Falak Sher Salaria vs State Of J&K
2021 Latest Caselaw 99 j&K

                                                                     S. No. 208
             HIGH COURT OF JAMMU AND KASHMIR
                          AT JAMMU
                                               CRR No. 82/2010
                                               IA No. 57/2010

Falak Sher Salaria                                       ...Appellant/Petitioner(s)

                  Through :- Mr. Mohd. Amair Awan, Advocate

                 v/s
                  <




State of J&K
't
                                                                .....Respondent (s)

                  Through :- Mr. Assem Sawhney, AAG


Coram:       HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
                                     ORDER

10.02.2021 The present revision has been filed by the petitioner under section

435 Cr.P.C. read with section 561-A Cr.P.C. (now 482 Cr.P.C.) against the order

dated 15.11.2010 passed by the learned Principal Sessions Judge, Jammu

(hereinafter to be referred as the trial court) in case, titled, State vs. Falak Sher

Salaria, by virtue of which a direction was issued to the respondent-SHO Police

Station, Nawabad to register FIR against the petitioner. It is stated in the

petition that the petitioner is also facing trial in FIR No. 181/2007 registered

with Police Station, Nawabad for commission of offences under sections 366

and 376 RPC on the complaint of complainant, Abdul Rashid.

During the pendency of the challan, the complainant had laid an

application under section 100 Cr.P.C. before the Chief Judicial Magistrate,

Jammu that came to be transferred to the court of learned Sub Registrar, Jammu,

who issued the search warrant vide order dated 17.11.2008 and that was not

executed and it was reported by the concerned Police Station that the prosecutrix

was not found on the address mentioned in the search warrant. Thereafter, the

complainant appeared before the learned trial court, where the petitioner was

facing trial and on 25.03.2010 to depose in the pending challan, however, on the

submission made by the learned counsel appearing for the petitioner, the learned

trial court directed the complainant to produce the prosecutrix on the next date

of hearing. On the next date of hearing, the complainant moved a motion

whereby a prayer was made that the petitioner and SHO, Miran Sahib be

directed to produce the prosecutrix (Razia Begum), who happens to be his wife,

in the court. On the application, learned trial court passed the order impugned.

The petitioner has challenged the order impugned on the ground

that the order has been passed without jurisdiction as the court of learned trial

court has exceeded the jurisdiction by directing registration of the FIR against

the petitioner.

Mr. Mohd. Amair Awan, learned counsel for the petitioner has

reiterated the grounds those have been taken in the memo of the petition. He has

also prayed that the present petition be treated as petition under section 561-A

Cr.P.C.

Mr. Aseem Sawhney, learned AAG appearing for the State (Union

Territory) is not averse to that, as such, this petition is treated as petition under

section 561-A Cr.P.C. Learned AAG submits that the learned Sessions Judge

had the jurisdiction to order registration of the FIR once it came to his

knowledge that the offence has been committed.

Heard and considered the rival arguments of the parties.

A perusal of the record of the trial court reveals that the statement

of the prosecutrix was recorded on 22.02.2013 and as Special Court was

constituted for trial of the designated offences, as such, the said challan was

transferred to the court of 3rd Additional Sessions Judge, Jammu and the learned

Sessions Judge vide judgment dated 15.03.2013 has acquitted the petitioner

when the prosecutrix made a statement that the petitioner has done no wrong to

her. It is also revealed from the record that in the application filed by the

complainant, no request was made by him before the learned trial court that FIR

be registered against the petitioner but despite that the learned trial court by

virtue of impugned order directed registration of FIR and the only prayer that

was made by the complainant, was to direct the petitioner and SHO, Police

Station, Miran Sahib to produce the said witness(prosecutrix). The order passed

by the learned trial court is not sustainable on this ground also. Even if, there

would have been any application on the part of the witness(prosecutrix) to

register FIR against the petitioner, the learned trial court should have referred to

the magistrate concerned instead of directing of registration of FIR itself.

In view of the categoric statement made by the prosecutrix and the

subsequent acquittal of the petitioner vide order dated 15.03.2013, it would be

travesty of the justice, if the order dated 15.11.2010 directing the SHO

concerned to register FIR, is allowed to remain in operation. For the purpose of

securing ends of justice and also in order to prevent the abuse of process of law,

this Court deems it a fit case to exercise its power under section 561-A Cr.P.C.

to quash order dated 15.11.2010 (supra) by virtue of which the learned trial

court had directed the SHO concerned to register FIR. As such, the same is

quashed.

Disposed of.

Record of the trial court be remitted back along with a copy of this

order.

(RAJNESH OSWAL) JUDGE JAMMU 10.02.2021 Rakesh Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No