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2019 DIGILAW 428 (JK)

Balkar Singh v. State of J&K

2019-09-26

TASHI RABSTAN

body2019
JUDGMENT : 1. Petitioner through the medium of present petition filed under Section 561-A of Criminal Procedure Code is seeking quashment of FIR No. 113/2017 registered at Police Station, Channi Himmat, Jammu for commission of offences punishable under Sections 376, 376-C, 420, 503 and 506 Ranbir Penal Code, in which the petitioner is alleged to have committed sexual intercourse against the prosecutrix on the pretext of providing her a plot of land at cheap rate located at National Highway site Kathua. 2. Before delving upon the merit of the case, a brief advertence of the circumstances leading to filing of impugned FIR is necessary. The prosecutrix wanted to purchase a plot of land and when she approached, the J&K Co-operative Housing Corporation Ltd. was unable to provide the plot and in turn referred the prosecutrix to its affiliated society, namely, J&K Cooperative Housing Society run by the petitioner. In this way, the prosecutrix contacted the petitioner-accused on his mobile number and requested him to provide a plot of land, who agreed to provide a plot and took the complainant many times to Kathua to show her plots there. It is alleged that the petitioner-accused offered her to sell the plot at cheap rate if the prosecutrix establish the sexual intercourse with her thereby induced the prosecutrix to commit sexual intercourse with the petitioner on four occasions in his vehicle while taking her to Kathua to show her plots. The prosecutrix also alleged that she paid forty thousand rupees to the petitioner through an Advocate at Kathua. It was stated that on 26.09.2017, when the prosecutrix enquired from the petitioner-accused as to when she will get her plot, the petitioner refused to give any plot and threatened of dire consequences. The petitioner approached the Police Station, Channi Himmat, Jammu on 26.09.2017, and reported the matter, which was written in Urdu language. Since prosecutrix doesn’t know the Urdu, so when the statement was read by an Urdu knowing person, it revealed that police has not written the statements made by the presecutrix correctly instead tried to shield the accused by writing distorted versions. Aggrieved thereof, on the advice of her fiancé, she approached the Court by filing a complaint under Section 156(3) Cr.P.C and same was forwarded by the Court of Spl. Railway Magistrate, Sub Judge, Jammu to S.H.O Police Station Channi Himmat Jammu. Accordingly, the impugned FIR came to be registered. Aggrieved thereof, on the advice of her fiancé, she approached the Court by filing a complaint under Section 156(3) Cr.P.C and same was forwarded by the Court of Spl. Railway Magistrate, Sub Judge, Jammu to S.H.O Police Station Channi Himmat Jammu. Accordingly, the impugned FIR came to be registered. 3. During the pendency of this petition, the prosecutrix filed the intervenor affidavit deposing therein that the incidents mentioned in the FIR had not happened actually and the prosecutrix was compelled and coerced to level the false allegations against the petitioner-accused by her fiancé, who to extract money by blackmailing the petitioner. On this, the statement of the prosecutrix under Section 164-A Cr.P.C came to be re-recorded before Judicial Magistrate 1st Class (Munsiff), Jammu on 19.01.2019, wherein she belied the version given in FIR and statements already recorded and reiterated that petitioner accused is innocent and allegations were false made under the influence of her fiancé Shabir Ahmed. It is also stated that miscellaneous applications filed in this case were made by Shabir Ahmed on her behalf without her consent. 4. Heard learned counsel for the parties and perused the record. 5. Learned counsel appearing for petitioner has contended that impugned FIR is prima-facie false and the allegations in the impugned FIR if evaluated and weighed on the touchstone of the provisions as contained in Sections 376, 376-C, 420, 503 and 506 RPC, no case can be made out against the petitioner. 6. It is well settled that High Court has inherent powers under Section 561-A Cr.P.C to make such orders as may be necessary to give effect to any order under the Code or to prevent the abuse of process of any Court or otherwise to secure the ends of justice. The Supreme Court in State of Haryana and Ors. V. Bhajan Lal and Ors. The Supreme Court in State of Haryana and Ors. V. Bhajan Lal and Ors. 1992 Supp (1) SCC 335, has elaborately considered the scope and ambit of Section 561-A Cr.P.C and enumerated seven categories of cases where power can be exercised under Section 561-A Cr.P.C. Amongst the seven categories, the categories in which this case falls are that where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety don’t prima-facie constitute any offence or make out a case against the accused and where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 7. In the present case, it is apparent from bare perusal of contents of the complaint that the prosecutrix was subjected to sexual intercourse on the pretext of giving her a plot of land at cheap rate. It has nowhere mentioned in the complaint about date and time of incidents. The prosecutrix is admittedly a major and her medical tests have not confirmed the rape. The basic ingredient to constitute the sexual offences is that the same is committed against the will of prosecutrix or without her free consent. It is discernible from reading of complaint that the prosecutrix has freely consented for sexual intercourse and there was no force or coercion by petitioner on the date of incidents. Even if the contents of complaint are taken as a whole, ingredients of Sections with which the petitioner is charged with are not satisfied. On this count only, FIR deserves to be quashed to prevent the abuse of process of law. It is also to be noted that prosecutrix in her statement under Section 164-A Cr.P.C, which was re-recorded on the directions of this Court has belied the allegations leveled in complaint by stating that allegations were made under the influence of her fiance Shabir Ahmed who wanted extract money from the petitioner by blackmailing him. Thus, the statement of prosecutrix and the submissions made on behalf of the counsel in this behalf further fortifies the view to quash the impugned FIR. 8. The Supreme Court in Vineet Kumar and Ors. Vs. State of Uttar Pradesh and Anr. Thus, the statement of prosecutrix and the submissions made on behalf of the counsel in this behalf further fortifies the view to quash the impugned FIR. 8. The Supreme Court in Vineet Kumar and Ors. Vs. State of Uttar Pradesh and Anr. (2017) 13 SCC 369 , has observed that judicial process cannot be allowed to be converted into an instrument of oppression or harassment and if the same is sought to be abused by a person with some oblique motive, the Court has to thwart the attempt at the very threshold for advancement of justice. 9. Viewed thus, the petition is allowed. The impugned FIR No. 113/2017, registered with Police Station, Channi Himmat, Jammu, is hereby quashed. As a sequel thereto, the clubbed Bail Application No. 232/2017 renders infructuous, as such, the same is dismissed. 10. CD File produced by learned State counsel is returned to him in the open Court.