Jammu & Kashmir High Court - Srinagar Bench
Rouf Aslam Shah vs Jamsheed Ahmad Qadri on 3 February, 2025
Author: Sanjay Dhar
Bench: Sanjay Dhar
S. No. 28
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
(Through Virtual Mode)
Case:- CRM(M) No. 494/2023
Rouf Aslam Shah, age 45, S/o Mohammad
Aslam Shah, R/o Umer Colony, Near Masjid
Gousia, Lal bazaar, Srinagar. .....Appellant(s)/Petitioner(s)
Through: Mr. Saqib Shabir, Advocate
Vs
Jamsheed Ahmad Qadri, S/o Mohammad Shafi Qadri, R/o
Hubby Colony, Sikh Bagh, Lal Bazar, Srinagar. ..... Respondent(s)
Through: None
Coram: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
ORDER
(03.02.2025)
01. The petitioner through the medium of the present petition has challenged
impugned order dated 10.06.2023 passed by learned Judicial Magistrate 1 st
Additional Munsiff, Srinagar, whereby process has been issued against him
in a complaint filed by the respondent against the petitioner alleging
commission of offence under Section 138 of Negotiable Instrument Act.
02. The only ground that has been urged by learned counsel for petitioner for
impugning the order passed by the learned trial Magistrate on 10.06.2023 is
that the learned Magistrate has recorded the said order on a blank proforma
by filling up the blanks, which according to the learned counsel, reflects
non-application of mind on the part of the learned trial Magistrate.
03. A perusal of the impugned order passed by the learned trial Magistrate
reveals that while issuing process against the petitioner and framing an
opinion that offence under Section 138 N. I. Act is made out against the
petitioner, a printed proforma containing blank spaces has been used by the
learned Magistrate in which blanks have been filled up by the learned
Magistrate in his own hand writing/ hand writing of his staff. This clearly
reflects non-application of mind on the part of learned trial Magistrate.
04. The Supreme Court and this Court has in various judgments made it clear
that issuance of process in a criminal matter is a serious issue and the same
cannot be dealt with by a criminal Court in a mechanical manner. Once
criminal law is set into motion and a summon/warrant is issued against an
accused he faces the threat of being arrested and he has to take steps for
procuring bail from the concerned Court. Therefore, before exposing a
person to such harsh measures, a criminal Court is expected to apply its
mind to the material before it in a careful manner.
05. The fact that the learned Magistrate has used a printed out proforma
containing blank spaces while recording the impugned order, goes on to
show that the learned Magistrate has not applied his mind to the material
before him. May be offences are made out against the petitioner on the
basis of the allegations made in the complaint and the material annexed
thereto, but it was incumbent upon the learned trial Magistrate to consider
and analyze the said material and pass a brief and concise reasoned order
before issuing process against the petitioner. Instead of doing so, the
learned Magistrate filled up the blank spaces in the already printed out
proforma, which clearly reflect mechanical functioning on his part. On this
ground alone, the impugned order passed by the trial Magistrate becomes
unsustainable in law.
06. Accordingly, the impugned order passed by the trial Magistrate is set aside.
The learned Magistrate shall, however, upon analyzing the material placed
before him by the complainant, pass a fresh order in accordance with law.
The petition stands disposed of.
07. A Copy of this order be sent to the learned trial Magistrate.
(SANJAY DHAR)
JUDGE
JAMMU
03.02.2025
Vijay
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
