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2003 DIGILAW 49 (JK)

Sham Singh v. State

2003-03-19

B.L.BHAT

body2003
Per : B.L. Bhat, J. 1. It is reported by the registry that respondent No. 3 caused his appearance in the registry through his counsel Mr. M.R. Qureshi. Today nemo is present on his behalf. This being so, service on respondent No. 3 is complete. 2. Considered. 3. Admit. 4. Petition is taken up for final adjudication with the consent of learned counsel for the parties. 5. Through the medium of the petition in hand under Section 561-A, Cr. P.C. petitioners Sham Singh Diljit Singh and Rajnider Singh have sought indulgence of this Court for quashing of FIR No. 316 of 2002 for offence under Section 366, RPC. It is inter alia maintained in the petition that Sadiq Hussain, respondent No. 3 has lodged false and frivolous report before police station Katra on 13.12.2002, alleging therein that his daughter Shamim Akhtar has been forcibly abducted by petitioner No. 1, as a result of which FIR No. 316 of 2002 came to be registered by the said police. That proforma respondent Shamim Thakur is legally wedded wife of the petitioner No. 1 that the learned City Judge, Jammu has recorded the statement of said Shamim Akhtar alias Shamim Thakur under Section 164, Cr.P.C, wherein she has stated that she has embraced Hinduism out of free will without any coercion or pressure from any side and her marriage with petitioner No. 1 which was resisted by his father who came to lodge a false report before police Katra that she has been never abducted by any person, that the names of petitioner Nos. 2 and 3 have been manipulated in the FIR, that the petitioner No. 1 and respondent No. 4 are living as husband and wife since the inception of their marriage which came to be solemnized in accordance with the Hindu rites and ceremonies. The proforma respondent Shamim Akhtar alias Shamim Thakur has filed her reply through her counsel Ms. Pratima Singh, wherein she has admitted the Claim of the petitioners that she is legally wedded wife of the petitioner No. 1 namely Shyam Singh and she is living peacefully with her husband since 25th May 2001 and that she has embraced Hindu religion out of her free will and without any coercion from any quarter whatsoever. Pratima Singh, wherein she has admitted the Claim of the petitioners that she is legally wedded wife of the petitioner No. 1 namely Shyam Singh and she is living peacefully with her husband since 25th May 2001 and that she has embraced Hindu religion out of her free will and without any coercion from any quarter whatsoever. However, in this behalf her father Sadiq Hussain, respondent No. 3 lodged a false report before the police station Katra who in turn to register a case as FIR No. 316 of 2002. It is further stated that she has been never subjected to any abduction by the petitioner No. 1 with whom she is voluntarily entered into wed lock. That her father also filed Habeas Corpus petition in this Court and she appeared in the said case and that came to be disposed of after observing that despite best efforts/persuations made by the parents and other relations she stuck to her decision as the scope of Habeas Corpus is limited, no further direction is to be given. From the bare perusal of this judgement of this Court in the said Habeas Corpus petition, it lefts no scope for further investigation by the police in the FIR in question. That she also made a statement before the learned City Judge, Jammu which is enclosed as Annexure R1; that she has admitted all the paras of the judgment. 6. Heard learned counsel for the parties. In case titled as State of Haryana v. Bhajan Lal, 1992 Supp(1) SCC 335 the Apex Court has laid down principles of law relating to the exercise of the extraordinary powers under Article 226 or inherent powers under Section 482 which correspondence to 561-A, Cr.P.C, which are extracted as under:- (i) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (ii) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155 (2) of the Code. (ii) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155 (2) of the Code. (iii) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and made out a case against the accused. (iv) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (v) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (vi) Where there is an express legal bar engrafted in any of the provisions of the Code of the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (vii) Where a criminal proceeding is manifestly attended with mala fide and/ or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." Having regard to these principles, let me examine the case of the petitioner. 7. The learned counsel for the respondent No. 4, Shamim Akhtar has produced her date of birth certificate in original issued by the Jammu & Kashmir State Board of School Education, Jammu, in which her date of birth is recorded as 22.5.1980. The occurrence alleged in the occurrence report of FIR No. 316 of 2002 disclosed the date of occurrence as 11.12.2002. This means that on the date of alleged occurrence, respondent No. 4 was major and under law she is competent to take decision about her own life. The occurrence alleged in the occurrence report of FIR No. 316 of 2002 disclosed the date of occurrence as 11.12.2002. This means that on the date of alleged occurrence, respondent No. 4 was major and under law she is competent to take decision about her own life. Thus, Shamim Akhtar who alleged to be the victim of abduction has made a statement under Section 164, Cr.P.C on 8.1.2003, which is Annexure D to this petition recorded by learned city Judge, Jammu. This certified copy of said statement wherein she has little giving sequence of events stated that on the 25th of May, 2001, she embraced Hinduism and married with Shyam Singh S/o Karan Singh R/o Chamba Bhagta Tehsil and District Udhampur with her full consent as she had love affair with him. Her father was opposed to this marriage, as a result of which she got the case of abduction registered against her husband Shyam Singh. The perusal of Annexure R. 3, reveals that Sadiq Hussain the father of Shamim Akhtar alias Shamim Thakur approached this Court through the medium of Habeas Corpus petition which came to be registered as Habeas Corpus Petition No. 44/2003 presuambly for the abduction of his daughter Shamim Akhtar before this Court to release her from the detention of Shyam Singh petitioner No. 1. This petition came to be disposed of by this Court on 4.2.2003 by an order which reads as under:- Shamim Akhtar is present in Court. Her parents and other relations are also present. They were exclusively in the company of each other for more than three hours. She submits that she would like to stay in the company of Sham Singh S/o Karan Singh. The parents do not dispute that Shamim Akhtar has attained the age of majority. The entire exercise was undertaken with a view to verify the will of Shamim Akthar. Despite best efforts/persuation made by the parents and other relations, she stuck to her decision. As the scope of habeas corpus is limited, no further direction is required to be given. This petition is disposed of accordingly. The parties are free to take such other steps as may be deemed proper." 8. Despite best efforts/persuation made by the parents and other relations, she stuck to her decision. As the scope of habeas corpus is limited, no further direction is required to be given. This petition is disposed of accordingly. The parties are free to take such other steps as may be deemed proper." 8. In her reply to this petition, Shamim Akhtar has in a very very clear words deposed that she has embraced Hinduism and has got her marriage solemnized in accordance with the Hindu rites and ceremonies with Shyam Singh, the petitioner No. 1 with whom she is living with her free will and consent. 9. In view of the aforesaid discussion, it is sufficiently made out that the allegations of abduction of respondent No. 3 made in the FIR in question are based on concocted, false and incorrect facts. Therefore, the investigation of the police on the basis of FIR in question is nothing but an abuse of process of law, the petition is therefore, accepted and the FIR No. 316 of 2002 of police station Katra is quashed. The original date of birth certificate produced before the court is returned back to the leaned counsel for the respondent No. 4 in the open Court after obtained Photostat copy of the same. The same is made part of the file.