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2009 DIGILAW 543 (JK)

Mohd. Imran Dagga v. State

2009-11-06

J.P.SINGH

body2009
1. S. Sanat Singh, lodged a report with Police Post, Bemina on October 18, 2009 about the kidnapping of Ms Amit Paul Kour, D/O S. Mohinder Paul Singh, by Imran Ahmad Dagga R/O Firdous Colony, Bemina, Srinagar. FIR No. 264/ 2009, was, accordingly registered on this report at Police Station, Parimpura, Srinagar, under Section 366 RPC on October 18, 2009. 2. Mohammad Imram Dagga, petitioner No.1 and Asiya @ Amit Paul Kour, petitioner No.2 have approached this Court, by their petition, seeking quashing of the proceedings in FIR No. 264/ 2009, besides seeking directions against the respondents not to arrest/ harass the petitioners and permit them to lead a peaceful and respectful life. 3. Petitioners have pleaded in their petition, that petitioner No.2, born in a Sikh Family, converted to Islam on July 23, 2009. Being major, she, out of her free will, contracted marriage with petitioner No.1, according to the Muslim Personal Law. Petitioners efforts to convince the parents and relatives of petitioner No.2, to accept their marriage having failed, petitioner No.2s father S Mohinder Paul Singh, respondent No.5, in retaliation, got the FIR registered against them, with a view to harass them and interfere into their married life. 4. The petition is supported by a Certificate issued under the Registration of Births and Deaths Act 1969, indicating petitioner No.2 to have been born on June 04, 1989. Copy of the statement made by petitioner No.2 on October 02, 2009, before the Chief Judicial Magistrate, Budgam, has also been placed on records, alongwith the Marriage Agreement, Nikah Nama and the Certificate issued by Mufti Mohammad Bashir-ud-din Ahmad, the Grand Mufti, State of Jammu and Kashmir. 5. Respondent No.5, has filed his Counter Affidavit, questioning the maintainability of petitioners petition, besides saying that petitioner No.2 has attained majority very recently and in view of the projected relationship of the petitioners for the last six years, petitioner No.1 was guilty of abduction of a minor. Denying petitioner No.2s conversion to Islam, it is stated that petitioner No.2 was under influence, intimidation, threat and force of petitioner No.1. 6. During the pendency of the petition, petitioner No.2 had appeared in the Court, stating that she had married petitioner No.1, out of her free will, and respondent No.5 had got the FIR registered against petitioner No.1, to interfere into married life of the petitioners. 7. 6. During the pendency of the petition, petitioner No.2 had appeared in the Court, stating that she had married petitioner No.1, out of her free will, and respondent No.5 had got the FIR registered against petitioner No.1, to interfere into married life of the petitioners. 7. On the request of the petitioners learned Counsel, petitioner No.2 was permitted to stay at Women Cell, Police Station, Ram Munshi Bagh until final consideration of the matter. 8. Petitioner No.2s statement, too was recorded, as requested by the learned Counsel for the parties, by Registrar Judicial of the Court. 9. The statement of petitioner No.2, indicates that petitioner No.2 was born on June, 04 1989, and being major had taken decision to contract marriage with petitioner No.1, as both of them had been knowing each other for the last 7/8 years. Projecting that she was free, under law, to take her own decision to lead her life, she had, out of her free will decided to live and reside with petitioner No.1, with whom she had contracted marriage. 10. I have heard learned Counsel for the parties and perused the case law cited at the Bar, in support of their respective submissions. 11. According to the documents placed on records, petitioner No.2 is shown to have been born on June 04, 1989, which position is not controverted by respondent No.5 and his learned Counsel. Petitioner No.2 is therefore, major. 12. Petitioner No.2 being major and a Citizen of the Free and Democratic Country, can marry whomsoever she likes. Article 25 of the Constitution of India guarantees her the Freedom of conscience and the Right freely to process, practice and propagate any religion. 13. Consistent statements made by petitioner No.2, before the registration of FIR and during the pendency of the petition, in this Court, indicate about her independent decision to marry petitioner No.1. Her statement further testifies, that she has contracted marriage with petitioner No.1 and wants to live and reside with him. 14. In these circumstances, until the contrary was proved about her consent, having been obtained by threat, force and compulsion, keeping in view her majority, she needs to be protected, from any harassment by her parents, relations and by the police agency, so that her Constitutional Right of Life and Personal Liberty was protected. 15. 14. In these circumstances, until the contrary was proved about her consent, having been obtained by threat, force and compulsion, keeping in view her majority, she needs to be protected, from any harassment by her parents, relations and by the police agency, so that her Constitutional Right of Life and Personal Liberty was protected. 15. Accordingly, a direction shall issue to the State-respondents to ensure that none interferes in petitioner No.2s life and in her putting up with petitioner No.1. SHO, Police Station, Parimpora, is directed to take requisite measures, in this respect, and provide all requisite police protection to the petitioners, keeping the Senior Superintendent of Police, Srinagar informed about the action taken by him in this behalf. 16. In view of the law laid down by the Honble Supreme Court of India in State of Haryana and Others v. Bhajan Lal and Others, 1992 Supp (1) SCC 335, and various other judgments of the Apex Court on the issue, I am not inclined, at this stage to interfere with the police investigation to investigate the FIR to find out the truth as regards respondent No.5s Complaint pertaining to petitioner No.2s abduction/ kidnapping by petitioner No.1, in that, the facts and circumstances of the case do not make the present case a `rarest of rare cases, warranting exercise of jurisdiction by this Court to quash the FIR, which has not yet been investigated because of the interim order passed by the Court, and scuttle the investigation about the alleged abduction/kidnapping of petitioner No.2. Statement of petitioner No.2, which has not yet been tested on the touch stone of cross-examination or other factors, which may come to light during the investigation, cannot be taken at this stage to be the conclusive evidence to reject the allegations appearing in the FIR. 17. This petition is, accordingly, allowed only to the extent indicated hereinabove, declining, however, the relief of quashing the FIR. The Police is directed to expedite the investigation of the case, but while doing so shall ensure that no harassment was caused to the petitioners during the currency of the investigation. 18. 17. This petition is, accordingly, allowed only to the extent indicated hereinabove, declining, however, the relief of quashing the FIR. The Police is directed to expedite the investigation of the case, but while doing so shall ensure that no harassment was caused to the petitioners during the currency of the investigation. 18. In the facts and circumstances of the case, it is considered appropriate to admit petitioner No.1 to bail in FIR No. 264/ 2009, registered at Police Station, Parimpora, Srinagar on his furnishing recognizance of a surety and his personal recognizance, in the amount of Rs 25,000/-, to the satisfaction of the Registrar Judicial. Petitioner No.1 shall file an undertaking, that he shall not leave the Kashmir Valley, without the permission of the Court and shall join the investigation as and when required by the Investigating Police Officer. Petitioner No.2 shall also make herself available to the police for her statement or other information as and when so required.