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2005 Supreme(J&K) 129
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Mansoor Ahmad Mir, J.
Haji Gh. Mohd. Bhat & Ors. - Appellant
Versus
State Of J&K & Ors. - Respondent
561-A Cr.P.C. No.56/2004
Decided On : 09 May, 2005
Advocate For Appellant: R.A. Jan
Advocate For Respondent: M.A. Rathore
The main legal point established is that the jurisdiction of the Magistrate to decide on territorial jurisdiction and the commission of offenses should not be prematurely prejudged, and caution should be exercised in quashing complaints and the investigation process.
Headnote:
JURISDICTION - Criminal Proceedings - Sections 420, 385, 120-B of RPC - Section 251(d) of Cr.P.C - AIR 1999 SC 3499, AIR 2000 SC 202, AIR 2000 SC 1869, AIR 2004 SC 3967 - 1999 Cr.L.J page 4566 - AIR 1994 SC 1256 - S.178(c) of the Criminal Procedure Code - S.156 (2) - Jurisdiction of Criminal Courts - Abuse of Process of Law
Fact of the Case:
The petitioners sought to quash criminal proceedings initiated against them and respondent no. 2 under sections 420, 385, 120-B of RPC in the Court of learned Chief Judicial Magistrate, Srinagar. The petitioners argued lack of territorial jurisdiction and absence of evidence of any offense.
Finding of the Court:
The court held that the jurisdiction of the Chief Judicial Magistrate, Srinagar to try the case is not a ground for quashing the proceedings. It emphasized that the Magistrate has the power to take cognizance and decide on jurisdiction. The court also highlighted the need for caution in quashing complaints and the investigation process.
Issues: The issues revolved around territorial jurisdiction, evidence of offense, and the abuse of process of law.
Ratio Decidendi: The court emphasized that the jurisdiction of the Magistrate to decide on territorial jurisdiction and the commission of offenses should not be prematurely prejudged. It also highlighted the need for caution in quashing complaints and the investigation process.
Final Decision: The petition was dismissed, and the trial court file was sent down with the direction for the parties to appear in the court below.
2. The brief facts of the case are as under; -
A complaint has been lodged before Crime Branch, Srinagar by the persons who seem to be the parents of the students of Mithalya Minority Dental College and Hospital Darbanga, Bihar. The Crime Branch after receiving the complaint registered FIR No. 270 of 2001 under Section 420, 385, 120-B of RPC and after conducting investigation presented the challan before the court of learned Chief Judicial Magistrate, Srinagar on 2nd of July, 2003.
3. The petitioners have moved so many applications in order to avoid to cause appearance before the Court of learned Chief Judicial Magistrate which is evident form the interim orders dated 3rd of April, 2004, 8th May, 2004, 29th June, 2004, 7th August, 2004, 29th September, 2004 and 17th November, 2004, for a period of one year and four months from the date of presentation of the challan till filing of the petition in hand.
4. The argument of Mr. Jan is that the entire proceedings are without jurisdiction and the abuse of process of law for the following reasons; -
1. That alleged occurrence has taken place at Bihar, hence the Crime Branch has no power to investigate the matter and learned Chief judicial Magistrate, Srinagar is lacking territorial jurisdiction to try the case;
2. The evidence collected does not disclose commission of any offence.
5. Mr. Rathore while addressing arguments argued that the occurrence has also taken place within the territorial jurisdiction of learned Chief Judicial Magistrate, Srinagar and the material collected by Investigating Officer disclose the commission of offence(s).
6. Perused. Considered. Whether the Chief Judicial Magistrate, Srinagar has the jurisdiction to try the case or not, is not a ground for quashing the proceedings for the following reasons; -
The learned Chief Judicial Magistrate has powers to take cognizance and it is for the accused to plead that the Judicial Magistrate is not having the jurisdiction and Magistrate has to pass appropriate orders in terms of Section 251(d) of Cr.P.C.
7. In Trisuns Chemical Industry V. Rajesh Agarwal and others, AIR 1999 SC 3499, Apex Court has observed as under; -
11. The only restriction contained in S. 190 is that the power to take cognizance is subject to the provisions of this Chapter. There are 9 Sections in Chapter XIV most of which contain one or other restriction imposed on the power of a first class magistrate in taking cognizance of an offence. But none of them incorporates any curtailment on such powers in relation to territorial barrier. In the corresponding provision in the Old Code of Criminal Procedure (1898) the commencing words were like there: Except as hereinafter provided. Those words are now replace by Subject to the provisions of this Chapter. Therefore, when there is nothing in Chapter XIV of the Code to impair the power of a judicial magistrate of first class taking cognizance of the offence on the strength of any territorial reason it is impermissible to deprive such a magistrate of the power to take cognizance of an offence of course, in certain special enactments special provisions are incorporated for restricting the power of taking cognizance of offences falling under such acts. But such provisions are protected by non obstante clauses. Any way that is a different matter.
8. In Manohar M. Galani v. Ashok N.Advani and another, AIR 2000 SC 202 the Apex Court has observed as under; -
4. So far as the quashing of the complaints and inquiry on the basis of FIR registered by th
