Jammu & Kashmir High Court
Reserved On: 10.03.2026 vs Kewal Krishan on 25 March, 2026
Author: Sanjay Dhar
Bench: Sanjay Dhar
2026:JKLHC-JMU:834
HIGH COURT OF JAMMU AND KASHMIR AND LADAKH
AT JAMMU
CRMC No. 404/2013
Reserved on: 10.03.2026
Pronounced on: 25.03.2026
Uploaded on: 25.03.2026
Whether the operative part or full
judgment is pronounced: Full
Babu Ram and others ..... Petitioner (s)
Through :- Mr. Rohit Sharma Advocate.
V/s
Kewal Krishan .....Respondent(s)
Through :- Mr Anuj Dewain Raina Advocate.
Coram: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1. The petitioners, through the medium of present petition, have
challenged complaint filed by the respondent-complainant against them
alleging commission of offences under Sections 451,323,504, 506 & 34 RPC,
which is stated to be pending before the Court of learned Judicial Magistrate Ist
Class, Sunderbani (hereinafter referred to as the “trial Magistrate”). Challenge
has also been thrown to order dated 18.11.2013 passed by the learned trial
Magistrate whereby, after recording satisfaction that offences under Sections
451, 323, 504, 506 & 34 RPC are made out against the petitioners, process has
been issued against them.
2. As per the allegations made in the impugned complaint, on
03.03.2013 at about 7:30 a.m., the petitioners/accused forcibly encroached
upon the land belonging to the respondent-complainant, which is comprised in
Khasra No. 1161 measuring 14 kanals and 8 marlas, situated at village Siot,
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Tehsil, Sunderbani. It is alleged in the complaint that when the respondent-
complainant resisted the encroachment of the aforesaid land by the petitioners,
they entered into the residential house of the respondent-complainant and gave
a beating to him with kicks and fists. They also hurled abuses upon the
respondent-complainant. It is alleged that some witnesses came on the spot and
saved the respondent-complainant from clutches of the petitioners-accused,
otherwise, they would have committed his murder.
3. After filing of the complaint, the learned trial Magistrate recorded
preliminary evidence of the complainant in the shape of his statement and that
of one witness, namely Khem Raj. However, vide order dated 04.03.2013, the
learned trial Magistrate, in order to ascertain the truthfulness or otherwise of
the allegations made in the complaint, ordered an inquiry in terms of Section
202 of Cr.P.C through SHO Police Station Dharamsaal. Pursuant to the said
order, the SHO conducted the inquiry and submitted his report dated
03.04.2013 before the learned trial Magistrate. In the said report, the SHO,
after recording the statements of witnesses acquainted with the facts and
circumstances of the case, reached a conclusion that the allegations made in the
complaint are false and that the complaint has been made to wreak vengeance
upon the petitioners with whom the complainant has a long-standing enmity.
4. On 18.05.2013, the learned trial Magistrate considered the inquiry
report of the SHO and, after feeling dissatisfied with the same, the Inquiry
Officer was directed to undertake a fresh inquiry, record the statements of the
eyewitnesses and come up with a fresh report. SHO Police Station,
Dharamsaal, the Inquiry Officer, again conducted the inquiry and came up with
a report dated 25.06.2013. The Inquiry Officer, after recording statements of
the witnesses, again came to the conclusion that the allegations made in the
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impugned complaint are based upon falsehood, as the neighbours of the
complainant have not deposed anything about the alleged occurrence, even
though the complainant and two witnesses, namely Khem Raj and Kewal
Kishore, have substantiated the allegations made in the impugned complaint.
5. The second inquiry report was considered by the learned trial
Magistrate on 18.11.2013. Upon perusal of the same, and after taking into
account the preliminary statements of the complainant and his witness Khem
Raj recorded on 04.03.2013, the learned trial Magistrate recorded satisfaction
that there are sufficient grounds to proceed against the petitioners/accused and
that offences under Sections 451, 323,504,506 & 34 RPC are made out against
them.
6. The petitioners have challenged the impugned complaint and the
impugned order passed by the learned trial Magistrate on the ground that the
respondent-complainant has a long-standing civil dispute relating to the land
mention whereof is made in the impugned complaint, with the petitioners and,
it is only for this reason that the respondent has the launched the criminal
prosecution against them. It has been submitted that FIR No. 80/2012 for
offences under Sections 341 & 431 RPC was lodged by petitioner No. 1 against
the respondent and two witnesses cited in the impugned complaint, namely
Suresh Kumar and Khem Raj, and after investigation of the said FIR, challan
against the aforesaid three persons stands filed before the Court. According to
the petitioners, the impugned complaint has been filed as a counterblast to the
criminal proceedings initiated against the respondent and his two witnesses at
the instance of petitioner No. 1. It has been further contended that the
impugned order passed by the learned trial Magistrate exhibits non-application
of mind on his part, inasmuch as the learned trial Magistrate has not carefully
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gone through the statements of the witnesses recorded by the Inquiry Officer
during the inquiry proceedings.
7. I have heard learned counsel for the parties and perused record of
the case, including record of the trial Magistrate.
8. A perusal of record of the trial Magistrate would reveal that, after
recording preliminary evidence of the complainant, the learned trial Magistrate,
instead of proceeding to issue process against the petitioners, thought it
appropriate to get the matter investigated. Accordingly, on 04.03.2013, a
direction in terms of Section 202 Cr.P.C came to be issued by the learned trial
Magistrate to SHO Police Station, Dharamsaal to undertake inquiry so as to
ascertain truthfulness or otherwise of the allegations made in the impugned
complaint. Once the learned trial Magistrate adopted such course, it is to be
inferred that he was not fully satisfied about the truthfulness of the allegations
made in the impugned complaint. It is only due to this reason that direction for
investigation under Section 202 of Cr.PC came to be issued by the learned trial
Magistrate.
9. The Inquiry Officer conducted an inquiry on two occasions and on
both occasions, he came to the conclusion that the allegations made in the
impugned complaint are false and that the said allegations have been levelled
by the respondent-complainant against the petitioners with a view to wreak
vengeance upon them, as there is a long-standing enmity between the parties.
The learned trial Magistrate, after obtaining the two reports of investigation,
considered the same and, without collecting any further material, proceeded to
record satisfaction that the offences are made out against the petitioners.
Accordingly, vide the impugned order dated 18.11.2013, the learned trial
Magistrate issued the process against the petitioners. The aforesaid course
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adopted by the learned trial Magistrate cannot be countenanced in law for the
reason that if the learned trial Magistrate was not sure about the sufficiency of
the material to proceed against the petitioners at the time when he ordered
investigation under Section 202 of CrPC, then on the basis of the same material
he could not have changed his opinion, to record satisfaction that there is
sufficient material on record to proceed against the petitioners. Besides the
preliminary evidence recorded on 04.03.2013, the only other material that was
available with the learned trial Magistrate was the two reports of investigation.
Both these reports had raised serious doubts about the truthfulness of the
allegations made in the impugned complaint. In the absence of any additional
material favouring the case of the complainant, it was not open to the learned
trial Magistrate to record satisfaction about the truthfulness of the allegations
made in the complaint.
10. The Supreme Court has, in the case of Shiv Jatia vs. Gian Chand
Malick and others,(2024) 4 SCC 289, while analyzing the legal postion as
regards the course that is required to be adopted by a Magistrate after directing
inquiry under Section 202 CrPC, observed as under:
“18. After recording the evidence of the three witnesses and
perusing the documents on record, the learned Magistrate passed
the order calling for the report under Section 202 of the Cr.PC. He
postponed the issue of the process. The learned Magistrate ought
to have waited until the report was received. He had an option of
conducting an inquiry contemplated by sub-section (1) of Section
202 of the Cr.PC himself due to the delay on the part of the Police
in submitting the report. But, he did not exercise the said option.
For issuing the order of summoning, the learned Magistrate could
not have relied upon the same material which was before him on
15th December 2011 when he passed the order calling for the
report under Section 202 of the Cr.PC. The reason is that,
obviously, he was not satisfied that the material was sufficient to
pass the summoning order.
19.It is not the case of the 1st respondent-complainant that when
the learned Magistrate passed the order dated 16th July 2013, there
was some additional material on record. At least, the order of theCRMC No. 404/2013 Page 5 of 8
2026:JKLHC-JMU:834learned Magistrate does not say so. The order does not
evenconsider the earlier order dated 15th December 2011 calling
for the report under sub-section (1) of Section 202 of the Cr.PC.
The order issuing process has drastic consequences. Such orders
require the application of mind. Such orders cannot be passed
casually. Therefore, in our view, the earned Magistrate was not
justified in passing the order to issue a summons”.
11. From the foregoing analysis of legal position, it is clear that once
a Magistrate is not satisfied about the sufficiency of material collected by him
while recording preliminary evidence, she/he cannot pass an order of
summoning the accused at a later stage on the very same material.
12. In the present case as already stated, the learned trial Magistrate
has, while issuing process against the petitioners, relied upon the preliminary
evidence recorded on 04.03.2013 and the two reports of investigation. The
learned trial Magistrate had found the preliminary evidence insufficient for
proceeding against the petitioners and the two investigation reports had raised
serious doubts about veracity of the allegations made in the impugned
complaint. Thus, on the basis of the said material, the learned trial Magistrate
could not have passed the impugned order dated 18.11.2013.
13. There is yet another aspect of the matter which is required to be
noticed. In the impugned complaint itself, it is mentioned that the petitioners
were trying to encroach upon the land measuring 14 kanals and 08 marlas
comprised in Khasra No. 1161 situated at village Siot. In the petition, it has
been submitted that regarding the same land, petitioner No. 1 had filed an
application before the SDM Nowshera seeking a direction that possession of
the said land be handed over to him. It has been further submitted that
petitioner No. 1 is having a dispute regarding the said land with his brother
Khem Raj, who has been cited as a witness in the impugned complaint. Khem
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Raj has appointed the respondent-complainant as his attorney to pursue the
cases against petitioner No. 1. A certified copy of the Power of Attorney to
this effect has been placed on record by the petitioners. The petitioners have
also placed on record copies of orders passed by SDM Nowshera in the case
filed by him against Khem Raj.
14. The aforesaid documents clearly go on to show that there is a
dispute relating to the land in question going on between the petitioners on one
side and the respondent along with witness Khem Raj on the other. There is
also material on record to show that petitioner No. 1 had lodged an FIR against
the respondent and the witnesses cited in the impugned complaint namely
Khem Raj and Kewal Kishore, which has culminated in filing of challan
against them. The accused in the said challan, it appears, have been acquitted in
terms of a decision dated 22.09.2016 passed by the learned Judicial Magistrate
Ist Class, Nowshera.Thus, there is sufficient material on record to show that the
petitioners and the respondent-complainant are entangled in civil litigation and
petitioner No. 1 has implicated the respondent and his associates in a criminal
case.
15. It appears that on account of long standing enmity and land
dispute between the parties, the respondent-complainant had chosen to file the
impugned complaint against the petitioners so as to wreak vengeance upon
them. This aspect of the matter gets substantiated from the two investigation
reports submitted by the SHO Police Station, Dharamsaal before the learned
trial Magistrate. In the said reports, it has been categorically stated that none of
the neighbours of the respondent-complainant confirmed happening of the
alleged occurrence and it was found by the Inquiry Officer that the complaint
has been made by the respondent against the petitioners only on account of
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long-standing enmity and that the allegations made therein are factually
incorrect.
16. From the aforesaid material on record, there can be no hesitation
in coming to the conclusion that the impugned complaint has been filed by the
respondent against the petitioners to settle a civil dispute at his terms. Thus,
this Court is of the considered view that the respondent, in filing the impugned
complaint against the petitioners, has tried to wreak vengeance upon them and
it has been done as a counterblast to the FIR lodged by petitioner No. 1 against
the respondent and his associates. Hence, continuing the complaint against the
petitioners will amount to abuse of process of law. Therefore, a case is made
out for quashing the impugned complaint against the petitioners.
17. Accordingly, the petition succeeds and the impugned complaint
and the proceedings emanating therefrom are quashed.
(SANJAY DHAR)
JUDGE
Jammu
25.03.2026
Naresh/Secy
Whether order is speaking: Yes
Whether order is reportable: Yes
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