Pawan Singh Rathore vs Union Territory Of J&K And Others
2021 Latest Caselaw 44 j&K

                                                                Suppl-2 List
                                                                Sr. No. 106
            HIGH COURT OF JAMMU AND KASHMIR
                          AT JAMMU
                    (Through Virtual Mode)
                                                Pronounced on 02.02.2021
                                                CRM (M) No. 33/2021
                                                CrlM No. 127/2021


Pawan Singh Rathore                                     ......Petitioner(s)

                      Through :- Mr. P.N.Raina, Sr. Advocate with
                                  Mr. Asheesh Singh Kotwal, Advocate.

                                    v/s

Union Territory of J&K and others                       ......Respondent(s)


                      Through :- Mr. K.S.Johal, Sr. Advocate with
                                 Mr. Karman Singh Johal, Advocate for
                                 R-2 to 4.

Coram:      HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE
::: :                               ORDER

CrlM No. 127/2021 :

1. The petitioner seeks stay of order dated 15.03.2019, passed by the

Court of learned Chief Judicial Magistrate, Jammu whereby the

learned Court has directed Station House Officer, Bahu Fort, Jammu to

lodge FIR against the petitioner, on the grounds mentioned in the

petition. The learned Senior Counsel appearing for the petitioner has

taken the court through the annexures filed with the main petition in

order to impress upon the Court that the order impugned is not as per

law. The learned counsel for the petitioner while arguing the petition

has submitted that the order impugned in the present petition has been

passed ignoring the earlier order dated 31.10.2018 passed by the Court

CrlM No. 127/2021

in the complaint filed against the petitioner herein. As per the order

dated 31.10.2018 the complaint filed against the petitioner herein was

referred to S.H.O, Police Station, Bahu Fort, Jammu for verifying the

fact as to whether the petitioner herein had acted in discharge of

official duty and if sanction is also required for the prosecution. The

reliance on the letter of the Jammu Development Authority as

mentioned in the impugned order is misplaced is what is argued on

behalf of the petitioner.

2. It appears from the record that revision petition was filed against the

order dated 15.03.2019, passed by the C.J.M, Jammu, before the Court

of learned Principal Sessions Judge, Jammu and the revision petition

filed against the order dated 15.03.2019 was allowed vide order dated

01.05.2019. The petition filed under Section 561-A of the Jammu and

Kashmir of Criminal Procedure Code against the order dated

01.05.2019 passed by the learned Principal Sessions Judge, Jammu

was allowed and the order impugned dated 15.03.2019 was set aside.

This court while disposing of the petition observed thus :

"....this Court is not making any observation with regard to the merits of the order passed by the learned C.J.M, Jammu."

3. The learned Senior Counsel appearing for the petitioner has submitted

that the order dated 17.12.2020 passed in CRM(M) No. 259/2019 by

this court whereby the order dated 01.05.2019 passed by the learned

Principal Sessions Judge, Jammu was set aside does not debar the

petitioner herein to challenge the merits of the order impugned in the

present petition as the order of learned Principal Sessions Judge,

CrlM No. 127/2021

Jammu was set aside only on the ground that the revision petition was

not maintainable against the order impugned in the present petition.

4. The learned Senior Counsel appearing on behalf of the private

respondents in the present petition has argued that the order passed by

this Court in the CRM (M) (supra) has attained finality and cannot be

challenged by the petitioner through the present petition. The present

petition is in fact review of the order passed by this Court in CRM (M)

(supra) and has referred to the judgment passed by the Hon‟ble

Supreme Court in Criminal Appeal No. 1389 of 2008 decided on

02.09.2008 titled „State rep. by D.S.P., S.B.C.I.D.,Chennai vs.

K.V.Rajendran and others‟. The learned Magistrate passed the

impugned order against the petitioner herein also keeping in view the

facts mentioned in the complaint. The learned counsel for the

petitioner has, however, countered the argument, as mentioned above,

by stating that the order passed in CRM (M) (supra) has left open the

option to the petitioner herein to challenge the order impugned in the

present petition on merits.

5. The learned counsels for both the sides have referred to the back

ground of the complaint and argued the matter from their respective

point of view. The learned counsels have also referred to judgments in

support of their contentions. As the Court is only dealing with the

application and not the main petition for final consideration, the Court

need not touch upon the merits of the main petition.

6. The Court is of the opinion that the grounds raised in the petition and

the arguments raised on behalf of the private respondents in response

to the same do require detailed examination. The consequence of the

CrlM No. 127/2021

order dated 31.10.2018 passed by the C.J.M, Jammu and the order

passed by this Court in CRM (M) (supra) are also the issues which

require determination by the Court in the present petition.

7. Keeping in view the facts and circumstances of the case, the Court is of

the view that interim directions are required to be passed by the Court.

Accordingly, the order impugned in the present petition is stayed only

till next date of hearing before the Bench.

8. List the main petition for consideration on 09.03.2021 as per Roster.

(Puneet Gupta) Judge Jammu 02.02.2021 Pawan Chopra

Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No

PAWAN CHOPRA 2021.02.02 16:36 I attest to the accuracy and integrity of this document