Introduction:
In Abdul Wahab Qureshi v. Mohammad Showkat & Anr. [2026 LiveLaw (JKL) 315], the High Court of Jammu & Kashmir and Ladakh reaffirmed the scope of a Magistrate’s powers while considering whether to issue process on a private criminal complaint. Justice Sanjay Dhar held that a Magistrate is not confined to the allegations contained in the complaint alone but is equally entitled to consider the material collected during an inquiry conducted under Section 202 of the Code of Criminal Procedure (CrPC). If such material demonstrates that the dispute is essentially civil in nature and no criminal offence is disclosed, the Magistrate is justified in dismissing the complaint under Section 203 CrPC.
The case arose out of a dispute between a tenant operating a dhaba and the legal heirs of the shop owner. The petitioner claimed that he had been running a restaurant named “Punjabi Rasoi” in the respondents’ mother’s premises from 2008 until August 2019. According to him, the prevailing security situation in Kashmir following the abrogation of Article 370 compelled him to leave the Valley, leaving behind various articles and equipment used in his business. Upon his return, he alleged that the respondents refused to hand over those articles and instead used them to run their own restaurant. Treating this conduct as criminal breach of trust punishable under Section 406 of the Indian Penal Code, he filed a private complaint before the Magistrate.
Instead of immediately issuing process, the Magistrate ordered an inquiry under Section 202 CrPC. The inquiry revealed a substantially different factual picture. It disclosed that the petitioner had vacated the premises after accumulating considerable arrears of rent and electricity charges. The respondents had allegedly retained the articles only as security for recovery of the outstanding dues, and the petitioner had even executed an affidavit acknowledging his liability and agreeing to clear the dues through a settlement. Relying upon these findings, the Magistrate dismissed the complaint under Section 203 CrPC, concluding that no criminal offence was made out. The Revisional Court affirmed the order, following which the petitioner invoked the High Court’s inherent jurisdiction under Section 482 CrPC.
Arguments of the Parties:
The petitioner argued that the respondents had unlawfully retained articles belonging to him despite repeated demands for their return. According to him, these articles constituted his business assets and their continued possession by the respondents amounted to criminal breach of trust under Section 406 IPC. He submitted that the allegations contained in the complaint were sufficient to justify issuance of process and that the Magistrate had exceeded the permissible scope of inquiry by relying heavily on the report submitted under Section 202 CrPC.
It was further argued that the inquiry report improperly influenced the Magistrate’s decision at a stage where only a prima facie assessment was required. The petitioner contended that disputed questions relating to ownership of the articles, settlement of accounts, and outstanding dues ought to have been examined during trial rather than at the preliminary stage. He therefore challenged both the Magistrate’s order dismissing the complaint and the Revisional Court’s decision affirming it.
The respondents opposed the petition by submitting that the complaint was nothing more than an attempt to convert a purely civil dispute into criminal litigation. They argued that the petitioner had defaulted in payment of rent and electricity charges and had voluntarily vacated the premises after acknowledging his liability. According to them, the articles were retained only as security until the outstanding dues were cleared, a fact reflected in the affidavit executed by the petitioner himself.
The respondents further contended that the inquiry conducted under Section 202 CrPC had thoroughly examined the circumstances and clearly established that no ingredients of criminal breach of trust were made out. They also argued that after unsuccessfully challenging the Magistrate’s order before the Revisional Court, the petitioner could not invoke the inherent jurisdiction of the High Court merely to secure a second revisional examination, which was expressly barred under the Code.
Court’s Judgment:
Dismissing the petition, the High Court held that both the Magistrate and the Revisional Court had correctly appreciated the material available on record. Justice Sanjay Dhar observed that the very object of an inquiry under Section 202 CrPC is to assist the Magistrate in determining whether sufficient grounds exist for proceeding against the proposed accused. Consequently, while considering issuance of process, the Magistrate is not restricted to the averments made in the complaint but is also entitled to evaluate the material collected during such inquiry.
The Court emphasised that Section 202 CrPC serves as an important safeguard against frivolous and vexatious prosecutions. The inquiry enables the Magistrate to independently assess whether the allegations disclose the commission of a criminal offence or whether the complaint is founded upon a dispute more appropriately addressed through civil remedies.
Examining the facts of the present case, the Court noted that the inquiry report clearly established that the petitioner had left the rented premises after accumulating substantial rent and electricity arrears. The respondents had retained the articles only as security for recovery of those dues, and the petitioner had executed an affidavit acknowledging the settlement and undertaking to clear the outstanding amount. These circumstances substantially weakened the allegation that the respondents had dishonestly misappropriated the articles entrusted to them.
Justice Dhar observed that the material collected during the inquiry unmistakably demonstrated that the controversy revolved around possession of movable property arising from a landlord-tenant relationship and settlement of financial liabilities. Such disputes, the Court held, are essentially civil in character and cannot automatically be transformed into criminal proceedings merely by alleging criminal breach of trust.
The Court reiterated the settled legal position that criminal law cannot be invoked to exert pressure in matters involving contractual or civil obligations. Where the essential ingredients of a criminal offence are absent, continuation of criminal proceedings would amount to abuse of the judicial process.
The High Court further rejected the petitioner’s contention that the Magistrate ought to have confined himself solely to the complaint. It held that such an approach would defeat the very purpose of Section 202 CrPC. The inquiry mechanism exists precisely to enable the Magistrate to verify whether the allegations disclose sufficient grounds for prosecution before compelling an individual to face criminal proceedings. Accordingly, the Magistrate rightly considered both the complaint and the inquiry report before concluding that no offence was made out.
The Court also found the petition procedurally unsustainable. It observed that the petitioner had already availed the statutory remedy of revision before the Sessions Court. Having failed there, he could not invoke the inherent jurisdiction of the High Court under Section 482 CrPC merely to obtain what was, in substance, a second revision. Justice Dhar reiterated that the statutory prohibition contained in Section 397(3) CrPC cannot ordinarily be circumvented through a petition under Section 482 except in rare and exceptional circumstances involving grave miscarriage of justice or abuse of process. No such exceptional circumstance existed in the present case.
The High Court concluded that both the Magistrate and the Revisional Court had correctly appreciated the factual and legal position. Since the inquiry report clearly demonstrated that the respondents retained the articles as security for admitted outstanding dues and that the dispute was essentially civil in nature, the dismissal of the complaint under Section 203 CrPC was fully justified.
Accordingly, the High Court dismissed the petition and affirmed the concurrent orders of the Magistrate and the Revisional Court. The judgment reiterates that criminal courts must remain vigilant against attempts to misuse criminal proceedings for resolving civil disputes and underscores the significant role played by Section 202 CrPC inquiries in filtering out complaints that do not disclose genuine criminal offences.