminary enquiry to find out as to whether the allegations made in

the complaint disclosed the commission of cognizable offences. On

receipt of report from the police the Trial Magistrate considered the

matter threadbare and was of the view that there was some evidence of MOHAMMAD ALTAF BHAT 2021.04.08 10:27 I attest to the accuracy and integrity of this document

technical nature required to be collected by the police and, therefore,

directed registration of FIR. The reasoning of the learned Trial

Magistrate for directing registration of FIR contended in the last but one

para of the impugned order dated 20th of October, 2017, is just and

proper and cannot be faulted with.

9) In the police investigation/enquiry it has surfaced that the

document in question has been executed on 15 th of March, 2016,

whereas the executants of the document i.e. father of the respondent had

died on 21st of February, 2016. The Trial Magistrate, thus, rightly

observed that some more evidence is required to be collected to connect

the petitioners with the offences alleged against them and, therefore, it

was a fit case for directing the police to register the FIR. The Revisional

Court has rightly concurred with the Trial Magistrate though for reasons

different from those given by the Trial Magistrate.

10) Be that as it may, the fact remains that in the instant case the Trial

Magistrate never took cognizance in terms of Section 190 of the Code of

Criminal Procedure nor did it record the preliminary statement of the

complainant and his witness, if any present. That being the situation, it is

clear that the Trial Magistrate never decided to proceed under Chapter

XV of the Code. The direction to the police to investigate the matter in

the light of contents of the complaint was only in the nature of

preliminary enquiry, as is provided for in the judgment of the Supreme

Court in Lalita Kumari v. Government of Uttar Pradesh & others,

(2008) 14 SCC 337.

MOHAMMAD ALTAF BHAT 2021.04.08 10:27 I attest to the accuracy and integrity of this document

11) I, therefore, find no illegality or infirmity in both the orders

impugned in this petition. The petition being without any merit is,

accordingly, dismissed.

                      12)      No order as to costs.




                                                                       (Sanjeev Kumar)
                                                                                 Judge
                      Srinagar
                      07.04.2021
                      "Bhat Altaf, PS"
                                            Whether the order is speaking: Yes/No.
                                            Whether the order is reportable: Yes/No.




MOHAMMAD ALTAF BHAT
2021.04.08 10:27
I attest to the accuracy and
integrity of this document