Fazlullah and Others vs Yousuf Irfani

Mohammad Yaqoob Mir, J.—Petitioners seek quashment of the entire proceedings initiated on the complaint filed by the respondent titled

Dr. Syed Mohammad Yousuf Irfani v. Syed Fazllulah. According to learned counsel for the petitioners, no offence is made out on the cursory look

of the complaint, therefore, complaint entertained amounts to abuse of process of law.

Perusal of the trial court record reveals that the complaint has been presented before the Court of Chief Judicial Magistrate, Srinagar, on 31st

May, 2013. Same has been transferred to Judicial Magistrate 1st Class (2nd Additional Munsiff), Srinagar, who on the same day i.e. 31st May,

2013 has recorded statement of the complainant and one witness. While recording the order has observed that accused No. 1 is his acquaintance,

therefore, cannons of justice demand not to hear the case. Then has submitted the papers to Chief Judicial Magistrate. Vide order dated

01.06.2013 Chief Judicial Magistrate, Srinagar, has transferred the case to the Court of Judicial Magistrate 1st Class (1st Additional Munsiff),

Srinagar, who on 04.06.2013 has directed issuance of notice for securing presence of the accused. While doing so, the relevant provisions of the

Code of Criminal Procedure as contained in Chapter XVI and Chapter XVII have not been observed.

Section 200 Cr.P.C. provides that after taking cognizance of an offence on complaint, the Magistrate has to examine the complainant and the

witness present, as has been done. After taking cognizance, the Magistrate in terms of Section 204 Cr.P.C. is required to record his opinion as to

whether sufficient grounds exist for proceeding, then to issue the process. Trial court record reveals that the Magistrate 1st Class (2nd Additional

Munsiff) after recording statement of the complainant and one witness has not formed opinion as to whether sufficient grounds exist but instead has

simply submitted the case to the Chief Judicial Magistrate for being transferred to some other court. When on transfer case had come up before

the Judicial Magistrate 1st Class (1st Additional Munsiff), he has not recorded any such opinion i.e. as to whether sufficient grounds exist for

proceeding, instead in routine has issued the summons. From 04.06.2013 till 24th October, 2014 case has remained at its infancy stage, only

appearance of the respondent has been ensured. The English version of the interim order dated 04.06.2013, as recorded in Urdu, is as under:

4.6.2013. File received after having been assigned from the Court of Chief Judicial Magistrate is presented, be registered. Present none. Await

appearance of the parties. To come up on 15.7.2013.

Sd/-

Magistrate

At this stage counsel for the complainant has appeared, summon be issued against the accused. Put up on 11.6.2013"".

Sd/-

Magistrate

Bare perusal of the aforesaid order would reveal that the Magistrate (1st Additional Munsiff) has neither considered the complaint nor statement

of the complainant and of the witness so in routine has issued the notice, when he was required to opine as to whether sufficient grounds exist for

proceeding, only then he could issue the notice, as is mandate of Section 204 Cr.P.C. It being so, the proceedings recorded by the Magistrate

from 04.06.2013 till 24th October, 2014 are quashed. Magistrate (1st Additional Munsiff) after perusal of the complaint, statement of the

complainant and the witness shall form opinion as to whether sufficient grounds exist for proceeding against the accused and then to proceed

further in accordance with the requirements of Section 204 Cr.P.C. The complainant shall appear before the trial court on 16th June, 2014.

Petition succeeds as above, disposed of as such. Trial court record along with copy of this order be sent back well before the date fixed.