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2020 DIGILAW 436 (JK)

Amina Begum v. State of J&K

2020-08-25

RAJNESH OSWAL

body2020
Judgment In this petition the petitioners have sought the quashing of FIR No. 0016/2019 dated 03.04.2019, registered with Police Station, Budhal for commission of offences under Sections 341, 323, 336, 147, 504 and 506 RPC. The FIR No. 0016/2019 dated 03.04.2019 was registered against the petitioners at Police Station, Budhal by Maryam Begum W/o Abdul Majid, R/o Kewal on a written complaint submitted by her. In the written complaint, it was stated that when the complainant was going to her maize field for agricultural work, the accused persons namely, (1) Dilshad Ahmed, (2) Amina Begum, (3) Shagufta Begum (4) Abdul Ghafoor (5) Rajo Begum (6) Nasir Ahmed (7) Rumi and (8) Fareeda Begum, with a criminal intention wrongfully restrained her, pelted stones and beat her, as a result of which serious injuries were caused to her. She was also abused and insulted. The accused persons namely, Dilshad Ahmad and Abdul Ghafoor, caught hold of her neck from backside and also tore her clothes. Accused No. 3, who is a Government employee, also left her office by 1.00 P. M. and joined with the rest of the accused. 2. The petitioners have questioned the aforesaid FIR primarily on the following grounds: a. That the FIR has been lodged as a counter blast, with an ulterior motive only to harass and victimize the petitioners and also to save other 14 persons against whom FIR bearing No. 0015/2019 u/s 341,354,336,323,147,504,506 R.P.C has been registered on the complaint of one of the petitioner namely Amina Begum. b. That from the allegations levelled in the FIR, no case, much less, a criminal case is made out against the petitioners. c. That the petitioner No. 4 is a Government Teacher and was attending her duties at the time of occurrence and petitioner No. 6 was also not present on spot. 3. Before raising the above mentioned grounds, the petitioners have given the details about the litigation going on between one of the petitioners, their family members and the Government Departments regarding the dispute about the road that was being constructed from Kewal Morh to Targain via Kunda Bagla, Lathi and Gotu. The details of the same are not necessary as neither the complainant nor any one related to her is a party in the said litigation. It is stated that the complainant party is having grudge against the petitioners due to that road. 4. The details of the same are not necessary as neither the complainant nor any one related to her is a party in the said litigation. It is stated that the complainant party is having grudge against the petitioners due to that road. 4. The complainant has also filed an application for vacating the interim directions as the investigation was stayed by the Court. 5. The respondent- Union Territory of J&K has filed status report, in which it was categorically stated that during the investigation and as per the statement of the complainant, eye witnesses and other seized evidence, offence under Section 354 RPC was added to the other offences against Dilshad Ahmad and Abdul Ghafoor, whereas against other accused, offences under Sections 147, 336, 504, 506, 323 RPC stand proved. 6. Mr. Navyug Sethi, learned counsel for the petitioners vehemently argued that the FIR in question was lodged at 9.p.m after eight hours of the occurrence, whereas FIR bearing registration No. 0015/2019 was lodged immediately after the occurrence and, as such, the subsequent FIR i.e. FIR No. 0016/2019 is a counterblast to the FIR No.0015/2019, that was lodged prior in time to the impugned FIR. He further submitted that a bare perusal of the FIR reveals that no offence against petitioners is made out. He further argued that the present FIR is vague and there are no details of the alleged offences in the same. 7. Per contra, Arshad Majid Malik Dy. AG, Mr. Rahul Pant, learned counsel for the complainant vehemently argued that the cross FIRs are always permissible and in the status report it has been categorically mentioned that offences against the accused stand proved and only medical report is awaited in the case. Further it is evident that the complainant has suffered injuries in the said occurrence and it clearly falsifies the claim of the petitioners that no offence is made out. 8. Heard and considered. 9. A bare perusal of the FIR No. 0016/2019 dated 03.04.2019 reveals that all the petitioners had joined their hands and they have wrongfully restrained the complainant from going to her maize field and the accused Nos. 1 and 4 caught hold of her neck from backside and her clothes were also torn. 8. Heard and considered. 9. A bare perusal of the FIR No. 0016/2019 dated 03.04.2019 reveals that all the petitioners had joined their hands and they have wrongfully restrained the complainant from going to her maize field and the accused Nos. 1 and 4 caught hold of her neck from backside and her clothes were also torn. The status report filed by the respondent No. 1, reveals that the medical report is yet to be obtained but due to the order passed by this Court, the investigation could not be completed. The FIR need not contain minute details of occurrence in detail as FIR is not an encyclopedia. The contention of the petitioners that the FIR in question is vague as there are no particulars of offence, is without merit as the mode and manner in which offence was committed has been mentioned in the same. As such it cannot be said that no offence is made out from the bare reading of FIR. 10. More so, the FIR sought to be quashed cannot be termed as counter blast to the FIR lodged by one of the petitioner. No doubt, the time and date of occurrence in both the FIRs is same i.e. 1.00 to 1.16 p.m. at 03.04.2019 but the fact remains that the stories alleged in both the FIRs are not similar. FIR bearing No. 0015 has been lodged by one of the petitioner namely Amina Begun in which she has narrated about her molestation and also about the assault. Both the complainants have narrated their version of occurrence and it is for the investigating agencies to determine the truth of the same. It would be appropriate to take note of the judgment of Apex Court in case titled Surender Kaushik v. State of U.P., (2013) 5 SCC 148 , and the relevant para is reproduced as under: “24. From the aforesaid decisions, it is quite luminous that the lodgement of two FIRs is not permissible in respect of one and the same incident. The concept of sameness has been given a restricted meaning. It does not encompass filing of a counter-FIR relating to the same or connected cognizable offence. From the aforesaid decisions, it is quite luminous that the lodgement of two FIRs is not permissible in respect of one and the same incident. The concept of sameness has been given a restricted meaning. It does not encompass filing of a counter-FIR relating to the same or connected cognizable offence. What is prohibited is any further complaint by the same complainant and others against the same accused subsequent to the registration of the case under the Code, for an investigation in that regard would have already commenced and allowing registration of further complaint would amount to an improvement of the facts mentioned in the original complaint. As is further made clear by the three-Judge Bench in Upkar Singh [Upkar Singh v. Ved Prakash, (2004) 13 SCC 292 : 2005 SCC (Cri) 211] , the prohibition does not cover the allegations made by the accused in the first FIR alleging a different version of the same incident. Thus, rival versions in respect of the same incident do take different shapes and in that event, lodgement of two FIRs is permissible.” 11. Last contention of the learned counsel for the petitioners is about the absence of the petitioner Nos. 4 and 6 at the place of occurrence, is disputed question fact as well as the defence of the accused those cannot be adjudicated upon in petition under se. 482 Cr.P.C. Reliance is also placed upon the decision of Apex Court in case titled Tilly Gifford v. Michael Floyd Eshwar, (2018) 11 SCC 205 and the relevant para is reproduced as under: “3. A perusal of the order of the High Court released on 21-5-2015 would indicate that the High Court has gone far beyond the contours of its power and jurisdiction under Section 482 CrPC to quash a criminal proceeding, the extent of such jurisdiction having been dealt with by this Court in numerous pronouncements over the last half century. Time and again, it has been emphasized by this Court that the power under Section 482 CrPC would not permit the High Court to go into disputed questions of fact or to appreciate the defence of the accused. The power to interdict a criminal proceeding at the stage of investigation is even more rare. Broadly speaking, a criminal investigation, unless tainted by clear mala fides, should not be foreclosed by a court of law.” 12. The power to interdict a criminal proceeding at the stage of investigation is even more rare. Broadly speaking, a criminal investigation, unless tainted by clear mala fides, should not be foreclosed by a court of law.” 12. Viewed thus, there is no merit in the petition and the same is dismissed along with connected CMs.