Ab.Gani Bhat vs Ab.Rashid Sahaf

Continuance of proceedings in petitioner's two complaints was not found justified by this Court while allowing respondentAbdul Rashid Sahaf's

561A Cr.P.C. no.80/2007 vide its judgment of June 5, 2008.

While disposing of the petition, the then Lord Chief Justice, observed as follows:

I have gone through the minutes of the staff meeting. It is difficult to hold that the statements made therein were intended to harm reputation of the

complainant. It was a unanimous decision taken by the members of the staff of the College who had participated in the meeting to make a request

to the Principal that action be initiated against the Physical Training Instructor so that the culprit be brought to book and action be taken as per

rules. Though the Principal was requested that action be taken for deplorable behaviour of the Physical Instructor which was unhealthy for the

College, the ultimate decision in the staff meeting was to make a request to the Chairman, Governing Body of the College, who is the Chief

Minister, to conduct an enquiry into the allegations made against the Physical Education Instructor. It is relevant to note that the meeting was held

on July 4, 1998 and the complaint was filed on June 30, 2001. If the complainant had any grievance against the various decisions taken in the staff

meeting held on July 4, 1998 he should have filed the complaint within a reasonable time. Evidently, the complaint was filed after about three years

of the incident and after retirement of both complainant as well as accused.

Second complaint was filed on February 16, 2006 with regard to certain documents produced by accused before the learned Judicial Magistrate

(Sub Registrar) on July 20, 2002. I have gone through those documents which were preferred to ward off the complaint filed by the complainant

against the accused so that accused could not be proceeded with by the criminal court. I doubt whether the statements contained in those

documents would give rise to any ground for preferring a complaint for initiating action for defamation. Reading the statements contained in those

documents, which were filed by accused to get out of the criminal proceedings, I am convinced that the same cannot be characterized as

defamatory.

Taking into consideration the fact that the complaints were filed several years after the alleged incidence and considering the fact that the matter is

pending consideration for several years, I enquired whether they could part as friends. Complainant was not willing to adopt such a course, though

counsel for accused showed readiness. Considering the entire facts and circumstances of the case, I am of the view that this is a fit case where this

Court should exercise its inherent jurisdiction under Section 561A Cr.P.C. Accordingly, this petition is allowed and the complaints filed by the

complainant on June 30, 2001 and February 16, 2006 pending before Judicial Magistrate (Sub Judge/Judge Small Causes Court) Srinagar and the

proceedings conducted thereon are quashed and the petition is allowed as above.

The Petitioner, appearing in person, referred to the judgments of Hon'ble Supreme Court of India and various High Courts of the Country,

dealing with the powers of the High Court while exercising jurisdiction under Section 482 of the Central Code of Criminal Procedure, which is

similar to the provisions of Section 561A Cr.P.C. of the State Code, to urge that the judgment of June 5, 2008 was unwarranted, as no case had

been made out by the respondent for exercise of jurisdiction under Section 561A Cr.P.C.

I do not find any merit in the petitioner's submission, for, decision rendered by this Court in respondent's 561A Cr.P.C no.80/2007, is a

decision by the High Court on merits of the case, which cannot be opened for fresh consideration, in that, the inherent jurisdiction of the Court may

not be exercised to upset a decision on merits rendered after hearing the parties.

Jurisdiction of the Court to decide respondent's petition under Section 561A Cr.P.C. having not been disputed, And the decision not otherwise

void abinitio, petitioner's petition under Section 561A Cr.P.C. seeking reconsideration of respondent's petition, on merits, may not, thus, be

maintainable.

6.'In this view of the matter, when the petitioner's petition is misconceived, I do not find any justification to entertain COD no.44/2009.

This COD no.44/2009 along with petitioner's petition under Section 561A Cr.P.C. questioning the judgment delivered in respondent's 561A

Cr.P.C. no.80/2007 is, accordingly, dismissed.