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| HC directs Registrar Vigilance to enquire into order, submit report within four weeks | | | Early Times Report
JAMMU, July 19: In a petition seeking quashment of the order dated 24.02.2024 passed by court of Judicial Magistrate, 1st Class, (Sub Judge), Chadoora, in case titled as Nighat Nasereen versus Fayaz Ahmed Mir and others, in terms of which proceedings under Section 97 CrPC have been initiated against the petitioner/ father and the custody of the minor Ward of the parties has been taken from the petitioner and handed over to the respondent/mother.
Justice Moksha Khajurai Kazmi of Jammu & Kashmir and Ladakh High Court while quashing the order passed by Magistrate, observed that before parting with the file it needs to be stated herein that the instant petition was reserved after hearing counsel for the parties on 08.07.2024. The counsel for the petitioner at the time of making submissions had vehemently contended that the Judicial Magistrate, Chadoora has handed over the custody of the minor to his mother without passing any order to that effect as such neither any rebuttal could be made to this submission by the other side at that point of time nor was there any document in the entire record to negate such contention. Moreover, the counsel for the petitioner had by way of CM No. 421/2024 placed on record all documents except the order dated 24.02.2024 (passed at the official residence). He had argued that he had applied for the certified copies of all orders passed but no order was provided to him on 24.02.2024. In response, the senior counsel was requested to look into the record & he was also shocked to see that no such order was passed as per digitized record. Senior counsel for the respondent furnished certified copy of an order dated 24.02.2024 in the open court on 10.07.2024 when the judgment in the matter was ready to be announced, however, the copy of the order is taken on record. The perusal of the certified copy of the order dated 24.02.2024 produced by the senior counsel, reveals that the matter has been taken up for consideration by the Magistrate at 7:40 pm in the evening on 24.02.2024 at his official residence and the custody of the child was handed over to the respondent/mother. It is astonishing to note that the scanned record submitted by the Judicial Magistrate in respect of the case in hand nowhere contains the order dated 24.02.2024 passed after 4 pm produced by the learned senior counsel although the said digitized record of the original file is sent and duly signed by the same Magistrate with proper index and pagination.
Court further observed that the non-availability of the order purportedly passed by the Magistrate at his official residence in the evening hours, in the scanned record as submitted to this Court, is not only incomprehensible but shocking too as it gives rise to many reasonable apprehensions. It cannot be ipso facto believed that the order has been inadvertently skipped while sending the record to this Court as the Magistrate cannot be believed to be so ignorant to understand the importance of the certified copy of the order produced by the senior counsel. The copy of the order would reveal that the applicant (an Advocate whose name is not clearly reflected) has applied for the certified copy of the order on 09.07.2024 and it has been issued in his favour on 10.07.2024 i.e., after the judgment in the instant petition was reserved by this Court. It is a digitized record of the original file not the photostat copy of file, as such there was no occasion that the same could have been skipped or missed out from the record. It does not also transpire as to why the order dated 24.02.2024 passed at 7:30 pm was not sent to this Court and what were the compelling circumstances which forced the Magistrate to pass an order at his official residence at 7:30 pm in absence of the other side that too without affording them any opportunity of being heard.
Be that as it may, since the order produced by the senior counsel is not part of the record sent by the Magistrate himself and the same having been furnished after the judgment was dictated, the same does not require to be taken into account, more particularly, for the reason that it has given rise to certain reasonable apprehensions. This Court cannot lose sight of the fact that the order did not form part of the record, which was sent to this Court, before the counsel for the parties made their respective submissions, which included the one about the custody of the child having been given to the respondent-mother by the Magistrate without passing any order to that effect, therefore, in order to protect the sanctity of the court orders it would be quite expedient that the matter is enquired into so that not only the veracity of the order is ascertained but the apprehensions of whatever kind are also set at rest, Court said.
In the circumstances, High Court directed Registrar Vigilance, High Court of J&K and Ladakh, Srinagar, to enquire into the matter and submit his report within a period of four weeks from, to the Chief Justice for appropriate orders. —JNF |
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