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2013 DIGILAW 413 (JK)

R. L. Salgotra v. State Of J&K

2013-07-19

TASHI RABSTAN

body2013
1. The petitioner, through the medium of the instant petition, seeks quashment of the Complaint file No. 468/Ch titled P.D.D v. R. S. Salgotra and the proceedings and the cognizance taken by the learned Sub-Judge, Samba under Sections 38, 46 and 43 of the Jammu & Kashmir Electricity Act, Svt. 1997 (1940 AD) and under Rule 8 of the Jammu & Kashmir Electricity Rules, 1978 vide order dated 18.08.2006. 2. In the complaint, the respondent alleged that on 12th August, 2006, Electrical Inspector Mobile Unit-1, Jammu inspected the workplace of the petitioner at SIDCO (IGC), Samba and allegedly found some alleged violations in the supply/use of electricity on spot. It is also contended in the petition that on the same date, the respondent directed the petitioner herein to appear in the Court of Special Mobile Magistrate on 08.09.2006. 3. The Complaint was presented before the Court of learned Sub-Judge, Samba on 18.06.2006 and the learned Sub-Judge issued process against the petitioner-accused for commission of offence under Section 38 of the Jammu and Kashmir Electricity Act, 1940 on the ground that the petitioner-accused, prima facie, appears to have committed the offence. 4. Feeling aggrieved by the process issued by learned Sub-Judge, Samba on the Complaint of Electrical Inspector for the infraction of Section 38 of the Jammu and Kashmir Electricity Act, 1940, the petitioner has filed this petition under Section 561-A Cr. P, C for quashing of the process so issued as well as the complaint. 5. Notice came to be issued on 15.06.2009 and the proceedings of the Complaint came to be stayed. Pursuant to the notice issued, Mrs. Shaista Hakim, Deputy Advocate General has filed Vakalatnama on behalf of the respondent and subsequently, Mrs. Seema Shekher, Additional Advocate General appeared for the respondent. However, no reply/objection has been filed on behalf of the respondent. Mrs. Shekher stated that she does not intend to file reply, rather, ready to argue the matter. Therefore, the petition has been taken up for final hearing. 6. The ground of challenge of the Complaint as well as the proceedings of the cognizance taken by the learned Judge, Samba is that the alleged complaint has been made against the petitioner through one Darshan Kumar who is stranger to the petitioner whereas, the petitioner does not know about the said Darshan Kumar. 6. The ground of challenge of the Complaint as well as the proceedings of the cognizance taken by the learned Judge, Samba is that the alleged complaint has been made against the petitioner through one Darshan Kumar who is stranger to the petitioner whereas, the petitioner does not know about the said Darshan Kumar. It is also stated that said complaint was signed by Darshan Kumar as an accused. The petitioner further stated that since Darshan Kumar is the accused in the Complaint then how the proceedings have been initiated and taken up against the petitioner. The petitioner further alleged that the inspection was never carried out in presence of the petitioner and the complaint also does not disclose and show the installation number which was allegedly checked by the respondent. 7. The petitioner has referred Rule 136 of the Jammu and Kashmir Electricity, Rules, 1978. For facility of reference, the same is reproduced hereunder:- "136. Responsibility of agents and manager -- Where any person is responsible for the observance of any of these rules, every agent and manager of such person shall also be responsible for such observance in respect of matters under their respective controls." 8. In view of the above referred rules, accused Darshan Kumar is neither agent/attorney holder of the petitioner /accused, nor personally known to the petitioner. Therefore, cognizance taken by learned Sub-Judge, Samba on the basis of the alleged complaint is not maintainable. 9. It also appears that the process issued by the trial Court against the accused/petitioner herein is also not maintainable because the learned Trial court has not complied with the provisions of Section 204 (1) (a) of the Code of Criminal Procedure as neither the name of the accused has been mentioned in the complaint nor any list of witnesses has been furnished by the respondent and simply putting signatures by unknown persons on the complaint, is doubtful. 10. After arguing for a while, when it was brought to the notice of learned counsel appearing for the respondent that the learned Trial court while taking cognizance of the process has not referred the material/evidence which would prima facie connect the accused person with the commission of offence, Mrs. 10. After arguing for a while, when it was brought to the notice of learned counsel appearing for the respondent that the learned Trial court while taking cognizance of the process has not referred the material/evidence which would prima facie connect the accused person with the commission of offence, Mrs. Shekher, learned Additional Advocate General appearing for the complainant/respondent submitted that sufficient material is available on the files of the trial court which is sufficient, in law, warranting issuance of process against the accused/petitioner herein. 11. Heard learned counsel for the parties and considered the submissions made. 12. I have perused the complaint, i.e., Annexure-B to the petition, in which title was mentioned as R. L. Salgotra v. Darshan Kumar. However, except mentioning the name of Darshan Kumar, no detailed particulars/ address of the accused have been mentioned. It further reveals that in the complaint nothing in detail about the commission of offence has been stated. The particulars and the details of the witnesses are also neither mentioned in the complaint nor list of witnesses has been furnished, rather, unknown signatures are shown in the complaint. I have also perused the order impugned dated 18.08.2006 passed by the learned Sub-Judge, Samba, i.e., Annexure-A to the petition whereby the process has been issued against the petitioner/accused for the commission of Offence punishable under Section 38 of the Jammu and Kashmir Electricity Act, 1940. 13. Order impugned dated 18.08.2006 does no where say as to which material/evidence would prima facie inculpate the accused person. The order issuing the process is order of movement and it affects the valuable rights of the citizen. The right of personal liberty is granted under Article 21 of the Constitution of India and a person can be deprived of the same in accordance with the procedure established by law. The issuance of an order vide which process is issued thus has to prima facie show that there is material/evidence available on record for adopting such course. The learned Trial court has to show application of mind. The order need not to be a detailed order, it can be brief but has to be supported by material and reasons whereas, in the present case, nothing has been mentioned. 14. The inherent powers vested in the High Court under Section 561-A Cr. The learned Trial court has to show application of mind. The order need not to be a detailed order, it can be brief but has to be supported by material and reasons whereas, in the present case, nothing has been mentioned. 14. The inherent powers vested in the High Court under Section 561-A Cr. P. C are to be exercised to give effect to an order under Code, to prevent abuse of process of Court or to otherwise secure ends of justice. The inherent powers, though very wide in its scope, are to be exercised sparingly and with caution. Whenever the Court is of the opinion that exercise of inherent power is bound to advance the cause of justice and if the powers are not exercised, the injustice or abuse of process of Court would be the outcome, the court is not powerless to prevent injustice or abuse. 15. This Court in case Smt. Ved Khullar v. State, reported as SLJ 1987 276: JKJ Soft JKJ/ 20094, in para 7 held as under: "7. For the foregoing reasons, I think it is a fit case in which the powers conferred under sec. 561-A, Cr. P. C are required to be exercised in order to set right the abuse of the process of the court. The proceedings pending before the learned Chief Judicial Magistrate, Jammu against the petitioner, are therefore, quashed." 16. A Co-ordinate Bench of this Court in case M/s. Modern Electronics and another v. M/s. Videocon International Limited, reported as 2008 (1) SLJ 183 : 2007 (3) JKJ [HC] 275, has observed in para 9 of the judgment, which reads thus:- "The Criminal Courts are required to be cautious while putting criminal law into motion when they take cognizance of the offences on private complaints under Section 190 of the Code of Criminal Procedure. Cognizance may be taken only when the evidence of the complainant and his witness/s indicate existence of necessary ingredients of the offence/s for which the cognizance is contemplated." 17. When the complaint and the evidence/material produced in support the complaint did not disclose the commission of any offence whatsoever, it has resulted in the abuse of judicial process. 18. In the given circumstances, the present petition filed under Section 561-A Cr. P. C is, accordingly, allowed. When the complaint and the evidence/material produced in support the complaint did not disclose the commission of any offence whatsoever, it has resulted in the abuse of judicial process. 18. In the given circumstances, the present petition filed under Section 561-A Cr. P. C is, accordingly, allowed. The process issued by the learned Sub-Judge, Samba vide order dated 18.08.2006 as well as complaint filed under Sections 38, 46 and 43 of the Jammu and Kashmir Electricity Act, 1940 are, accordingly, quashed.