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2012 DIGILAW 620 (JK)

Gh. Mohd. Dar v. State Of J&K

2012-09-28

Mansoor Ahmad Mir

body2012
1. The petitioners have sought quashment of FIR No. 56 of 2003 registered at Police Station Shopian, under Sections 379, 447 and 427 RPC, and the proceedings drawn by the Court of Chief Judicial Magistrate, Shopian, on the grounds taken in the memo of the petition. 2. Mr. M. Ayub, learned counsel appearing for the petitioners, argued that an FIR, bearing No. 195 of 1991, had already been lodged against the petitioners on the selfsame allegations and the accused therein were tried and acquitted vide judgment and order dated 16.06.2003. Thereafter, the present FIR was lodged on the same set of facts and allegations on 1st of April, 2003. It is further submitted that the entire proceedings are without jurisdiction and abuse of process of law. Such a course adopted amounts to double jeopardy. The arguments of Mr. Ayub, learned counsel for the petitioners, is devoid of any force for the following reasons: 3. It is seen from the minutes of FIR No. 195 of 1991 that the said occurrence was of June 24th, 1999. The allegation against the accused therein was that they had entered into the compound of the complainant without any right or reason, and beat the complainant with hands and feet. In that FIR, it was further alleged that the accused damaged the newly raised construction and also dismantled two shops. Charge sheet therein was presented before the competent Court of jurisdiction and the accused were charge sheeted on 19.08.2000. The accused pleaded not guilty and after trial, came to be acquitted vide judgment and order dated 16.06.2003. 4. The present occurrence is alleged to have taken on 1st of April, 2003 and the application thereabout was presented before the Court of Chief Judicial Magistrate, Shopian, in terms of Section 190 Code of Criminal Procedure (for short Cr. P. C.). The learned Chief Judicial Magistrate directed the concerned SHO to take necessary action as warranted under law. In the said application, it was alleged that the complainant is having two marlas of land falling under survey No. 494 situate at Village Killora Malikgund Tehsil Shopian, having fruit bearing walnut trees standing thereon. It was also stated that the said land was in possession of father of the complainant and, thereafter, in his possession. In the said application, it was alleged that the complainant is having two marlas of land falling under survey No. 494 situate at Village Killora Malikgund Tehsil Shopian, having fruit bearing walnut trees standing thereon. It was also stated that the said land was in possession of father of the complainant and, thereafter, in his possession. The accused committed criminal trespass by entering into the said land and damaged the plinth raised in the land in question and, with a criminal intention, took away/ stole the stones and iron bars of the DPC of the plinth. It is also alleged that the accused erected a tin shed on the said land with the intention of forcibly taking possession thereof. 5. What is seen from the record is that FIR No. 56/2003 was registered at Police Station, Shopian, under Sections 379, 447 and 427 RPC. The investigation was conducted and final report was submitted in terms of Section 173 Cr.P.C. before the Court of Chief Judicial Magistrate, Shopian. The trial Court, after examining the case, came to the conclusion that the accused-petitioners are prima facie involved in the commission of offence under Section 447 RPC and, accordingly, recorded the statement under Section 242 Cr. P.C., and followed the summons procedure, being the summons case, in terms of order dated 07.07.2004. The accused pleaded not guilty and claimed to be tried. The prosecution was directed to lead evidence. From perusal of the prosecution file, it is revealed that out of six prosecution witnesses enlisted in the charge sheet, statement of witnesses PW1, PW4 and PW5 was recorded. 6. Perusal of the trial Court record discloses that the accused have not remained present regularly before the trial court and that is why delay has crept in concluding the trial. What emerges is that, after a lapse of more than nine years from the institution of charge, i.e., 09.06.2003, the petitioners have sought quashment of FIR, charge sheet and the proceedings drawn by the trial Court, on the ground that the accused carne to be tried earlier in FIR No. 195 of 1991, which is flagrantly, factually incorrect, as discussed hereinabove. What flows from the arguments and averments made in the petition at hand is that the petitioners, in the garb of the present petition, virtually want to delay the proceedings. 7. What flows from the arguments and averments made in the petition at hand is that the petitioners, in the garb of the present petition, virtually want to delay the proceedings. 7. I have gone through the charge sheet submitted and statement of the accused recorded under Section 242 Cr. P.C. I am of the considered view that the lodging of FIR, filing of charge sheet under Section 173 Cr. P.C. and conducting the proceedings, i.e., recording of the statement of the accused under Section 242 Cr. P.C. and recording evidence cannot be said to be abuse of process of law. Thus, this petition merits to be dismissed. Dismissed as such along with Cr. M.P. However, the trial Court is directed to conclude the trial as expeditiously as possible, preferably within six months. 8. Registry is directed to remit the record forthwith to the trail Court alongwith copy of this judgment. The petitioners are directed to cause their appearance before the trial Court on 01.10.2012.