HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT

SRINAGAR

Reserved on: 17.05.2022

Pronounced on: 21.05.2022

CRMC No.157/2018

RAZIA SULTAN

…PETITIONER(S)

Through: Mr. I. Sofi, Advocate.

Vs.

ROMESH KUMAR VERMA

….RESPONDENT(S)

Through: Mr. S. A. Makroo, Sr. Adv. with

Mr. Basharat Ahmad Wani, Advocate.

CORAM: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE

JUDGMENT

1)

The petitioner has challenged order dated 03.04.2018 passed by

Judicial Magistrate, 1^st Class (Sub Judge), Baramulla, whereby the

learned Magistrate has released JCB machine No.JK14C-1146 in favour

of the respondent.

2)

It appears that respondent had filed a complaint against the

petitioner alleging commission of offence under Section 406 RPC. In the

complaint, it was alleged that the respondent had assigned the work of

laying underground OFC/4G cables from Keran Post to Gujjar Road,

Kupwara, to the petitioner and handed over the JCB machine in question

to her with a condition that after the execution of the work, she shall

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hand over the JCB machine to him. It was further alleged that after the

execution of the work, the petitioner refused to hand over the JCB

machine to the respondent and, as such, she has misappropriate the said

property and committed criminal breach of trust.

3)

Upon receipt of the aforesaid complaint, the learned Magistrate, it

seems, recorded the preliminary statements of the complainant and his

witnesses, whereafter he deferred the issuance of process and directed

SHO, Police Station, Baramulla, to undertake investigation in terms of

Section 202 of the Cr. P. C. The record further shows that the SHO

concerned conducted the investigation and submitted his report before

the learned Magistrate. In his report, SHO has submitted that the

respondent had handed over the JCB machine in question to the

petitioner who retained the same even after the execution of the work as

accounts between the parties were not settled. As per the report of the

police, there is some misunderstanding between the parties who are

levelling allegations against each other. The police during investigation

of the case seized the JCB machine and kept it on the suparadnama of

the petitioner.

4)

It appears that the respondent moved an application before the

learned Magistrate seeking release of the seized JCB machine which was

resisted by the petitioner by filing a reply thereto. The learned

Magistrate, after hearing the parties, has passed the impugned order,

whereby he has directed that the interim custody of the JCB machine be

3 CRMC No.157/2018

given to the respondent/complainant as he happens to be the owner of

the machine.

5)

The petitioner has challenged the impugned order on the ground

that no offence is made out against her and, as such, it was not open to

the learned Magistrate to release the JCB in question in favour of the

respondent. It is contended that the transaction between the parties is

purely of civil nature and the criminal court had no jurisdiction to hand

over the interim custody of the JCB machine to the respondent.

6)

I have heard learned counsel for the parties and perused the

material on record including the trial court record.

7)

Learned counsel for the petitioner has contended that it was not

open to the learned Magistrate to assume jurisdiction and pass the

impugned order without issuing process against the petitioner in the

main complaint. According to the learned, since there was no material on

record before the learned Magistrate that would, prima facie, show that

any offence was made out against the petitioner, as such, neither the

machine in question could have been seized nor its interim custody could

have been allowed in favour of the respondent.

8)

Learned senior counsel appearing on behalf of the respondent, on

the other hand, has contended that, admittedly, respondent hap