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2017 DIGILAW 786 (JK)

Farooq Ahmed v. State of J&K

2017-09-01

SANJAY KUMAR GUPTA

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1.Through the medium of instant petition filed under Section 561-A Cr.P.C., petitioner-Farooq Ahmed seeks quashing of order dated 03.04.2014 passed by learned Chief Judicial Magistrate, Doda, whereby the complaint filed by the private respondent No.4 under Section 506/376/511 RPC has been forwarded in original to the SHO Police Station Doda. Petitioner also seeks quashing of FIR No.56/2016 dated 04.04.2014 registered against the petitioner in Police Station Doda. 2. Facts giving rise to the instant petition are that the petitioner was initially engaged as R-E-T Teacher in Govt. Primary School Chapla and after completing five years satisfactory service was converted as General Line Teacher vide order dated 19.11.2013. Private respondent No.4 on coming to know that petitioner has been appointed as General Line Teacher, he came inimical to the petitioner and threatened the petitioner number of times to leave the job. Private respondent No.4 has filed false and frivolous complaint against the petitioner under Section 506, 376/511 RPC before the Hon’ble Chief Judicial Magistate, Doda, on 03.04.2014 and learned CJM Doda without application of mind has directed SHO Police Station Doda to investigate the matter and ultimately FIR No.56/2014 came to be registered against the petitioner in Police Station Doda under Section 511/376 RPC. 3. Learned counsel for the petitioner further submitted that the petitioner has been implicated in the impugned FIR without any material evidence on record and that no investigation has been done in the said FIR. That on the basis of impugned FIR, the petitioner can be arrested at any time and the arrest of the petitioner would be of serious consequences being a Govt. employee. 4. Learned counsel for the petitioner seeks quashing of the order impugned dated 03.04.2014 passed by learned CJM Doda; FIR No.56/2014 dated 04.04.2014 and complaint filed by respondent No.4, inter alia, on the grounds that it is well settled law that as and when a Magistrate has to pass an order, forwarding the complaint of complainant to the police for investigation under Section 156(3) Cr.P.C., he has to give reasons and record his satisfaction as to why the case is being forwarded for investigation in the matter. That the order impugned is a total abuse of the process of law and jurisdiction vested with the learned Magistrate. That the order impugned is a total abuse of the process of law and jurisdiction vested with the learned Magistrate. That the complaint has been filed by the private respondent only to harass the petitioner as he has never committed any attempt to rape on the daughter of private respondent. The allegations contained in the complaint also do not make out a case for investigation. That the learned CJM Doda has passed the impugned order of investigation in a complaint regarding non-cognizable offences i.e. 506 and 511/376 RPC which is abuse of the process of law because a Magistrate under Section 156(3) Cr.P.C. has the power to order an investigation in the cases of cognizable offences only and therefore, the order of investigation dated 03.04.2014 is not sustainable in the eye of law, which is required to be quashed. That the statement of private respondent No.5 has also been recorded before the Magistrate under Section 164-A Cr..P.C wherein she deposed that she is of 13 years of age and therefore the alleged offence under Section 511/376 committed by petitioner falls under Para 1 of Section 376 RPC, which described such offence as non-cognizable and the other offence alleged to be committed by the petitioner i.e. under Section 506 RPC is also a non cognizable offence and therefore, the learned CJM Doda without application of mind has passed the impugned order dated 03.04.2014 for investigation by the Police Station Doda. 5. Objections stand filed on behalf of respondent-State stating therein that the petitioner has made an effort to get the investigation scuttled at the very threshold. It is stated that the Hon’ble Supreme Court has held in number of cases that while exercising jurisdiction under Section 482 Cr.P.C. the Court has only to ascertain whether the allegations made in the FIR do disclose or do not disclose the commission of offences, if it does, then it cannot be quashed at its threshold stage. It is not proper to scuttle away the investigation at its threshold stage, if FIR discloses the commission of offences other wise it would amount to stalling the investigation and jurisdiction of statutory authorities to exercise powers in accordance with the provision of Criminal Code. Investigation in the case is yet to be conducted. 6. It is not proper to scuttle away the investigation at its threshold stage, if FIR discloses the commission of offences other wise it would amount to stalling the investigation and jurisdiction of statutory authorities to exercise powers in accordance with the provision of Criminal Code. Investigation in the case is yet to be conducted. 6. It is further submitted that on 04.04.2014, private respondent No.4 presented a written complaint duly endorsed by CJM Doda in terms of Section 156(3) Cr.P.C., at Police Station Doda alleging therein that on 02.04.2014 at about 10.30 am accused/petitioner called respondent No.5 in Govt. Primary School Chapla Bharat, Tehsil Doda, where the petitioner was posted as Teacher as her scholarship had been received. On her reaching the school, the petitioner called respondent no.5 in the office, the petitioner closed the door of the office and started stripping her clothes in order to satisfy his lust. On the shrieks of respondent No.5, the other students of the school came to spot and on opening the door, she fled away. The petitioner threatened respondent No.5 of dire consequences in case she reported the mater to Court or the police. On the receipt of this complaint, case FIR No.56/2014 under Section 375/511 RPC came to be registered at Police Station Doda and the investigation commenced. On the strength of evidence gathered, IO has established offences punishable under Section 376/511/354 RPC against the petitioner. That vide order 23.05.2014, this Court has stayed the proceedings initiated pursuant to the impugned order and the investigation could not be taken to its logical conclusion nor could the accused petitioner be associated with the probe. 7. With the afore mentioned submissions, it has been prayed that the grounds taken in the petition are unsustainable and devoid of any legal force. The complaint presented by respondent no.4 before learned CJM Doda disclosed the commission of cognizable offences and as such the learned CJM Doda has committed no illegality or irregularity in forwarding it to the concerned Police in terms of Section 156(3) Cr.P.C. with the direction to investigate the matter. It is prayed that the present petition is without merit and is required to be dismissed out-rightly. 8. Heard learned counsel for the parties and gone through the file. 9. It is prayed that the present petition is without merit and is required to be dismissed out-rightly. 8. Heard learned counsel for the parties and gone through the file. 9. Vide order dated, this Court while entertaining the instant petition, issued notice to the respondents for filing objections and in the meantime, stayed the operation of dated 3.4.2014 passed by JMIC for regeneration of FIR in term of section 156(3) Cr.P.C. Consequential arrest of petitioner has been stayed. 10. Learned counsel for petitioner has cited 2004 (4) CRIMES HC 53 case titled Ram Babu Gupta v The State of UP, wherein it is held that on receiving of complaint Magistrate while sending the complaint to police u/s 156(3) Cr.P.C. has to apply mind on allegations leveled in complaint. Another law cited is 2010 (30) JKJ 180 case titled S.Balbir Singh v. Isher Dass, wherein it is held that order of Magistrate directing the police to investigate the matter u/s 156(3) Cr.P.C. should not be mechanical but should be speaking one. 11. In present case, on the direction of Magistrate, police has already registered FIR No.56/2014 under section 376/511 RPC on 4.4.2014 and investigation has been commenced. 12. The allegation are that on 2.4.2014 at 11.30 AM accused called victim in Govt. primary school Chapla Bharat,Tehsil Doda, where accused was as teacher; accused asked victim to come to school along with her passbook as her scholarship had been received; on reaching school accused called her in office and when she went inside; accused closed the door and started stripping her clothe in order to satisfy his sexual lust; on shrieks of victim, other students of the school came on spot and opened the door and she was rescued. 13. The statement of victim, who is minor, has also been recorded u/s 164-A Cr.P.C. on oath, where she has reiterated the facts mentioned in complaint. Statement recorded by magistrate also reveals that magistrate has made a note that victim showed her breast part by signs that accused caught her there and she started crying. 14. The allegations are very serious as being teacher, accused has attempted to commit rape with minor that too in school. The act of accused has serious impact on society at large especially among students. The investigation is thus appears to be completed. 15. The law with regard to quashment of FIR is now well settled. 14. The allegations are very serious as being teacher, accused has attempted to commit rape with minor that too in school. The act of accused has serious impact on society at large especially among students. The investigation is thus appears to be completed. 15. The law with regard to quashment of FIR is now well settled. FIR can only be quashed in order to prevent abuse of process of law or to otherwise secure the ends of justice. 16. The expression ends of justice and to prevent abuse of process of any court are intended to work out either when an innocent person is unjustifiable subjected to an undeserving prosecution or if an ex facie all merited prosecution is throttled at the threshold without allowing the material in support of it. 17. This court while exercising the power under section 561-A Cr.P.C., Court does not function as court of trial, appeal or revision. Inherent jurisdiction has to be exercised disparity, careful and with great caution. These powers cannot be used to stifle the legitimate prosecution. This is discretionary power vested in High Court to do substantial justice. High Court cannot examine the evidence as to whether charge for alleged offence is made put or not. This is prerogative of trial court where challan is produced. 18. Where accused has opportunity to advance submission before trial court that material on record does not call for framing of charge than High court shall not exercise power under section 561-A Cr.P.C. 19. In present case, as already submitted, the statement of prosecutrix under section 164-A Cr.P.C. has already been recorded and so investigation would have been completed. But due to stay order passed by this court on 23.5.2014, the challan could not be produced. Now whether on the basis of statement of victim alleged offence is made out or nor against the petitioner, is not within the domain of this court while deciding the petition u/s 561-A Cr.P.C. 20. All the pleas taken in the petition and that argued may be relevant for discharge of accused, but not for quashing the FIR, because all the pleas are pertaining to appreciation of facts. All the pleas taken in the petition and that argued may be relevant for discharge of accused, but not for quashing the FIR, because all the pleas are pertaining to appreciation of facts. It is not the case of petitioner that there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceeding. The law cited by counsel for petitioner is not applicable, because in first case Magistrate took action on application and not on complaint. There is no dispute with regard to law narrated in another case, but facts of that case are altogether different, because in that FIR was quashed on ground of civil dispute and case was pertaining to forgery. Further in present case, investigation is complete. 21. In view of above discussion, this petition is dismissed. Interim stay, if any, is vacated. However, petitioner is at liberty to take all pleas of facts or law before Court below at the time of framing of charge.