Ajay Kumar vs State Of J&K And Others
2021 Latest Caselaw 1547 j&K

                                                                       S. No.




         HIGH COURT OF JAMMU AND KASHMIR AND LADAKH
                          AT JAMMU

                                                Reserved on 10.11.2021
                                                Pronounced on 26.11.2021

                                                CRMC No. 228/2014(O&M)

Ajay Kumar
                                                       .....Appellant/Petitioner(s)

                Through :-                 Mr. Vijay Gupta, Advocate

                          v/s
State of J&K and others                                 .....Respondent(s)


                Through :-                 Mr. Satinder Gupta, Advocate for No. 5

Coram:        HON'BLE MR. JUSTICERAJNESH OSWAL, JUDGE

                                  JUDGMENT

1. The petitioner has filed the present petition for quashing of order dated

31.05.2014 passed by the court of learned Additional Sessions Judge

Doda (hereinafter referred to as the trial court), by virtue of which the

charges against the petitioner have been framed for commission of

offences under section 5 of PITA and sections 366/376/493 RPC.

2. The order dated 31.05.2014 passed by the trial court, has been impugned

on the following grounds:

a. That as per the statement of the prosecutrix, no offence is made out

against the petitioner particularly when the prosecutrix has not

deposed anything about having any sexual relationship with the

petitioner and as such the continuance of the proceedings shall

amount to abuse of process of law.

b. That as per the prosecution, the prosecutrix was handed over by

one Praveen to the petitioner but said Parveen has neither been

cited as witness nor arrayed as an accused in the aforesaid challan,

therefore, the petitioner cannot be convicted and the continuance

of the trial shall be an exercise in futility.

c. That on 01.05.2009, the Police raided the house of respondent No.

2 at Trikuta Nagar Jammu and arrested respondent No. 2 and 3,

petitioner and one more unknown person. The FIR number

112/2009 under sections, 3, 4, 5 and 7 of the PITA was registered

at Police Station Bahu Fort and challan was presented against the

petitioner and others. The petitioner was discharged by the court of

learned Special Municipal Magistrate Jammu vide order dated

23.10.2013. Therefore, there cannot be two FIRs for the same

occurrence and as such, the petitioner is required to be discharged

particularly when the allegations are similar in nature.

3. Mr. Vijay Gupta, learned counsel for the petitioner argued that in view of

the statement of the prosecutrix, no offence is made out against the

petitioner. He laid stress that person, namely, Praveen has neither been

cited as witness nor has been arrayed as accused, who had allegedly

handed over the custody of the prosecutrix to the petitioner and as such,

the petitioner cannot be convicted for commission of above mentioned

offences. He further argued that on similar allegations, the petitioner was

discharged by the court of learned Special Municipal Magistrate,

therefore, he cannot be put to trial again.

4. Per contra, Mr. Suneel Malhotra learned GA vehemently argued that the

prosecutrix was minor and the petitioner had taken her to Delhi where she

resided with him for few months and thereafter, he handed over the

custody of the prosecutrix to respondent No. 2 and as such at this stage

there is sufficient material against the petitioner necessitating the framing

of charges against the petitioner.

5. Heard and perused the record.

6. Brief facts necessary for the disposal of the present petition are that the

complainant had admitted the prosecutrix in a school at Bhaderwah. On

24th of March 2008, in the School his daughter developed some eye

problem and visited her house. After treatment by Doctor, the complainant

again sent his daughter to school on 25.03.2008 through his wife, who

handed over her custody to one Posha Begum. On same day, he received a

message from School that his daughter had disappeared from the School

and concerted efforts to find her were made but she could not be found. As

such the complainant lodged the missing report and suspected

involvement of Ghulam Mohd in kidnapping of his daughter. On receipt

of this information, FIR No. 42/2008 under section 363/109 RPC was

registered. During the course of investigation, one Mst. Zareena Bano was

interrogated and it was found that prosecutrix obtained phone from her

and contacted respondent No. 2, who was her close relative. Shagufta

Praveen was also interrogated, who disclosed that she had received a

telephonic call from Zareena Bano but she did not admit that prosecutrix

had come to her. On 01.05.2009, the Police raided the house of respondent

No. 2 at Trikuta Nagar Jammu and arrested the petitioner, respondent No.

2, 3 and one more person. The prosecutrix was also recovered and her

statement was recorded under section 164-A Cr.P.C. The medical

examination of the prosecutrix was also conducted. After the conclusion

of the investigation, the Investigating Officer proved the offences under

sections 376/366-A/363/109 RPC against respondent No. 2, offences

under section 376/109 RPC against accused Bimla Devi, offences under

section 379/493 RPC against petitioner and offences under section 366-

A/376/109 RPC against accused Chauhan. Besides others, accused

including Parveen were also found involved in the offences but could not

be located. In the charge-sheet, it has been stated that as and when they are

found and identified by the prosecutrix the separate challan shall be filed

against them. The prosecutrix in her statement recorded under section 164-

A Cr.P.C. deposed that the respondent No. 2 asked her to come to Jammu

and on her insistence, she reached Jammu. At Jammu bus stand,

respondent No. 2 took her to a house at Gandhi Nagar Jammu. When the

respondent No. 2 got information that her father was reaching Jammu for

tracing her, she handed over her custody to Parveen, who took her to

Railway Station Jammu and handed over her custody to accused Ajay

Kumar. Ajay Kumar took her to Delhi and contracted marriage with her.

She remained with petitioner for one month without marriage and after

marriage remained in Delhi for five more months. On the asking of the

prosecutrix, petitioner contacted respondent No. 2, who told petitioner to

bring the prosecutrix to Jammu for a couple of days. Thereafter, she was

brought to Jammu by the petitioner and he left her with the respondent No.

2. The respondent No. 2 kept her for two days and thereafter she was sent

with some boys, who took her to Jhajhar Kotli and they committed rape

upon her and thereafter she was dropped at the house of respondent No. 2.

7. The contention of the petitioner that no offence is made out against him in

view of the statement of the prosecutrix is bereft of any merit. Admittedly,

the prosecutrix was 13 years of age and the petitioner knowingly that she

was not major took her along with him to Delhi, where he allegedly

solemnized marriage with her and even remained with her for one month

without marriage. The petitioner after enjoying the company of the minor

prosecutrix left her at the disposal of the respondent No. 2. More so, the

petitioner was arrested from the residence of respondent No. 2 where she

was running a brothel and the petitioner had handed over the custody of

the prosecutrix to the respondent No.2. These circumstances are sufficient

enough to put the petitioner to trial.

8. From the perusal of the charge sheet, it transpires that the investigating

officer has stated in the charge-sheet that the whereabouts of the other

accused including Parveen could not be found and as soon as they are

found and identified by the prosecutrix, the supplementary charge-sheet

shall be filed against the other accused. So the contention of the petitioner

that Praveen Kumar has not been arrayed as an accused or cited as a

witness is also wrong and contrary to record and as such, the same too is

rejected.

9. The last ground urged by the petitioner that the petitioner was earlier

discharged on similar allegations by the Court of Ld. Special Municipal

Magistrate Jammu and as such cannot be put to trial again is without any

substance. The allegations in the present charge-sheet are with regard to

the FIR bearing No. 42/2008 that was lodged with regard to kidnapping of

the prosecutrix, whereas in the charge-sheet in which the petitioner was

discharged by the Ld. Special Municipal Magistrate, Jammu were with

regard to arrest of the petitioner from the house of the respondent No. 2 at

Trikuta Nagar Jammu where the respondent No. 2 was running the

brothel. The allegations in both the charge-sheets are different and as such

the petitioner cannot derive any benefit from the order of discharge passed

by the Ld. Special Municipal Magistrate Jammu.

10. I have gone through the impugned order. The learned trial court has

rightly charged the petitioner for commission of above mentioned offences

and there is no illegality in the order impugned. The learned trial Court

has passed the order impugned well within the parameters laid down by

the Apex court and as such the same is upheld.

11. In view of above, the present petition is found to be without merit and as

such, is dismissed.

(Rajnesh Oswal) Judge \ JAMMU 26.11.2021 Rakesh Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No