Masooda Begum & Anr vs Mohammad Ashraf Dar
2021 Latest Caselaw 273 j&K/2

                                IN THE HIGH COURT OF JAMMU AND KASHMIR
                                              AT SRINAGAR

                                                                         Reserved on: 23.02.2021
                                                                       Pronounced on: 03.03.2021


                                                                             CRMC No.194/2018


                        Masooda Begum & anr.                                       ...Petitioner(s)

                                     Through: - Mr. Aftab Ahmad, Advocate.
                        Vs.

                        Mohammad Ashraf Dar                                 ...Respondent(s)
                                     Through: - None.


                        CORAM:       HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE


                                                        JUDGMENT

1) The petitioner have challenged the order dated 24.03.2018,

passed by learned Judicial Magistrate, Bandipora, whereby the learned

Magistrate has returned the petition filed by the petitioners before the

said Court under Section 488 of Jammu and Kashmir Code of Criminal

Procedure seeking maintenance from the respondent.

2) Briefly stated, the case that emerges from the perusal of the

record is that the petitioner No.1 happens to be the wife and petitioner

No.2 happens to be the minor son of the respondent. They approached

the Court of Chief Judicial Magistrate, Bandipora, with a petition under

Section 488 of Cr. P. C seeking maintenance from the respondent. The

petition was transferred by learned Chief Judicial Magistrate to Judicial

Magistrate 1st Class, Bandipora, for disposal under law.

MOHAMMAD ALTAF BHAT 2021.03.04 14:02 I attest to the accuracy and integrity of this document

3) It seems that the respondent had taken an objection before the

learned Magistrate with regard to territorial jurisdiction of the learned

Magistrate on the ground that neither of the parties reside within the

jurisdiction of the said Court nor had they last resided within the

territorial jurisdiction of the said Court. The learned Magistrate vide the

impugned order accepted the plea of the respondent and held that he

does not have territorial jurisdiction to entertain the petition and

directed it to be returned to the petitioners for its presentation before

the appropriate forum.

4) I have heard learned counsel for the petitioners and perused the

impugned order and the material attached to the petition.

5) Vide the impugned order, the learned Magistrate has observed

that the petitioners at the time of filing of the petition, as per the title of

the petition, were residing at Hajin Bandipora whereas the respondent

is residing at Grath Saloora Ganderbal, and according to learned

Magistrate, neither Hajin Bandipora nor Grath Saloora Ganderbal fall

within his territorial jurisdiction. The learned Magistrate has further

observed that it is not the case of the petitioners that they at any point

of time last resided within the jurisdiction of the said Court. On these

grounds, it was concluded that the said Court lacks territorial

jurisdiction to entertain the petition and, accordingly, the same was

directed to be returned to the petitioners.

MOHAMMAD ALTAF BHAT 2021.03.04 14:02 I attest to the accuracy and integrity of this document

6) In order to determine the controversy involved in this case, we

need to notice the provisions of Section 488(8) of the Jammu and

Kashmir Code of Criminal Procedure, which reads as under:

"488(8)Proceedings under this section may be taken against any person in any district where he is or his wife resides or where he last resided with his wife, or as the case may be, the mother of the illegitimate child."

7) From the aforesaid provision, which is in pari materia with

Section 126(1) of the Central Cr. P. C, the proceedings for maintenance

can be filed by a wife against her husband either in the district where

she resides or in the district where the husband resides. Alternatively,

she can also file a petition in the district where she had last resided with

her husband. It may be correct that as per the title of the petition,

petitioners are residing at a place which is outside the territorial

jurisdiction of learned Judicial Magistrate, 1st Class, Bandipora and

even the respondent is also residing outside the territorial jurisdiction of

the said Court. In the petition, it is nowhere stated that the petitioners

had last resided with the respondent at any place falling within the

jurisdiction of Judicial Magistrate, 1st Class, Bandipora. But then, as

noted by the learned Magistrate in the impugned order, the petition was

transferred to the said Court by the orders of learned Chief Judicial

Magistrate, Bandipora, who is vested with jurisdiction over whole of

the District Bandipora.

8) Section 192 of the J&K Cr. P. C gives jurisdiction to a Chief

Judicial Magistrate to transfer any case of which he has taken

MOHAMMAD ALTAF BHAT 2021.03.04 14:02 I attest to the accuracy and integrity of this document

cognizance, for inquiry or trial, to any Magistrate subordinate to him. It

reads as under:

"192. Transfer of case by Magistrates.--(1) Any Chief Judicial Magistrate may transfer any case, of which he has taken cognizance, for inquiry or trial, to any Magistrate subordinate to him. (2) Any Chief Judicial Magistrate may empower any Judicial Magistrate of the first class who has taken cognizance in his district who is competent under this Code to try the accused or commit him for trial; and such Magistrate may dispose of the case accordingly."

9) From a perusal of the above quoted provision, it is clear that

when a Chief Judicial Magistrate transfers a petition or a complaint to a

Magistrate subordinate to him, the said subordinate Magistrate is

conferred with the jurisdiction to entertain and try such complaint or

petition. Once the petition under Section 488 of Cr.P.C filed by the

petitioners was transferred by Chief Judicial Magistrate, Bandipora, to

Judicial Magistrate, 1st Class, Bandipora, the learned Judicial

Magistrate would automatically get jurisdiction to entertain and try the

said petition. The learned Magistrate, while passing the impugned

order, has ignored the provisions contained in section 192(2) of the

J&K Cr. P. C. Not only this, the petition was pending in the Court of

learned Judicial Magistrate for about six months where after he

returned the petition citing lack of jurisdiction as the reason thereby

putting the hapless petitioners in a precarious position. If at all there

was any ground for returning the petition to the petitioners, the same

should have been done at the very first hearing, not after proceeding

with the case for more than six months, that too in a case where a MOHAMMAD ALTAF BHAT 2021.03.04 14:02 I attest to the accuracy and integrity of this document

destitute lady had approached the learned Magistrate for grant of

maintenance.

10) Be that as it may, the impugned order passed by the learned

Judicial Magistrate suffers from grave illegality as the same has been

passed in disregard of the provisions contained in Section 192 of the

J&K Cr. P. C and, as such, is unsustainable in law. The same is,

accordingly, set aside. The learned Judicial Magistrate, 1 st Class,

Bandipora, is directed to entertain and dispose of the petition filed by

the petitioners for grant of maintenance with utmost promptitude in

accordance with the law.

11) A copy of this order be sent to the learned trial court for

information and compliance.

(Sanjay Dhar) Judge Srinagar 03.03.2021 "Bhat Altaf, PS"

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




MOHAMMAD ALTAF BHAT
2021.03.04 14:02
I attest to the accuracy and
integrity of this document