Umesh Sharma & Others vs Rekha Wangnoo
2021 Latest Caselaw 432 j&K/2

                                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

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

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 BHAT 2021.04.15 17:01 I attest to the accuracy and integrity of this document

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

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

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

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

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

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

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
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integrity of this document