Jammu & Kashmir High Court

Bhushan Lal Ghasi And Anr vs Respondent(S) on 29 October, 2024

Author: Rajnesh Oswal

Bench: Rajnesh Oswal

                                                                     Sr. No.3
         HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                         AT JAMMU

CRMC No. 30/2018
IA No. 1/2018

Bhushan Lal Ghasi and anr.                            .....Appellant(s)/Petitioner(s)


                        Through: Mr. Pranav Kohli, Sr. Advocate with
                                 Mr. Rajat Wattal, Advocate
                 Vs

                                                                ..... Respondent(s)
Neena Ghassi and anr.

                        Through: Mr. Mandeep Singh, Advocate

Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
                                ORDER (ORAL)

29.10.2024

1. This petition has been filed by the petitioners for quashing the

proceedings in the criminal complaint titled, 'Nina Ghassi vs. Sanjay

Ghassi& Ors.' filed by respondent No. 1 under Sections 405 and 406

RPC pending before the Court of learned Munsiff (JMIC), Jammu

(hereinafter to be referred as „the trial court‟).

2. Though the proceedings pending before the learned trial court have been

assailed on various grounds but this Court while examining the

proceedings in the complaint has come across the order dated 24.11.2015

passed by the learned trial court, whereby process has been issued

against the petitioners and respondent No. 2 for commission of offences

under sections 405, 406 R.P.C.

3. Mr. Pranav Kohli, learned Senior Counsel for the petitioners has

vehemently argued that after filing of the complaint, the respondents i.e.

the complainant (respondent No.1) and the accused No.1 (respondent

No.2) had settled the dispute by virtue of an agreement, pursuant to

which judgment and decree dated 04.12.2015 for dissolution of marriage

was passed by the Circuit court of the Twenty-Third Judicial Circuit

Kendall County, Illinois and as such, continuance of the criminal

proceedings shall be nothing but an abuse of process of law.

4. Per contra, Mr. Mandeep Singh, learned counsel for respondent No. 1

has vehemently argued that though respondent No. 1 had entered into a

compromise with respondent No. 2 for the purpose of dissolution of

marriage pursuant to which decree as mentioned above was passed but

respondent No. 1 had retained her right to prosecute her claim, if any, in

respect of unsettled disputes.

5. Heard learned counsels for the parties and perused the record.

6. This Court vide order dated 28.11.2023 had directed the respondent No.

1 to file supplementary affidavit in support/prima facie proof of the items

which she had alleged to have entrusted to the petitioners herein. The

said affidavit has not been filed till date and the learned counsel for

respondent No. 1 has expressed his inability to file supplementary

affidavit in terms of order (supra). The respondent No.1 had appeared

before this court through virtual mode and stated that she wants the

continuance of the proceedings, as dispute between the parties has not

been settled completely. In this scenario, this Court has heard the matter

at length.

7. A perusal of the record reveals that the complaint mentioned above was

instituted before the court of Chief Judicial Magistrate on 24.11.2015

which was assigned to the learned trial court and the learned trial court

after recording the statement of respondent No. 1 in terms of Section 200

Cr.P.C. issued the process against the petitioners and respondent No. 2

for commission of offences under Section 405 and 406 RPC. Though the

petitioners have not assailed order dated 24.11.2015 by virtue of which

process has been issued against the petitioners and respondent No. 1 but

this Court finds that the same has been issued by the learned trial court in

a mechanical manner. The order dated 24.11.2015 is translated and

extracted as under:-

"The complaint has been transferred and presented by the learned counsel in the open court. The same be registered. Preliminary statement of the complainant has been recorded in the complaint against petitioners and respondent No. 2 under Sections 405, 406 RPC. The respondents be summoned through notice. List the matter on 26.11.2015."

8. The order as extracted above has been passed by the learned trial court

without application of mind and no satisfaction has been recorded by the

learned Magistrate in respect of commission of offences under Section

405 and 406 RPC by the petitioners and respondent No. 2. The

Magistrate, while issuing the process, is expected to remain alive to the

proceedings and cannot issue process against the accused as a matter of

course. The order impugned, as such, is not sustainable in the eyes of

law.

9. In M/S. Pepsi Foods Ltd. & Anr. Vs. Special Judicial Magistrate &

Ors, AIR 1998 SC 128, the Hon‟ble Supreme Court has held as under:-

"28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary

evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."

10. There are subsequent events which have taken place after filing of the

complaint and may or may not have any bearing upon the proceedings

mentioned above pending before the learned trial court.

11. Be that as it may, as this Court has already come to the conclusion that

order dated 24.11.2015 is in utter disregard of the settled proposition of

law and as such, order dated 24.11.2015 is quashed and the respondent

No. 1 is directed to produce the judgment and decree of divorce dated

04.12.2015 passed by the Circuit Court of the Twenty-Third Judicial

Circuit Kendall County, Illinois and also an agreement pursuant to which

the decree mentioned above was passed, before the learned trial court.

The learned trial court is directed to pass fresh orders after taking note of

the judgment and decree and also the agreement, as mentioned above,