Srinagar, Aug 04: Quashing process issued by trial court against in-laws in a matrimonial dispute, the High Court of Jammu & Kashmir and Ladakh Thursday observed that it has become a fashion in the present times that whenever a matrimonial discord takes place, relatives of the husband are being roped in whether or not they are actually involved in the alleged offences.
Hearing a plea filed by the in-laws, the court said that unless specific allegations are made against the accused, it cannot be stated that they are involved in the alleged offences.
The court was hearing a plea by the in-laws challenging an order issued by Judicial Magistrate, 1st Class (2nd Additional Munsiff), Srinagar on July, 15, 2021 whereby the process was issued against them after a complaint was filed by a woman against her in-laws and husband alleging commission offences under Section 403 & 406 RPC.
In order to lodge a proper complaint, Justice Sanjay Dhar underscored that mere mention of the sections and language of these sections is not all that is needed.
"What is required to be brought to the notice of the court is the particulars of the offences committed by each and every accused and the role played by each and every accused in commission of those offences," the bench said and added, "When we see the impugned complaint, the same is absolutely vague. It does not show as to what exact role has been played by each of the accused."
While in the complaint, the court noted, it has been alleged that the husband of the complainant intends to grab her property but no specific allegations have been made by her against other accused i.e. the petitioners.
Referring to a Supreme Court judgment in a case titled "KahkashanKausar Alias Sonam vs. State of Bihar and others" the court recorded that in the absence of any specific role attributed to the accused, it would be unjust if they are forced to go through the tribulations of a trial.
The apex court had observed that general and omnibus allegations cannot manifest in a situation where the relatives of the complainant’s husband are forced to undergo trial.
The court went on to observe that a criminal trial leading to an eventual acquittal also inflicts severe scars upon the accused and such an exercise must, therefore, be discouraged.
Referring to the argument of respondent counsel that at the time of issuing process in a criminal complaint, the Magistrate is not expected to evaluate the merits of the material or evidence in support of the complaint, the court said, but then issuance of a process by a Magistrate against an accused is a serious business and the same cannot be issued in a mechanical manner.
Justice Dhar said that before issuing a process against an accused, a Magistrate has to apply his judicial mind to the material on record and thereafter record his prima facie opinion as to which offence is made out against the accused.
The bench underscored that the Magistrate, though, has passed a detailed order which is impugned, yet it has not occurred to the mind of the Magistrate that the allegations against the petitioners in the complaint as well as in the material before him are absolutely vague and lacking in material particulars.
"The said order, therefore, is not sustainable in law," the bench said while quashing the order and complaint of the woman.
As per the complaint, the woman has alleged that after her marriage, she brought with her articles and gold ornaments which she gave in trust to the accused persons (in-laws), who, despite demand, failed to return the said articles.
She further alleged that this has created an apprehension in her mind that the accused persons have misappropriated the whole or part of the articles entrusted to them by her.
She has also alleged that her husband wants to desert her and grab her belongings and that other accused are acting at his behest.
Allowing the plea, the court noted that the complainant has not made any specific assertion as to on which date she had entrusted the articles to the accused.
Quashing the complaint as well as the order of issuance of process, the bench underscored that she has not indicated, either in the complaint or in her preliminary statement, as to who amongst the accused had taken over the custody of these articles nor she has given the particulars of the accused who refused to return these articles.