Jalal-Ud-Din Mir & Others vs State Of J&K Through Sho
2021 Latest Caselaw 1158 j&K/2

                         IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                                            AT SRINAGAR

                                                                         Reserved on:21.09.2021
                                                                       Pronounced on:24.09.2021

                                                 CRMC No.279/2017

                    JALAL-UD-DIN MIR & OTHERS                             ... PETITIONER(S)

                                    Through: - Mr. Syed Manzoor, Advocate.
                    Vs.

                    STATE OF J&K THROUGH SHO                           ...RESPONDENT(S)
                    P/S SUMBAL

                                    Through: - Mr. Hakim Aman Ali, Dy. AG.

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

                                                        JUDGMENT

1) Petitioners have challenged criminal challan arising out of FIR

No.104/2009 for offences under Section 366, 376, 109 RPC registered with

Police Station, Sumbal, which is stated to have been presented before the

Court of Judicial Magistrate, 1st Class, Sumbal.

2) According to the petitioners, a false and frivolous FIR bearing

No.104/2009 for offences under Section 366, 376, 109 RPC came to be

registered against them with Police Station, Sumbal, Sonawari, and after

investigation of the case, a challan came to be presented against them before

the Court of Judicial Magistrate, 1st Class, Sumbal. It is the case of

petitioners that petitioner No.1 had entered into wedlock with the

prosecutrix on 30.05.2009 as per Muslim rites. A Nikah Nama and a

marriage agreement was executed by petitioner No.1 and the prosecutrix,

copies whereof have been placed on record. It is alleged that petitioner No.1 MOHAMMAD ALTAF BHAT 2021.09.24 16:10 I attest to the accuracy and integrity of this document

and the prosecutrix lived together as husband and wife for about two

months but thereafter parents of the prosecutrix, being not happy with the

marriage, lodged a false FIR against the petitioners. It is further alleged that

the parents of the prosecutrix took away her custody from petitioner No.1

against her will and wish, whereafter she entered into a wedlock with

another person.

3) It is further averred in the petition that in her statement recorded

under Section 164-A Cr. P. C after about two and a half months of registration of

the case, the prosecutrix implicated the petitioner by speaking falsehood just to

wreak vengeance upon them. According to the petitioners, the statement of the

prosecutrix recorded under Section 164-A Cr. P. C does not inspire

confidence and contents thereof sound preposterous and absurd. On these

grounds, petitioners have sought quashment of the criminal proceedings

initiated against them on the basis of the challan laid before the trial court.

4) The respondent-State has filed its status report, wherein it has been

averred that on 12.06.2009, a written complaint was received by Police

Station, Sumbal, from the father of the prosecutrix, wherein it was alleged

that his minor daughter had been kidnapped by the petitioners and two other

persons. The FIR came to be registered on the basis of this report and

investigation of the case was set into motion. Statements of witnesses under

Section 161 Cr. P. C were recorded, whereafter, on 24.07.2009, the

prosecutrix was recovered from the possession of petitioner No.1. After

conducting her medical examination, commission of offence under Section

376 RPC was disclosed and it was also found that the prosecutrix was aged

MOHAMMAD ALTAF BHAT more than 18 years and, as such, instead of offence under Section 363 RPC, 2021.09.24 16:10 I attest to the accuracy and integrity of this document

offence under Section 366 RPC was added. Petitioner No.1 came to be

arrested on 24.07.2009 and the statement of the prosecutrix under Section

164-A Cr. P. C was also recorded. After completion of investigation of the

case, offences under Section 366/109 RPC were found established against

one Tariq Ahmad Mir and petitioners No.2 to 4. Besides this, offence under

Section 366/376 RPC was found established against petitioner No.1.

Accused Tariq Ahmad Mir is stated to have died on 29.10.2013.

5) I have heard learned counsel for the parties and perused the material

on record including the record of the challan.

6) A perusal of the statement of the prosecutrix recorded under Section

164-A Cr. P. C reveals that she has, in clear terms, implicated all the

petitioners. According to her, she was kidnapped by the petitioners from

the house of her aunt which is located at Trehgam. She has gone on to state

that she was taken in a vehicle to a place somewhere in Rajasthan and was

kept there for about two months, during which period, petitioner No.1

committed rape upon her at least six or seven times. She has gone on to

state that the petitioners would keep on changing her location from time

to time and after two months she was brought back to Srinagar where police

recovered her. She has further stated that petitioner No.1 was interested in

marrying her.

7) From the aforesaid statement of the prosecutrix, it is clear that she

has implicated all the petitioners and has levelled allegations of kidnapping

and rape against them. So far as the contention of petitioners that statement

of the prosecutrix was recorded after two months of registration of FIR is MOHAMMAD ALTAF BHAT 2021.09.24 16:10 I attest to the accuracy and integrity of this document

concerned, the merits of the same cannot be determined in these

proceedings. The evidentiary value of a statement recorded under Section

164-A Cr. P. C can be assessed and evaluated by the trial court at the time

of framing of the charges and the same cannot be done in these proceedings.

Similarly, the contention of the petitioners that the petitioner No.1 had

entered into wedlock with the prosecutrix cannot be gone into in these

proceedings. The validity of the alleged marriage is a question which

cannot be gone into in these proceedings.

8) The power under Section 561-A of J&K Cr. P. C (which corresponds

to Section 482 of Central Cr. P. C) is not to be exercised as a matter of

routine. Such power has to be exercised sparingly with great

circumspection so as to avoid miscarriage of justice. The material on record

of the charge sheet clearly suggests that it is not a case where it can be stated

that no offence is made out against the petitioners or that there has been

miscarriage of justice. Therefore, I am of considered view that this is not a

fit case where inherent power under Section 561-A of J&K Cr. P. C can be

exercised.

9) For the foregoing reasons, no ground is made out which would

warrant exercise of power under Section 561-A of J&K Cr. P. C.

Petition being devoid of merit is dismissed

(Sanjay Dhar) Judge Srinagar 24.09.2021 "Bhat Altaf, PS"

                                           Whether the order is speaking:         Yes/No
MOHAMMAD ALTAF BHAT
                                           Whether the order is reportable:       Yes/No
2021.09.24 16:10
I attest to the accuracy and
integrity of this document