Shafat Ahmad Chesti vs Habibullah Dhobi
2021 Latest Caselaw 306 j&K/2

                      IN THE HIGH COURT OF JAMMU AND KASHMIR
                                    AT SRINAGAR

                                                CRMC No. 112/2019

                                                              Reserved on 03.03.2021.
                                                              Pronounced on 10.03.2021

            Shafat Ahmad Chesti                                              ...Petitioner(s)

                         Through: Mr M. A. Qayoom, Adv.

                                                    Vs.

           Habibullah Dhobi                                                 ...Respondent(s)

                         Through: Mr. M. A. Wani, Adv.


           Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE

                                                JUDGMENT

1. The present petition has been filed by the petitioner for quashing the complaint filed by the respondent as well as order dated 2nd January 2016 passed by the court of Sub Judge Judicial Magistrate, Baramulla (hereinafter referred to as the 'Magistrate') on the following grounds:-

(a) That the proceedings as well as order dated 2nd January 2016 passed by the trial court are sought to be quashed on the ground that the complaint filed by the respondent against the petitioner is self-contradictory.

(b) That the order dated 2nd January 2016 by virtue of which the learned trial court has taken cognizance under Section 323/506 RPC is legally invalid because the trial court has not recorded the statement of the complainant as well as the witness on oath.

(c) That the complaint as well as order of cognizance against the petitioner by the trial court are nothing but the abuse of process of law as the learned trial court has without proper application of mind have taken a cognizance and also that the allegations levelled in the complaint do not disclose any offence.

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2. Before appreciating the grounds taken by the petitioner in the present petition, it would be appropriate to have the brief resume of the complaint.

3. From the record, it appears that the respondent had filed a complaint on 2nd January 2016 in which he stated that on 30th December 2015 at about 6:30 pm the petitioner came to the shop of the respondent and asked him to return his cap which he had given to him for dry cleaning and when the cap was handed over to respondent, therespondent demanded his charges but the petitioner without any cause started abusing and defaming the respondent and when the respondent raised objections, the petitioner threatened to eliminate the respondent as well as family members and the petitioner caught hold of the respondent and administered beatings to him. Due to intervention of the local shop keepers, the respondent was saved from the clutches of the petitioner. Thereafter, the respondent went to the police and filed an application against the petitioner.Because the petitioner was an influential man, no action was taken against the petitioner and because of that reason he has filed a complaint against the petitioner. Respondent had told the petitioner that in case his cap was damaged in the shop, then the respondent would compensate him, but the petitioner without any rhyme and reason caught hold of the respondent and assaulted him.

4. After this complaint was filed, the Magistrate recorded the statement of the respondent as well as one witness Aijaz Ahmad Bhat and after recording their statements, the learned trial court by virtue of order dated 2nd January 2016 took a cognizance for commission of offence under Section 323, 506 RPC and issued the process against the petitioner.

5. During the course of the arguments, Mr. M. A. Qayoom, restricted his arguments on three issues i.e., (1) that the statement of the complainant as well as witness has not been recorded on oath. (2) that the learned trial court has not recordedits satisfaction while issuing the process against the petitioner (3) that from the perusal of the statement of the complainant and the witness it is not evident that the petitioner had any intention to

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I attest to the accuracy and integrity of this document commit offences regarding which the cognizance has been taken and as such necessary ingredients of offences complained of are lacking.

6. On the contrary, Mr. M. A. Wani, has vehemently argued that the statement of the complainant as well as witness was recorded on oath and the learned Magistrate has recorded his satisfaction with regard to the commission of offence and then only the process has been issued against the petitioner. He has further argued that the complaint has all the ingredients for the commission of offence under Section 323 and 506 RPC.

7. Heard and considered.

8. The first contention raised by the learned counsel for the petitioner that

the statements of the complainant as well as his witness were not

recorded on oath is without any basis as the perusal of the statements of

the complainant as well as the witness reveal that they recorded on

solemn affirmation. The word oath has nowhere been defined in the

Code of Criminal procedure but dictionary meaning would reveal that

oath is a solemn declaration (often invoking God or deity etc.) as to the

truth of something or as an absolute commitment to future action,

behavior etc., an act of making such declaration. It would be profitable to

take note of the Rule 12 of Judicial Oath Rules, Svt. 1950 which is pari-

materia to Section 7 of the Oaths Act, 1969 as is now applicable to the

Union Territory of J&K. The Rule is reproduced as under:-

"12. No omission to take any oath or make any affirmation, no substitution of any one or any other of them, and no irregularity whatever, in the form in which any one of them is administered, shall invalidate any proceeding, or render inadmissible any evidence whatever in or in respect of which such omission, substitution or

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I attest to the accuracy and integrity of this document irregularity took place or shall affect the obligation of a witness to state of truth."

9. The second contention is that the learned Magistrate has not recorded his satisfaction while issuing the process against the petitioner vide order dated 2nd June 2016, however, the perusal of the order dated 2 nd June 2016 reveals that the learned Magistrate after perusing the contents of the complaint and also after perusing the statement of the respondent as well as witnesses has recorded his satisfaction that prima facie there is a commission of offence under Section 323, 506 RPC, as such, this contention too deserves to be rejected. Reliance is placed upon the decision of Apex Court in Bhushan Kumar v. State (NCT of Delhi), reported in (2012) 5 SCC 424 and the relevant paras are extracted as under:

"11. ------ Under Section 190 of the Code, it is the application of judicial mind to the averments in the complaint that constitutes cognizance. At this stage, the Magistrate has to be satisfied whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of enquiry. If there is sufficient ground for proceeding then the Magistrate is empowered for issuance of process under Section 204 of the Code.

12. A "summons" is a process issued by a court calling upon a person to appear before a Magistrate. It is used for the purpose of notifying an individual of his legal obligation to appear before the Magistrate as a response to violation of law. In other words, the summons will announce to the person to whom it is directed that a legal proceeding has been started against that person and the date and time on which the person must appear in court. A person who is summoned is legally bound to appear before the court on the given date and time. Wilful disobedience is liable to be punished under Section 174 IPC. It is a ground for contempt of court.

13. Section 204 of the Code does not mandate the Magistrate to explicitly state the reasons for issuance of summons. It clearly states that if in the opinion of a Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, then the summons may

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I attest to the accuracy and integrity of this document be issued. This section mandates the Magistrate to form an opinion as to whether there exists a sufficient ground for summons to be issued but it is nowhere mentioned in the section that the explicit narration of the same is mandatory, meaning thereby that it is not a prerequisite for deciding the validity of the summons issued.

14. Time and again it has been stated by this Court that the summoning order under Section 204 of the Code requires no explicit reasons to be stated because it is imperative that the Magistrate must have taken notice of the accusations and applied his mind to the allegations made in the police report and the materials filed therewith."

10.The last contention raised by the petitioner is that the ingredients of Section 323 and 506 RPC are lacking in the instant complaint and also the respondent has not deposed anything with regard to the commission of offence under Section 506 RPC in his statement recorded before the Magistrate. The perusal of the complaint reveals that the respondent has clearly stated in his complaint that the petitioner assaulted the respondent and also threatened to eliminate the respondent as well as his members of his family. So far as the statement of the respondent recorded by the Magistrate is concerned, he has reiterated that he was assaulted by the petitioner and also that the petitioner had threatened him. At the time of taking cognizance of offence, the learned Magistrate is not expected to evaluate the evidence as the same can be done only after the conclusion of the trial. The learned Magistrate after perusing through the contents of complaint and the statement made by the complainant as well as his witness has come to the conclusion that there is sufficient material on record to proceed against the petitioner for commission of offence under Section 323, 506 RPC. More so, the contention of the learned counsel for the petitioner that the respondent in his preliminary statement has simply stated that the petitioner threatened him but no further details have been given is a matter of trial and the petitioner cannot seek any benefit at this stage. This Court cannot in exercise of inherent powers step in to the shoes of trial court and return a finding on the veracity of the stand taken by the petitioner or creditworthiness of the evidence the parties may bring

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I attest to the accuracy and integrity of this document on record during the trial. Cognizance taken by a court cannot be questioned on a plea which for its proper adjudication, needs to be examined on the basis of evidence of the rival parties during trial.

11.In view of this, this Court does not find that the complaint filed by the respondent amounts to abuse of process of law and all the contentions raised by the petitionerare a matter of trial and cannot be considered at this stage. Also, this Court does not find any illegality in the order dated 2ndJanuary 2016 by virtue of which the process was issued against the petitioner.

12.As such, the petition is found to be without merit and the same is accordingly dismissed. The Learned Trial Court shall expeditiously decide the complaint without granting unnecessary adjournments to either of the parties.

(RAJNESH OSWAL) JUDGE SRINAGAR 10.03.2021 Altaf

Whether the order is speaking: Yes

Whether the order is reportable: No

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