Mohsin Rizvi vs Union Territory Of J&K And Another
2021 Latest Caselaw 1363 j&K

     HIGH COURT SOF JAMMU AND KASHMIR AND LADAKH
                       AT JAMMU
                                  Reserved on 25.10.2021
                                  Pronounced on 29.10.2021

                                                  CRM(M) No. 675/2019 (O&M)



Mohsin Rizvi                                             .....Appellant/Petitioner(s)

                               Through :- Mr. Sunil Sethi, Sr. Advocate with
                                          Mr. Mohsin Bhat, Advocate

                         v/s

Union Territory of J&K and another                                .....Respondent(s)

                               Through :- Mr. Bhanu Jasrotia, GA
                                          Mr. A. P. Malik, Advocate

CORAM: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE

                                JUDGMENT

1. The present petition has been filed by the petitioner for quashing FIR

bearing No. 550/2017 dated 19.12.2017 for commission of offences

under sections 363 and 109 RPC registered with Police Station,

Rajouri.

2. It is stated that the petitioner is presently 19 years of age and had

friendly relations with one girl named withheld. The friendly

relations of the petitioner were not to the liking of the mother of the

girl because the petitioner and the said girl belonged to different

religions. However, at no point of time there was any physical

relationship with the petitioner and the said girl. In order to stop the

petitioner with the meeting of the said girl and to pressurize the

petitioner, the mother of the girl filed a complaint with Police Post

City, Rajouri and succeeded to lodge the FIR impugned dated

19.12.2017 under sections 363 and 109 RPC against the petitioner.

3. It is further submitted that during this intervening period of two

years, the said girl was married to one Mr. Ajay Yadav and is living

presently in Delhi and she is reportedly having a girl child from her

matrimonial wedlock from the said marriage as well. It is further

stated that in order to avoid her prosecution, as the false and

frivolous FIR was lodged by the mother of the girl, the mother of the

girl got the statement of her daughter recorded in support of her

allegations after two years of lodging of the FIR and this mere fact

alone, demonstrates the falsity of the impugned FIR.

4. The petitioner has impugned the FIR on the following grounds:

(i) That the FIR impugned is apparently false and frivolous as,

Had it been a case of sexual encounter of the said girl with the

petitioner, she could have got herself medically examined after

the occurrence or her medical examination could have been

done by the Police, however no such examination was done

and now the girl is married and the medical evidence has

become irrelevant with the passage of time.

(ii) That there is no plausible explanation of the delay of two years

in getting the statement of the girl recorded when the girl

during this period was all along available in Rajouri and there

was no pressure upon the girl not to give her statement.

(iii) That the petitioner is a juvenile on the day when the said

allegation was made against him in the impugned FIR and the

statement has been made by the girl only to save her mother

from facing prosecution as the FIR lodged by her mother was

false.

(iv) That the FIR impugned is liable to be quashed as none of the

ingredients of sections 363 and 109 RPC are present against

the petitioner.

5. Response stands filed by the respondents in which it is stated that on

19.12.2017, complainant lodged a written complaint at Police Post

City, Rajouri stating therein that she had been residing at W. No. 9

near Bus Stand, Rajouri and her daughter aged 17 years is a student

of 12th Class. On 18.12.2017 at 4.00 PM alleged persons, namely,

Mohsin Quershi, petitioner herein with the conspiracy of others

kidnapped her daughter and took her to unknown place. On this

report, cognizable offence was entered vide DD No. 09 dated

19.12.2017 at Police Post City Rajouri and accordingly, a case FIR

No. 550/2017 for commission of offences under sections 363 and

109 RPC was registered at Police Station, Rajouri. During the course

of investigation, the statement of the victim was recorded under

section 164-A Cr.P.C. before the Chief Judicial Magistrate, Rajouri

on 07.11.2019 and offences under sections 366 and 376 were proved

against the accused person, namely, Mohsin Rizvi, petitioner herein

and offences under sections 363 and 109 RPC were not proved and

deleted.

6. Mr. Sunil Sethi, learned senior counsel for the petitioner has

vehemently argued that the statement of the victim was recorded

after two years and offence under sections 363 and 376 were added

and the mere fact that the statement of the victim was recorded after

two years demonstrates that a false and frivolous FIR had been

lodged by the mother of the victim.

7. On the other hand, Mr. Bhanu Jasrotia, learned GA has vehemently

argued that the investigation was carried out and pursuant to the

investigation, offences under sections 366 and 376 RPC were also

added and mere fact that there was delay in recording the statement

of the victim cannot result into the quashment of the FIR.

8. Heard learned counsel for the parties and perused the record.

9. From the record, it is evident that on 19.12.2017 at 1340 hours

complainant Neelam Devi lodged a report at Police Post City Rajouri

and in which it was stated that his daughter was 17 years of age and

on 18.12.2017 at 4 PM the accused along with others had kidnapped

and taken her daughter to unknown place and despite search she

could not be located. On this, the FIR impugned was registered and it

is also evident that the statement of the abductee was recorded after

nearly two years of the alleged occurrence and during the course of

investigation, offence under section 376 RPC has been added and

offences under sections 366 and 376 RPC have been proved as per

the investigation.

10. The only contention raised by Mr. Sethi is that there has been a delay

of two years in recording the statement of the victim girl and it

clearly shows that the false and frivolous FIR was lodged by the

mother of the complainant in order to force the petitioner not to

continue the friendly relationship with her daughter. A perusal of the

FIR reveals the commission of cognizable offence and during the

course of investigation, offences under sections 366 and 376 have

been added and the contention that the FIR is required to be quashed

because after two years statement of the girl was recorded, is

misconceived.

11. The petitioner can take the advantage of the delay in recording the

statement of the girl during the course of trial in the event of filing of

challan provided the prosecution is unable to explain the delay in

recording the said statement, but nonetheless, merely delay in

recording the statement of the witness/abductee cannot result into the

quashing of the FIR. The other contention of Mr. Sethi that the said

FIR was lodged with ulterior motive to desist the petitioner from

continuing his friendly relationship with her daughter, is a disputed

question of fact that cannot be adjudicated upon by this Court while

considering a petiton for quashing the FIR. The petitioner can raise

this plea during the course of trial in the event the charge-sheet is

filed against the petitioner.

12. In view of all what has been discussed above, there is no merit in

this petiton, as such, the same is dismissed.

(Rajnesh Oswal) Judge JAMMU:

29.10.2021
Rakesh
                             Whether the order is speaking:      Yes/No
                             Whether the order is reportable:    Yes/No