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2008 DIGILAW 156 (JK)

Rubina Akther v. State

2008-05-03

SUNIL HALI

body2008
1. An FIR came to be lodged with Police Station, Kupwara, under No. 29/07 dated 3rd April 2008 u/s 366 and 363 RPC. 2. The allegations contained in the said FIR are that petitioner No.2, has kidnapped petitioner No.1, from legal custody of her parents. The process of investigation was set in motion, after filing of the FIR. Petitioners have come before the Court u/s 561-A seeking its quashment on the following grounds: a) that they are married in terms of the Muslim law. A "Nikahnama" has been executed, which is also accompanied by a marriage agreement dated 30th January, 2008; b) that the petitioner No.1 is major, and in support of which a certificate of the Medical Officer has been placed on record. So no purpose would be achieved H. in allowing this investigation to go ahead, as ultimately the case would hinge on the statement of petitioner No. 1. 3. Vide Court order dated 11.04.08 the respondents were put on notice and in the meanwhile proceedings arising out of FIR No. 29/07 u/s 366, 363 RPC registered at P/S Kupwara against the petitioner(s) would remain stayed; the operative portion of the order quoted herein below: "....Meanwhile further proceedings against out of FIR No. 29 of 2007 under Sec. 363 RPC registered at Police Station, Kupwara against petitioner No.2 shall stay. Sr. Superintendent of Police, Kupwara (respondent No.2) is directed to ensure the protection of both the petitioners." 4. The girl in the meanwhile was recovered by police concerned and is currently under the custody of Police station Rambagh. 5. That the respondents caused their appearance and claimed that petitioner No.1 is a minor. This assertion of the learned Addl. Advocate General, was based upon investigation conducted by the police concerned and they have procured a certificate from the school where she was studying. The certificate clearly reveals that petitioner No.1 is born on 2nd April 1991. It is further contended by the respondents that this is not a case where the court can restrict the investigation. 6. I have heard learned counsel for parties. Inherent jurisdiction of the court can be exercised to give effect to an order under the Code, to secure the ends of justice and to ensure that there is no abuse of process of the court. 7. 6. I have heard learned counsel for parties. Inherent jurisdiction of the court can be exercised to give effect to an order under the Code, to secure the ends of justice and to ensure that there is no abuse of process of the court. 7. Inherent powers of the court are to be exercised only in cases where the statute is silent and such a power can be exercised only to further cause of justice. Inherent powers of the court cannot be exercised to cause fetters in exercise of statutory power vested with the investigating agency. 8. Coming to the facts of the case. There is an FIR No.29/07 registered against the petitioner No.2 for having kidnapped petitioner No.1 and the police exercised its power u/s 154 and 156, who have power to enquire into and investigate the matter. The power of Investigating Officer cannot be controlled or monitored by this Court nor by a Magistrate. It is a sole domain of the Investigating officer to examine the veracity of the complaint and to collect such information in furtherance of the said investigation. The only constrain on the Investigating officer is that before he sets in the process of investigation he has to see as to whether any cognizable offence is made out from the allegations as are leveled in the FIR. It is only in cases where the Investigating officer proceeds with the investigation despite the fact that where no cognizable offence is made out from the allegations and power n/s 561-A can be exercised. 9. That the inherent powers of the court is saved only where no order has been passed in criminal court which is required to be set aside to secure the ends of justice or where the proceedings pending before the Court amounts to abuse of process of the court. 10. It is well settled principle of law that the Investigating agency has to submit a report to the Magistrate after making full and complete investigation. The agency may submit a report finding the allegations substantiated. It is also open to the investigating agency to submit a report finding no material to support the allegations made in the first information report. It is open to the Magistrate concerned to accept the report or to order further enquiry. The agency may submit a report finding the allegations substantiated. It is also open to the investigating agency to submit a report finding no material to support the allegations made in the first information report. It is open to the Magistrate concerned to accept the report or to order further enquiry. But what is clear is that the Magistrate cannot direct the investigating agency to submit a report that is in accord with his views. 11. The police authorities u/ss 154 and 156 of the Code have a statutory right to investigate into a cognizable offence without requiring any sanction from a judicial authority or even the High Court has no inherent power under Section 561-A to interfere with the exercise of that statutory power. 12. In the case in hand the police has to investigate as to whether petitioner No.2 has committed the offence u/s 366, & 363 RPC, such an enquiry is at the very infancy stage. 13. The investigating officer may at the conclusion of the investigation find that charges are made out and have to submit a report u/s 173 Cr.P.C before the Magistrate. This power of the investigation cannot be curtailed by this court while exorcising the power u/s 561-A. 14. In this case the investigation is still going on. The age of petitioner No.1 has been found to be below 18 years. From the facts disclosed in the FIR. Cognizable offence is made out and the investigating officer has power to go ahead with the investigation. 15. In do not find, any ground to interfere at this stage, as such the petition under section 561-A is dismissed. 16. As already noticed above, the petitioner No.1 has been recovered from the custody of petitioner No.2 during course of investigation and she is currently been lodged in police station Rambagh. Her confinement cannot be prolonged and I, accordingly, direct the police station concerned to present petitioner No.1 before C.J.M. Srinagar on 5th May 2008, for recording of her statement to ascertain with whom she likes to stay. The CJM after recording the statement pass appropriate orders. It is expected that he would not delay the matter as the liberty of petitioner No.1 is involved. Disposed of.