jammu and kashmir and ladakh high court

Jammu and Kashmir and Ladakh High Court: In deliberating over the instant petition wherein the petitioner sought quashment of complaint in which process was issued against the petitioner for commission of offence under S. 138 N.I. Act and pending before the Trial Court, on the ground that the impugned complaint and the affidavit in support of the impugned complaint was not signed by the complainant/respondent; the bench of Rajnesh Oswal, J.*, took strict note of a contention raised by the petitioner that the Trial Magistrate had issued the process by filling the blanks of the printed proforma for issuing the process against petitioner.

The Bench stated that issuance of process is a serious matter, and it must reflect the application of mind on the part of the Magistrate, though it is not incumbent upon the Magistrate to explicitly state the reasons for issuance of process. “The practice of issuance of process on printed proforma by filling blank spaces by hand has been deprecated by the various High Courts”. The Court emphasised that taking cognizance and the issuance of process is a judicial act and it must reflect application of mind. “The process should not be issued in a mechanical manner by simply filling the blank spaces in the printed proforma. Such practice provides an occasion to the accused to approach the higher courts complaining the non-application of mind by the Magistrate, thereby leading to an avoidable delay in the disposal of the complaint”.

Vis-à-vis the petitioner’s contention regarding the complainant/respondent and his counsel not signing the complaint or the affidavit, the Court stated that it may amount to irregularity, which can be cured by permitting the complainant/respondent to file fresh affidavit in support of complaint.

The Court however deemed it fit to quash the issuance of process by the Trial Court based as it did not reflect application of mind and was issued in a mechanical manner by simply filling the blank spaces in the printed proforma.

[Sajad Ahmad Mir v. Mukhtar ul Qadir, 2023 SCC OnLine J&K 653, decided on 04-09-2023]

*Order by Justice Rajnesh Oswal

Advocates who appeared in this case :

For petitioner- Shahbaz Sikander, Adv

For respondent- Zahid Hussain Dar, Adv

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