The Jammu and Kashmir and Ladakh High Court recently observed that unless specific allegations are made against the accused persons, it cannot be stated that they are involved in the alleged offences.
The observation came from Justice Sanjay Dhar:
"In order to lodge a proper complaint, 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...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 quashing plea filed by relatives of the Complainant's husband under Sections 403 and 406 of Ranbir Penal Code.
The complainant had alleged that accused hatched a criminal conspiracy for demanding excessive dowry from her and that they intend to take away the assets and articles belonging to her.
The petitioners contended that there are no specific allegations in the complaint against them as regards the entrustment of the property in question and its misappropriation. It was further contended that the complainant has only expressed her apprehension that the articles belonging to her will be misappropriated by the petitioners and on the basis of mere apprehension, the offence of criminal breach of trust is not made out.
After perusal of records and hearing both sides, 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. She had 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 had given the particulars of the accused who refused to return these articles.
In this backdrop, the Court remarked 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.
Court also stated that there can be no dispute to the proposition of law 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 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.
"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. In the instant case, the learned Magistrate, though, has passed a detailed order which is impugned herein, yet it has not occurred to the mind of the learned Magistrate that the allegations against the petitioners in the impugned 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."
In view of the above, the petition was allowed.
Case Title : ADNAN HASSAN KHAN & OTHERS v IRSHAD AHMAD KAMILI & ANR
Citation : 2022 LiveLaw (JKL) 103