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2017 DIGILAW 402 (JK)

Bishan Dass v. Sushma Devi

2017-07-24

SANJAY KUMAR GUPTA

body2017
JUDGMENT : 1. Petitioner invokes inherent jurisdiction of this Court under section 561-A Cr.P.C. for quashing the order passed by the learned 2nd Additional Sessions Judge, Jammu dated 16.08.2016 on file No.35/Rev titled Bishan Dass vs Sushma Kumari to the extent the said order provides for return of the petition u/s 488 Cr.P.C. and for present the same before the Court of competent jurisdiction. 2. Facts giving rise to filing of this petition briefly stated are that the parties to the petition are husband and wife. In order unnecessary harass the petitioner; a petition under Section 488 Cr.P.C. on wrong and concocted facts came to be filed in the Court of Chief Judicial Magistrate, Jammu by showing the address of the respondent herein as at present residents of House of Shori Lal Kunjwani Bye-Pass near Army Camp Jammu. It is stated that the learned 3rd Additional Munsiff, Jammu instead of dismissing the application u/s 488 Cr.P.C. along with connected CMPs allowed the application for interim relief vide order dated 16.01.2016. 3. Aggrieved by the order dated 16.01.2016, the petitioner preferred a criminal revision in terms of Section 435 Cr.P.C. before the Principal Sessions Judge, Jammu which came to be assigned to the learned 2nd Additional Sessions Judge, Jammu, who stayed the operation of the order dated 16.01.2016 subject to deposit of Rs.54000/-vide order dated 16.08.2016. The order with regard to deposit of Rs.54,000/- was complied by the petitioner. The operative part of the order is as under: “…….as to what has been stated above, order impugned is set aside, petition u/s 488 CrPC filed by respondent-wife shall be returned to her for presentation before the Court of competent jurisdiction………..” 4. It is further contended that on 23.08.2016, the said application u/s 488 CrPC was returned to the respondent for presentation of the same in the Court of Judicial Magistrate concerned. On 30.08.2016, the respondent presented the returned application in the Court of Judicial Magistrate, Billawar, who after entertaining the same issued summons to the petitioner for appearance on 15.09.2016. 5. The petitioner throws challenge to the above said orders and prays for their quashment on the following grounds:- i. The learned Sessions Judge, Jammu while deciding the Cr. Rev. On 30.08.2016, the respondent presented the returned application in the Court of Judicial Magistrate, Billawar, who after entertaining the same issued summons to the petitioner for appearance on 15.09.2016. 5. The petitioner throws challenge to the above said orders and prays for their quashment on the following grounds:- i. The learned Sessions Judge, Jammu while deciding the Cr. Rev. No.32/Rev vide order dated 16.08.2016 has rightly set aside the order impugned, in that order, as the Court of Judicial Magistrate has no territorial jurisdiction to hear and try the petition but instead of ordering return of petition u/s 488 Cr.P.C to the respondent and to present in the Court of Competent jurisdiction is quite illegal. The Court of 2nd Addl. Sessions Judge, Jammu has misdirected himself while passing the order of return and has thus failed in exercising the jurisdiction vested in him in a lawful manner. ii. There is no provision under Criminal Procedure Code which empowers any criminal Court or revisional or appellate court to order return of complaint or petition having been filed under its criminal jurisdiction. iii. The only order which, once coming to the conclusion that the Subordinate Court lacked territorial jurisdiction, that was required to be passed was to set aside the order impugned and dismiss the petition u/s 488 CrPC with all the connected CMPs if any. The petitioner is not aggrieved of the order of setting aside of the order impugned, but is aggrieved of that portion of the order which orders to return the petition to the petitioner with direction to file the same before the Court of competent jurisdiction as holding so by itself is without jurisdiction. That in compliance to the order passed by 2nd Additional Sessions Judge, Jammu dated 16.08.2016, the 3rd Addl. Munsiff Jammu also vide his order dated 23.08.2016 returned the petition u/s 488 CrPC to the respondent for presenting the same in the Court of competent jurisdiction. This order dated 23.08.2016 has also perpetuated illegality and amounts to abuse of process of law. That the Court of learned Judicial Magistrate, Billawar has also thus erred in issuing the process against the petitioner. Therefore, order of summoning the petitioner dated 30.08.2016 along with all the proceedings taken thereafter by Judicial Magistrate below are illegal and without jurisdiction. 6. I have considered the submissions of learned counsel for the parties. 7. That the Court of learned Judicial Magistrate, Billawar has also thus erred in issuing the process against the petitioner. Therefore, order of summoning the petitioner dated 30.08.2016 along with all the proceedings taken thereafter by Judicial Magistrate below are illegal and without jurisdiction. 6. I have considered the submissions of learned counsel for the parties. 7. It is true that there is no provision in Cr.P.C. for return of petition to petitioner for presenting the same to competent court. But provisions u/s 488 Cr.P.C. is a social justice legislation. Distinct approach should be adopted while dealing with cases u/s 488 Cr.P.C. Nature of proceeding u/s 488 Cr.P.C. is civil The jurisdiction of magistrate under chapter xxxvi of Cr.P.C. is not strictly a criminal jurisdiction. Proceedings u/s 488 Cr.P.C. are civil in nature. It has to be construed liberally; this Section 488 Cr.P.C. is measure of social legislation and is to be construed liberally for the welfare and benefit of the wife & children. Proceeding u/s 488 CrPC is summary in nature and intended to provide speedy remedy to wife. 8. There is no provision in Chapter for dismissing the petition in default but still courts are dismissing; there is no provision of restoration of petition, but still courts are restoring; there is no provision of setting respondent ex-parte, but still courts initiate Ex-parte proceeding against respondent, pass ex-parte order; and even ex-parte proceeding/order are set aside. Even amendments in pleadings are allowed by courts. These are certain illustrations. Therefore, the order has been passed by the Court below keeping in view the objects of Section 488 Cr.P.C. as the proceedings under Section 488 Cr.P.C. are civil in nature. So order passed by 2nd additional Sessions judge, Jammu by returning the petition to claimant to present it before court of competent jurisdiction, does not suffer from any infirmity of law. Consequently the process issued by JMIC Billawar does not suffer from any infirmity of law. 9. Hence this petition is dismissed. Interim stay, if any, is vacated. Copy of this order be sent to Court below for information.