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2014 DIGILAW 141 (JK)

Javid Iqbal v. State Of J&K

2014-03-28

MOHAMMAD YAQOOB MIR

body2014
1. Flash back of the events which have given rise to multiple litigations is advantageous to be precisely noticed. 2. Dr. Javid Iqbal while doing his M.S. and Registrarship in P.G.I. Chandigarh came in contact with one Ms. Gurpreet Kaur when her grand-mother was admitted in PGI for treatment. In the process, Dr. Javid Iqbal and Ms. Gurpreet Kaur became good friends. In the year 2005, eventually Dr. Javid Iqbal proposed marriage and ever since they were treating each other as husband and wife. 3. On 06.07.2010, Dr. Javid Iqbal completed the period of PGI job and left Chandigarh. When marriage proposed could not fructify, Ms. Gurpreet Kaur lodged a report in Police Station, Rajouri which was registered as FIR No.263/2010 dated 31.07.2010 for the commission of offences punishable under Sections 376/420/501/120-B RPC against Dr. Javid Iqbal, Zaffer Iqbal and Mohd Qasam, who thereafter filed petition under Section 561-A Cr.P.C No.147/2010 on 09.08.2010 seeking quashment of said FIR. While considering the documents as were placed on record, i.e., marriage agreement, two affidavits, one on behalf of Dr. Javid Iqbal and another of Ms. Gurpreet Kaur, copy of statement of Ms. Gurpreet Kaur recorded on 06.08.2010 by the Court of Sub Judge (JMIC), Jammu and copy of application addressed by Ms. Gurpreet Kaur to the Senior Superintendent of Police, Rajouri requesting for stopping further investigation in the said FIR No.263/2010 vide order dated 11.08.2010, proceedings as were initiated pursuant to said FIR were directed to be kept in abeyance, until determination of the objections to be filed by the respondents therein. 4. During the pendency of this petition, relationship between Dr. Javid Iqbal and Ms. Gurpreet Kaur alias Samira Choudhary got strained, as a result whereof, Ms. Gurpreet Kaur alias Samira Choudhary lodged a report with Police Station, Women Cell, Jammu which was registered as FIR No. 19/2011 for the commission of offences punishable under Sections 498-A/109 RPC. 5. Again Ms. Gurpreet Kaur alias Samira Choudhary and Dr. Javid Iqbal settled the inter se dispute, as a result whereof, Ms. Gurpreet Kaur alias Samira Choudhary filed a petition under Section 561-A No. 320/2011 seeking quashment of said FIR No. 19/2011 as was registered at her instance. Agreement/compromise deed was filed, in support whereof statements of both were recorded on proper identification. Parties had amicably settled the dispute with the intervention of the Court and persuasion of learned counsel for the parties. Agreement/compromise deed was filed, in support whereof statements of both were recorded on proper identification. Parties had amicably settled the dispute with the intervention of the Court and persuasion of learned counsel for the parties. In the agreement, it has been stated and accepted that Dr. Javid Iqbal has issued cheque bearing No. 763021 drawn on J&K Bank Branch Darhal for an amount of Rs. 24.50 lac as price of the plot at Roop Nagar, Jammu which had been purchased by Ms. Gurpreet Kaur alias Samira Choudhary out of her funds. The jewellery got released on supurdnama from Police and returned back to Ms. Gurpreet Kaur alias Samira Choudhary as being her personal jewellery. Parties have also stated that they have decided to forgive and forget the dark phase of life and move forward. Based on said compromise, petition filed by Ms. Samira Choudhary was disposed of vide order dated 28.12.2011 and FIR No. 19/2011 as such stands quashed. 6. Again acrimonious situation arose between the parties. According to Dr. Javid Iqbal despite persuation Ms. Gurpreet Kaur alias Samira Choudhary was not ready to settle with him in Rajouri where he is permanently posted as Medical Officer. Now, she has again chosen to wreck vengeance. 7. On the other hand, it is alleged that it is not only Dr. Javid Iqbal, but his parents as well as his relations who were not happy with the marriage so they do not allow Ms. Gurpreet Kaur alias Samira Choudhary to reconcile. 8. According to Dr. Javid Iqbal despite persuasion when Ms. Gurpreet Kaur alias Samira Choudhary did not come back, he did sent `first divorce deed' (Talaknama) on 25.02.2012 with a specific stipulation in paragraph No. 11 that Ms. Gurpreet Kaur alias Samira Choudhary is again called upon to rethink and come to terms and start living without causing any further undue trouble to him and his family which course of meaningful reconciliation is still available to both. 9. When there was no response, Dr. Javid Iqbal filed a suit for restitution of conjugal rights, which was dismissed for want of prosecution. Then an application for restoration was also dismissed on 25.04.2012. In the meanwhile, Dr. Javid Iqbal did sent `second divorce deed' dated 27.03.2012. Again with a specific stipulation in paragraph No.12 Ms. 9. When there was no response, Dr. Javid Iqbal filed a suit for restitution of conjugal rights, which was dismissed for want of prosecution. Then an application for restoration was also dismissed on 25.04.2012. In the meanwhile, Dr. Javid Iqbal did sent `second divorce deed' dated 27.03.2012. Again with a specific stipulation in paragraph No.12 Ms. Gurpreet Kaur alias Samira Choudhary to rethink and come to terms and start living with him without causing any further undue trouble to him and his family which course of meaningful reconciliation, is still available to both under the tenets of Islam before the third and final divorce is pronounced. Allegedly failure of Ms. Gurpreet Kaur alias Samira Choudhary to reconcile as proposed, Dr. Javid Iqbal has issued `third divorce deed' dated 26.04.2012. 10. Ms. Gurpreet Kaur alias Samira Choudhary noticing all this, lodged one more report with Police Station, Rajouri which has been registered as FIR No. 226/2012 for the commission of offences punishable under Sections 376/406/420/379 and 120-B RPC wherein it has been alleged that Dr. Javid Iqbal had sexual relations with her during the period 25.02.2012 to 21.04.2012 when in view of `divorce deed' relationship as husband and wife had come to an end. According to Dr. Javid Iqbal relationship as husband and wife had come to an end when third divorce was pronounced on 26.04.2012. Until then, they continued to be as husband and wife. Furthermore according to Dr. Javid Iqbal, Ms. Gurpreet Kaur alias Samira Choudhary never came to the residence nor was putting up with him for the period 25.02.2012 to 21.04.2012. Dr. Javid Iqbal as such has filed another petition under Section 561-A No. 186/2012 seeking quashment of FIR No.226/2012. 11. In the meanwhile, investigation of the case FIR No. 263/2010, Police Station, Rajouri was completed and in view of the developments, a closure report was presented before the Court of learned Chief Judicial Magistrate, Rajouri. Complainant had appeared before the Court. Thereafter she did not appear, learned Court accepted the closure report vide its order dated 28.02.2012 after noticing the position of the statement of the prosecutrix recorded under Section 164-A Cr.P.C, marriage agreement, affidavit and Nikhanama. 12. Against said acceptance of closure report, Ms. Gurpreet Kaur alias Samira Choudhary has filed one more petition bearing 561-A Cr.P.C. No. 174/2013 seeking quashment of the said order dated 28.02.2012. 13. The case has chequred history. 12. Against said acceptance of closure report, Ms. Gurpreet Kaur alias Samira Choudhary has filed one more petition bearing 561-A Cr.P.C. No. 174/2013 seeking quashment of the said order dated 28.02.2012. 13. The case has chequred history. Aftermath of inter-religion marriage based on love affairs appears to have been miserably and finally reached to the point of `no return". 14. All the petitions are jointly taken up for adjudication. 15. Heard learned counsel for the parties. 16. Petition under Section 561-A Cr.P.C. No. 147/2010 filed by Dr Javid Iqbal and others and petition under Section 561-A Cr.P.C. No. 174/2013 filed by Ms. Gurpreet Kaur alias Samira Choudhary pertain to the proceedings of one FIR, i.e., FIR No. 263/2010, Police Station, Rajouri. The case in effect was registered for the commission of offences punishable under Sections 376/420/501/120-B RPC. 17. The marriage agreement dated 03.08.2010 in pursuance whereof Ms. Gurpreet Kaur alias Samira Choudhary after embracing Islam had contracted marriage with Dr. Javid Iqbal. In support of which, she has also filed affidavit deposing therein that she is married to Dr. Javid Iqbal out of her free will and consent and without any coercion, fraud, misrepresentation or undue influence from any quarter whatsoever, but with love and affection. She has decided to convert her religion from Sikh to Muslim and decided to marry Dr. Javid Iqbal. Statement of Ms. Gurpreet Kaur alias Samira Choudhary has also been placed on record, which is stated to have been recorded by Sub Judge, Jammu in File No.93, wherein she has stated that Javid Iqbal was a doctor in PGI Chandigarh. She met him and out of her free will had decided to marry with him and now is living with him. She has accepted the Islam out of her own free will. Then she has filed application, photocopy of which has been placed on records before Senior Superintendent of Police, Rajouri stating therein that they have compromised. It is stated by her that she has accepted the proposal for marriage under Muslim Act with consent of parents. Her name has been changed from Gurpreet to Samira. The copies of marriage certificate, marriage agreement and copy of the statement recorded by Sub Judge, Jammu are shown to have been attached with application so as to persuade Senior Superintendent of Police, Rajouri to stop further investigation in FIR No. 263/2010. 18. Her name has been changed from Gurpreet to Samira. The copies of marriage certificate, marriage agreement and copy of the statement recorded by Sub Judge, Jammu are shown to have been attached with application so as to persuade Senior Superintendent of Police, Rajouri to stop further investigation in FIR No. 263/2010. 18. In the same background, investigation of the case has been closed and closure report presented before Learned Chief Judicial Magistrate on 11.10.2011. When closure report is submitted, before acceptance of the same, complainant has to be given a Notice to lodge protest, if any A perusal of the records of Learned Chief Judicial Magistrate, Rajouri reveal that on 11.10.2011, Notice has been directed to be issued to the complainant for the next date, i.e., 02.11.2012 and the complainant had appeared and submitted Vakalatnama of Mr. A.K. Sawhney, Advocate which is available on record of the Magistrate, but thereafter had not opted to appear. Learned Magistrate taking note of statement recorded under Section 164-A Cr.PC, copy of marriage agreement, affidavit of complainant and other documents has accepted the closure report. The contention of learned counsel that closure report should not have been accepted more so when proceedings in the FIR were directed to be kept in abeyance vide order dated 11.08.2010 passed in 561-A No.147/2010. The contention has to be rejected because firstly it was not to the knowledge of learned Magistrate that further proceedings in FIR were kept in abeyance, secondly FIR was in effect rendered useless because it is the complainant who had entered into marriage and contracted marriage and moved application before SSP Rajouri that further proceedings in the case shall be stopped. In that view of the matter, there would be no question of commission of offence punishable under Section 376 RPC. Position of Dr. Javid Iqbal and Ms. Gurpreet Kaur alias Samira Choudhary having lived together as husband and wife, acceptance of closure report by learned Magistrate, cannot be found fault with. With the acceptance of closure report, petition filed by Dr. Javid Iqbal bearing 561-A Cr.P.C No. 147/2010 automatically is rendered in fructuous so there is no requirement of quashing the said FIR when proceedings in the said FIR have been closed as no offence has been established. 19. In view of subsequent disturbance in the relationship again a report was lodged by Ms. Javid Iqbal bearing 561-A Cr.P.C No. 147/2010 automatically is rendered in fructuous so there is no requirement of quashing the said FIR when proceedings in the said FIR have been closed as no offence has been established. 19. In view of subsequent disturbance in the relationship again a report was lodged by Ms. Gurpreet Kaur alias Samira Choudhary registered as FIR No. 19/2011 Police Station Women Cell, Jammu for the commission of offence punishable under Sections 498-A/406/420/120-B/109 RPC. Thereafter, the parties have entered into compromise and based on that compromise petition under Section 561-A Cr.P.C. filed by Ms. Gurpreet Kaur alias Samira Choudhary was accepted and FIR No. 19/2011 was quashed vide order dated 28.12.2011. 20. In view of said circumstances and developments to claim acceptance of closure report to be not in consonance with law is not tenable. 21. Petition filed by Ms. Gurpreet Kaur alias Samira Choudhary bearing 561-A Cr.P.C No.174/2013 seeking quashment of order dated 28.08.2012 passed by learned Magistrate in the aforesaid background deserves dismissal, as such is dismissed. 22. Another petition is filed under Section 561-A No. 186/2012 seeking quashment of FIR No.226/2012 Police Station, Rajouri for the commission of offences punishable under Sections 376/406/420/379/120-B RPC. In the said FIR complainant has alleged that Dr. Javid Iqbal had sexual relations with her from 25.02.2012 to 21.04.2012, i.e., after she was divorced. 23. The contention of learned counsel for the petitioner is that Ms. Gurpreet Kaur alias Samira Choudhary was not at all living and residing with Dr. Javid Iqbal from 25.02.2012 to 21.04.2012. That apart in accordance with Muslim Personal Laws, she ceases to be the wife only after pronouncement of `third divorce' dated 26.04.2012. Assuming, there would have been cohabitation, which in fact is denied, same would not amount to any offence more so offence punishable under Section 376 RPC. 24. Since there are allegations levelled against the accused-petitioner which includes allegations of theft etc., therefore, at this stage such position cannot be examined whether to be true or not. Object of investigation is to separate the grain from chaff. Whether lodging of FIR is to wreak vengeance in view of acrimonious relationship is also a fact to be investigated by the Investigating Agency. Whatever alleged is not to be accepted as it is that is why investigation. Object of investigation is to separate the grain from chaff. Whether lodging of FIR is to wreak vengeance in view of acrimonious relationship is also a fact to be investigated by the Investigating Agency. Whatever alleged is not to be accepted as it is that is why investigation. Now it is for the Investigating Officer to investigate the case properly in the manner so as to ensure that neither of the parties is made a scapegoat in view of acrimonious relationship. 25. Learned counsel for the petitioner submitted that keeping in view the history of the case and developments which have taken place and now position of divorce, the intention and motive of the complainant, Ms. Gurpreet Kaur alias Samira Choudhary is nothing but to destroy the future of Dr. Javid Iqbal along with his family. The allegations leveled are without any proof. 26. In opposition, learned counsel of Ms. Gurpreet Kaur alias Samira Choudhary submitted that it is Dr. Javid Iqbal who has destroyed her life after alluring her for marriage and then divorced her. It all shows how she has been dealt with. 27. The contentions, counter contentions and allegations, counter allegations are matters to be left open to be investigated by the Investigating Agency with a word of `caution' to the Investigating Officer that he must without harassing either of the parties fairly investigate and conclude the investigation with promptitude and file final report, be it charge sheet(challan) or closure report. The petitioner shall co-operate with the Investigating Agency. The directions issued by invoking powers under Section 497-A Cr.PC issued in B.A. No. 101/2012 and B.A. No. 170/2012 are made absolute. 28. Petition under Section 561-A Cr.P.C No.186/2012 along with Cr.MAs, bail applications and other connected CMAs shall stand disposed of as above. 29. Other two petitions being 561-A Cr.P.C. No.147/2010 and 561-A Cr.P.C. No. 174/2013 stand dismissed. 30. Copy of this order along with record be sent to learned Chief Judicial Magistrate. Copy of this order shall also be sent to the SHO, Police Station Rajouri for compliance.