Jammu & Kashmir High Court – Srinagar Bench
Gh. Hassan Bhat vs Bashir Ahmad Dar on 22 April, 2026
Author: Sanjay Dhar
Bench: Sanjay Dhar
Item No.181
Suppl List
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
Pronounced on:22.04.2026
Uploaded on: 29.04.2026
Whether the operative part or
full order is pronounced:
Full
Ref (Crl) No.02/2026
GH. HASSAN BHAT
...PETITIONERS/APPELLANT(S)
Through: -
Vs.
BASHIR AHMAD DAR ...RESPONDENT(S)
Through: -
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
ORDER(ORAL)
1) The present reference has been made by the learned
Additional Sessions Judge, Bandipora, while passing order
dated 09.03.2026 in appeal under Section 374 (3) of Cr. P. C
filed by appellant Gh. Hassan Bhat against his conviction
recorded by the learned Judicial Magistrate 1st Class,
Sumbal, vide his judgment dated 06.02.2025 read with order
dated 03.03.2025.
2) The learned Additional Sessions Judge, Bandipora,
while making reference to this Court, has framed the following
question for determination of this Court:
(i) Whether the conviction is liable to be set aside
solely on the ground of prematurity of the
complaint, in view of the declaration of law in
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Yogendra Pandey, (2014) 10 SCC 713, which
holds that a complaint filed before the expiry of
the fifteen-day period is no complaint in law
and that cognizance taken thereon is without
jurisdiction and whether the said declaration,
made on a reference arising before any trial had
commenced, was intended to and does extend
with equal and unqualified force to the setting
aside of a conviction recorded after a full dress
trial in which the accused never raised the
prematurity objection?
(ii) Whether the provisions of Section 465 of the
Code of Criminal Procedure, 1973 which
prohibit the reversal of any finding or sentence
on account of any error, omission or irregularity
in the proceedings unless a failure of justice
has been occasioned thereby have any
operation in such a factual context so as to
protect the conviction from being disturbed;
and if so, whether the prematurity of the
complaint constitutes an error or irregularity in
the proceedings within the meaning of Section
465 Cr.P.C. or a jurisdictional nullity that
Section 465 cannot reach having regard to the
distinction between a complete want of
jurisdiction and an irregular exercise of
jurisdiction that has long been recognised in
criminal jurisprudence?
(iii) Whether the doctrine of waiver of non-
jurisdictional procedural rights operates in
such a factual context – where the accused
never raised the prematurity objection across
the entire trial and raised it for the first time in
written arguments during the appellate
proceedings so as to disentitle him from relying
upon it at this stage; and if so, whether the
defect of prematurity constitutes a
jurisdictional bar incapable of waiver by
conduct or a condition precedent to the filing of
the complaint, the benefit of which may be
waived by the conduct of the accused who
chose not to raise it and who has not
demonstrated any failure of justice on account
of it.
3) Before proceeding to decide as to whether the questions
framed by the learned Additional Sessions Judge are required
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to be answered by this Court, it would be necessary to
ascertain as to whether the questions framed by the learned
Additional Sessions Judge fall within the ambit of Section 395
of the Cr. P. C.
4) For determining the aforesaid issue, it is necessary to
have a look at the provisions contained in Section 395 of the
Cr. P. C which reads as under:
395. Reference to High Court.-(1) Where any Court is
satisfied that a case pending before it involves a
question as to the validity of any Act, Ordinance or
Regulation or of any provision contained in an Act,
Ordinance or Regulation, The determination of which
is necessary of the disposal of the case, and is of
opinion that such Act, Ordinance, Regulation or
provision is invalid or inoperative, but has not been so
declared by the High Court to which that Court is
subordinate or by the Supreme Court, the Court shall
state a case setting out its opinion and the reasons
therefor, and refer the same for the decision of the
High Court.
Explanation. – In this section, “Regulation” means
any Regulation as defined in the General Clauses
Act, 1897 (10 of 1897), or in the General Clauses Act
of a State
(2) A Court of Session or a Metropolitan Magistrate
may, if it or he thinks fit in any case pending before it
or him to which the provisions of sub-section (1) do
not apply, refer for the decision of the High Court any
question of law arising in the hearing of such case.
(3) Any Court making a reference to the High Court
under sub-section (1) or sub-section (2) may,
pending the decision of the High Court thereon,
either commit the accused to jail or release him on
bail to appear when called upon.
5) A reading of the aforesaid provision would reveal that a
court can make a reference to the High Court if it is satisfied
that a case pending before it involves a question as to the
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validity of any Act, Ordinance or Regulation or of any
provision contained in an Act, Ordinance or Regulation, the
determination of which is necessary for disposal of a case.
Reference can also be made by the court if it is of the opinion
that such Act, Ordinance, Regulation or provision is invalid
or inoperative but has not been declared as by the High Court
to which that Court is subordinate or by the Supreme Court.
6) As per sub-section (2) a Court of Sessions or a
Metropolitan Magistrate can also make a reference to the High
Court if it thinks fit that any question of law arises for
consideration. Thus, a question arising in a matter may also
be referred to the High Court.
7) It has to be borne in mind that it is not that all questions
of law can be referred to the High Court for its decision. It is
only those questions of law which have not been deliberated
upon or decided by the Supreme Court or the High Courts of
the Country, that can be referred to the decision of the High
Court. A question of law which has been settled by a binding
judicial precedent cannot be referred to the High Court for its
decision in terms of Section 395 of the Cr. P.C.
8) The learned Reference Court, while making the instant
reference seeking opinion of this Court on the questions of
law formulated by it, has recorded that the complaint filed by
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the respondent/complainant against the appellant was
premature, inasmuch as fifteen days from the date of receipt
of demand notice had not expired when the learned trial
Magistrate had taken cognizance of the offences and issued
process against the appellant. It has been observed by the
learned Reference Court that the issue about the
maintainability of the complaint was never raised by the
appellant either during trial of the case or even before the
Appellate Court and it is only at the time of final arguments
that the said issue has been raised.
9) The learned Additional Sessions, has after noticing the
legal position on the issue as laid down by the Supreme Court
in the case of Yogendra Pratap Singh vs. Savitri Pandey
and anr. (2014) 10 SCC 713 and Gajanand Burange vs.
Laxmi Chand Goyal, 2022 LiveLaw (SC) 682 wherein it has
been laid down that any complaint filed before the expiry of
fifteen days from the date on which notice has been served, is
no complaint in the eyes of law and that no cognizance of an
offence can be taken on the basis of such complaint,
expressed an opinion that Section 465 of the Cr. P. C can be
pressed into service to protect the conviction from being
disturbed as no failure of justice would be occasioned because
the appellant has never objected and has participated in the
entire trial without any demur. It is in these circumstances
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that the learned Additional Sessions Judge has referred three
questions of law quoted hereinbefore for decision of this court.
10) So far as the first question framed by the learned
Additional Sessions Judge is concerned, the legal position has
been clearly stated in Yogendra Pratap Singh‘s case (supra),
which has been followed by the Supreme Court in Gajanand
Burange‘s case (supra) and by Karnataka High Court in the
case of Armugam vs. Ananda, 2025 KHC:21074.
11) So far as second and third questions formulated by the
learned Additional Sessions Judge are concerned, the issue
whether the illegality committed by the trial court in taking
cognizance of the offences at a stage when the complaint was
premature goes to the root of the case or whether such an
illegality can be cured or overlooked by pressing into service
Section 465 of the Cr. P. C, is a matter which has to be
decided by the learned Additional Session Judge in the light
of the judicial precedents on the subject. It would be pertinent
to remind the learned Additional Session Judge that it is only
the curable irregularities which cannot have any effect upon
the finding, sentence or order passed by a court of competent
jurisdiction unless the same result in failure of justice, which
can be ignored whereas the incurable illegalities would vitiate
the trial even if no failure of justice has occasioned. Thus, a
defect which goes to the root of the case cannot be condoned
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by pressing into service Section 465 of the Cr.P.C. The issue
as to whether taking of cognizance of a complaint at a
premature stage would constitute a curable irregularity or an
incurable illegality, is a question which has to be decided by
the learned Additional Sessions Judge and on that basis, he
has to take a call whether the judgment of conviction recorded
by the learned trial court is sustainable in law. This Court
cannot undertake legal research to assist the learned
Reference Court in taking a decision on this issue. There is a
plethora of judgments delivered by this Court and different
High Courts of the country on the issue as to which of
irregularities are curable and which of those are not curable
in nature. The issue is not a virgin area where this Court can
be called upon to return its opinion. Any finding by this Court
on this issue would prejudice the right of assailing the
judgment of the appellate court to the unsuccessful party.
12) This Court would also like to remind learned Additional
Sessions Judge that the observation recorded by the said
Court that the appellant has raised the issue with regard to
prematurity of the complaint only at the time of final
arguments of the case is against the record. A perusal of the
memo of appeal would show that in the first preliminary
submission itself, it has been clearly pleaded by the appellant
that conviction and sentence has been passed by committing
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manifest error apparent on the face of the proceedings by
ignoring and disregarding the law laid down under Section
138 of Negotiable Instruments Act, which provides for
ingredients of the offence including the conditions precedent,
which are missing in the present case amounting to exceeding
of jurisdiction. Therefore, the appellant had clearly projected
the ground that the ingredients for taking cognizance of
offences under Section 138 of Negotiable Instruments Act are
not satisfied in the present case. Thus, it is not a case where
the appellant has all of a sudden, at the fag end of the
appellate proceedings raised the ground of non-fulfilment of
ingredients necessary for taking cognizance of offence under
Section 138 of Negotiable Instruments Act.
13) In view of what has been discussed hereinbefore, it is
clear that in the present case no substantial question of law
arises which is required to be determined by this Court.
Therefore, the reference is returned with a direction to the
learned Additional Sessions Judge, Bandipora to proceed
further in the matter in accordance with law.
(Sanjay Dhar)
Judge
SRINAGAR
22.04.2026
“Bhat Altaf-Secy”
Whether the Order is speaking: YES
Whether the Order is reportable: YES/NO
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