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IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
M.K. HANJURA, J.
Dr. Jitender Mehta - Petitioner
Versus
Shivani Mehta and another - Respondents
561-A no.41 of 2008, MP no.48 of 2008
Decided On : 16-05-2018
Based on the provided legal document, the key points are as follows:
The petition involves a criminal proceeding initiated under Section 561-A of the Criminal Procedure Code, challenging an order that took cognizance of an offence under Section 498-A of the Ranbir Penal Code. The order was passed without proper adherence to procedural requirements, such as recording the preliminary statement of the complainant and her witnesses, which is mandatory under Section 200 of the Cr.P.C. (!) (!) .
The order of cognizance was taken without giving the accused an opportunity to be heard, which is a violation of principles of natural justice. The order was based solely on the complainant’s statement, without considering the final police report or providing the accused an opportunity to respond before proceeding. This renders the order unsustainable in law (!) (!) (!) .
The proceedings were initiated beyond the prescribed limitation period under Section 538-B of the Cr.P.C., which mandates that cognizance of offences punishable with imprisonment exceeding one year and up to three years must be taken within three years from the date of the offence. The delay in this case was not properly justified, making the proceedings liable to be quashed on the grounds of limitation (!) (!) .
The order was passed after the submission of a final police report, yet the accused was not given an opportunity to be heard before the order of cognizance was made. This is contrary to the principles of fairness and natural justice, which require that the accused be heard before such a decision is taken, especially when a final report has been filed (!) (!) (!) .
The second complaint filed by the complainant, based on the same facts as the first, was initiated with an ulterior motive to harass the petitioner. The proceedings on this second complaint, including the order of cognizance, are considered an abuse of process of law, especially since it was initiated after the first complaint was dismissed and was filed after a significant delay (!) (!) .
The court emphasizes that the exercise of jurisdiction under Section 561-A should be cautious and only in cases where continuing proceedings amount to abuse or violate fundamental principles of justice. In this case, the proceedings are deemed to be such an abuse and are therefore liable to be quashed (!) (!) .
The Court highlights that the powers under the relevant procedural provisions must be exercised judicially, with due regard to constitutional rights, including the right to a fair hearing and the protection against undue delay. The failure to adhere to these principles justifies the quashing of the proceedings (!) (!) (!) .
Consequently, the Court set aside the order of cognizance dated 25th November 2006 and quashed the complaint, holding that continuing with the proceedings would be an abuse of process and contrary to the principles of justice and limitation laws (!) (!) .
These points collectively underscore the importance of procedural fairness, timely prosecution, and the avoidance of abuse of legal processes in criminal proceedings.
1. Impugned in this petition, preferred under Section 561-A of the Code of Criminal Procedure (Cr.P.C.), is the order dated 25th November 2006, passed by the court of the learned Municipal Magistrate, Jammu, (for brevity the “Trial Magistrate”), directing that the process be issued against the petitioner and the respondent no.2 for the commission of an offence punishable under Section 498-A of the Ranbir Penal Code (RPC). Quashment of the complaint titled Shivani Mehta v. Dr Jitender Mehta and others is as well implored for by the petitioners.
2. The case set up by the petitioner is that he is a doctor by profession and holding the post of the Registrar in the Government Medical College, Jammu. He married the respondent no.1 on 29th October 2001 at Jammu, but she never agreed to reside with the parents of the petitioner at Srinagar as he is a resident of Saidpora, Shopian, Kashmir. In order to keep the respondent no.1 happy and to make the petitioner’s life comfortable, the father of the petitioner purchased a piece of land at Udeywala Bohri, Jammu, and constructed a house for the petitioner with a view that the petitioner and the respondent no.1 should live happily in the said house, whereas all the family members of the petitioner including the parents, sisters and brother are residing at Saidpora, Shopian, Kashmir, so is stated by the petitioner in the instant petition. The petitioner also postulates that even on account of the turmoil in the Kashmir Valley, the parents of the petitioner did not migrate to Jammu so that the respondent no.1 may not feel that she has to live in a joint family. The petitioner claims that the behaviour of the respondent no.1 towards the petitioner was never cordial and on account of the indifferent attitude on her part, she used to pick up quarrels with the petitioner without any rhyme and reason. A son, namely, Madhav, was born out of the wedlock on 11th August 2002, however, thereafter the respondent no.1 left the matrimonial fold on her own accord to take refuge in her parental house without any consent and knowledge of the petitioner, leaving the small child, Madhav, with the parents of the petitioner at Kashmir. The petitioner, finding it difficult to keep the child without mother, took the child to the respondent no.1, but she refused to accept the child and enunciated that she would take the child through court or police, so that the maximum harassment is caused to the petitioner and his parents. Ultimately under the forced circumstances, the petitioner took the child back to Kashmir where his family and the parents are residing permanently and he left the child in their custody. As a counter to this and with an ulterior motive to harass the petitioner and his family members, the respondent no.1 and her family in the month of September 2003 filed a complaint under Section 498-A and 403 RPC in the court of the learned Chief Judicial Magistrate, Jammu, who, however, after taking into account the vituperations contained in the complaint thought it appropriate not to take cognizance and as a sequel thereto, sent it to the Women Police Station Canal Road, Jammu, for the investigation. FIR no.11/2003, against the petitioner, his two sisters and his mother, who permanently reside and work in Kashmir, alleging therein that they have committed an offence punishable under Section 498-A RPC at Subhash Nagar, Jammu, was registered.
3. It is also contended that prior to the lodgment of the aforesaid FIR, a petition under the Guardian and Wards Act was filed by the respondent no.1 in the court of the learned Additional District Judge (Matrimonial Cases) Jammu, which the petitioner contested. The petitioner and his entire family were subjected to harassment at the hands of the police station Women Cell Jammu and ultimately the petitioner and his family were bailed out by the learned Additional District Judge, Jammu, on 31st October 2003. From 12th September 2003 to 31st October 2003, the petiti
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