Research › Search › Judgment

J&K High Court · body

2009 DIGILAW 35 (JK)

Om Prakash v. Lal Din Khatana

2009-02-05

MANSOOR AHMAD MIR

body2009
1. Petitioners have invoked the inherent jurisdiction of this court in terms of Section 561-A of Criminal Procedure Code, for short `Code, for quashing the order dated 17th of July, 2007 passed by learned Sessions Judge, Pulwama, in File No.22/revision titled as Om-Prakash & Ors. Vs. Lal Din Khatana and order dated 15th of October, 2004 passed in complaint No.55/Alif titled as Lal Din Khatana Vs. Om Prakash and others by Chief Judicial Magistrate, Shopian, on the grounds taken in the petition. 2. Respondent, Lal Din Khatana, filed a complaint in the court of Chief Judicial Magistrate, Shopian, on 5th October, 2004. After recording the preliminary statements of the complainant and one witness, SPO (Sr. Prosecuting Officer), Shopian, was asked to get the matter enquired in terms of Section 202 of the Code. Accordingly, enquiry was conducted. Statements of complainant, his son Nazir Ahmad Khatana and other witnesses, namely, Ghulam Qadir Dar, Shaban Sheikh and Nazir Ahmad Khatana s/O Ghulam Mohammad Khatana, came to be recorded and report came to be filed before the court Chief Judicial Magistrate, by SPO. Enquiry officer/ Investigating Officer came to the conclusion that Lal Din Khatana, complainant, has been in possession of the land measuring 4 kanals description of which is given in the complaint for the last 20 years and had cultivated maize crop. Accused/ petitioner and proforma respondents have without any right or reason removed the maize crop and have entered upon the land. 3. Learned CJM after examining the report and statements recorded and other documents--seizure memo has issued process against the accused for the commission of offence punishable under Section 447, 379 and 506-B of RPC vide order dated 15th of October, 2004. Feeling aggrieved, accused/ petitioner and proforma respondents assailed the said order by the medium of revision petition before the learned Sessions Judge, Pulwama--came to be dismissed vide order dated 17th of July, 2007. 4. While going through the complaint, preliminary statements recorded by the trial court and enquiry conducted by the enquiry officer, it prima facie appears that the trial court has not abused its powers and the order is not in any way abuse of the process of law. The arguments advanced and points raised before the revisional court as well as before this court are question(s) of fact are to be gone into during trial. The arguments advanced and points raised before the revisional court as well as before this court are question(s) of fact are to be gone into during trial. At the stage of taking cognizance and issuing process, the contents contained in the complaint, preliminary statements of complainant and other witnesses and report of enquiry officer read with documents collected during enquiry are to be perused for drawing satisfaction. 5. While exercising inherent jurisdiction court does not function as a revisional court/ appellate court and High Court cannot hear the petition under Section 561-A of the Code as revision. Prior to the amendment, remedy of second revision was available but now the law has undergone a sea change and second revision is barred. 6. The petitioner had raised almost all those pleas which were raised before the revisional court. In the given circumstances, the petition in hand is virtually a second revision petition in disguise. Apex Court in case titled Deepti Alias Arati Rai Vs. Akhil Rai and others, reported as (1995) 5 SCC 751 held that inherent power cannot be invoked in the given circumstances. 7. The Apex Court in cases reported as 2007 AIAR (Criminal) 647, AIR 2008 SC 1528, 2008 AIR SCW 1033, held that inherent jurisdiction may be exercised in order to give effect to the order of the court, to prevent abuse of the process of court and to otherwise secure the ends of justice. But while exercising power under the section court does not function as a court of appeal or revision and this power is to be exercised very rarely and sparingly. 8. Apex Court in recent judgment delivered in case titled K.L.E. Society & Ors. Vs. Siddalingesh, reported as AIR 2008 SC 1602 laid down the same principle. 9. Keeping in view the above discussion, the petition is dismissed along with all connected CMPs. Send down the record along with a copy of this order.