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2024 DIGILAW 285 (JK)

Ab. Rashid Dar v. UT of J&K

2024-09-06

SANJAY DHAR

body2024
JUDGEMENT 1. The petitioners have challenged FIR No. 67/2021 for offences under section 147, 188, 341 and 353 IPC registered with Police Station, Khrew Awantipora. 2. As per the impugned FIR, on 14.09.2021, police personnel of Police Station, Khrew, proceeded to the residential house situated at Wuyan Pampore for implementing the order passed by Sub-Judge, Pulwama. When the said order was read out to petitioner No. 5, Sweety Rashid, who had forcibly entered into the house of Bilal Ahmad Ganai (respondent No. 2 herein), along with her children, she along with her relatives, the other petitioners, attacked the police party. It is alleged that the petitioners also raised slogans against the policy party and prevented them from discharging their official functions. The petitioners are also alleged to have used abusive language against the police. On the basis of these allegations, the impugned FIR came to be registered by the police and the investigation was set into motion. 3. The petitioners have challenged the impugned FIR on the ground that pursuant to order dated 29.04.2021 read with order dated 07.09.2021 passed by learned Additional Sessions Judge, Budgam, petitioner No. 5 was put in possession of the property, which is subject matter of the impugned FIR, by Child Development Officer, Pampore, who had been appointed as a Protection Officer in terms of the provisions contained in Protection of Women from Domestic Violence Act, therefore, it was not open to the police party to dispossess the petitioner No. 5 from the property in question. It has been further contended that the impugned FIR has been registered in disregard of the directions of the learned Additional Sessions Judge, Budgam. It has also been contended that another order was passed by learned Sub-Judge, Pulwama, on 14.09.2021 in a suit filed by respondent No. 5 against Bilal Ahmad Ganai (respondent No. 2), whereby possession of petitioner No. 4 over the property in question was protected. Thus, according to the petitioners, the impugned FIR could not have been lodged against them as they were in possession of the property in question under the shield and cover of a court order. 4. The respondent-State, in its reply, has, after narrating the contents of the impugned FIR, submitted that during investigation of the case statements of the witnesses under section 161 of Cr. 4. The respondent-State, in its reply, has, after narrating the contents of the impugned FIR, submitted that during investigation of the case statements of the witnesses under section 161 of Cr. P. C were recorded and it was found that the petitioners refused to obey the order of the civil court and started rioting against the police which led to registration of the impugned FIR. 5. The private respondents, in their reply to the petition, have submitted that order dated 07.09.2021 passed by the learned Additional Sessions Judge, Budgam, has been set aside by this Court in terms of judgment dated 11.10.2021 passed in CM(M) No. 142/2021. It has been submitted that the house in question is owned by respondent No. 3 and the petitioners have caused wrongful interference in the said house which constrained her to file a civil suit in the court of Munsiff, Pulwama. In the said suit an order came to be passed on 24.08.2020, whereby the petitioners were directed to desist from causing any wrongful interference with the possession of respondent No. 3 herein but despite the said order, the petitioners caused interference with the possession of respondent No. 3, as a result of which she was again compelled to approach the Court of Munsiff, Pulwama. Another order came to be passed by the Civil Court on 02.09.2020, whereby Police Station, Khrew, was directed to implement order dated 24.08.2020. While implementing the aforesaid order, petitioner No. 5 and other petitioners prevented the police from performing their lawful duties, which resulted in registration of FIR No. 50/2020 for offence under section 353 IPC. 6. According to the private respondents, another order came to be passed by Munsiff, Pulwama, on 14.09.2021, whereby yet another direction was passed for implementation of order dated 24.08.2020 and when the police party went on spot to implement the aforesaid order, they were prevented from doing so by the petitioners resulting in registration of the impugned FIR. It has been further submitted that an interim order was passed by the Civil Court in favour of respondent No. 3 on 10.04.2023, whereas the interim order passed by the Civil Court in favour of petitioner No. 5 came to be challenged before the learned Principal District Judge, Pulwama, who has set aside the said order. 7. I have heard learned counsel for the parties and perused record of the case. 8. 7. I have heard learned counsel for the parties and perused record of the case. 8. The allegation against the petitioners is that when the police party went to implement order dated 24.08.2020 passed by the Civil Court in favour of respondent No. 3 in a suit filed by her against the petitioners, they were prevented from discharging their lawful duties by the petitioners and they were also attacked by them. If we have a look at the documents on record, the authenticity whereof is not in dispute, it is revealed that petitioner No. 5 was put in possession of the property in question by the Protection Officer pursuant to order dated 29.04.2021 read with order dated 07.09.2021 passed by learned Additional Sessions Judge, Budgam. It is true that order dated 29.04.2021 passed by the learned Additional Sessions Judge, Budgam, has been set aside by this Court later on but the fact of the matter is that the petitioners have been put in possession of the property in question under the shield and cover of court order. 9. Another aspect of the matter which needs to be taken note of is that vide order dated 01.09.2020 passed by the Civil Court at Pulwama, a direction has been issued against the private respondents restraining them from dispossessing petitioner No. 5 from the residential house in question, meaning thereby that the Court has, prima facie, concluded that petitioner No. 5 is in possession of the property in question. 10. It is quite interesting to note that learned Sub-Judge, Pulwama, has, vide order dated 14.09.2021, directed SHO, P/S Khrew, to implement the aforesaid order dated 01.09.2020. On the same very day i.e. on 14.09.2021, the same Court has passed another order directing SHO P/S Khrew to implement order dated 24.08.2020 passed in a suit filed by respondent No.3 against the petitioners. As already stated, vide order dated 24.08.2020 the petitioners have been restrained from causing interference in the possession of respondent No. 3 in the suit property, whereas vide order dated 01.09.2020, private respondents have been restrained from dispossessing petitioner No. 5 from the residential house in question. So, there are two contradictory orders passed by the same Court on the same day. Both these orders have been sent to the police for implementation. 11. In the aforesaid circumstances, it is obvious that there would be some confusion and acrimony on spot. So, there are two contradictory orders passed by the same Court on the same day. Both these orders have been sent to the police for implementation. 11. In the aforesaid circumstances, it is obvious that there would be some confusion and acrimony on spot. While the petitioners were justified in resisting their dispossession from the property in question because they were protected by an order of the Civil Court, the police on the other hand may have been well within their jurisdiction to visit the suit property for implementing order dated 24.08.2020 passed by the civil court but it was also necessary for them to take into account order dated 01.09.2020 passed in the suit filed by petitioner No. 5 in respect of the same property which was also forwarded to the police for implementation. The proper course for the police in these circumstances was to approach the Civil Court for clarification of the issue and seek appropriate direction as to which of the two orders is to be implemented or in the alternative to direct the parties to seek clarification from the Civil Court. Instead of doing so, the police straightaway went to the spot in order to favour one party and ignored the order passed in favour of the other party. This approach of the police has resulted in lodging of the impugned FIR and consequent criminal prosecution of the petitioners. 12. It is pertinent to mention here that on an earlier occasion also, the police had registered FIR No. 50/2020 for offences under section 353 of IPC against some of the petitioners, wherein it was alleged that the police was prevented by the petitioners from implementing order of the civil court passed in favour of the private respondents. The said FIR came to be quashed by this Court in terms of judgment dated 19.12.2023 passed in WP(C) No. 1080/2021 on the ground that the accused in the said FIR did not intend to prevent the police from doing their lawful duties but they were only bringing the order of the Court to the notice of the police. 13. In the instant also, the petitioners while resisting their dispossession from the property in question were only trying to protect their possession over the property in question under the shield and cover of the order of the civil court. 13. In the instant also, the petitioners while resisting their dispossession from the property in question were only trying to protect their possession over the property in question under the shield and cover of the order of the civil court. The police, in the instant case, while trying to dispossess the petitioners from the property in question, were, in fact, not doing their lawful duty but they were acting contrary to the orders of the Civil Court passed in favour of the petitioners. 14. In the wake of forgoing facts and circumstances, it is clear that the criminal proceedings initiated by respondent No. 1 against the petitioners are nothing but an abuse of process of the Court. The same are tainted with malafides and it seems that the impugned criminal proceedings have been instituted by respondent No. 1 at the instance of private respondents who have an ulterior motive for wreaking vengeance upon the petitioners. This is so because the petitioners and private respondents are locked in an acrimonious legal battle arising out of matrimonial dispute between petitioner No. 5 and her husband-respondent No. 2 herein. In this view of the matter, this Court would be justified in quashing the impugned proceedings. 15. Accordingly, the present petition is allowed and the impugned FIR No. 67/2021 for offences under section 147, 188, 341 and 353 IPC registered with Police Station, Khrew Awantipora and the proceedings emanating therefrom are quashed.