Point of Law: Practice and Procedure – Dismissal of complaint by CJM – Sought for quash of Proceedings - Ground of res judicata - Law is no more res integra on subject and that there has been a long line of decisions of Apex Court on the issue as to whether upon dismissal of first complaint a second complaint is barred.

JUDGMENT :

1. Inherent jurisdiction is being invoked by the petitioner herein through the medium of the instant petition for quashment of proceedings initiated upon a complaint titled “Manzoor Ahmad Bhat versus Tahira and others” along with impugned order dated 13.11.2019.

2. The background facts those emerge from the perusal of the petition reveal that petitioners 2 to 7 are brothers and nephew of petitioner No. 1 and all are stated to have been falsely implicated in a complaint filed by the respondent. The respondent is stated to be husband of petitioner No. 1 who is stated to have sold his half of the family property belonging to petitioner No. 1 and her two children and a house at Bemina in respect of which a civil suit is stated to have been filed by petitioner No. 1 and her children before the court of Additional Munsiff, Srinagar, which court is stated to have passed an interim order directing maintenance of status quo with respect to the suit property.

3. It is being stated that in order to counter the aforesaid suit filed by petitioner No.1 and her children, the respondent herein filed a complaint before the court of Chief Judicial Magistrate, Srinagar, who is stated to have referred the same for inquiry/investigation. The said complaint is stated to have been dismissed by the CJM Srinagar upon receipt of a report of inquiry/investigation from the police.

4. It is being next stated in the petition that after the dismissal of the said complaint, the respondent herein filed another complaint on same set of facts before the court of Munsiff Judicial Magistrate Sub Registrar, Srinagar (hereinafter referred to as the court below) without disclosing filing and dismissal of the earlier complaint. The court is stated to have taken cognizance upon the said second complaint and issued a process against the petitioners.

5. It is being stated further in the petition that an application came to be filed by the petitioners before the court below under section 203 Cr.PC for dismissal of the complaint on the ground of res judicata while invoking section 403 Cr.PC read with section 26 General Clauses Act and section 70 of IPC.

6. The said application is being stated to have been dismissed by the court below in terms of the impugned order which is being challenged in the instant petition inter alia on the ground that the court below passed the impugned order against the facts and circumstances of the case and that the subsequent complaint filed by the respondent herein and proceedings initiated thereupon are grave misuse of judicial process and misuse of legal forum by the complainant, respondent herein. It is being further urged in the grounds that the court below failed to appreciate the fact while passing the impugned order that the complainant/respondent herein had earlier filed a similar complaint which had been dismissed by CJM Srinagar on 1.9.2018 after referring the same for inquiry/investigation to the police and after receiving a report therefrom in this regard. The cognizance taken in the subsequent complaint by the court below is urged to have been illegal. It is being further urged in the grounds that in presence of a civil suit pertaining to the title of a house and shop, the criminal proceedings initiated by the respondent by way of a complaint in respect thereof were not maintainable. It is further urged in the grounds that the subsequent complaint has been filed by the respondent against petitioner No. 1 and his brothers in law and their children who have no concern with the property of the respondent. The complaint is stated to have been filed by the respondent herein as a pressure tactics and as a measure of misuse of judicial process, which warranted dismissal of the complaint.

7. It is being further urged in the grounds that the complainant did not disclose material facts before the court and had he done so, the court below would not have issued the process against the petitioners. The trial court is stated to have procee