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2019 DIGILAW 399 (JK)

Shabir Ahmed v. State of J&K

2019-09-02

TASHI RABSTAN

body2019
JUDGMENT : Tashi Rabstan, J.—Petitioners through the medium of present petition have invoked the inherent powers of this court under section 561-A of J&K Criminal Procedure Code, seeking to quash the FIR No. 08 of 2019 dated 08.03.2019, registered with Police Station, Women Cell, Doda under section 366, 376, 342 RPC. 2. Before delving into the merits of the case, it would be necessary to have a brief notice of allegations leading to registration of impugned FIR. The complainant Abdul Rashid, who is the father of the prosecutrix, reported the Police Station, Women Cell, Doda on 02.01.2019, that his daughter namely prosecutrix is missing. On 04.03.2019, the prosecutix was recovered from Jammu by police team of Police Station, Women Cell, Doda and taken back to home where she narrated the whole ordeal with the parents that on 31.12.2018, while she was going to Degree College, Doda for appearing in B.A Part-II Examination, was kidnapped by the accused person namely Raies Ahmed and other unknown persons and took her to Koil Kadal, Sringar, where she was kept under the surveillance of one unknown lady. The accused persons repeatedly committed rape upon her. On 08.03.2019, on the written application of the complainant an FIR No. 08/2019 under sections 376/366/342 RPC was registered against the accused persons. 3. During the course of investigation, the statements of prosecutrix and her sister Rafiqa Begum and father Abdul Rashid ware recorded under section 164-A Cr.P.C before the Distict Mobile Magistrate (T) Doda in which presecutrix has stated that the accused persons have kidnapped her from ITI Doda and took her to Srinagar where accused persons have repeatedly committed the rape upon her. It is also stated by the prosecutrix that the accused Shouket Ali also committed rape upon her when accused Raies Ahmed took her to his residential house. In terms of previous orders, the prosecutrix was also produced before this court on 29.05.2019, where she stated that she had not gone with the accused on her own consent, but she was kidnapped. 4. The petitioners are challenging the registration of FIR being registered on the basis of a highly motivated, false and baseless statement of prosecutrix. It is contended that the prosecutrix was having love affair with Raies Ahmed, who is the real brother of petitioners no. 1 and 2 and cousin of petitioner no. 4. The petitioners are challenging the registration of FIR being registered on the basis of a highly motivated, false and baseless statement of prosecutrix. It is contended that the prosecutrix was having love affair with Raies Ahmed, who is the real brother of petitioners no. 1 and 2 and cousin of petitioner no. 3, and out love and affection towards each other solemnized their marriage on 12.01.2019 in accordance with Muslim Law at Srinagar after executing the marriage agreement duly attested before Notary Public, Srinagar and Nikah Nama to this effect is also issued. It is also submitted that the Father of the prosecutrix and her relatives were not happy with the marriage of the prosecutrix and the accused Raies Ahmed, therefore, pressurized the prosecutrix to give statement against the petitioners. It is further submitted that allegations of kidnapping and recovery of prosecutrix from Jammu are false and infact, the Raies Ahmed and prosecutrix returned back to their native place Doda on 05.03.2019 from where the father of the prosecutrix took her to live at parental home for some days. It is also submitted that prosecutrix in her statement recorded before the Chief Judicial Magistrate Sringar has not narrated such allegations as narrated before District Mobile Magistrate (T) Doda and before this court. 5. Respondent-State and prosecutrix have strongly opposed the prayer of the petitioners on the grounds that petitioners are accused of committing serious and heinous offences and are yet to be arrested to conclude the investigation to its logical end. 6. I have heard the learned counsel appearing on behalf of respective parties, considered their rival submissions and also perused the Case Diary file of the case. 7. It is well settled by Supreme Court in catena of cases that inherent powers under section 561-A of J&K Cr.P.C can be exercised to quash the FIRs, investigation, to prevent abuse of the process of court and to secure the ends of justice. However, the Code is very vague as it doesn’t lay out the exhaustive elaboration of grounds on which the inherent power of court are to be exercised or not. However, the Code is very vague as it doesn’t lay out the exhaustive elaboration of grounds on which the inherent power of court are to be exercised or not. In order to determine the veracity of a prayer for quashing the criminal proceedings raised by an accused under Section 561-A of the CrPC, the Supreme Court in State of Haryana v. Bhajan Lal 1992 AIR 604, had laid down following seven categories of cases in which the court can quash criminal proceedings: i. Where the allegations made in the FIR, even if taken at face value and accepted in their entirety, do not prima facie constitute any offence or make out a case against the accused. ii. Where the allegations in the FIR and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. iii. Where the allegations made in the FIR and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. iv. Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non cognizable offence, no investigation is permitted by a police officer, unless a Magistrate has issued an order for the same, as contemplated under Section 155(2) of the Code. v. Where the allegations made in the FIR are absurd to the extent that no prudent man can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. vi. Where 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, with regard to the institution and continuance of the proceedings and / or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. vii. Where a criminal proceeding is manifestly attended with mala de intention and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and / or personal grudge. 8. vii. Where a criminal proceeding is manifestly attended with mala de intention and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and / or personal grudge. 8. Further, the Supreme Court in R P Kapur v. State of Punjab 1960 AIR 862, had held that criminal proceedings against a person can be quashed if the case being dealt with belongs to any one of the following three classes of cases: (i) Where there is a legal bar against institution or continuance of the criminal proceedings. (ii) Where the allegations in the FIR do not constitute an offence, even if taken at face value and in their entirety. (iii) Where the allegations made constitute an offence, but there is no evidence which can prove them. 9. In the present case, the allegations leveled against the petitioners are commission of heinous and serious offences of rape involving mental depravity, loss of integrity and reputation of victim within the society and the investigation is at its infancy stage and when tested on the touchstone of principles enunciated by Supreme Court in the authorities cited above, the impugned FIR cannot appropriately be quashed. 10. The contentions of learned counsel appearing on behalf of the petitioners that the prosecutrix and accused Raies Ahmed are legally wedded husband and wife and there are contradictions in the statements recorded before the Chief Judicial Magistrate Sringar and District Mobile Magistrate (T) Doda or before this court have no force in view of the allegations that proscutrix was raped even after coming to the native place Doda by the accused Shouket Ali. The allegations in FIR when read as whole appears to disclose that ingredients of offences mentioned in FIR are fulfilled and this court at this stage, when the facts are incomplete and investigations is not concluded to its logical end, refrain from making a prima facie decision. The allegations in FIR when read as whole appears to disclose that ingredients of offences mentioned in FIR are fulfilled and this court at this stage, when the facts are incomplete and investigations is not concluded to its logical end, refrain from making a prima facie decision. The questions of marriage of prosecutrix with one of the accused, the recovery of prosecutrix from Jammu, making of statements before Chief Judicial Magistrate, Srinagar and other like questions raised in the petition are triable issues and High Court has no jurisdiction to appreciate the evidence of the proceedings under section 561-A of Cr.P.C because where there are contradictions/ inconsistencies in the statements of the witnesses is essentially an issue relating to appreciation of evidence and the same can be gone into by the Judicial Magistrate during trial when the entire evidence is adduced by the parties as held by Supreme Court in Md. Allauddin Khan v. The State of Bihar & Ors, AIR 2019 SC 1910 . 11. Viewed thus, this petition is devoid of any merit and deserves dismissal as such dismissed. In view of peculiar facts of the case, this court deems it fit to direct the S.H.O, Police Station, Women Cell, Doda to conclude the investigation of this matter within a period of two weeks’ from the date of receipt of this order. 12. Registry to send down the CD file retained in this case against proper receipt along with a copy of this order to S.H.O, Police Station, Women Cell, Doda.