Research › Search › Judgment

J&K High Court · body

2010 DIGILAW 344 (JK)

Musa Sami v. State

2010-06-05

HASNAIN MASSODI

body2010
JUDGMENT (1) SHRI Tashi Tsering resident of Gorkani Kargil on 26th April 2010, lodged a report with Police Division Housing Colony Leh, alleging therein, that his daughter a student of Higher Secondary School, Leh was on 14th April kidnapped by one Mohd. Musa resident of Nobra Leh, with the intention to commit rape on the kidnapped girl. The report lead to registration of case FIR 47/2010 under Sections 366, 376, RPC at Police Station Leh. The kidnapped girl has been allegedly recovered from the custody of Mohd. Musa-petitioner herein and restored to her parents. The statement of the victim under Section 164-A, Cr. PC, stands recorded. The results of investigation have lead to addition of offence punishable under Section 376, RPC, to the list of offences alleged against the petitioner-accused. (2) THE petitioner-accused through his uncle Shri Qurban Ali seeks exercise of inherent powers under Section 561-A, Cr. PC. to quash the First Information Report and proceedings emanating from. THE petitioners case is that the alleged victim, of her own free will married the petitioner-accused in accordance with law of the land. THE petitioner-accused claims that as the alleged victim who according to the petitioner-accused is major has decided of her own to contract marriage with the petitioner-accused and live with the petitioner as his legally wedded wife, the report lodged by Shri Tashi Tsering and the First Information Report registered by Police Station Leh on the basis of said report, is groundless and amounts to erroneous exercise of powers and jurisdiction, under the Criminal Procedure Code. THE petitioner insists that the FIR No. 47/2010 registered in Police Station Leh and the proceedings emanating there from deserve to be quashed to secure ends of justice. THE petitioner-accused on the grounds urged in the petition and Cr. M.P. No. 123/2010 seeks bail pending disposal of the petition under Section 561-A, Cr. P.C. Heard and considered. (3) THE Supreme Court in Janata Dal v. H. S. Chowdhary, 1993 Cri LJ 600 : (AIR 1993 SC 892) commenting upon scope and ambit of inherent powers of the High Court under Section 561-A (S. 482 of Central Code) has observed : "THE Criminal Courts are clothed with inherent powers to make such order as may be necessary for the ends of justice. Such power though unrestricted and undefined should not be capriciously or arbitrarily exercised, but should be exercised in appropriate cases, exdebito justitiae to do real and substantial justice for the administration which along the Courts exist. THE powers possessed by the High Court under S. 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Courts must be careful to see that its decision in exercise of this power is based on sound principles. THE inherent power conferred by S. 482 should not be exercised to stifle a legitimate prosecution. THE High Court being the highest Court of a State should normally refrain from giving a premature decision in a case wherein the entire facts are extremely incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved whether factual or legal are of great magnitude and cannot be seen in their true perspective without sufficient material......." (4) THE law was reiterated in Union of India v. W. N. Chadha, 1993 Cr LJ 859 : (AIR 1993 SC 1082). THE Court observed as under:- "No doubt every Court has its plenary powers to deliberate upon every issue agitated before it as well as any other issue arising on the materials placed before it in the manner known to law after giving prior notice and affording an opportunity of being heard. This power of discharging the statutory functions whether discretionary or obligatory should be in the interest of justice and confined within the legal permissibility. In doing so, the Judge should disengage himself of any irrelevant and extraneous materials which come to his knowledge from any source other than the one presented before him in accordance with the law and which are likely to influence his mind one way or the other." In Som Mittal v. Govt. of Karnataka 2008 AIR SCW 1003 : (AIR 2008 SC 1126 : 2008 Cri LJ 1610) the Supreme Court while dealing with the subject observed : "10. In a catena of decisions this Court has deprecated the interference by the High Court in exercise of its inherent powers under Section 482 of the Code in a routine manner. It has been consistently held that the power under Section 482 must be exercised sparingly, with circumspection and in rarest of rare cases. In a catena of decisions this Court has deprecated the interference by the High Court in exercise of its inherent powers under Section 482 of the Code in a routine manner. It has been consistently held that the power under Section 482 must be exercised sparingly, with circumspection and in rarest of rare cases. Exercise of inherent powers under Section 482 of the Code of Criminal Procedure is not the rule but it is an exception. The exception is applied only when it is brought to the notice of the Court that grave miscarriage of justice would be committed if the trial is allowed to proceed where the accused would be harassed unnecessarily if the trial is allowed to linger when prima facie it appears to Court that the trial would likely to be ended in acquittal. In other words, the inherent powers of the Court under Section 482 of the Code of Criminal Procedure can be invoked by the High Court either to prevent abuse of process of any Court or otherwise to secure the ends of justice." (5) FROM the above overview of law on the subject, it emerges that the inherent powers under Section 561-A, Cr. P.C. are to be exercised very rarely and in exceptional cases, where refusal by the High Court to exercise such powers is bound to result in gross miscarriage of justice. The inherent powers are to be exercised only to prevent abuse of process of Court, to secure ends of justice or to ensure that the orders of Court are carried out. The Court while exercising powers is not to assume role of trial Court and rush to sift grain from the chaff, when the parties are yet to disclose their stand and the trial Court has yet to record evidence of the parties. In the present case, the facts pleaded in the petition may be a defence available to the petitioner-accused in the trial. The material sought to be pressed into service should not persuade the Court to scuttle the investigation/proceedings at the very threshold and draw final conclusions when the case is yet to be unfolded by the prosecution and controverted by the accused-petitioner. The material sought to be pressed into service should not persuade the Court to scuttle the investigation/proceedings at the very threshold and draw final conclusions when the case is yet to be unfolded by the prosecution and controverted by the accused-petitioner. Courts have been time and again reminded not to feel tempted to return a verdict on culpability or innocence of the petitioners even before the trial commences, as is the endeavour of the petitioner-accused in the present case. The prosecution case is that the victim was abducted by Mohd. Musa-accused and thereafter during her alleged captivity subjected to rape. The trial Court would be well equipped to return a finding on the veracity of the prosecution case after the evidence is recorded and trial taken to its logical end. The present case for the reasons discussed does not fall in any of the three categories identified in Section 561-A, Cr. P.C. as sine qua non for exercise of inherit powers. For the reasons discussed, the petition under Section 561-A, Cr. P.C. is without any merit and deserves to be dismissed. (6) THE petitioner-accused as pointed out above along-side the petition 561-A has filed an application (Cr. MP No. 123/2010) for grant of bail. THE petitioner after his arrest in April 2010 approached the Learned Sessions Court Leh with an application for grant of bail. THE Learned Sessions Judge rejected the bail application vide order dated 7-5- 2010. THE petitioner-accused in the above back ground has filed instant bail petition before this Court. THE respondents despite repeated opportunities and adjournments have not filed their objections to the bail petition. Ms. Nusrat Razaq, Government Advocate, complains that she did not get necessary cooperation from the respondents and that the respondents, despite repeated requests, have avoided to transmit information as would enable learned counsel to file objections to the bail petition and formulate her response to the bail application. Learned counsel for the petitioner-accused in addition to the grounds urged in the petition under Section 561-A, Cr. P.C. and bail application states that the petitioner-accused, belongs to a far-flung area of Ladakh and is the only bread earner of his family. It is submitted that continued incarceration of the petitioner-accused has pushed his family to starvation. Learned counsel for the petitioner-accused in addition to the grounds urged in the petition under Section 561-A, Cr. P.C. and bail application states that the petitioner-accused, belongs to a far-flung area of Ladakh and is the only bread earner of his family. It is submitted that continued incarceration of the petitioner-accused has pushed his family to starvation. It is urged, that the statement of the victim has been recorded, the medical opinion procured and other segments of the investigation completed and continued custody of the petitioner-accused is not warranted for progress in the investigation. THE learned counsel for the petitioner also intends to get advantage from the willful failure of the respondents to oppose the bail application. In the totality of the circumstances and for the reasons discussed, the petitioner-accused namely Mohd. Musa is granted interim bail till 25th June, 2010 and the petitioner- accused directed to be let off subject to following conditions : 1) That the petitioner-accused furnishes two surety bond in the amount of Rs. 50,000/- and personal bond in identical amount to the satisfaction of Sessions Judge Leh. 2) That the petitioner-accused undertakes not to obstruct investigation/trial during the period of interim bail. 3) That the petitioner-accused and the sureties undertake that the petitioner-accused shall not intimidate or influence the prosecution witness during the period of interim bail or otherwise temper with the prosecution evidence. 4) That the petitioner-accused and sureties undertake that the petitioner-accused shall not leave territorial limits of Ladakh division during the period of interim bail. 5) That the petitioner-accused and sureties undertake that the petitioner-accused shall surrender in the Sessions Court Leh on 25th June, 2010 for further necessary orders. (7) THE Sessions Judge Leh shall decide the application, if any, made by the petitioner- accused for bail/extension in interim bail on its own merits unmindful of this order and observations made herein. (8) THE petition under Section 561-A No. 64/2010 is dismissed and Cr. M.P. No. 123/2010 disposed of accordingly. Order accordingly.