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Mohd. Afzal And Anr. vs State And Ors. on 3 July, 2018

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HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU

CRMC No. 273/2018, MP No. 01/2018
Date of order:- 03.07.2018

Mohd. Afzal and Anr. Vs. State and ors.
Coram:
Hon’ble Mr. Justice Sanjay Kumar Gupta, Judge

Appearing counsel:

For the Petitioner(s) : Mr. K.K. Pathan, Advocate.
For the Respondents(s) : Mr. Ashish Singh Kotwal, Dy. AG.

Mr. Z.A. Mughal, Advocate.

Mr. Razaq Ahmed, SI, Police Station, Mandi, Poonch.

i/ Whether to be reported in : Yes/No
Press/Media
ii/ Whether to be reported in : Yes/No
Digest/Journal

1. In the instant petition filed under Section 561-A Cr. P.C., the petitioners seek
quashment of FIR No. 35/2018 under sections 376/366/342/109 RPC
registered at Police Station, Mandi, Poonch dated 07 th May, 2018 against
them.

2. The facts giving rise to the filing of the instant petition stated are that on 16th
November, 2017, one-Parveen Akhter W/o Bashir Ahmed Hajam R/o Bedar
Phogri, Tehsil Mandi, District Poonch approached Station House Officer
(SHO), Police Station Mandi and submitted a detailed application regarding
the missing report of her daughter, i.e. prosecutrix ( named withheld ), who
left her house. It is submitted that an RTI was filed by one-Mushtaq Ahmed
on 30th March, 2018, seeking information under RTI Act, 2009 relating to
the proceedings initiated against the missing of prosecutrix . The concerned
Dy. SP HQ Poonch issued the documents in detail regarding the missing
report/application filed by the mother of the said girl on 16th November,

CRMC No. 273/2018 a/w MP No. 01/2018 Page 1 of 6
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2017. The details of the RTI Report were issued by the police agency, i.e.,
respondent No. 2 on 30th March, 2018 vide No. HQRs/Rdr/RTI/2018/6182-
84/GB dated 30th March, 2018.

3. It is further pleaded in the instant petition that prosecutrix left the house of
Parveen Akhter on 15th November, 2017 at about 3 P.M and thereafter,
Report No. 4 Roznamacha was registered by her mother, i.e., Parveen
Akhter at Police Station, Mandi on 16th November, 2017. After registration
of the missing report, the said girl was intercepted by the police alone on
Sedi Khawaja and brought her at Poonch on 16 th November, 2017 and she
remained with Police Women Cell, Poonch and made a statement before the
police authorities on 18th November, 2017. After recording the statement of
the said girl on 18th November, 2017, she was handed over to the parents in
presence of the witnesses, who put the signatures/thumb impressions in
Supardnama. The parents and witnesses admitted that the missing girl has
been recovered.It is also pleaded in the instant petition that the Supardnama
was prepared in presence of the witnesses and the said girl was handed over
to Parveen Akhter, Mohd. Shafi S/o Jamal Din and Mohd. Rafiq S/o Fateh
Mohd. in presence of witnesses-Bashir Ahmed S/o Fateh Mohd. Mohd. Jan
S/o Ghulam Mohd. and Abdul Raahid S/o Jamal Din, who are all the
residents of village Bedar Balnoi .

4. In FIR registered against the petitioners, it is nowhere mentioned whether the
petitioners are harassing the aforesaid girl or not.

5. It is also submitted that one-Mohd. Farooq filed a petition bearing HCP No.
53/2017 before this Hon’ble Court, title “Mohd. Farooq Vs. State and
ors.”. During the pendency of the said petition, Parveen Akhter and others
sent prosecutrix to Mumbai. Parveen Akhter, filed petition u/s 561-A Cr.
P.C bearing No. 38/2016, challenging the order of Sub-Judge Special Mobile
Magistrate, Poonch before this Court and this Court after hearing the matter,
disposed of the petition with a direction to the police authority to investigate

CRMC No. 273/2018 a/w MP No. 01/2018 Page 2 of 6
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the case, the source of which is the Complaint lodged by uncle and the
mother of girl. The initial Complaint/application was filed by the said
Parveen Akhter against missing of her daughter on 16th November, 2017 and
on the same day, she was recovered by the police from Sedi, where remained
with the Women Cell, Poonch till 18th November, 2017 and she made a
statement before the police authority in presence of the witnesses.
Thereafter, she was also handed over by the police authority on Supardnama.
She made another statement before this Court under the pressure of mother
and other persons and her statement recorded before the Sub-Registrar,
Jammu as per the direction of this Court, where she created a new story
under the influence of mother and mother, who are the party in the petition
bearing No. 53/2017 that she got married with Javed Iqbal seven months
ago. In this respect, the missing report lodged by the mother that girl was
married with Javed Iqbal S/o Mohd. Bashir R/o Bedar Balnoi, Tehsil Mandi,
District Poonch, where she was married on 12th July, 2017.

6. After the disposal of the above titled petition, prosecutrix and her mother are
unnecessarily harassing the petitioners for filing a Complaint against them
and some influential persons also asked the petitioners to settle the dispute
and pay the huge amount from the pocket of Mohd. Farooq, who filed a
litigation before this Court and if the dispute is not settled, then the
petitioners are responsible for any action. It is also averred in the instant
petition that the police of Police Station, Mandi is harassing and threatening
the petitioners that the said FIR has been registered at Police Station, Mandi
against the petitioners is on the basis of Complaint filed by prosecutrix and
Tabasum Bano.

7. It has also been averred in the petition that the impugned FIR registered
against the petitioners and others on the basis of OWP No. 464/2018 is in
violation of order dated 09th February, 2018, where the Hon’ble Court after
hearing the parties passed the order that the source of which is the complaint

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lodged by the uncle and the mother of prosecutrix. The allegations made in
the impugned FIR and in the Complaint are so absurd and inherently
improvable and on the basis of which, no prudent person can ever reach at
just conclusion that there is sufficient grounds for proceedings against the
petitioners.

8. I have heard counsel for petitioners, State as well as complainant. Petitioners
have relied upon decision of Hon’ble Supreme Court in case titled “State of
Haryana and ors. Vs.Bhajan Lal and ors., reported in 1992 AIR 604. The
I/O SI Razaoq Munshi has appeared and C/D file has also been perused.
From the perusal C/D file it is evident that statement of prosecutrix has been
recorded on 22.5.2018 before JMIC Poonch u/s section 164-A Cr.P.C. In her
statement she has categorically stated that on 15.11.2017, her mother had
gone to Poonch for purchase of some articles; thereafter she received
phone from mother that she was supposed to come at 4 PM at main
road; she accordingly reached there; meanwhile one tempo no. 6978
came; there were five persons in it; they were Mohd. Farooq, his
brother Mustaq Ahmed; uncle Mohd. Afjal; Farooq Ahmed Wani and
one there relative; Mohd. Farooq came down and pushed her in vehicle;
they took her forcibly at the house of Mohd. Afjal and confined her in a
store room for three days; both Mohd. Farooq and Mustaq Ahmed
committed rape with her; Mohd. Afjal torn her clothes and beaten her
with the result her lips were bleeded. Her mother had lodged report, so
police came there and accused fled away.

9. Bare perusal of this statement, it is evident that prosecutrix has deposed
against the accused persons and cognizable offence is made out.

10.The law with regard to quashment of FIR is now well settled. FIR can only
be quashed in order to prevent abuse of process of law or to otherwise secure
the ends of justice. The expression ‘ends of justice’ and ‘to prevent abuse of
process of any court’ are intended to work out either when an innocent

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person is unjustifiable subjected to an undeserving prosecution or if an
exfacie all merited prosecution is throttled at the threshold without allowing
the material in support of it.

11.This court while exercising the power under section 561-A Cr.P.C., court
does not function as court of trial, appeal or revision. Inherent jurisdiction
has to be exercised disparity, careful and with great caution. These powers
cannot be used to stifle the legitimate prosecution. This is discretionary
power vested in High Court to do substantial justice. High Court cannot
examine the evidence as to whether charge for alleged offence is made out or
not. This is prerogative of trial court where challan is produced. Where
accused has opportunity to advance submission before trial court that
material on record does not call for framing of charge then High Court shall
not exercise power under section 561-A Cr.P.C.

12.In present case as per statement of victim under section 164-A Cr.P.C,
petitioners have illegally confined her in a store room and committed rape on
her on relevant date and time.

13.All the pleas taken in the petition and that argued may be relevant for
discharge of accused, but not for quashing the FIR, because all the pleas are
pertaining to appreciation of facts. It is not case of the petitioner that there is
an express legal bar engrafted in any of the provisions of the Code or the
concerned Act (under which a criminal proceeding is instituted) to the
institution and continuance of the proceeding.

14.As already held, this court cannot appreciate the facts in this petition as to
whether case under section 376 RPC is made out or not. I have gone through
the law cited by counsel for petitioner. There is no dispute with regard to
law cited by learned counsel for petitioners, but it is not applicable in present
set of case.

CRMC No. 273/2018 a/w MP No. 01/2018 Page 5 of 6
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15.In view of above discussion, this petition is dismissed. Interim stay, if any,
is vacated. However, petitioners are at liberty to take all pleas of facts or law
before trial Court at the time of framing of charge.

( Sanjay Kumar Gupta )
Judge
Jammu
03.07.2018
Ram Krishan

CRMC No. 273/2018 a/w MP No. 01/2018 Page 6 of 6

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