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2017 DIGILAW 874 (JK)

Musiver Ahmed v. State

2017-09-22

SANJAY KUMAR GUPTA

body2017
JUDGMENT : 1. Through the medium of instant petition filed under Section 561-A Cr.P.C., petitioner seeks quashing of proceedings initiated in case titled State Vs. Musiver Ahmed in FIR No.147/2016 dated 12.11.2016 under sections 456, 354, 323 RPC pending before the Court of learned Judicial Magistrate Ist Class Banihal. 2. It is stated in the petition that the allegation leveled against the petitioner on account of previous enmity and to wreck vengeance and with view to defame the petitioner in the society, lodge a false, frivolous and baseless complaint against the petitioner under Sections 323, 354 and 456 RPC, alleging therein that on 12th November, 2016 while the complainant was sleeping in the house, unfortunately some persons knocked the door and when the complainant opened the door, the accused was there and suddenly the accused entered the house and put the hands on the chest of the complainant/respondent No. 2. The complainant raised hue and cry, and the husband of the complainant and other family members were sleeping in another room. They unfortunately came in the room of the complainant and found that the accused is there. Accordingly, on the basis of allegation and with a connivance and collusion of Abdul Rashid Tantrey, who is the Munshi in Police Station and a close relative of the complainant, lodged FIR against the petitioner for commission of offence under Sections 323, 354 and 456 RPC registered at Police Station, Banihal, where the said person was posted at the time of occurrence. 3. It is also stated in the petition that the complainant has lodged the FIR No. 147/2016 with a view to harass the petitioner and to induce or to coerce the petitioner to marry with the daughter of the complainant, which the petitioner does not like to marry. The complainant/respondent No. 2 is a close relative of Abdul Rashid Tantrey, presently the Munshi of the concerned Police Station, who pressurized the accused to marry with the daughter of respondent No.2, whom the petitioner did not like to marry. When the petitioner refused to marry with the daughter of the complainant, then the complainant and employees of the concerned police station have registered a false and frivolous case against the petitioner and were bent upon to spoil his entire life. It is submitted that the petitioner is studying in B.A. Final. 4. When the petitioner refused to marry with the daughter of the complainant, then the complainant and employees of the concerned police station have registered a false and frivolous case against the petitioner and were bent upon to spoil his entire life. It is submitted that the petitioner is studying in B.A. Final. 4. It is further stated in the petition that the petitioner has been innocently involved in FIR impugned with a view to cause unnecessary harassment to him while as he has no concern with the commission of any such offence. This became a false statement from the fact that the Investigation Officer has fabricated a false statement recorded under Section 161 Cr.P.C of respondent No. 2. The Investigating Officer is the close relative of the complainant/respondent No. 2. The persons, namely, Shafiqu Begum (Complainant), Asif Ahmed (Son), Saif-Ul-Din (Husband of the complainant), Gulzar Ahmed (brother in law of complainant) and Abdul Ahad (brother in law) are the witnesses in the case and are close relative of the complainant. 5. It is also submitted that it is a case of no evidence and it is only on account of previous enmity and grudge against the petitioner and to wreck vengeance and with a view and intention to defame and damage the reputation of the petitioner in the society, a false, baseless and concocted complaint was filed, on the basis of which the impugned FIR against the petitioner has been registered and the Investigating Officer has recorded a false and fabricated evidence against the petitioner. As such, so called allegations levelled against the petitioner do not fall in any manner in definition of offence under the aforesaid sections, for which FIR and Court proceeding impugned herein have been initiated by 1st Class Judicial Magistrate, Banihal, as such, the same are liable to be quashed. So in the facts and circumstances of the case, it shall be in the interest of justice that the present petition may be allowed and the impugned FIR and the Court proceeding herein may be quashed. 6. On the basis of afore mentioned facts and circumstances in the petition, it is prayed for quashing of impugned FIR and all proceedings initiated by the Court below. 7. On the Contrary, learned Dy. 6. On the basis of afore mentioned facts and circumstances in the petition, it is prayed for quashing of impugned FIR and all proceedings initiated by the Court below. 7. On the Contrary, learned Dy. Advocate General has opposed the petition stating that the petitioner has raised disputed questions of facts, which may not be looked into by this Court in exercise of extra ordinary jurisdiction under Section 561-A Cr.P.C. That the petitioner has filed the present petition by suppressing the real facts of the case, as such, he has no legal right to seek the indulgence of this Court for quashing of criminal proceedings initiated by the court below. It is submitted that this petition is not maintainable and deserves to be dismissed in view of the catena of judgments of Hon’ble Supreme Court that if the FIR does not disclose the commission of cognizable offence, the Court would be justified in quashing the investigation and in case commission of offence is disclosed the Court will not interfere in the investigation. 8. Mr. R.K.S. Thakur, Advocate, appearing on behalf of respondent No.2 has also opposed the petition filed by the petitioner and prays for dismissal of the same out rightly. 9. Heard learned counsel for the parties at length and have perused the file and documents annexed thereto 10. The law with regard to quashment of FIR/complaint/challan is now well settled. These can only be quashed in order to prevent abuse of process of law or to otherwise secure the ends of justice. 11. The expressions ‘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. 12. This Court while exercising the power under section 561-A Cr.P.C., 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. 13. 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. 13. Where accused has opportunity to advance submission before trial court that material on record does not call for framing of charge then High court shall not exercise power under section 561-A Cr.P.C. 14. In present case, allegations against the petitioner are serious as he has tried to outrage modesty of a woman at odd hour on relevant day. 15. The statement of prosecutrix under section 164-A Cr.P.C. has been recorded during investigation and challan has been produced. Now whether on the basis of statement of victim alleged offence is made out or not against the petitioner, is not within the domain of this court while deciding the petition u/s 561-A Cr.P.C 16. The petitioner has raised pleas which are totally of facts. All the pleas taken in the petition and that argued may be relevant for discharge of accused, but not for quashing the challan, because all the pleas are pertaining to appreciation of facts. It is not 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. 17. As already held, this court cannot appreciate the facts in this petition as to whether case under alleged sections is made out or not. 18. 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.