Research › Search › Judgment

J&K High Court · body

2009 DIGILAW 86 (JK)

Tirloki Nath Sharma v. Om Parkash

2009-02-26

J.P.SINGH

body2009
1. Petitioner has approached this Court seeking transfer of respondent no. 1s complaint filed against him and his son Pankaj Sharma, respondent no.2, in the Court of City Magistrate, Srinagar, to a Court of competent jurisdiction at Jammu, on the ground that respondent no. 1s complaint was an off-shoot of the matrimonial litigation between respondent no. 1s son and the petitioners daughter who had been in litigation inter alia over the custody of their minor daughter in Courts at Jammu and that the complaint had been filed at Srinagar to harass the petitioner and his daughter. 2. It is stated that on an earlier occasion also on petitioners daughters request, this Court had, while allowing CTA no. 3/2004, transferred respondent no. 1s suit filed against petitioners daughter at Srinagar, to Jammu which was, however, later dismissed. Another litigation between the parties is also stated to have been transferred from Srinagar to Jammu. 3. While admitting the transfer of earlier litigation from Srinagar to Jammu and the pendency of litigation between petitioners daughter and respondent no. 1s son, respondent has opposed the transfer of his complaint, saying that being in advanced age, he would not be able to prosecute the complaint at Jammu, additionally because the witnesses cited in the complaint were from Srinagar. 4. During the course of consideration of petitioners transfer application, a prima facie view was taken by the Court that there was no sufficient evidence on records justifying issuance of process against the petitioner and his son, respondent no.2, on respondent no. 1s complaint. A notice was accordingly issued to the respondent to show cause as to why proceedings on respondents complaint be not quashed. 5. The respondent has not responded to the show cause notice. His counsel too had opted to remain absent on the last three occasions when the petition came up for consideration. This petition was, accordingly, taken up for consideration in the absence of the respondent and his counsel. 6. I have considered petitioners counsels submissions and perused the trial court records. 7. Perusal of respondent no. 1s complaint, his statement and the statement of his witness demonstrates clear variance about the manner in which the occurrence is stated to have taken place. Whereas respondent no. 6. I have considered petitioners counsels submissions and perused the trial court records. 7. Perusal of respondent no. 1s complaint, his statement and the statement of his witness demonstrates clear variance about the manner in which the occurrence is stated to have taken place. Whereas respondent no. 1s complaint indicates sudden attack on the complainant at Wazir Bagh Srinagar when he is stated to have been beaten severely and the accused had uttered the words "TUM CHOR HO AUR TUM JAISA GHATIYA ADMI HAM NE AJ TAK NA DEKHA HAIN"; the preliminary statements, on the other hand, however, indicate that settlement of the dispute, for which the complainant had summoned the petitioner and his son to Srinagar, could not mature and it was in the process of settlement that some altercation had taken place between the parties when the accused, without naming the petitioner and his son, are stated to have beaten the complainant. 8. The time when the occurrence is stated to have taken place is significantly absent both in the complaint as also in the preliminary statements of the complainant and his witness. 9. The material on records, therefore, indicates the following: 1) there is variance about the manner in which the occurrence is stated to have taken place, 2) there is no mention in the complaint and the preliminary statements about the time when the occurrence is stated to have taken place, 3) the complainant has not placed any medical evidence on records, 4) the complaint and the preliminary statements do not mention the names of the accused, 5) the preliminary statements do not supply requisite facts needed for prima facie proof of the commission of offences, 10. Above shortcomings, when considered in the facts and circumstances of the case, the background of the matrimonial litigation between respondent no. `s daughter and petitioners son, and omission of the respondent to show cause as to why the complaint be not quashed, lead the Court to the conclusion that respondent no. 1 had filed the complaint to abuse the process of the Court to settle the matrimonial dispute between respondent no. 1s son and the petitioners daughter, which course cannot be encouraged. 11. For all what has been said above, the proceedings initiated on respondent no. 1s complaint by learned City Judge, Judicial Magistrate, 1st Class, Srinagar are hereby quashed. 12. 1 had filed the complaint to abuse the process of the Court to settle the matrimonial dispute between respondent no. 1s son and the petitioners daughter, which course cannot be encouraged. 11. For all what has been said above, the proceedings initiated on respondent no. 1s complaint by learned City Judge, Judicial Magistrate, 1st Class, Srinagar are hereby quashed. 12. With the quashing of the complaint itself, the Criminal Transfer Application may not need consideration. It is disposed of accordingly.