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Dr Jitender Mehta vs Shivani Mehta And Another on 16 May, 2018

HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU

561-A no.41/2008
MP no.48/2008
Date of order: 16.05.2018
Dr Jitender Mehta
v.

Shivani Mehta and another
Coram:

Hon’ble Mr Justice M.K.Hanjura, Judge
Appearing Counsel:

For Petitioner(s): Mr M. L. Gupta, Advocate
For Respondent(s): Mr L. K. Sharma, Senior Advocate with Mr Vishal Sharma, Advocate
Whether approved for reporting? Yes/No

1. Impugned in this petition, preferred under Section 561-A of
the Code of Criminal Procedure (Cr.P.C.), is the order dated
25th November 2006, passed by the court of the learned
Municipal Magistrate, Jammu, (for brevity the “Trial
Magistrate”), directing that the process be issued against
the petitioner and the respondent no.2 for the commission
of an offence punishable under Section 498-A of the Ranbir
Penal Code (RPC). Quashment of the complaint titled
Shivani Mehta v. Dr Jitender Mehta and others is as well
implored for by the petitioners.

2. The case set up by the petitioner is that he is a doctor by
profession and holding the post of the Registrar in the
Government Medical College, Jammu. He married the
respondent no.1 on 29th October 2001 at Jammu, but she
never agreed to reside with the parents of the petitioner at
Srinagar as he is a resident of Saidpora, Shopian, Kashmir.
In order to keep the respondent no.1 happy and to make the

561-A no.41/2008 Page 1 of 37
petitioner’s life comfortable, the father of the petitioner
purchased a piece of land at Udeywala Bohri, Jammu, and
constructed a house for the petitioner with a view that the
petitioner and the respondent no.1 should live happily in
the said house, whereas all the family members of the
petitioner including the parents, sisters and brother are
residing at Saidpora, Shopian, Kashmir, so is stated by the
petitioner in the instant petition. The petitioner also
postulates that even on account of the turmoil in the
Kashmir Valley, the parents of the petitioner did not
migrate to Jammu so that the respondent no.1 may not feel
that she has to live in a joint family. The petitioner claims
that the behaviour of the respondent no.1 towards the
petitioner was never cordial and on account of the
indifferent attitude on her part, she used to pick up quarrels
with the petitioner without any rhyme and reason. A son,
namely, Madhav, was born out of the wedlock on 11th
August 2002, however, thereafter the respondent no.1 left
the matrimonial fold on her own accord to take refuge in her
parental house without any consent and knowledge of the
petitioner, leaving the small child, Madhav, with the
parents of the petitioner at Kashmir. The petitioner, finding
it difficult to keep the child without mother, took the child
to the respondent no.1, but she refused to accept the child
and enunciated that she would take the child through court
or police, so that the maximum harassment is caused to the
petitioner and his parents. Ultimately under the forced

561-A no.41/2008 Page 2 of 37
circumstances, the petitioner took the child back to
Kashmir where his family and the parents are residing
permanently and he left the child in their custody. As a
counter to this and with an ulterior motive to harass the
petitioner and his family members, the respondent no.1 and
her family in the month of September 2003 filed a complaint
under Section 498-A and 403 RPC in the court of the learned
Chief Judicial Magistrate, Jammu, who, however, after
taking into account the vituperations contained in the
complaint thought it appropriate not to take cognizance and
as a sequel thereto, sent it to the Women Police Station
Canal Road, Jammu, for the investigation. FIR no.11/2003,
against the petitioner, his two sisters and his mother, who
permanently reside and work in Kashmir, alleging therein
that they have committed an offence punishable under
Section 498-A RPC at Subhash Nagar, Jammu, was
registered.

3. It is also contended that prior to the lodgement of the
aforesaid FIR, a petition under the Guardian and Wards
Act was filed by the respondent no.1 in the court of the
learned Additional District Judge (Matrimonial Cases)
Jammu, which the petitioner contested. The petitioner and
his entire family were subjected to harassment at the hands
of the police station Women Cell Jammu and ultimately the
petitioner and his family were bailed out by the learned
Additional District Judge, Jammu, on 31st October 2003.
From 12th September 2003 to 31st October 2003, the

561-A no.41/2008 Page 3 of 37
petitioner and his family were appearing before the
Investigating Officer regularly, all the way from Kashmir,
where the petitioner was subjected to immense harassment
and humiliation at the instance of the respondent no.1. The
investigation was being conducted by a Selection Grade
Constable in the Women Police Station. Sensing that the
investigation was not being conducted fairly and properly
and he, his sisters and mother were going to be wrongly
challaned in a false case, the petitioner approached the
Director General of Police, with a request to conduct the
investigation afresh in a just and fair manner, on merits, so
that the truth might come out because the investigation was
being conducted under the influence of the respondent no.1
and her father, who was an influential and well to do person
of the town, being an Executive Engineer. Subsequent to
this, the Director General of Police asked the Senior
Superintendent of Police, Jammu, to look into the matter
under law, who by finding that the investigation was not
conducted properly, directed to get the investigation
conducted by an officer of a gazetted rank and thus directed
SDPO City West to conduct the investigation afresh. The
SDPO City West summoned the respondent no.1 and her
witnesses, who initially avoided to appear and testify in the
false case, subsequent to which the SDPO summoned the
complainant in the FIR and three of the seven witnesses in
the police case, who appeared before the SDPO. The SDPO
came to the conclusion that a false and frivolous case was

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registered against the petitioner. The SDPO, investigating
the FIR, submitted the closure report with the
recommendation that the proceedings under Section 182
RPC be initiated against the complainant in the FIR, i.e.
the respondent no.1. The respondent no.1, without waiting
for the result of the previous complaint, filed a fresh
complaint on 6th July 2005 in the court of the learned Chief
Judicial Magistrate, Jammu, on the basis of the same facts
as were made use of in the previous complaint under
Section 498-A, 403 and 406 RPC, against the petitioner, the
proforma respondent and the sisters, who are residing and
working at Srinagar permanently. The learned Trial
Magistrate, to whom the second complaint was transferred
by the learned Chief Judicial Magistrate, Jammu, for
disposal, deemed it proper to stay its proceedings and to
wait for the ongoing investigation of the police and further
directed the Special Prosecuting Officer of the Court to seek
the report from the police with regard to the investigation
conducted in the earlier complaint. The learned Magistrate
declined to pass orders on the second complaint, either to
take cognizance or to dismiss the complaint, but from 6th
May 2005 till 30th June 2006, the ongoing investigation in
the earlier complaint was monitored by the learned Trial
Magistrate regularly from time to time. The closure report,
according to the petitioner, was submitted by the police on
30th June 2006 and the learned Trial Magistrate did not
coincide fully with the police report/ investigating agency

561-A no.41/2008 Page 5 of 37
and took cognizance against the petitioner and the
proforma respondent under Section 498-A RPC, vide order
dated 25th November 2006. It is maintained by the
petitioner that since 25th November 2006, i.e. the date of
taking cognizance against the petitioner and his mother,
the proforma respondent, no summons were served upon
the petitioner even though the petitioner was always
available in the Government Medical College, Jammu, and
it is only when the respondent no.1 came to know about the
sponsorship of the petitioner for undergoing the Post
Graduate Course at All India Institute of Medical Sciences
at New Delhi vide Government Order dated 7th March 2008,
she got the summons in the second complaint served upon
the petitioner on 12th March 2008, with a sole motive to
harass and sabotage the petitioner after earlier ruining his
life. The learned Trial Magistrate, while not coinciding with
the investigating officer, took the cognizance itself without
any cogent reason.

4. It is further contended by the petitioner that the learned
Trial Magistrate has passed the order, taking cognizance at
his back as the petitioner was not summoned to support the
report filed by the investigating officer in the FIR, who is
the officer of the gazetted rank but chose to rely on the brief
and concocted story made out during the investigation by a
Head Constable. This order of taking cognizance, according
to the petitioner, is violative of the principles of natural
justice. It is asserted that the first complaint was launched

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after about one year of separation of the petitioner and the
respondent no.1, when she on her own accord left the
matrimonial fold. It is further contended that it was only
when the respondent no.1 filed a petition under the
Guardian and Wards Act, almost after one year of the
separation from the petitioner, to get the custody of the
child and to mount the pressure on and harass the
petitioner and his family, residing in Kashmir, at the hands
of police and to abuse the process of law with the first
complaint and FIR, and then with the second complaint
against the mother and the sisters of the petitioner who
never visited or lived in Jammu.

5. The petitioner claims that according to the respondent no.1,
the alleged offence was committed by the petitioner on 6 th
November 2002 (bhai dhooj of 2002) whereas the learned
Trial Court has taken the cognizance on 25th November
2006, i.e. four years of the last alleged offence, without
taking the note of the fact that cognizance, at this belated
stage, goes against the roots of the Section 538-B of the Code
of Criminal Procedure. It is also contended that the offence
is alleged to have been committed on 6th November 2002,
FIR lodged on 14th September 2003 and the second
complaint filed on 6th July 2005 and the cognizance has been
taken on 25th November 2006, which clearly shows that the
cognizance has been taken beyond the provisions of the
limitation as envisaged under Section 538-B Cr.P.C. When
the investigating agency thoroughly investigated the case

561-A no.41/2008 Page 7 of 37
and concluded that there was no demand of the dowry as
the marriage was a simple affair and thus roping of all
family members by the learned Trial Magistrate is
unwarranted under law.

6. I have heard the learned counsel for the parties and
considered the matter.

7. Learned counsel for the petitioner, to buttress the case
projected by the petitioner, has fervidly argued that the
respondent no.1 had preferred the second complaint, the
learned Trial Magistrate has issued the process while
taking cognizance on 25th November 2006, without
recording the preliminary statement of the complainant
and her witnesses as required under Section 200 Cr.P.C.
The order of taking cognizance by the learned Trial
Magistrate is violative of mandatory provisions contained
in Section 200 Cr.P.C. His next submission is that learned
Trial Magistrate has failed to consider the provisions of
Section 538-B Cr.P.C. as the last alleged offence, as alleged
by the respondent no.1, was committed by the petitioner on
6th November 2002, and the cognizance has been taken on
25th November 2006, much after the period of limitation as
prescribed under law as the cognizance taken is beyond the
period of limitation. The subsequent submission of the
learned counsel for the petitioner is that the proceedings
initiated in the complaint vide order of cognizance dated
25th November 2006, are violative of Article 20(2) of the
Constitution of India as the petitioner is being subjected

561-A no.41/2008 Page 8 of 37
second time to all those bad processes for the alleged
commission of the same offence as in the first and
subsequent FIR. The petitioner was subjected to
harassment and humiliation at the hands of police along
with all the family members. No offence under Section 498-
A RPC, according to the petitioner’s counsel, is made out as
such the cognizance taken by the learned Trial Magistrate
is on assumption and surmises and the continuation of the
proceedings in the complaint are only an abuse of the
process of the court, as such, the same cannot be allowed to
be continued, so as to prevent the abuse of process of law
and to secure the ends of justice. In the previous complaint,
the investigation was conducted by an officer of the rank of
SDPO who after thorough investigation has drawn the
conclusion that the complaint has been filed with ulterior
motive and also recommended initiation of proceedings
under Section 182 RPC against the respondent
no.1/complainant. While drawing the conclusion, the SDPO
formulated as many as 14 points. The learned Trial
Magistrate failed to take note of the final report submitted
by the investigating agency and in the second complaint
itself took the cognizance when it was incumbent upon the
learned Trial Magistrate to find out whether any new
material has been produced by the respondent
no.1/complainant in the second complaint and even did not
record the preliminary statement of the complainant or her
witnesses that too at the back of the petitioner when he

561-A no.41/2008 Page 9 of 37
should have been called upon to justify the final report
submitted by the police and afforded an opportunity of
being heard. No fresh complaint on the same cause of action
could have been made. Taking cognizance on the second
complaint is only an abuse of the process of the court and
law. It is admitted case that the respondent no.1 left the
matrimonial fold in November 2002 and first complaint was
preferred on 14th of September 2003, after about one year,
which speaks volumes that the complaint is an
afterthought, lodged with oblique motive to cause
harassment and humiliation to the petitioner and when the
first complaint was dismissed by the police agency, the
second complaint was preferred on the same facts and same
cause of action. In support of his submissions, the learned
counsel for the petitioner has placed reliance on
Sanapareddy Maheedhar and another v. State of Andhra
Pradesh and another 2008 AIR (SC) 787; Harkesh and
others v. State of U.P. and another 2002 Cr. L.J. 285;
Rajkumar v. State of M.P. 2008 (3) Crimes 460; Anju Bala
and others v. State of Punjab and another 2006 (3) Cr.CC
548; Gajendra Kumar Agarwal v. State of U.P. anr.
1995(1) CCR 309.

8. The learned counsel for the respondent no.1, to counter
what the learned counsel for the petitioner averred, has
vehemently stated that the impugned order need not be
interfered with inasmuch as the Magistrate is not bound to
accept the opinion of the police; even the Magistrate may

561-A no.41/2008 Page 10 of 37
prefer to ignore the conclusion of the police and take
cognizance of the offence. He also avers that a Magistrate is
entitled to take cognizance of an offence under Section
190(1)(b) of the Code even if the police report is to the effect
that no case is made out against the accused. The
Magistrate can take into account the statement of the
witnesses examined by the police during the investigation
and take cognizance of the offence complained of and order
the issue of the process to the accused. Section 190(1)(b)
does not lay down that a Magistrate can take cognizance of
an offence only if the investigating officer gives an opinion
that the investigation has made out a case against the
accused. The Magistrate can ignore the conclusions arrived
at by the investigation officer and independently apply his
mind to the facts emerging from the investigation and take
cognizance of the case, if he thinks fit, in exercise of his
powers under Section 190(1)(b) and direct the issue of
process to the accused. The Magistrate is not bound in such
a situation to follow the procedure laid down in Sections 200
and 202 of the Code for taking cognizance of a case under
Section 190(1) (a) though it is open to him to act under
Section 200 or Section 202 also. The learned counsel for the
respondent no.1, in support of his submissions, has relied
upon the decisions rendered in the cases of M/s India Carat
Pvt. Ltd v. State of Karnataka and another AIR 1989 SC
885; and Nupur Talwar v. C.B.I. anr 2012 (2) SCC 188.

561-A no.41/2008 Page 11 of 37

9. Scrutinization of the record divulges that a complaint was
filed by the respondent no.1, namely, Shivani Mehta, before
the police station Women Cell District Jammu, against the
petitioner. FIR no.11/2003, on the said complaint, was
lodged for the commission of the offence punishable under
Section 498-A RPC. The case was entrusted to Investigating
Officer, Shri Bansi Lal, Head Constable, for investigation.
The Investigating Officer found that the offence under
section 498-A RPC was made out against the husband, the
petitioner herein. Prior to the presentation of the Challan,
the petitioner approached the Senior Superintendent of
Police, Jammu, for reinvestigation of the case. The matter
was reinvestigated by SDPO Bakshi Nagar, who concluded
that no case was made out against the petitioner. The Final
Report was filed before the learned Trial Magistrate.
However, the learned Trial Magistrate, acting on the
complaint lodged by the respondent no.1, took the
cognizance in the matter by the impugned order dated 25th
November 2006.

10. Before giving ear to the core issue, viz. whether under the
given circumstances the petitioner is entitled to approach
this Court for getting the entire criminal proceedings,
percolated from the second complaint lodged by the
respondent no.1 against him, quashed, it would be
appropriate to notice the circumstances and the parameters
enunciated and reiterated by this Court and the Supreme
Court in a series of decisions under which the High Court

561-A no.41/2008 Page 12 of 37
can exercise its inherent powers under Section 561-A
Cr.P.C, which is pari materia to Section 482 Central Code
of Criminal Procedure, to prevent the abuse of process of
any Court or otherwise to secure the ends of justice. The
power possessed by the High Court under the said provision
is undoubtedly very wide but it has to be exercised in
appropriate cases, ex debito justitiae to do real and
substantial justice for the administration of which alone the
courts exist. It is trite to state that the said powers have to
be exercised sparingly and with circumspection only where
the court is convinced, on the basis of material on record,
that allowing the proceedings to continue would be an abuse
of the process of the court or that the ends of justice require
that the proceedings ought to be quashed. [Vide:
Kurukshetra University anr. v. State of Haryana anr.;
Janata Dal v. H.S. Chowdhary ors.; and State of Haryana
ors. v. Bhajan Lal ors.] In Bhajan Lal’s case (supra),
while formulating as many as seven categories of cases by
way of illustration, wherein the extraordinary power under
the aforestated provisions could be exercised by the High
Court to prevent the abuse of the process of the court, it was
clarified that it was not possible to lay down precise and
inflexible guidelines or any rigid formula or to give an
exhaustive list of the circumstances in which such power
could be exercised. This view has been reiterated in a catena
of subsequent decisions. I am of the opinion that having
regard to the factual scenario, noted above, and for the

561-A no.41/2008 Page 13 of 37
reasons stated hereafter, it is a fit case where this Court
should can exercise its powers under Section 561-A Cr.P.C.

11. The Code of Criminal Procedure (Cr.P.C.) is the main
legislation on the procedure for the administration of the
substantive criminal law in India. Qua the JK State, the
Code of Criminal Procedure was sanctioned by His
Highness the Maharaja Bahadur vide Notification no.43-L/
1989 dated 4th January 1933/26th Poh, 1989 and published
in Government Gazette on 17th Kartik, 1990. It provides
the machinery for the investigation of crime, apprehension
of suspected criminals, collection of evidence, determination
of guilt or innocence of the accused person and the
determination of the punishment of the guilty. It also deals
with public nuisance, prevention of offences and
maintenance of wife, child and parents. The Code of
Criminal Procedure contains 565 Sections.

12. Section 190 of the Code of Criminal Procedure stipulates:

“190. Cognizance of offences by Magistrates.
(1) Except as hereinafter provided, any Chief Judicial
Magistrate and any other Magistrate specially empowered
in this behalf, may take cognizance of any offence-

(a) upon receiving a complaint of facts which constitute such
offence;

(b) upon a police report of such facts;

(c) upon information received from any person other than a
police officer, or upon his own knowledge, that such offence
has been committed.

(2) the High Court may empower any Judicial Magistrate to
take cognizance under sub-section (1), clause (a) or clause

(b), of offences for which he may try to commit for trial.
(3) The High Court may empower any Judicial Magistrate of
the first or second class to take cognizance under sub-section

91), clause (c), of offences for which he may try to commit for
trial.”

561-A no.41/2008 Page 14 of 37

13. Section 190 of the Code of Criminal Procedures, inter alia,
envisages that any Chief Judicial Magistrate and any other
Judicial Magistrate specially empowered in this behalf may
take cognizance of any offence: upon receiving a complaint
of facts which constitute such offence; upon a report in
writing of such facts made by any police officer; upon
information received from any person other than a police
officer, or upon his own knowledge or suspicion, that such
offence has been committed. There are four methods of
taking cognizance of offences by the Courts competent to try
the same. The court called upon to take cognizance of the
offence must apply its mind to the facts placed before it
either upon a police report or upon a complaint or in some
other manner the court came to know about it and in the
case of Court of Session upon commitment of the case by the
Magistrate. [See: A.R. Antulay v. R.S. Nayak (1984) 2 SCC
500].

14. When a Magistrate receives a complaint, which may be
either oral or in writing as defined under Clause (e) of
Section 4 of the Code, he has two courses open before him.
He may take cognizance under Section 190(l)(a) by applying
his mind to the facts of the case and thereafter proceed in
the manner provided in Sections 200 and 202 Cr.P.C. By
virtue of Section 200 he is required to examine the
complainant and the witnesses present, if any. If the
Magistrate finds that there is sufficient ground for
proceeding, he may issue process under Section 204. But if

561-A no.41/2008 Page 15 of 37
the Magistrate does not feel satisfied, he may either dismiss
the complaint under Section 203 Cr.P.C. or postpone the
issue of process and take recourse to Section 202, which
provides that he may inquire into the case himself or may
direct an investigation to be made by a police officer or such
other person as he thinks fit, for the purpose of deciding
whether or not there are sufficient grounds to proceed. If he
finds the grounds to be sufficient he may issue the process
or otherwise he may dismiss the complaint under Section
203 Cr.P.C. after briefly recording his reasons for so doing.

15. The other course open to the Magistrate is that instead of
taking the cognizance, he may send the complaint for the
police investigation under Section 156(3), Cr. P.C. If this
course is adopted, the police will have to investigate the
matter as per the procedure laid down in Section 157
onwards. If upon the investigation, it appears to the Officer
incharge of the police station that there is no sufficient
evidence or any reasonable ground of the suspicion to justify
the forwarding of the accused to a Magistrate, he may
submit a report to the Magistrate for dropping the
proceedings. Such a report is commonly known as ‘Final
Report’.

16. What Section 170 Cr.P.C. lays down is advantageous to be
reproduced infra:

“170. Cases to be sent to Magistrate, when evidence is
sufficient. —

(1) If, upon an investigation under this Chapter, it appears to
the officer in charge of the police station that there is sufficient
evidence or reasonable ground as aforesaid, such officer shall

561-A no.41/2008 Page 16 of 37
forward the accused under custody to a Magistrate empowered
to take cognizance of the offence upon a police report and to try
the accused or commit him for trial, or, if the offence is bailable
and the accused is able to give security, shall take security from
him for his appearance before such Magistrate on a day fixed and
for his attendance from day to day before such Magistrate until
otherwise directed.

(2) When the officer in charge of a police station forward an
accused person to a Magistrate or takes security for his
appearance before such Magistrate under this section, he shall
send to such Magistrate any weapon or other article which it may
be necessary to produce before him, and shall require the
complainant (if any) and so many of the persons who appear to
such officer to be acquainted with the facts and circumstances of
the cage as he may think necessary, to execute a bond to appear
before the Magistrate as thereby directed and prosecute or give
evidence (as the case may be) in the matter of the charge against
the accused.

(3) If the Court of Chief Judicial Magistrate is mentioned in the
bond, such Court shall be held to include any Court to which such
Magistrate may refer the case for inquiry or trial, provided
reasonable notice of such reference is given to such complainant
or persons.

(4) The day fixed under this section shall be the day whereon the
accused person is to appear, if security for his appearance has
been taken, or the day on which he may be expected to arrive at
the Court of the Magistrate, if he is to be forwarded in custody.
(5) The officer in whose presence the bond is executed shall
deliver a copy thereof to one of the persons who executed it, and
shall then send to the Magistrate the original with his report.”

17. Section 170, on its cursory look, envisions that if, upon an
investigation, it appears to the officer in-charge of the police
station that there is sufficient evidence or reasonable
ground of suspicion to justify the forwarding of the accused,
such officer shall forward the accused under custody to a
Magistrate empowered to take cognizance of the offence
upon a police report and to try the accused or commit him
for trial, or if the offence is bailable and the accused is able
to give security, shall take security from him for his
appearance before such Magistrate on a day fixed and for

561-A no.41/2008 Page 17 of 37
his attendance from day to day before such Magistrate until
otherwise directed. The report of completion of
investigation shall be forwarded to the Magistrate in the
prescribed form as provided under Section 173(2) Cr.P.C.
Upon receiving the final report, the following four courses
are open to the Magistrate and he may adopt any one of
them as the facts and circumstances of the case may
require:

(I) He may agree with the conclusions arrived at by the
police, accept the report and drop the proceedings. But
before so doing, he shall give an opportunity of hearing to
the complainant; or
(II) He may take cognizance under Section 190(1)(b) and
issue process straightway to the accused without being
bound by the conclusions of the investigating agency where
he is satisfied that upon the facts discovered or unearthed
by the police, there is sufficient ground to proceed; or
(III) He may order further investigation, if he is satisfied
that the investigation was made in a perfunctory manner;
or
(IV) He may, without issuing process or dropping the
proceedings decide to take cognizance under Section
190(1)(a) upon the original complaint or protest petition
treating the same as complaint and proceed to act under
Sections 200 and 202 Cr. P.C. and thereafter decide
whether complaint should be dismissed or process should be
issued.

561-A no.41/2008 Page 18 of 37

This position of law is well settled by the various
pronouncements of the Supreme Court, such as (1)
Abhinandan Jha v. Dinesh Misra AIR 1968 SC 117 (2) H.S.
Bains v. State AIR 1980 SC 1883 (3) Tularam v. Kishore
Singh AIR 1977 SC 2401 and (4) M/s India Carat Pvt. Ltd.
v. State of Karnataka AIR 1989 SC 885 (890).

18. In Abhinandan Jha’s case (supra) the question arose
whether a Magistrate to whom report under Section 173(2)
had been submitted to the effect that no case had been made
out against the accused, could direct the police to file a
charge sheet, on his disagreeing with the report submitted
by the police. The Supreme Court held that the Magistrate
had no jurisdiction to direct the police to submit a charge
sheet but it was open to the Magistrate to agree or disagree
with the police report. If he agreed with the report that
there was no case made out for issuing process to the
accused, he might accept the report and close the
proceedings. But if he comes to the conclusion that further
investigation is necessary, he may make an order to that
effect under Section 156(3) and if ultimately the Magistrate
is of the opinion that the facts set out in the police report,
constitute an offence. He can take cognizance of the offence,
notwithstanding the contrary opinion of the police
expressed in the report. However, in the said decision a
typing error occurred inasmuch as the reference to Section
190(1)(c) was a mistake for Section 190(1)(b) which was
later on pointed out in H.S. Bains’ case (supra).

561-A no.41/2008 Page 19 of 37

19. In the case of M/s India Carat Pvt. Ltd. (supra) it was held
by the Supreme Court in paragraph 16 of the report “The
position is, therefore, now well settled that upon receipt of
a police report under Section 173(2) a Magistrate is entitled
to take cognizance of an offence under Section 190(1)(b) of
the Code even if the police report is to the effect that no case
is made out against the accused. The Magistrate can take
into account the statements of the witnesses examined by
the police during the investigation and take cognizance of
the offence complained of and order the issue of process to
the accused. Section 190(1)(b) does not lay down that a
Magistrate can take cognizance of an offence only if the
investigating officer gives an opinion that the investigation
has made out a case against the accused, the Magistrate can
ignore the conclusions arrived at by the investigation officer
and independently apply his mind to the facts emerging
from the investigation and take cognizance of the case, if he
thinks fit, in exercise of his powers under Section 190(1)(b)
and direct the issue of process to the accused. The
Magistrate is not bound in such a situation to follow the
procedure laid down in Sections 200 and 202 of the Code for
taking cognizance of a case under Section 190(1)(a) though
it is open to him to act under Section 200 or Section 202
also. The High Court was, therefore, wrong in taking the
view that the Second Additional Chief Metropolitan
Magistrate was not entitled to direct the registration of a

561-A no.41/2008 Page 20 of 37
case against the second respondent and order the issue of
summons to him.”

20. Similarly in the case of Tula Ram v. Kishore Singh AIR
1977 SC 2401, it was held by the Supreme Court that if the
police, after making an investigation, send a report that no
case was made out against the accused, the Magistrate
could ignore the conclusion drawn by the police and take
cognizance of the case under Section 190(1)(b) and issue
process or in the alternative he could take cognizance of the
original complaint and examine the complainant and his
witnesses and thereafter issue process to the accused, if he
was of opinion that the case should be proceeded with.

21. In a decision rendered in Suresh Chand Jain v. State of
Madhya Pradesh and anr., AIR 2001 SC 571, the Supreme
Court has pointed out that the investigation envisaged in
Section 202 is different from the investigation contemplated
under Section 156(3) of the Code as the former is ordered
after taking cognizance of the offence whereas the later at a
pre-cognizance stage. The investigation referred to in
Section 202(1) of the Code is of a limited nature. The
Magistrate can direct such an investigation to be made
either by a police officer or by any other person. Such
investigation is only for helping the Magistrate to decide
whether or not there is sufficient ground for him to proceed
further. This is because he has already taken cognizance of
the offence disclosed in the complaint, and the domain of
the case would thereafter vest with him.

561-A no.41/2008 Page 21 of 37

22. The observations, made in the case of M/s India Carat Pvt.

Ltd., (supra), leave no room for doubt that the Magistrate is
not bound with the conclusions arrived at by the
investigating agency and it is open for him to apply his mind
independently to the facts emerging from the investigation
and take cognizance of the case if he deems fit, in exercise
of his powers under Section 190(1)(b). The Magistrate in
such a situation is not bound to follow the procedure laid
down in Sections 200 and 202 of the Code for taking
cognizance under Section 190(1)(a), though alternatively it
is open to him to act under Section 200 or Section 202 also.

23. The position is, thus, clear that when a Magistrate receives
police report under Section 173(2), he is entitled to take
cognizance of an offence even if the police report is to the
effect that no case is made out against the accused. The
Magistrate can take into account the statements of the
witnesses examined by the police during the investigation
and other material collected during investigation and form
his own opinion independently without being bound by the
conclusions arrived at by the investigating agency and take
cognizance under Section 190(1)(b) of the Code and direct
the issue of process to the accused. However, the Magistrate
cannot make use of any material or evidence other than the
investigation records while acting under Section 190(1)(b)
of the Code. If he chooses to make use of any materials other
than the investigation records, he will have to follow the
procedure laid down in relation to complaint cases, on the

561-A no.41/2008 Page 22 of 37
basis of original complaint or application moved under
Section 156(3) Cr.P.C. which otherwise tantamount to
complaint or the Protest petition filed against acceptance of
final report treating the same as complaint. This
proposition would be in consonance with the provision of
Section 207 which inter-alia provides for supply of copy of
statements recorded under Sub-section (3) of Section 161 of
all persons whom the prosecution proposes to examine as
its witnesses and any other document or relevant extract
thereof forwarded to the Magistrate with the police report
under Sub-section (5) of Section 173.

24. In the present case the learned Trial Magistrate while
taking cognizance by the order dated 25th November 2006,
has said:

“6. On considering the final police report and as to what is
alleged in the complaint lodged before this Court, I do not
agree with the conclusion drawn by the investigating
officer, rather the conclusion drawn by him is ill founded
and without any basis. There was enough material for him
to have challaned the accused. On the same set of oral
statement that was recorded by the earlier Investigating
Officer, the subsequent Investigating Officer could not
reach to a different conclusion other than that was arrived
by the earlier one.

7. Thus on perusal of the record, I find that there are
grounds for presuming that Dr. Jatinder Mehta 9Husband)
and Smt. Susheela Mehta (Mother-in-law) have committed
acts of cruelty towards the complainant, which had caused
harassment to her thus inviting commission of offence
under Section 498-A RPC. AS regards Smt. Prem Lata and
Smt. Usha Mehta, the allegations are unsubstantial and
without any basis. Hence process is directed only against
the husband of the complainant and mother-in-law for
offence under Section 498-A RPC. The CD file of case FIR,
which had been produced by SPO is returned. Let the
complaint come up for appearance of accused Jatinder
Mehta and Smt. Susheela Mehta…”

561-A no.41/2008 Page 23 of 37

25. The learned counsel for the petitioner has energetically
argued that the impugned order dated 25th November 2006
was passed without giving opportunity of hearing to the
petitioner. His submission is that once there is a Final
Report, then, before the Magistrate rejects the same, he
must hear the accused. In this connection it may be
mentioned that the Supreme Court in Bhagwant v.
Commissioner, AIR. 1985 S. C. 1285, has held that prior to
accepting the Final Report, a notice must be given to the
first informant or a person aggrieved and such a person
must be heard. The ratio of the said decision will be
applicable to a contrary case as well, like the present one.
In the present case, the petitioner is an accused in a case in
which a Final Report has been submitted. His grievance,
and rightly so, is that before rejecting the Final Report he
should have been heard. It is true that there is no statutory
provision that before rejecting the Final Report the
Magistrate must hear the accused but there is also no
statutory requirement that before accepting the Final
Report the complainant should be heard. If it is held that
before accepting the Final Report the complainant must be
heard, then it cannot be understood by what logic the
accused should be denied a right of hearing before the Final
Report is rejected. The same principle should apply to the
complainant and the accused alike.

26. The Supreme Court in recent years has been steadily
widening the scope of Articles 14 and 21 of the Constitution.

561-A no.41/2008 Page 24 of 37

In Maneka Gandhi v. Union of India, AIR 1978 SC 597
(which is a Seven Judge Constitution Bench decision) the
Supreme Court has emphasised that even where there is no
specific statutory requirement the principles of natural
justice may apply. It has been also held that the procedure
for depriving a man of his life and liberty must be fair,
reasonable and just. Similarly, in Bachan Singh v. State of
Punjab, AIR 1982 SC 1825 it was held by the Supreme
Court that “every facet of the law which deprives a person
of life or personal liberty would therefore have to stand the
test of reasonableness, fairness and justice in order to be
outside the inhibition of Article 21”. Having said so, once a
Final Report is submitted, then before its rejection the
accused should be heard, for, it may be that he may be able
to persuade the Magistrate that the Final Report was
justified and no case is made out against him. It will be
unfair to hear only the person filing the protest petition but
not the accused. Where a protest petition is filed against a
Final Report, both the parties should be heard as that
procedure would be fair to the accused and the complainant
and hence in accordance with the trend of the decisions of
the Supreme Court (from Maneka Gandhi’s case onwards)
in which the scope of Articles 14 and 21 of the Constitution
has been greatly expanded and it has been laid down that
the procedure should be just, fair and reasonable. Once a
final report is filed it is only fair and reasonable that the
accused should be heard before rejecting the Final Report

561-A no.41/2008 Page 25 of 37
and taking cognizance. I do not mean to say that cognizance
cannot be taken on the basis of the final report. The
Supreme Court in M/s India Carat Pvt. Ltd. case (supra)
has held that this can be done. But fairness demands that
this should be done only after hearing the accused,
otherwise the accused may be put to unnecessary
harassment.

27. It may not be out of place to mention here that the
Constitution of the India is the supreme law of the land and
the provisions in the criminal statutes must be read and
interpreted not in isolation but in the light of the
constitutional provisions as interpreted by the Supreme
Court. If upon an investigation, it appears to the officer-in-
charge of the police station or to the police officer making
the investigation that there is not sufficient evidence or
reasonable ground of suspicion to justify the forwarding of
the accused to a Magistrate, such officer shall, if such
person is in custody, release him and the Final Report can
be filed before the Magistrate. It is true that the Final
Report is not binding on the Magistrate and if the
Magistrate differs from the opinion of the I.O., he can take
the cognizance or order for the further investigation, but
that action of the Magistrate is a judicial action and at that
stage while taking decision on the Final Report the
Magistrate has to act judicially as a Court. The Magistrate
is required to weigh the prima facie evidence and take a
judicial decision.

561-A no.41/2008 Page 26 of 37

28. In the present case, it is obvious from the very impugned
order that it was only the protest complainant – respondent
no.1 herein, who was heard by the learned Trial Magistrate
before passing the impugned order dated 25.11.2006. The
Trial Court, indubitably, has, at the drop of a hat, taken the
cognizance without hearing the petitioner. This, thus,
renders the impugned order unsustainable in the eye of law.
I am also of the view that in the peculiar facts of this case,
continuation of proceedings of File no.100/compl., under
section 498-A RPC, will amount to abuse of the process of
the court. This will not clinch the matter here.

29. For deciding whether the learned Trial Magistrate could
take cognizance of offence punishable under Section 498-A,
after expiry of three years, it will be beneficial to notice the
scheme of Chapter XLV-A of the Code of Criminal
Procedure. Section 538-B of the JK State Code of Criminal
Procedure, which is pari materia to Section 468 of the
Central Code of Criminal Procedure, creates a bar against
taking cognizance of an offence after lapse of the period of
limitation. Subsection (1) of Section 538-B lays down that
except as otherwise provided elsewhere in the Code, no
court, shall take cognizance of an offence of the category
specified in its subsection (2), after the expiry of the period
of limitation. Subsection (2) specifies different periods of
limitation for different types of offences punishable with
imprisonment for a term exceeding one year but not
exceeding three years. The period of limitation is three

561-A no.41/2008 Page 27 of 37
years if the offence is punishable with imprisonment for a
term exceeding one year but not exceeding three years.
Section 538-C specifies the point of time with reference to
which the period of the limitation is to be counted. Section
538-D provides for exclusion of time in certain cases.
Subsection (4) thereof lays down that in computing the
period of the limitation, the time during which the offender
has been absent from India or from any territory outside
India which is under the administration of the Central
Government or has avoided arrest by absconding or
concealing himself, shall be excluded.

30. Section 538-F, which deals with continuing offence, declares
that in case of a continuing offence, a fresh period of
limitation shall begin to run at every moment of the time
during which the offence continues. Section 538-G, which
begins with non-obstante clause, empowers the court to
take cognizance of an offence after the expiry of the period
of limitation, if it is satisfied that the delay has been
properly explained and it is necessary so to do in the
interests of justice.

31. The object of the Section 538-B of the JK State Code of
Criminal Procedure (Section 468 of the Central Code) is to
create a bar, as has been noted by the Supreme Court, in
the case of State of Punjab v. Sarwan Singh 1981 (3) SCC
34, against the belated prosecutions and is aiming at to
prevent the abuse of the process of the court. While noting
so, the Supreme Court observed that this is in consonance

561-A no.41/2008 Page 28 of 37
with the concept of fairness of trial enshrined in Article
21 of the Constitution. It would be apposite in this
connection to recall a critical view expressed by the three
Judges’ Bench of the Bombay High Court in Assistant
Customs Collector v. L.R. Melwani (1970) 72 BOMLR 782,
about the delay in launching a prosecution, observing:

“The question of delay in filing a complaint may be a
circumstance to be taken into consideration in arriving at the
final verdict.”

32. The general rule of limitation is contained in, the Latin
Maxims “Vigilantibus et non, Dormientibus Jura
Subveniunt”, meaning “the vigilant, and not the sleepy, are
assisted by the laws.” In other words, in all actions, suits
and other proceedings at law and in equity, the diligent and
careful plaintiff is favoured to the prejudice of the person
who is careless. But, an exception is made in favour of the
Crown : Nullum Tempus Aut Lucus occurrit Regi” meaning
that no time runs against, or place affects, the king. This
implies that there can be no laches on the part of the king,
i.e. the State and that therefore no delay will bar his/its
right. However, the new provisions under Chapter XLV-A
of the Code, prescribing the periods of limitation in certain
categories of cases, having regard to the gravity of the
offences and other relevant factors, have been introduced
for the first time in the Criminal Procedure Code.

33. The Supreme Court in the case of State of Punjab v. Sarwan
Singh (supra) has pointed out the object of Section 468, by

561-A no.41/2008 Page 29 of 37
observing that the object of the Criminal Procedure Code in
putting a bar of limitation on prosecutions was clearly to
prevent the parties from filing cases after a long time, as a
result of which material evidence may disappear and also
to prevent abuse of the process of the Court by filing
vexatious and belated prosecutions long after the date of the
offence. The object which the statute seeks to subserve is
clearly in consonance with the concept of the fairness of the
trial as enshrined in Article 21 of the Constitution of India.
It is, therefore, of the utmost importance that any
prosecution, whether by the State or a private complainant,
must abide by the letter of the law or take the risk of the
prosecution failing on the ground of limitation. The
prosecution against the alleged accused being barred by the
limitation, the conviction as also the sentence of the alleged
accused as also the entire proceedings culminating in the
conviction of the alleged accused herein is non est. Thus, the
Supreme Court has gone to the extent of saying that the
object of Section 468 is in consonance with the concept of
the fairness of the trial as enshrined in Article 21of the
Constitution of India and that any proceeding culminating
in the conviction in a criminal case, which has been taken
cognizance of after the expiry of the period of limitation, is
non est.

34. In Jagmohan v. State, 1980 Cri LJ 742 (Delhi), Luthra, J.,
has quoted the observation of the Division Bench of the
Delhi High Court in State v. Anil Puri Criminal Appeal No.

561-A no.41/2008 Page 30 of 37
389 of 1977 viz., that “once cognizance is barred in favour of
a person, he acquires a valuable right, this right cannot be
taken away except under law.”

35. In Krishna v. State of M.P., 1977 Cri.LJ 90, it was held that
in view of the mandatory bar contained in Section 468 to the
court taking cognizance of the offences after the lapse of the
period of the period of the limitation, the overriding powers
granted in Section 473 of the Code can be brought into play
only before cognizance of an offence is taken and not
subsequently. It was further held that if the court acts
otherwise, it would be clearly acting without jurisdiction.

36. The Supreme Court in Venka Radhamanohari v. Vanka
Venkata Reddy, 1993 (3) SCC 4, considered the
applicability of Section 468 to the cases involving
matrimonial offences, referred to the judgment in Sarwan
Singh’s case (supra) and observed:

“It is true that the object of introducing Section 468 was to
put a bar of limitation on prosecutions and to prevent the
parties from filing cases after a long time, as it was thought
proper that after a long lapse of time, launching of
prosecution may be vexatious, because by that time even
the evidence may disappear. This aspect has been
mentioned in the statement and object, for introducing a
period of limitation, as well as by this Court in the case of
Sarwan Singh (supra). But, that consideration cannot be
extended to matrimonial offences, where the allegations are
of cruelty, torture and assault by the husband or other
members of the family to the complainant. It is a matter of
common experience that victim is subjected to such cruelty
repeatedly and it is more or less like a continuing offence.
It is only as a last resort that a wife openly comes before a
court to unfold and relate the day-to-day torture and cruelty
faced by her, inside the house, which many of such victims
do not like to be made public. As such, courts while

561-A no.41/2008 Page 31 of 37
considering the question of limitation for an offence under
Section 498-A i.e. subjecting a woman to cruelty by her
husband or the relative of her husband, should judge that
question, in the light of Section 473 of the Code, which
requires the Court, not only to examine as to whether the
delay has been properly explained, but as to whether it is
necessary to do so in the interests of justice.”

37. The Supreme Court then compared Section 473 Cr.P.C.

(Section 538-G of the JK Cr.P.C.) with Section 5 of the
Limitation Act and observed :

“For exercise of power under Section 5 of the Limitation
Act, the onus is on the appellant or the applicant to satisfy
the court that there was sufficient cause for condonation of
the delay, whereas Section 473 enjoins a duty on the court
to examine not only whether such delay has been explained
but as to whether it is the requirement of the justice to
condone or ignore such delay. As such, whenever the bar of
Section 468 is applicable, the court has to apply its mind on
the question, whether it is necessary to condone such delay
in the interests of justice. While examining the question as
to whether it is necessary to condone the delay in the
interest of justice, the Court has to take note of the nature
of offence, the class to which the victim belongs, including
the background of the victim. If the power under Section
473 of the Code is to be exercised in the interests of justice,
then while considering the grievance by a lady, of torture,
cruelty and inhuman treatment, by the husband and the
relatives of the husband, the interest of justice requires a
deeper examination of such grievances, instead of applying
the rule of limitation and saying that with lapse of time the
cause of action itself has come to an end. The general rule
of limitation is based on the Latin maxim : v igilantibus, et
non, dormientibus, jura subveniunt (the vigilant, and not
the sleepy, are assisted by the laws). That maxim cannot be
applied in connection with offences relating to cruelty
against women.”

38. A Three Judges’ Bench of the Supreme Court in State of
H.P. v. Tara Dutt, 2000 (1) SCC 230, considered whether
there can be a presumption of condonation of delay under
Section 473 Cr. P.C. and observed that Section 473 confers

561-A no.41/2008 Page 32 of 37
power on the court taking cognizance after the expiry of the
period of limitation, if it is satisfied on the facts and in the
circumstances of the case that the delay has been properly
explained and that it is necessary so to do in the interest of
justice. Obviously, therefore in respect of the offences for
which a period of limitation has been provided in Section
478, the power has been conferred on the court taking
cognizance to extend the said period of limitation where a
proper and satisfactory explanation of the delay is available
and where the court, taking cognizance, finds that it would
be in the interest of justice. This discretion conferred on the
court has to be exercised judicially and on well-recognised
principles. This being a discretion conferred on the court
taking cognizance, wherever the court exercises this
discretion, the same must be by a speaking order, indicating
the satisfaction of the court that the delay was satisfactorily
explained and condonation of the same was in the interest
of justice. In the absence of a positive order to that effect it
may not be permissible for a superior court to come to the
conclusion that the court must be deemed to have taken
cognizance by condoning the delay whenever the cognizance
was barred and yet the court took cognizance and proceeded
with the trial of the offence.

39. A mere reading of the Section 473 (Section 538-G of the JK
State Code) would itself show that a court can take
cognizance of the offence after the period of limitation only
after condoning the delay. In other words, the condonation

561-A no.41/2008 Page 33 of 37
of the delay must precede the taking cognizance of the
offence. To say that the court has power to exercise the
jurisdiction vested in it under section 538-G of the Code of
Criminal Procedure after taking the cognizance of the
offence could mean that this power can be exercised at any
stage, i.e., even at the time of delivering the judgment after
trial. That cannot be the intendment of the Legislature. In
my view, it is incumbent upon every Magistrate before
taking cognizance of a complaint to apply his mind to the
question of limitation and if prima facie the complaint is out
of time, to decide the question of limitation after due notice
to the complaint and to the accused. I am unable to visualise
any difficulty in issuing notice to the accused before taking
the complaint on file by giving a Criminal Miscellaneous
number and hearing the parties on the question of
limitation, as is done under Section 5 of the Limitation Act.

40. For all the discussions made above, I hold that Section 538-

B Cr.P.C. which prohibits every court from taking
cognizance of the categories of offences in respect of which
the periods of limitation, have been prescribed under
subsection (2) of that section, after the expiry of such
periods of limitation, vests a valuable right in the persons
sought to be prosecuted. The main object of such a
prohibition is to see that the parties do not resort to the
dilatory tactics and to shut out the belated and dormant
claims in order to save the accused persons from the

561-A no.41/2008 Page 34 of 37
unnecessary harassment but to seek their remedies within
the statutory periods fixed by the legislature.

41. As observed by the Supreme Court in State of Punjab v.

Sarwan Singh (surpa), this object, which the statute seeks
to subserve, is clearly in consonance with the concept of the
fairness of the trial as enshrined in Article 21 of the
Constitution. Therefore, it is of the utmost importance that
any prosecution, whether by the State or by a private
person, must abide by the letter of law and take the risk of
the prosecution failing on the ground of limitation. This
valuable right accrued to an accused person cannot be
allowed to be taken away except by strictly satisfying the
conditions prescribed under Section 538-G and that too for
proper reasons. Section 538-G, which is an exception to
Section 538-B, empowers the court to extend the period of
limitation in certain cases, which power has to be exercised
having regard to the facts and circumstances of those cases.
As the discretion granted under Section 538-G is wider, the
very width requires a corresponding caution on the part of
the court while exercising that power. Of course, it cannot
be laid down by any hard and fast rule as to what
constitutes the sufficient reason to properly explain the
delay occasioned or as to what is necessary so to do in the
interests of justice. It must be determined with reference to
the facts and circumstances of each particular case. In other
words, the limitation of Court’s jurisdiction must obviously
be dictated by the exigency of the situation and fair-play

561-A no.41/2008 Page 35 of 37
and good sense have to be the only safeguard. This power
must be exercised only in suitable cases where the court is
satisfied that the delay has been properly explained or it is
in the interests of justice, because the court, being the legal
custodian and guardian of the rights of the citizens, has a
primary obligation to protect them from vindictive or
vexatious time-barred prosecutions, and the valuable
vested right should not be easily brushed aside or whittled
down by indiscriminately exercising this discretionary
power. When once the court is satisfied that the delay has
been properly explained or that it is necessary for the court
so to do in the interests of justice, then there cannot be any
restriction or limit or fetter in the exercise of such power.
Needless to say, that the discretion should not be exercised
in a capricious or arbitrary manner or for fanciful reasons.
This discretionary power vested in the court can be
exercised by applying its mind to the facts and
circumstances of the case and considering the reasons
offered by the complainant in justification of his request for
condonation of delay, which reasons can be made either in
the complaint or the charge-sheet, as the case may be, or in
a separate application filed for the purpose, or the Court
itself may suo motu condone the delay on its being satisfied,
on the facts and in the circumstances of the case, that it has
become necessary so to do in the interests of justice.

42. In any case, the exercise of the power under Section 538-G,
extending the period of limitation by condoning the delay in

561-A no.41/2008 Page 36 of 37
launching the prosecution, should precede the taking
cognizance of the offence. While so exercising such
discretionary power, the court is obliged to record its order
in writing, giving its reasons therefor. In my opinion, any
proceeding culminating in the conviction of a person in a
criminal case, the cognizance whereof has been taken after
the expiry of the period of limitation as prescribed under
538-B (2) without first resorting to 538-F, is non est in the
eye of law.

43. Having regard to what has been said and done above, the
impugned order of the learned Trial Magistrate cannot
sustain. The instant petition is, accordingly, allowed. The
order of the learned Trial Magistrate (Municipal
Magistrate, Jammu) dated 25.11.2006 passed in File
no.100/compl., is set-aside, and as a corollary the complaint
titled Shivani Mehta v. Dr Jitender Mehta and others, is
also quashed.

44. Trial Court record along copy of this order be sent down.

( M. K. Hanjura )
Judge
Jammu
16.05.2018
Ajaz Ahmad

I pronounce this judgement in terms of Rule 138(3) of JK High
Court Rules, 1999.

(Tashi Rabstan)
Judge
Jammu
16.05.2018

561-A no.41/2008 Page 37 of 37

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