IN THE HIGH COURT OF JAMMU & KASHMIR AND

LADAKH

AT SRINAGAR

Reserved on: 07.04.2022

Pronounced on:20.04.2022

CRM(M) No.403/2021

CrlM No.1353/2021

DILSHADA SHEIKH

... PETITIONER(S)

Through: - Mr. Areeb Javed Kawoosa, Advocate.

Vs.

SABA SHEIKH

…RESPONDENT(S)

Through: - Mr. Jehangir Iqbal Ganai, Sr. Adv. with

Mr. Murfad Naseem, Advocate.

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

JUDGMENT

1)

The petitioner has challenged the complaint filed by respondent

against him before the Court of Chief Judicial Magistrate, Srinagar,

wherein the petitioner is alleged to have committed offence under

Section 447 IPC. Challenge has also been thrown to order dated

05.11.2021 passed by the learned Magistrate on the aforesaid complaint

whereby, after taking cognizance of the offence, process has been issued

against the petitioner.

2)

In the impugned complaint, the respondent-complainant has

alleged that she happens to be the daughter of the petitioner/accused and

that after the death of Shri Javaid Sheikh, father of the complainant and

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CrlM No.1353/2021

husband of the petitioner/accused, the property left behind by him

devolved upon the petitioner/accused and her three daughters including

the respondent herein. It is alleged in the complaint that respondent had

three rooms in her possession in one of the properties left behind by her

late father and on 05.09.2021 before leaving for Delhi, she locked all

these three rooms in presence of her sister Shahala Ali Sheikh with all

her belongings inside the room. The respondent is alleged to have

informed the SHO concerned about her apprehension that the

petitioner/accused may try to dispossess her from these three rooms by

breaking open the locks. It has also been alleged in the complaint that on

02.10.2021, respondent/complainant was informed by her sister that the

locks of these three rooms have been broken by the petitioner and that

she

has

trespassed

into

these

rooms.

Accordingly,

the

respondent/complainant approached the police for lodging the FIR.

However, no action was taken in the matter. It is also alleged in the

complaint that ever since the petitioner/accused started questioning the

entitlement of respondent/complainant to her share in the property left

behind by her father, the respondent sent a legal notice to her through her

lawyer but the approach of the petitioner/accused has been aggressive.

3)

It appears that upon receipt of the aforesaid complaint, the learned

Magistrate, after recording the statement of the complainant, referred the

matter for enquiry to the police in terms of Section 202 Cr. P. C. Upon

receipt of the report of the enquiry, the learned Magistrate has, in terms

of impugned order dated 05.11.2021, observed that offence under

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Section 447 IPC is, prima facie, made out against the petitioner/accused

and, as such, process was issued against her.

4)

The petitioner has challenged the complaint and the order of

issuance of process against her, primarily, on the ground that one co-

sharer of a property cannot be stated to have committed the offence of

criminal trespass if he or she enters in the room which is in possession

of another co-sharer. It has been further contended that respondent by

filing the criminal complaint against the petitioner is only trying to settle

a purely civil family dispute by giving it a criminal colour which is not

permissible in law.

5)

Respondent/complainant on the other hand has contended that she

was in possession of three rooms which she had locked and as per the

allegations made in the complaint, which are supported by the enquiry

report of the police, the petitioner has broken open these locks which

clearly makes it as a case of criminal t