Tabasum Sajad Bhat vs Ut Of J&K
2021 Latest Caselaw 1672 j&K/2

                                                        Sr. No.3
                                                        Regular List

      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                      AT SRINAGAR

                          CRM(M) No.07/2021

TABASUM SAJAD BHAT                                   ...PETITIONER(S)
           Through: Mr. Muzaffar Ahmad, Advocate.

Vs.

UT OF J&K                                          ....RESPONDENT(S)
           Through: Ms. Asifa Padroo, AAG.

CORAM:       HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE

                              ORDER(ORAL)

24.12.2021

1) Petitioner has challenged FIR No.94/2020 for offences under

Section 376, 506 IPC and 67 IT Act registered with Police Station,

Achabal.

2) The facts emerging from the record are that on 14.12.2020,

father of the prosecutrix lodged a report with the police that

petitioner has committed rape upon his daughter and videographed

the event whereafter he has uploaded the same on the social media,

as a consequence whereof prosecutrix has suffered damage to her

reputation. It was further alleged that due to the aforesaid act of the

petitioner, the marital life of the daughter of the complainant has run

into rough weather. On the basis of this report, an FIR came to be

registered by the police and investigation of the case was set into

motion.

3) During investigation of the case, statement of the prosecutrix

under Section 164 of Cr. P. C was recorded before the Magistrate. In

her statement the prosecutrix narrated that she had an affair with the

petitioner/accused in the year 2016 and that the accused on the false

promise of marriage committed sexual intercourse with her. She

further alleged that at the relevant time she did not know that

petitioner/accused was a married person, which fact he had

concealed from her. She also stated that petitioner after committing

sexual intercourse upon her refused to marry her, as a result whereof

she entered into wedlock with some other person. She went on to

state that while her married life was going on smoothly, petitioner

uploaded the video-graphed physical encounter which she had with

him on the social media thereby putting her married life in jeopardy.

She further went on to state that without her knowledge the

petitioner had videographed the event of sexual intercourse between

them and uploaded the same on social media.

4) After investigation of the case, offences under Section 376,

506 IPC and 67 IT Act were found established against the petitioner

and the charge sheet has been laid before the trial court.

5) It has been contended by the petitioner that even if the

prosecution story is to be believed, still then no offence against him

is made ou,t as whatever has happened, the same has happened with

the consent of the prosecutrix. According to the petitioner, the

occurrence has taken place in the year 2016 and the impugned FIR

has been lodged in the year 2020 and there is no explanation for

delay in lodging the FIR. It has been further contended that petitioner

and the prosecutrix have entered into an agreement whereby they had

agreed to snap their relationship and to marry the persons of their

choice. They had further agreed that they will not interfere in each

other's life. On these grounds, petitioner has sought quashment of

the impugned FIR and the proceedings emanating there from.

6) I have heard learned counsel for the parties and perused the

material on record.

7) It is well settled that High Court, in exercise of its powers

under Section 482 of Cr. P. C, cannot meticulously examine the

material on record so as to arrive at a finding whether the allegations

made in the FIR and the charge sheet are correct or false. It is not

open to the High Court to test the veracity of the allegations made in

the FIR/charge sheet in these proceedings. This is an arena left to be

determined by the investigating agency or by the trial court. The

Supreme Court in the celebrated case of of State of Haryana

and others v. Bhajan Lal and others, 1992 Supp (1)

SCC 335, has clearly laid down the guidelines and illustrations

where the Court can exercise its powers under Section 482 of Cr. P.

C. These guidelines and illustrations have been reiterated and

reaffirmed by the Supreme Court in successive judgments.

8) Coming to the facts of the instant case, as already noted, the

prosecutrix has clearly implicated the petitioner in the case.

According to her, the physical encounter between them took place

because her consent to the act was based upon mistake of the fact,

inasmuch as petitioner after concealing that he was a married man,

promised to marry her. She has further stated that the event was

videographed by petitioner without her consent and the same was

uploaded on social media. Thus, from the statement of the

prosecutrix, offences alleged in the charge sheet appear to be, prima

facie, made out against the petitioner. The matters pertaining to the

effect of delay in lodging of FIR and explanation thereof cannot be

gone into in these proceedings. The same shall be considered by the

trial court during the trial of the case.

9) During the course of hearing, it has been conceded by the

learned counsel for the petitioner that charges against the petitioner

stand already framed by the trial court and that trial is going on but

he has submitted that at the time of framing of charge, it is not open

to the trial court to consider any document other than the documents

which have been produced along with the charge sheet. The learned

counsel wants this Court to look into the agreement dated 19th July,

2018, alleged to have been executed by petitioner and the

prosecutrix, copy whereof has been placed on record, and form an

opinion as to merits of the prosecution case on that basis. I am afraid

the same cannot be done by this Court in these proceedings because

the affidavit placed on record is not an admitted document and is not

a material of sterling quality which this Court, while exercising

power under Section 482 of Cr. P. C, can take into consideration.

10) Even otherwise, the offences alleged against the petitioner are

of non-compoundable nature and no criminal Court would

compound such offences on the basis of a private agreement arrived

at between the parties. The authenticity and veracity of this

agreement including its effect on the prosecution case can be seen by

the trial court only during the trial of the case if and when the

petitioner produces the same before the trial court as a piece of

defence evidence.

11) For the foregoing reasons, I do not find any merit in this

petition. The same is, accordingly, dismissed.

(Sanjay Dhar) Judge Srinagar 24.12.2021 "Bhat Altaf, PS

Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No

MOHAMMAD ALTAF BHAT 2021.12.28 15:10 I attest to the accuracy and integrity of this document