10.03.2026 vs Kewal Krishan on 25 March, 2026

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    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

    SPONSORED

    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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    2026:JKLHC-JMU:834

    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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    2026:JKLHC-JMU:834

    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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    2026:JKLHC-JMU:834

    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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    2026:JKLHC-JMU:834

    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 the

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    2026:JKLHC-JMU:834

    learned 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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    2026:JKLHC-JMU:834

    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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    2026:JKLHC-JMU:834

    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

    CRMC No. 404/2013 Page 8 of 8



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