FAZLULLAH AND ORS. Vs. YOUSUF IRFANI

JUDGEMENT

(1.) 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.

(2.) 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.

(3.) 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 4Cr.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: