Advocates:
['MANPREET KOUR', '', 'SURINDER KOUR', 'SR ADV', 'BHANU JASROTIA', 'GA']

Crl R 10HIGH COURT OF JAMMU, KASHMIRAND LADAKH

ATJAMMU

CRM(M) 76/2021

CrlM 76/2021

Sandeep Gupta

.....Petitioner(s)

Through:- Ms. Surinder Kour, Sr. Adv. with

Mr. Sunil Kumar, Advocate

v/s

Union Territory of J&K and another

.....Respondent(s)

Through:- Mr. Amit Gupta, AAG

Mr. Himinshu Beotra, Advocate

Coram:

HON’BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE

ORDER

1.

Through the medium of instant petition, the petitioner has

challenged FIR No. 5 dated 08.01.2021 for offence under Section 188 RPC

registered with Police Station, Bishnah ( for brevity 8impugned FIR9)

2.

Briefly, stated the case of the petitioner is that the respondent

No. 2 had filed a suit for permanent prohibitory injunction restraining the

defendant (petitioner herein) from causing any interference in peaceful

possession of land measuring 03 marlas falling under Khasra no. 423

situated at Tehsil, Bishnah and also restraining the defendant from raising

any construction or creating any 3^rd party interest viz-a-viz land measuring

16 kanals 5 marlas falling under Khasra no. 806/424 and land measuring 01

kanal 12 marlas i.e. 01 kanal 11 marlas falling in Khasra no. 420 Min and 01

Maria falling in Khasra no. 772/425 situated at Tehsil Bishnah District

Jammu. The case was transferred to Court of learned City Judge, Jammu and

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CRM(M) 76/2021

the learned City Judge, Jammu vide Order dated 25.10.2019 issued notice in

the suit and passed interim order thereby directing the parties to maintain

status quo on spot as on date viz-a-viz possession of suit property till next

date of hearing. The petitioner has filed detailed written statement to the suit

and the Trial Court has also appointed a Commissioner in the case vide order

dated 21.07.2020 and the Commissioner filed a detailed report stating

therein that it is an old structure and presently no construction work is going

on there. Thereafter the respondent No. 2 approached the police authorities

on false grounds for lodging of FIR. The respondent No. 1 has registered a

FIR being No. 5 dated 08.01.2021 against the petitioner under Section 188

IPC.

3.

It is stated that the grandfather of the petitioner was the owner

of the land situated at Bishnah and there are various properties in the shape

of land, building and commercial establishments and the land in question

also belongs to the family of the grandfather of the petitioner. It is stated that

the respondent No. 2 has filed the FIR in question alleging violation of

interim order passed by Learned City Judge, Jammu and illegally occupying

joint and self-owned property.

4.

The petitioner has challenged the impugned FIR on the grounds

that the FIR is illegal, arbitrary and unconstitutional on the ground that no

ingredients of Section 188 of Indian Penal Code have been made out,

because it is clear from the record that interim order of status quo passed by

the Court of Learned City Judge, Jammu was not in existence after

19.12.2019; that the FIR is illegal, arbitrary and unconstitutional on the

ground that the respondent no. 2 has filed a civil suit which is pending in the

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CRM(M) 76/2021

Court of Learned City Judge Jammu and from the perusal of the suit, it is

clear that property in the suit is a joint property.

5.

I have heard learned counsel for the parties and perused the

material on record.

6.

The short question involved in this case is, whether the

criminal proceedings can be initiated in a case where violation of interim

order passed by a Civil Court under Order 39 Rule 1 and 2 of CPC has been

complained. In order to find an answer to this question, the provisions

contained in Section 188 RPC are required to be noticed. Section 188 RPC

reads thus:

<188. Disobedience to order duly promulgated by