SRINAGAR 15 Jul : The High Court of Jammu Kashmir and Ladakh has refused to quash criminal proceedings in a 14-year-old cheque dishonour case, holding that an accused who participates in the trial without objection cannot challenge the order taking cognisance at the stage of final arguments on the ground that the magistrate failed to conduct a mandatory inquiry before issuing process.
The court ruled that any procedural irregularity in such circumstances is curable and does not justify setting the clock back after completion of evidence.
Justice Shahzad Azeem delivered the judgment on July 8, 2026, dismissing CRM (M) No. 388/2026 along with the connected CrlM No. 906/2026.
The petitioner, Aijaz Ahmad Bhat of Natipora, Srinagar, was represented by advocate Faisal Javied. The respondent was Nisar Ahmad Malik of Shopian.
The petition challenged an order dated November 12, 2012, passed by the Chief Judicial Magistrate, Shopian, taking cognizance of a complaint under Section 138 of the Negotiable Instruments Act relating to dishonour of cheques amounting to Rs 2.10 lakh. The magistrate had issued process after recording the statements of the complainant and one witness.
The petitioner argued that since he resided outside the territorial jurisdiction of the magistrate’s court, the magistrate was legally required under Section 202 of the Code of Criminal Procedure, now corresponding to Section 225 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), to postpone issuance of process and conduct an inquiry before summoning him. Reliance was placed on the Supreme Court’s Constitution Bench judgment in In Re: Expeditious Trial of Cases under Section 138 of the Negotiable Instruments Act, 1881 (2021), which held that such an inquiry is mandatory where the accused resides beyond the court’s territorial jurisdiction.
Before deciding the petition, the High Court sought a status report from the Chief Judicial Magistrate, Shopian. The report revealed that the trial had substantially concluded years earlier. Defence evidence had been closed on October 26, 2017, and the matter had been listed for final arguments, but proceedings were delayed due to the repeated absence of the accused, resulting in forfeiture proceedings under the criminal law.
Justice Azeem observed that while the law requires a magistrate to conduct an inquiry before issuing process against an accused residing outside the court’s territorial limits, the facts of the present case were materially different. The entire evidence of both sides had already been recorded and the matter had reached the stage of final arguments well before the Supreme Court delivered its Constitution Bench ruling in April 2021.
The court held that the petitioner had participated throughout the proceedings without raising any objection to the alleged non-compliance. He had cross-examined prosecution witnesses, led defence evidence and contested the case on merits. Having done so, he could not seek to invalidate the proceedings after nearly 14 years by raising a technical objection at the final stage.
The judgment observed that the purpose of the mandatory inquiry under Section 202 CrPC is to protect persons living outside the court’s jurisdiction from frivolous or vexatious complaints. However, once an accused has fully participated in the trial, the object of the provision stands substantially achieved and the objection is deemed to have been waived.
The High Court further noted that the petitioner had failed to demonstrate any actual prejudice caused by the alleged omission. Referring to Section 465 of the Code of Criminal Procedure, now reflected in Section 511 of the BNSS, the court held that no order can be reversed merely because of a procedural irregularity unless it has resulted in a failure of justice. Since the petitioner had ample opportunity to defend himself during the trial, no such failure of justice had been established.
Dismissing the petition, Justice Azeem nevertheless clarified that the ruling was confined to the peculiar facts of the case and should not be construed as diluting the mandatory nature of the inquiry contemplated under Section 202 CrPC or Section 225 BNSS where an objection is raised at the appropriate stage. The court emphasised that magistrates remain duty-bound to conduct such inquiries before issuing process against accused persons residing beyond their territorial jurisdiction.