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2022 DIGILAW 176 (JK)

Sahil Ahmad Bhat v. State of J&K

2022-04-20

SANJAY DHAR

body2022
JUDGEMENT/ORDER : CRMC No. 296/2018 1. The petitioners have challenged FIR No. 33/2018 for offences under Section 366, 376, 109 RPC of Police Station, Vilgam District Kupwara. 2. Before coming to the contentions raised in the petition, a brief narration of the facts alleged in the impugned F.I.R. is required to be noticed. 3. On 13.05.2018, respondent No. 5 (complainant) lodged a report with the police alleging therein that his daughter, aged 18/19 years, has been kidnapped by the petitioner No. 1 with the aid and assistance of other accused after having been enticed by petitioner No. 1 to go with him and that his daughter has been taken to some undisclosed location. The occurrence is alleged to have taken place during the intervening night of 12th/13th May, 2018. On the basis of this report, the police registered impugned F.I.R. and started investigation of the case. During investigation of the case, the prosecutrix was recovered from the custody of the petitioner No. 1 on 11.05.2018, whereafter she was medically examined and was handed over to her father. After obtaining the medical report of the prosecutrix, offence under Section 376 RPC was also found to have been established. 4. The statement of the prosecutrix was recorded under Section 164-A Cr.P.C. before the Court of Judicial Magistrate, 1st Class, Handwara, on 26.06.2018, in which she has stated that on the fateful night at about 11:00 P.M., when she had gone to close the gate, she found petitioner No. 1 present over there. Besides this, co-accused, Ateeqa was also present over there. According to the prosecutrix, both of them gagged her mouth and she was put in a vehicle and was made unconscious. She has further stated that on the next day, when she regained her senses and found herself in the jungles of Kathpora Kupwara. She also noticed that besides petitioner No. 1, co-accused Bashir Ahmad Dar, Farooq Ahmad Bhat, Abdul Rashid Bhat and Azad Ahmad Bhat were also present over there. She went on to state that she was again made unconscious, as a result of which she did not come to know as to what treatment was given to her by petitioner No. 1 and his associates. She also stated that the petitioner No. 1 was repeatedly making her unconscious and that she was recovered from the woods of Kathpora and handed over to her family members. She also stated that the petitioner No. 1 was repeatedly making her unconscious and that she was recovered from the woods of Kathpora and handed over to her family members. Thus, according to prosecution case, offences under Section 366, 109 RPC stand established against the accused including the petitioners herein. 5. It has been contended by petitioner No. 1 that the prosecutrix/respondent No. 6 have entered into a wedlock out of their own will and volition and in this regard a Nikah Nama was executed, a copy whereof has been placed on record. The petitioners have also submitted that a marriage agreement dated 15.05.2018 was executed by the parties, a copy whereof has been placed on record. 6. It has been further contended that in a writ petition bearing OWP No. 852/2018, filed by petitioner No. 1 and respondent No. 6, the prosecutrix, this Court passed an order on 21.05.2018 whereby the police was directed to take action on the representation of the petitioners therein in the light of the law laid down in the case of Lata Singh v. State of U.P. & Anr., (2006) 5 SCC 475 . A copy of the said order has been placed on record. It is the contention of the petitioners that upon service of aforesaid order upon official respondents, instead of providing protection to petitioner No. 1 and respondent No. 6, the police handed over custody of respondent No. 6 to her father. On these grounds, the petitioners have contended that continuance of criminal proceedings against them would amount to abuse of process of law and, as such, the proceedings deserve to be quashed. In support of their contentions, the petitioners have relied upon the ratio laid down by the Supreme Court and this Court in the following cases: (I) [1]Santosh Prasad alias Santosh Kumar v. State of Bihar, (2020) 3 SCC 443 ; (II) Thakorlal D. Vadgama v. The State of Gujarat; (1973) 2 SCC 413 ; (III) Rajoo and others v. State of Madhya Pradesh, (2008) 15 SCC 133 ; (IV) [2]Rai Sandeep alias Deepu v. State (NCT of Delhi), (2012) 8 SCC 21 ; (V) [3]Vineet Kumar & Ors. v. State of Uttar Pradesh & Anr., (2017) 13 SCC 369 ; (VI) State of J&K v. Zoora, 2022 (1) JKJ 152 [HC]; (VII) Manik Seth v. State of J&K, 2020 (2) JKJ 76 [HC]; 7. v. State of Uttar Pradesh & Anr., (2017) 13 SCC 369 ; (VI) State of J&K v. Zoora, 2022 (1) JKJ 152 [HC]; (VII) Manik Seth v. State of J&K, 2020 (2) JKJ 76 [HC]; 7. I have heard learned counsel for the parties and perused the material on record including the Case Diary. 8. The primary ground that has been urged by the petitioners for seeking quashment of the impugned F.I.R. and the proceedings emanating there from is that respondent No. 6 has entered into a wedlock with petitioner No. 1 out of her own will and volition and being a major lady, no offence is made out against the petitioners. The petitioners have relied upon copy of the Nikah Nama and the marriage agreement. If we have a look at the statement of the prosecutrix recorded under Section 164-A Cr.P.C., she has nowhere stated that she has entered into a wedlock with the petitioner No. 1. She has clearly stated in her statement that she was made unconscious repeatedly and she does not know what the petitioner No. 1 and his associated did to her. She has, in clear terms, stated that she was abducted by the petitioners against her will and volition. 9. In the connected petition bearing HCP No. 471/2018, filed by the petitioner No. 1 seeking production of the prosecutrix in the Court and handing over her custody to the petitioner No. 1, the prosecutrix has filed her reply to the said petition. In support of her reply, she has filed an affidavit, wherein she has clearly stated that she has solemnized marriage with one Fayaz Ahmad Teli S/o Abdul Khaliq Teli R/o Panditpora Langate, Handwara, who happens to be respondent No. 7 in the said Habeas Corpus Petition. She has further stated that the said marriage was solemnized by her out of her own will and consent and without any fear, fraud, undue influence or coercion, by virtue of Nikah Nama on 6th of April, 2018. She has also deposed in the said affidavit that she was abducted by petitioner No. 1. 10. She has further stated that the said marriage was solemnized by her out of her own will and consent and without any fear, fraud, undue influence or coercion, by virtue of Nikah Nama on 6th of April, 2018. She has also deposed in the said affidavit that she was abducted by petitioner No. 1. 10. In the face of this overwhelming material on record and the denial of the prosecutrix to the assertion of the petitioners that she has entered into wedlock with the petitioner No. 1, it can, by no stretch of imagination, be said that the material on record does not disclose commission of any cognizable offence against the petitioners. 11. So far as the contention of learned counsel for the petitioners that despite passing of order dated 21.05.2018 by this Court in OWP No. 852/2018, the official respondents instead of providing protection to the petitioner No. 1 and the prosecutrix, have handed over custody of the prosecutrix to her father, is concerned, it is to be noted that vide the aforesaid order, no direction has been issued to the SSP concerned to provide protection to petitioner No. 1 and the prosecutrix. It is provided in the said order that the writ petitioners would make a representation before the Senior Superintendent of Police and on the basis of the said representation, action in the light of the law laid down in Lata Singh's case shall be taken by passing a speaking order within two weeks. The order, it seems, has been received by Senior Superintendent of Police on 22.05.2018, whereas the Cade Diary shows that the prosecutrix was recovered on 22.05.2018 itself. It has been specifically stated by the official respondents that the order in question was not received by them at the time when the recovery of the prosecutrix had taken place from the custody of the petitioner No. 1. In these circumstances it cannot be said that the official respondents have acted in breach of the order passed by the Writ Court. They have only followed the will and wish of the prosecutrix who had clearly stated that she was kidnapped by the petitioner No. 1. 12. In these circumstances it cannot be said that the official respondents have acted in breach of the order passed by the Writ Court. They have only followed the will and wish of the prosecutrix who had clearly stated that she was kidnapped by the petitioner No. 1. 12. It is a well settled law that where the FIR and the material collected by the investigating agency during investigation of the case discloses commission of cognizable offences, the Courts, in exercise of powers under Section 482 of Cr.P.C., would be reluctant to quash the proceedings. So far as the defence of the petitioners/accused that respondent No. 6 has entered into a wedlock with the petitioner No. 1 is concerned, the same can be analyzed and investigated by the investigating agency during the course of the investigation. At this stage in view of the statement of the prosecutrix recorded under Section 164-A of Cr.P.C., the defence of the petitioners appears to have not been substantiated. 13. The judgments relied upon by the petitioners are not applicable to the facts of the instant case as the facts involved in those cases are clearly distinguishable from the facts of the instant case. 14. For the foregoing reasons, I do not find any merit in this petition. The same is, accordingly, dismissed. HCP No. 471/2018 15. Through the medium of the instant petition, the petitioner is seeking a direction upon official respondents to recover respondent No. 8 from the custody of respondent No. 7 and thereafter hand over her custody to the petitioner. 16. As already noted, the petitioner claims to be the husband of respondent No. 8 on the basis of a Nikah Nama and marriage agreement. On the other hand, father of respondent No. 8 has lodged FIR Bearing No. 33/2018 alleging that the petitioner with the aid and assistance of other accused has kidnapped respondent No. 8. 17. Respondent No. 8, as already noted, has, in her affidavit, clearly stated that she was kidnapped by the petitioner and that she was already married to respondent No. 7, Fayaz Ahmad Teli, by virtue of Nikah Nama dated 6th April, 2018, which means that prior to the marriage agreement alleged to have been executed by the petitioner with respondent No. 8, she had entered into a wedlock with respondent No. 7. This casts a cloud upon the validity of alleged marriage of petitioner with respondent No. 8. When this circumstance is read in conjunction with the affidavit of respondent No. 8, it can, by no stretch of imagination, be stated that there was a legal and valid marriage between the petitioner and respondent No. 8. 18. It has come in the statement of respondent No. 8, as already noted, that she was kidnapped by the petitioner No. 1 and she was made to go unconscious several times. The marriage alleged to have taken place between the petitioner and respondent No. 8, in these circumstances, becomes highly suspicious. 19. During the pendency of this petition, Inspector Mohammad Suliaman, SHO, P/S, Vilgam, has also filed an affidavit along with the statement of respondent No. 8, in which she has reiterated that she is married to respondent No. 7 and that a child has born out of this wedlock. 20. In view of the foregoing analysis, it is clear that the petitioner has failed to make out a case for seeking production of respondent No. 8 for the purposes of handing over her custody to him. The petition lacks merit and the same is, accordingly, dismissed. 21. Case Diary be returned to the learned counsel for the respondent No. 1.