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2008 DIGILAW 376 (JK)

Farmeed Begum v. State

2008-10-13

SUNIL HALI

body2008
1. Petitioners through this petition under section 561-A Cr.P.C. seeks quashment and setting aside of FIR No.135 of 2008 dated 23.04.2008 lodged under section 363 RPC against Mr. Mohd Younus, Mr. Mohd Rashid, Mr. Mohd Rafeeq, Mr. Mohd Shabir, Mr. Mohd-e-Azam, all son of Said Mohd and Mohd Riaz son of Mohd Rafeeq, all residents of village Sawani, Tehsil and District Rajouri, J&K in Police Station, Rajouri, District Rajouri, J&K. 2. Learned counsel for the petitioners has submitted that the petitioner No.1 was in love with petitioner No.2 and wanted to marry him out of her love and affection. The father of petitioner No.1 and her relatives objected to said marriage. Despite that petitioners got married on 19.04.2008 after completing all legal formalities and ceremonies of Nikah. It is also case of the petitioners that they approached the concerned Police for help but all in vain. He further states that it is the duty of the police authorities to protect the lives and liberty of petitioners but instead of doing so, respondent No.3 i.e., S.H.O., Police Station, Rajouri registered impugned FIR bearing No.135 of 2008 dated 23.04.2008 against aforesaid accused which is false, frivolous and concocted. Petitioners seek quashment of the aforesaid FIR on the ground that it is registered in order to set into motion the proceedings against the accused persons at the behest of prosecutrix Mrs. Farmeed Begum who is petitioner No.1 and she is before this Court to explain that neither she had been kidnapped nor she has any threat to her life by any of the accused named in the FIR No.135 of 2008 dated 23.04.2008 rather the petitioners are under threat from her close relatives names of which have been given in para 9(b) of the present petition. 3. Respondents were put to notice vide order dated 20.05.2008. Mr. R.P.Sharma, Advocate has appeared on behalf of respondent No.4 and filed objections stating therein that petitioner No.1 is a minor aged below 16 years and has been illegally kidnapped by accused Mohd Younis husband of elder daughter of respondent No.4 on the pretext of meeting her elder sister on 17.04.2008. Respondents were put to notice vide order dated 20.05.2008. Mr. R.P.Sharma, Advocate has appeared on behalf of respondent No.4 and filed objections stating therein that petitioner No.1 is a minor aged below 16 years and has been illegally kidnapped by accused Mohd Younis husband of elder daughter of respondent No.4 on the pretext of meeting her elder sister on 17.04.2008. A criminal conspiracy was hatched by said accused along other accused, namely, Mohd Rashid, Mohd Rafiq, Mohd Shabir, Mohd Azam son of Said Mohd, Mohd Riaz son of Mohd rafiq and others including Mohd Sabir residents of Sawni (Path) Agrati to forcibly, deceitfully and illegally kidnap her to arrange marriage against her consent and by application of force. Respondent No.4 submitted that her daughter petitioner No.1 was not in a position to give consent being minor and has been forced to enter into Nikah with Mohd Sabir- petitioner No.2. Respondent No.4 has also submitted in his objections that her daughter i.e. petitioner No.1 has not put her thumb impression on any document. A fraud has been committed and the victim needs to be medically examined to ascertain her age by Ossicification/Radiology tests and further submitted that the accused persons need to be punished in accordance with law, keeping in view public morality and social nature of offence. 4. I have heard learned counsel for the parties and perused the record. Undoubtedly, this petition has been filed by Farmeed Begum, against whom it is alleged that she has been kidnapped by respondent No.2 and other persons. It is not in dispute that petitioners have produced the Nikahanama, in which it is alleged that the girl is of 20 years age and married petitioner no.2 with her own free will. The father of girl has filed a complaint before the Police Station concerned stating therein that petitioner no.2 has kidnapped his daughter, i.e., petitioner No.1. It is alleged in the FIR that she is minor below the age of 16 years and she has been kidnapped by petitioner no.2 taking the benefit of her innocence. 5. In the face of this, this court is called upon to decide the question as to whether the complaint or FIR can proceed after the parties are stated to have entered into the matrimonial dispute. 5. In the face of this, this court is called upon to decide the question as to whether the complaint or FIR can proceed after the parties are stated to have entered into the matrimonial dispute. Institution of FIR and initiation of investigation by the police cannot be intercepted by this court while exercising the power under section 561-A Cr.P.C., unless it is shown from the record that the material on the basis of which the investigation is being lodged does not disclose any cognizable offence. It is only on disclosure of the cognizable offence that the Investigating Officer can proceed to investigate the matter. Once the material discloses the commission of cognizable offence, then the Investigating Officer under law is bound to initiate the investigation. No fault can be attributed to the investigation conducted by the police. 6. In the present case, there is clear allegation that petitioner no.2 has kidnapped petitioner No.1 with the connivance of other accused named in the para No.9 (b) of the petition. On the contrary, petitioner No.1 also states that she is major of 20 years which is disclosed in the Nikahnama and is living with petitioner No.2 with her own will. FIR reveals that petitioner No.1 is below 16 years of age which is confirmed from the ration card issued in favour of the complainant family which includes the name of the petitioner No.1 as well. Which of the two contentions is correct is a matter which cannot be decided by this court but can only be revealed during investigation. Once there is allegation leveled in the FIR that she is minor, the court will have to stay their hands off to allow the investigation to the matter to be continued, even if it is undisputed that petitioner No.1 has married petitioner No.2. I say so because the consent of minor is of no relevance under law. I am not inclined to accept the plea of Mr.Basotra that such FIR is required to be quashed. 7. Accordingly, I find no force in this petition, which is dismissed as such along with the connected CMP(s).