Sr. No. 25 HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU CRM(M) No. 139/2022 CrlM No. 326/2022 Manjeet Singh alias Manjit Singh S/o Jagir Singh C/o District Gurudwara Prabhandak Committee Ramban, J&K ……Petitioner/Appellant(s) Through:- Mr. Nonu S. Khera, Advocate V/s Nishoo Devi W/o Sher Singh R/o Sencha Tehsil & District Ramban, J&K …..Respondent(s) Through:- None CORAM : HON’BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE ORDER 05.08.2025 1. The proceedings initiated by the Learned Additional Mobile Magistrate, Ramban (for short ‘trial Court’), whereby the trial Court, after taking cognizance by treating a protest petition as a complaint for offences punishable under Sections 447 and 354 IPC, has issued process against the accused/petitioner, are sought to be quashed through the medium of the instant petition filed under Section 482 Cr.P.C. 2. The impugned proceedings are assailed primarily on the following grounds: 2 (i) That the impugned orders are illegal, arbitrary, unjustified, and contrary to the facts and circumstances of the case, and if not set aside, would result in grave miscarriage of justice; (ii) that the trial court had firstly passed order dated 25.01.2022 in a hasty manner and against all canons of law as the incident alleged is said to have taken place on 24.01.2022 and it is alleged that a complaint was lodged with the SHO Police Station,Ramban by the respondent on the same day and the SHO was well within his rights to make a preliminary inquiry before lodging of any FIR in the matter and in case SHO fails to take any action then under the provisions of Section 154 Cr.P.C, the respondent was required to first approach the SSP concerned, but in the present case, mandatory provisions of law regarding the same have not been followed and an application was entertained on the very next date for direction to SHO Police Station, Ramban and direction was issued arbitrarily; (iii) that the SHO Police Station, Ramban after conducting preliminary inquiry found that no such offence had been committed by the respondent and he was not present on spot at that time and that the complaint of the respondent was in order to defame the petitioner and to hide the guilt of respondents’ party which included her husband and brother-in-law who had illegally broken the locks of the shop in question and had occupied the same; (iv) that the SHO police Station Ramban had not filed any closure report, but a simple report as he had not lodged any FIR in the matter and, as such, no protest petition was legally maintainable against such report; (v) that the protest petition of the respondent was against the report filed by the SHO Police Station, Ramban and was bearing a prayer to reject the said report of the SHO and to direct him to file an FIR, however without the application of mind and against all canons of law and despite the absence of any such provision the Court below vide order dated 01.02.2022 treated the said protest petition to be a complaint and ordered for filing of affidavits of complainant and two witnesses; 3. Learned counsel for the petitioner has submitted that the Trial Court proceeded to take cognizance and issue process against the petitioner merely on the basis of a police report and affidavits filed by the husband and brother-in-law of the complainant, ignoring the conclusions drawn by the police. It is 3 urged that despite the inquiry report stating that no offence was committed by the petitioner, the trial Court took cognizance under Sections 447 and 354 IPC and issued process without due application of judicial mind. 4. It is further submitted that the trial Court has failed to consider the material placed before it, including the police report and the statements recorded, and proceeded in a mechanical manner, thus vitiating the impugned orders. 5. A perusal of the record reveals that a compromise deed dated 27.07.2020 was executed between Sher Singh Bhagat, the husband of the complainant, and Rakesh Kotwal, who had hired a shop from the Gurudwara Parbandhak Committee, Ramban. The relevant portion of the compromise reads as under: “WHEREAS, the Party of the 2nd part have hired one shop from few years back from the Gurdwara Parbandak Committee Ramban or his personal use, and due to some exigencies, the party of the 2nd part sublet the shop to the party of the 1st part. WHEREAS, the party of the 1st part filed a case before the court of Id. JMIC Ramban titled “Sher Singh vs Gurdwara Parbandak Committee Ramban” which is pending sub-judice before the court. Now the party of the 1st part is ready to withdraw the suit from the learned court due to a compromise stalled between the parties, and both the party of the 1st part and 2nd part undertakes that they will not interfere into the shop of Gurdawar Parbandak Committee Ramban, and the key of the Shop no. 10 shall be hand over to the DGPC, Ramban peacefully, and both the parties having no issueswith regard to the Shop of Gurdwara Parbandak Committee Ramban, and also undertaken by the both 4 the parties that they willnot interfere into the shop of Gurdwara Parbandak Committee, Ramban.” 6. In light of the said compromise, it is evident that a civil dispute concerning the possession of the shop existed between the parties. On the basis of the compromise, the civil suit filed by the complainant’s husband has been withdrawn. A copy of the compromise deed has been placed on record and supports the contention that the matter was essentially of a civil nature. 7. The submission of learned counsel for the petitioner would make it clear that there was a dispute with regard to the shop in question and the suit filed by the husband of the complainant in view of the compromise has been withdrawn. It is clear that on the basis of such dispute the complaint appears to have been filed. The Trial Court was apprised by filing the report furnished by the police that no such occurrence had taken place. This also makes it clear that there had been a dispute between the parties in respect of shop in question which was in possession of the husband of the complainant. The said report has not even been considered by the Trial Court and the Trial court has not given any reason as to why such report has not been acted upon. Simply the protest petition has been treated as a complaint.Moreover, the law is well settled that when no FIR is registered and no closure report under Section 173 Cr.P.C. is filed, the filing of a protest petition is not legally tenable. In the instant case, the report submitted was 5 merely a preliminary inquiry report, not a final report, thereby rendering the maintainability of the protest petition questionable. The cognizance taken by the trial Court appears to be mechanical, without application of mind, and without assigning reasons for rejecting the findings of the police inquiry. 8. The Hon’ble Supreme Court in a case titled Vishnu Kumar Tiwari v. State of UP, (2019) 8 SCC 27,has held that if the Magistrate treats the protest petition as a complaint, he must follow the procedure prescribed under Sections 200 and 202 Cr.P.C. It has further been held that in the absence of a final report under Section 173 Cr.P.C., a protest petition cannot be entertained in a mechanical manner.In para 42 the Supreme Court observed as under:- “……… if the Magistrate was convinced on the basis of the consideration of the final report, the statements under Section 161 of the Code that no prima facie case is made out, certainly the Magistrate could not be compelled to take cognizance by treating the protest petition as a complaint. The fact that he may have jurisdiction in a case to treat the protest petition as a complaint, is a different matter. Undoubtedly, if he treats the protest petition as a complaint, he would have to follow the procedure prescribed under Section 200 and 202 of the Code if the latter Section also commends itself to the Magistrate. In other words, necessarily, the complainant and his witnesses would have to be examined. No doubt, depending upon the material which is made available to a Magistrate by the complainant in the protest petition, it may be capable of being relied on in a particular case having regard to its inherent nature and impact on the conclusions in the final report. That is, if the material is such that it persuades the court to disagree with the conclusions arrived at by the Investigating Officer, cognizance could be taken under Section 190(1)(b) of the Code for which there is no necessity to examine the witnesses under 6 Section 200 of the Code. But as the Magistrate could not be compelled to treat the protest petition as a complaint, the remedy of the complainant would be to file a fresh complaint and invite the Magistrate to follow the procedure under Section 200 of the Code or Section 200 read with Section 202 of the Code. Therefore, we are of the view that in the facts of this case, we cannot support the decision of the High Court.” 9. A similar view was taken by the Karnataka High Court, in case titled as Veerappa and others vs. Bhimareddappa reported in 2002 Cri. LJ 2150 (Karnataka), wherein it was held that a protest petition must satisfy the requirements of a complaint as defined in Section 2(d) Cr.P.C., and in its absence, cognizance cannot be taken under Section 200 Cr.P.C. In Para 9 of the said judgment, following was observed:- “9. From the above, the position that emerges is this: Where initially the complainant has not filed any complaint before the Magistrate under Section 200 of the Cr.P.C., but, has approached the police only and where the police after investigation have filed the 'B' report, if the complainant wants to protest, he is thereby inviting the Magistrate to take cognizance under Section 190(1)(a) of the Cr.P.C. on a complaint. If it were to be so, the protest petition that he files shall have to satisfy the requirements of a complaint as defined in Section 2(d) of the Cr.P.C., and that should contain facts that constitute offence, for which, the learned Magistrate is taking cognizance under Section 190(1)(a) of the Cr.P.C. Instead, if it is to be simply styled as a protest petition without containing all those necessary particulars that a normal complaint has to contain, then, it cannot be construed as a complaint for the purpose of proceeding under Section 200 of the Cr.P.C.” 10. In view of the above settled legal position and in the facts and circumstances of the present case, this Court is of the considered opinion that the proceedings initiated by the trial 7 Court and the order taking cognizance and issuing process against the petitioner are legally unsustainable and amount to abuse of process of law. 11. Accordingly, the impugned orders dated 01.02.2022 and 09.02.2022 passed by the Learned Additional Mobile Magistrate, Ramban, taking cognizance of the offences under Sections 447 and 354 IPC and issuing process against the petitioner, along with all consequential proceedings, are hereby quashed. 12. The instant petition stands allowed and is accordingly, disposed of in the aforesaid terms (VINOD CHATTERJI KOUL) JUDGE JAMMU BIR 05.08.2025 BIR BAHADUR SINGH 2025.08.19 14:08 I am the author of this document