Ali Mohammad Reshi vs State Of J&K & Ors
2022 Latest Caselaw 519 j&K/2

                                                            Item. No.18
                                                            Advance List
      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT SRINAGAR


                          CRMC No.98/2019


ALI MOHAMMAD RESHI                                       ...PETITIONER(S)
         Through:    Mr. Farooq Ahmad Khan, Adv. vice
                     Mr. M. Y. Bhat, Sr. Advocate.
Vs.
STATE OF J&K & ORS.                                     ....RESPONDENT(S)
         Through: Mr. Sajjad Ashraf, GA-for R1 to R3.
                  Mr. Arif Sikandar, Adv-for R4.

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

                               ORDER

06.05.2022

1. The petitioner has challenged FIR No.08/2019 for offence under

Section 498-A RPC registered with Police Station, Pantha Chowk.

2. It appears that respondent No.4/complainant had filed a

complaint before the Court of Additional Special Mobile Magistrate,

Pantha Chowk, alleging therein that she has solemnized marriage with

the petitioner as per Muslim rites and customs and it was her second

marriage as she had been divorced prior to solemnization of the

marriage with petitioner. It was alleged in the complaint that soon after

the marriage, the petitioner went to Rajasthan and after coming back

from there to the rented premises at Zewan, where respondent No.4 was

residing, the petitioner tortured her which left her in deep shock. It was

further alleged that the petitioner kept on torturing the said respondent

for not bringing double door fridge, aqua guard purifier, Scorpio

vehicle, a house and cash of Rs.80,000/ for his hair plantation. It was

also alleged that the petitioner dragged respondent No.4/complainant

by her hair so as to coerce her to meet his unreasonable demands of

dowry and he would even spit on the face of the complainant because

she was not prepared to accede to the unjust and unreasonable demands

of the petitioner.

3. It appears that the aforesaid complaint was forwarded by the

learned Magistrate to SHO, P/S, Pantha Chowk, with a direction to

investigate and submit the report. On the basis of this direction, the

impugned FIR came to be registered.

4. The petitioner has challenged the impugned FIR by contending

that he has divorced the complainant by virtue of divorce deed dated

10.01.2019 which was duly dispatched to the complainant on

11.01.2019 and the same was also circulated in a newspaper on

12.01.2019. It is further averred that the complainant had also filed an

application under the provisions of the Protection of Women from

Domestic Violence Act which was contested by the petitioner by filing

objections thereto. It is alleged that the respondent No.4/complainant,

in order to inflict harm to the reputation of the petitioner, has lodged

the impugned FIR making similar allegations as are subject matter of

the petition under Protection of Women from Domestic Violence Act.

It is also alleged that prior to filing of the complaint before the learned

Magistrate, respondent No.4 did not approach the police station

concerned and, as such, neither the order passed by the learned

Magistrate directing the police to investigate is in accordance with the

law nor the action of the police in registering the FIR is legally tenable.

The petitioner has relied upon the judgment of Supreme Court passed

in the case titled Priyanka Srivastava and another vs. State of UP

and others, AIR 2015 SC 1758 to support his aforesaid contention. It

has also been contended that the learned Magistrate has not applied his

mind before passing the order directing investigation as there is no

scope for submission of report once an order for investigation is made.

It is also contended that in the cases of matrimonial disputes and

disputes of civil nature, a Magistrate is required to take recourse to the

provisions contained in section 202 of the Cr. P. C instead of

straightway directing registration of an FIR under Section 156(3) of the

Cr.P.C. It is contended that the allegations made in the impugned FIR

do not disclose commission of a cognizable offence.

5. The petition has been contested by the respondents by filing reply

thereto. In their reply, the official respondents have submitted that the

impugned FIR came to be registered on the basis of an application filed

by respondent No.4 which was endorsed by the learned Magistrate to

the SHO concerned.

6. I have heard learned counsel for the parties and perused the

record of the case.

7. So far as the contents of the impugned FIR, which is based upon

the complaint made by respondent No.4 before the learned Magistrate,

are concerned, the same clearly disclose commission of offence under

Section 498-A RPC. The complainant has levelled serious allegations

of demands of dowry and acts of cruelty inflicted by the petitioner upon

her in connection with the demand of dowry. The particulars of the

demand and the particulars of acts of cruelty have been clearly

delineated in the complaint. Thus, the complaint does disclose

commission of cognizable offence against the petitioner.

8. Once the complaint of aforesaid nature was presented before the

learned Magistrate, two courses were open to him. Either he could

direct the police to investigate the case by taking resort to powers vested

in him under Section 156(3) of the Cr. P. C or in the alternative he could

record the preliminary evidence of the complainant and thereafter take

cognizance of the offences and issue process against the accused.

Discretion as to which course is to be adopted by a Magistrate on

receiving a complaint disclosing commission of cognizance offences,

lies entirely with the Magistrate. This Court, in exercise of its

jurisdiction under Section 482 of the Cr. P. C, cannot go into this aspect

of the matter. Therefore, the contention of learned counsel for the

petitioner that the learned Magistrate should have adopted the course

provided under Section 202 of the Cr. P. C instead of directing

investigation of the case, is without any merit.

9. The contention of the petitioner that the learned Magistrate has

directed investigation of the case without following the guidelines

issued by the Supreme Court in Priyanka Srivastava's case (supra), is

also without merit. In the complaint, which was supported by the

affidavit of the complainant, it was clearly stated that the respondent

No.4 had approached the police before lodging complaint before the

learned Magistrate. Therefore, the requirements laid down in the

guidelines issued by the Supreme Court in Priyanka Srivastava's case

(supra) have been followed by respondent No.4/complainant prior to

approaching the learned Magistrate

10. So far as the contention of the learned counsel for the petitioner

that the allegations made in the impugned FIR and those made in the

proceedings under Protection of Women from Domestic Violence Act

being similar in nature, as such, the criminal proceedings deserve to be

quashed, is concerned, the same is without any merit. The criminal

proceedings and the proceedings under Protection of Women from

Domestic Violence Act are two distinct remedies available to a wife

who has been subjected to cruelty by her husband. While the purpose

of lodging the FIR and setting the criminal proceedings into motion is

to punish the erring husband for his acts of cruelty in connection with

demand of dowry, the purpose of proceedings under Protection of

Women from Domestic Violence Act is to make provision for monetary

relief and relief relating to accommodation in favour of the wife as also

to prevent the husband from inflicting the acts of domestic violence

against her. The two remedies cover different fields and do not overlap

each other. Thus, the contention of learned counsel for the petitioner is

without any merit and deserves to be rejected.

11. For the foregoing reasons, I do not find any merit in this petition.

The same is, accordingly, dismissed. The interim order passed by this

Court whereby investigation of the impugned FIR has been stayed,

shall stand vacated.

(Sanjay Dhar) Judge Srinagar 06.05.2022 "Bhat Altaf-PS"

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