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2016 DIGILAW 605 (JK)

Nadiya v. State of J&K

2016-11-23

ALI MOHD.MAGREY, R.SUDHAKAR

body2016
JUDGMENT : 1. A case of alleged fraudulent marriage and the petitioner is the victim of conspiracy and sabotage by private respondent as prime perpetrator and supported by accomplices. The state has filed a charge sheet before the competent court but the trial is a non starter and the owes of the petitioner has become manifold on account of the entry in the Magistrate Court recording a Nikah which the petitioner emphatically states never took place. She is before us for annulment of the entry (Nikah) alleging inter-alia fraud and conspiring by many. When this case was taken up for consideration yesterday, it was brought to the notice of the Court that in connection with the fraud and forgery etc., the charge sheet in the case registered against private respondent No. 4 and other accused persons, was presented before the Court and committed to the learned Sessions Judge, Baramulla where it is pending trial. 2. In light of this fact, this Court thought it appropriate to call for the records pertaining to the said criminal case from the Principal Sessions Judge, Baramulla to verify the status of the case. A direction to that effect was given to the Registry. The Registry was also directed to obtain the records the civil suit, if any, filed and/or pending between the parties before the lower court as recorded by this court in its earlier order. 3. Pursuant to the above, the Registry of the Court has placed the records and relevant particulars. 4. A perusal of the records reveal that a charge sheet in respect of FIR No. 34/2010 for offences under Sections 419, 420, 467, 468, 469, 471, 201 and 120-B RPC of Police Station Tangmarg was laid before the Judicial Magistrate, 1st Class, Tangmarg, and committed to the Court of Principal Sessions Judge, Baramulla, on 04.11.2013. 5. Despite lapse of more than three years now, the trial has not started. It has been tossed from one date to the other with no judicial effort. No serious effort has been taken to seek, procure and ensure the attendance of the accused persons before the Court to face the trial. When such is the situation, it gives an impression as if the accused persons are under the court's patronage. 6. Mere adjournment recording that accused is absent and not appearing shows lack of judicial approach. No serious effort has been taken to seek, procure and ensure the attendance of the accused persons before the Court to face the trial. When such is the situation, it gives an impression as if the accused persons are under the court's patronage. 6. Mere adjournment recording that accused is absent and not appearing shows lack of judicial approach. The adjournment has been given as a matter of routine and no effective steps have been taken to secure the accused and proceed with the trial. Is the trial court toothless or does it want to shield the accused, we do not want to state so but certainly we do expect the trial court to act responsibly and conclude the trial at the earliest. The state represented by the police has also to show its co-operation in serving the accused on orders of the court and proceed with the trial. Any lethargy in this regard will be viewed seriously and appropriately dealt with. It is one thing to say that accused should have the opportunity of a fair trial and is entitled to. However, if the accused delays the trial by dilatory tactics with help of one or other person then this court will interfere to ensure that injustice is not meted to the complainant. With the above caution we expect the trial court to proceed diligently and responsibly. 7. So far as the records pertaining to the civil suits is concerned, it reveal that brother of the petitioner herein had filed a suit (file No. 23 of 27.03.2010) for declaration, to declare the Nikah deed and the marriage agreement alleged fabricated by the private respondent herein by forgery as null and void. Subsequent thereto, another suit (file No. 24 of 16.04.2011) had been filed by the petitioner herein with the same prayer. These suits had been filed, inter alia, on the grounds that the petitioner herein was minor then, and that she had neither executed any marriage agreement, nor appeared before the Magistrate court to admit the execution of such agreement. The perform of nikah is denied and in any event it was pleaded invalid as the petitioner was minor. These suits were clubbed for joint trial, but subsequently, dismissed in default by order dated 15.11.2011. 8. The perform of nikah is denied and in any event it was pleaded invalid as the petitioner was minor. These suits were clubbed for joint trial, but subsequently, dismissed in default by order dated 15.11.2011. 8. During police investigation forgery, fraud and impersonation committed by the private respondent herein in connivance with other accused persons to fabricate the marriage agreement, its registration and the nikah deed is established prima-facie. A charge sheet in the case has been presented before the Session Court. 9. The present writ petition for annulment of the Nikah tainted by fraud and forgery will be considered after giving the respondent an opportunity to defend himself. We are conscious of the agony of the petitioner and her parents and the long years she is suffering with this girdle on her shoulder and we are inclined to take up the same at the earliest. 10. This court is the custodians of the fundamental rights of the citizens, we feel that the matter cannot brook any further delay. It would only perpetuate the petitioner's agony and impinge on her right to live gracefully and with dignity. Her liberty guaranteed under Article 21 of the Constitution has been infringed. On the other hand it may mean nothing to the private respondent, while his act will ruin the petitioner. Therefore, in order to ensure the early disposal of the petition, we deem it appropriate to seek the presence of respondent No. 4 on the next hearing. 11. In the above background and to meet the ends of justice, we pass the following order: i. The Registrar Judicial shall forthwith transmit the records to the learned Principal Sessions Judge, Baramulla, who shall ensure prompt and speedy trial of the case by fast tracking it. ii. In order to ensure the continued attendance of the accused persons before the Court during trial, the learned Principal Sessions Judge is directed to take all possible legal steps contemplated by law to secure their presence. Warrants if issued shall be properly executed by the police authority. iii. The learned Principal Sessions Judge shall ensure that the case is heard on day to day basis. In the event the Court is constrained to issue warrants, the same shall be got executed through the Sr. Superintendent of Police concerned. Warrants if issued shall be properly executed by the police authority. iii. The learned Principal Sessions Judge shall ensure that the case is heard on day to day basis. In the event the Court is constrained to issue warrants, the same shall be got executed through the Sr. Superintendent of Police concerned. If any Police authorities refuse to co-operate or shows lethargy, the matter be referred to this Court for appropriate directions and orders. iv. The Principal Sessions Judge, Baramulla, shall submit fortnightly status reports in relation to the progress of the trial of the case to this Court through the Registrar Judicial without fail; The learned Principal Sessions Judge is required to explain the reasons for the delay that has happened so far. v. The Registrar Judicial is directed to issue notice/summons for appearance of respondent No. 4, either personally or through his counsel, before this Court on the next date of hearing. The notice/summons to be served on respondent No. 4 through the process serving agency of the Principal District and Sessions Judge, concerned and also other modes of service indicating the date of hearing as 19th December, 2016. The timely issue of the Notice/summons and its service shall be ensured by the Registrar Judicial; and vi. The Registrar Judicial, Srinagar, shall fax a copy of this order to the learned Principal District and Sessions Judge, Baramulla, for his information and compliance. Heard in part. List the matter on 19th December, 2016.