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Mushtaq Shah & Ors. vs State And Anr. on 17 October, 2018

HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU

CRMC No. 98/2018 IA Nos. 01/2018, 02/2018 03/2018

Date of order:-17.10.2018
Mushtaq Shah and ors. Vs. State and Anr.
Coram:

Hon’ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearing counsel:
For Petitioner(s) : Mr. N. P. Kotwal, Advocate.
For respondent (s) : Mr. S. S. Ahmed, Advocate.
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.264/2015, registered at Police Station, Rajouri
against the petitioners and respondent No. 2 for commission of offences
under Sections 366, 376 and 343 RPC.

2. In the petition, it has been stated that the petitioner No.1 is working in
police department and petitioner Nos. 2 and 3 are earning their livelihood
by doing hard work. They have not committed any offence and are living
the life of a common man. A complaint was lodged with Police Station,
Rajouri by one-Mst Fareeda Bano, who leveled some false allegations
against the petitioners and respondent No. 2 and the Police Station, Rajouri
registered the above said FIR under Sections 366, 376 and 343 RPC. From
the perusal of the FIR, it is evident that the complaint was lodged on
22nd May, 2015, whereas the incident stated in the FIR is of January, 2015.
Further, the FIR reveals that the complaint has been filed only with a
malafide intention to harass the petitioners and respondent No. 2. It is
alleged in the FIR that the complainant developed intimacy with petitioner
No. 1 in the year 2007 when petitioner No. 1 was hardly of 24 years of age

CRMC No. 98/2018 Page 1 of 9
and the complainant was of 38 years of age. The complainant is a married
woman and has two children from her husband and is working in the health
department. The complainant has admitted that the petitioner No. 1 used to
visit her house and has been visiting for last seven years without any such
advancement or incident. The FIR as such is nothing, but a concoction of
the brain of the complainant.

3. It is further stated in the instant petition that the petitioners, who are
remotely connected with each other, have been implicated on false and
concocted grounds, as the complainant has stated that the petitioners and
respondent No.2 deceived her by saying that they wanted to marry her,
whereas the fact of the matter is that she contracted marriage with
respondent No.2 on 21st January, 2015 in presence of the witnesses and a
Nikahnama was executed. The Haq Meher was fixed at Rs. 5 lacs and the
respondent No.2 being any army man had paid Rs.5 lacs to the
complainant. The police without any intimation to the petitioners started
investigation and asked for a report from Block Medical Officer of the
complainant about her presence on duty during the period she complained
that she was abducted and raped. The Block Medical Officer vide his
Report (Annexure-C) dated 05th June, 2015 has clearly stated that Smt.
Fareeda Bano was present at her station for the month of January, 2015 to
February, 2015. The allegation of abduction made by the complainant
stood negated by the report submitted by the Block Medical Officer. It is
stated in the petition that since 2015, the petitioner No.1 is discharging his
duties regularly and the respondent No. 2 is also posted in army. The
allegations made in the FIR are nothing, but leveled only with an ulterior
motive to malign the petitioners and extract money from them.

4. It is also stated in the instant petition that the police after doing the
investigation and collecting the evidence, did not proceed further, as there
was no truth in the FIR. From the perusal of the FIR, it is crystal clear that

CRMC No. 98/2018 Page 2 of 9
the complainant was of 46 years of age and she kept quiet for five months
and did not disclose the facts about the incident to anybody. She has
admitted in the FIR itself that the petitioners used to go to her house even
then she did not complain about this to anybody. From the perusal of the
FIR, no offence appears to have been committed and the said FIR is
required to be quashed. After three years, the police again has dug out the
FIR and started harassing the petitioners for some extraneous reasons. The
petitioners are being put to pressure and are under threat by the police,
whereas the continuation and further investigation of the FIR is not only an
abuse of the process of law, but is also against the ends of justice.

5. It is further stated in the instant petition that from the perusal of the FIR,
the story as projected by the complainant is highly improbable and does
not infer any confidence in the common man. The complainant has stated
that she was abducted/raped from the ITI Chowk, Rajouri, which is a very
busy place and any untoward incident if occurs, cannot go unnoticed from
the public and nobody is a witness to the occurrence. The police has
thoroughly investigated the matter and even the tower locations of the
mobile phones of the petitioners and the complainant have been collected
and the locations of all of them are different. The police has examined the
moulvi, who has solemnized the Nikahnama between the complainant and
respondent No. 2. After verifying all the aspects of the case, the police
could not get any proof against the petitioners; as such no action has been
taken into the matter till date. The Sarpanch of village Saranu, namely,
Mir Ahmed is also a witness to the Nikahnama and he has also been
examined by the police and none of the two has stated anything against the
petitioners. The complainant is a highly influential lady and has made it a
business to extract money from the innocent people by falsely implicating
them in criminal cases. The story as projected by the complainant in the
FIR does not create any confidence in the common man and harassment of

CRMC No. 98/2018 Page 3 of 9
the petitioners after three years is nothing, but an abuse of the process of
the Court and against the ends of justice. Even on its face value, the story
cannot be accepted. The necessary ingredients of the offences mentioned
in the FIR are not made out in three years, but now the police is using its
authority with a malafide intention to malign the petitioners in a false case,
which is otherwise an abuse of the process of the Court. The Hon’ble
Supreme Court has categorically held in Bhajan Lal’s case that where the
prosecution is malafide, the Court has ample powers to quash the same.

6. I have heard counsel for parties. Counsel for petitioners has reiterated the
grounds taken in petition. In support of his contentions, learned counsel for
the petitioners has relied upon the judgment of Hon’ble Supreme Court
rendered in case titled, “Vinay Tyagi Vs. Irshad Ali @ Deepak and
others”, reported in 2013 (3) AICLR 288. He has also placed reliance upon
the judgments of this Court rendered in cases titled, “Abdul Maroof Vs.
State and ors., reported in 2009 (1) JKJ 138 and “Roshan Sharma Vs.
State of JK and ors., reported in 2017 (6) JKJ 223.

7. Whereas State counsel has argued that investigation is at threshold and
there is prima facie evidence in support of charges leveled in FIR against
the petitioners.

8. During the course of arguments, learned counsel for the petitioners has
produced photo copy of the objections filed by the respondent No.1 i.e.,
State, but on going through the file, I did not find the same. Photo-copy of
the objections is taken on record.

9. I have carefully gone through the whole aspect of the matter.

10. From the perusal of documents on record, it is evident that complainant,
namely B (name withheld), filed a writ petition bearing OWP No.
627/2015 against the State, thereby stating that she was subjected to sexual
exploitation after being gang raped by the accused (private respondent
Nos.4 to 6 therein), who allegedly made a video film of her sexual

CRMC No. 98/2018 Page 4 of 9
exploitation, using modern technology of cell phones. The horrible
incident of gang rape is alleged to have taken place on 23rd January, 2015
in District Rajouri. The accused had been continuously exploiting the
prosecutrix/petitioner therein under the threat of uploading the video
recording on internet, which has made her life miserable and she has
become completely helpless.

11. This Court vide order dated 14th May, 2015, passed in OWP No. 627/2015
directed the respondent No.1-State to protect the prosecutrix/petitioner
therein and set the machinery in motion to book the culprits. On the basis
of this direction, police registered an FIR impugned and commenced the
investigation.

12. During the investigation, statement of the prosecutrix under Section 164-A
Cr.P.C had been recorded before the Magistrate on 15th September, 2018.
In her statement, she has stated that on 23rd January, 2015 at about 6 P.M,
when she was on way to her home after performing duty and reached near
ITI Road Rajouri, the alleged person namely, Mushtaq Hussain Shah along
with Javed S/o Mir Ahmed R/o Saranoo, Shabir Ahmed S/o Mohd.
Yaqoob R/o Soplki and one contractor, name not know R/o Bathuni, met
her near ITI Rajouri and took her in an Alto Car black colour forcibly.
Shabir Ahmed put a handkerchief on her mouth containing some
intoxicated substance and she became unconscious. The alleged persons
kidnapped her and put her in a rented room at Thudi, confined her there
from 23rd January, 2015 to 25th January, 2015 and raped her turn by turn
without her will and consent and the accused-Mushtaq Ahmed made photo
during sexual intercourse. She was threatened by the accused persons with
a threat perception that in case she discloses anything to anyone, they will
kill her. The accused-Mushtaq Ahmed also told her that one of his brothers
is militant, who will also kill her, in case she narrates this fact to anybody.
She was also told by them that her nude pictures during sexual intercourse

CRMC No. 98/2018 Page 5 of 9
would be exposed on internet and other social media, in case she narrates
the whole episode to anyone. On 25th January, 2015, after committing the
crime, the alleged persons left her in front of her house and fled away. It is
the occurrence of 03rd April, 2015, accused-Mohd. Shabir came to her
house in the evening and tried to commit rape on her again. She made a
noise. The said Mohd. Shabir made a telephonic call to other two accused,
who also came there and showed her the video. One person, namely,
Mohd. Afzal was also with them, but neither did he say anything nor he
committed any crime.

13. The law with regard to quashing of FIR while exercising power u/s 561-A
Cr.P.C 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.

14. The expression ends of justice and to prevent abuse of process of any
Court are intended to work out either when an innocent person is
unjustifiable subjected to an undeserving prosecution or if an ex-facie all
merited investigation is throttled at the threshold without allowing the
police to collect the evidence in order to know about truthfulness of
allegations leveled in FIR. Inherent jurisdiction has to be exercised
sparingly, carefully and with great caution. These powers cannot be used to
stifle the legitimate prosecution/investigation.

15. Bare perusal of allegations leveled in FIR and facts which have emerged
during investigation, cognizable offences of serious in nature have been
made out against the petitioners; the investigation so far has been
conducted prima facie shows involvement of petitioners in commission of
crime.

16. The disputed question of facts as averred in this petition cannot be
appreciated for quashing the FIR. Police has statutory duty to investigate

CRMC No. 98/2018 Page 6 of 9
the cognizable offences in terms of section 156 of C.P.C; this duty cannot
be scuttled, while exercising jurisdiction under section 561-A Cr.P.C. The
defense of accused cannot be considered at this stage. The FIR need not be
encyclopedia of all relevant facts and more incriminating material will be
unfolded only during investigation. FIR cannot be placed on the same
pedestal as the charge; in case a FIR showing facts which makes out
cognizable offence is nipped in the bud even before the entire facts are
unraveled, incalculable harm might be caused by depriving the police of
their right to collect evidence. It is not the case of petitioners that there is
some legal bar in law in investigating the matter.

17. In 2008 (3) SCC 753 case titled Som Mittal v. Govt. of Karnataka, it has
been held as under:-

“(10) In a catena of decisions this Court has deprecated the interference by
the High Court in exercise of its inherent powers under Section 482 of the
Code in a routine manner. It has been consistently held that the power
under Section 482 must be exercised sparingly, with circumspection and in
rarest of rare cases. Exercise of inherent power under Section 482 of the
Code of Criminal Procedure is not the rule but it is an exception. The
exception is applied only when it is brought to the notice of the Court that
grave miscarriage of justice would be committed if the trial is allowed to
proceed where the accused would be harassed unnecessarily if the trial is
allowed to linger when prima facie it appears to Court that the trial would
likely to be ended in acquittal. In other words, the inherent power of the
Court under Section 482 of the Code of Criminal Procedure can be invoked
by the High Court either to prevent abuse of process of any Court or
otherwise to secure the ends of justice.

(11) This Court, in a catena of decisions, consistently gave a note of caution
that inherent power of quashing a criminal proceeding should be exercised
very sparingly and with circumspection and that too in the rarest of rare
cases. This Court also held that the High Court will not be justified in
embarking upon an inquiry as to the reliability or genuineness or otherwise
of the allegations made in the F.I.R. or the complaint and that the extra-
ordinary or inherent powers do not confer an arbitrary jurisdiction on the
court to act according to its whims and caprice.

(12) We now refer to a few decisions of this Court deprecating the exercise
of extra ordinary or inherent powers by the High Court according to its
whims and caprice.

CRMC No. 98/2018 Page 7 of 9

(13) In State of Bihar v. J.A.C. Saldanha (1980) 1 SCC 554 this Court
pointed out at SCC p. 574:

The High Court in exercise of the extraordinary jurisdiction committed a
grave error by making observations on seriously disputed questions of facts
taking its cue from affidavits which in such a situation would hardly provide
any reliable material. In our opinion the High Court was clearly in error in
giving the direction virtually amounting to a mandamus to close the case
before the investigation is complete. We say no more.

(14) In Hazari Lal Gupta v. Rameshwar Prasad (1972) 1 SCC 452 this Court
at SCC p. 455 pointed out:

In exercising jurisdiction under Section 561-A of the Criminal Procedure
Code, the High Court can quash proceedings if there is no legal evidence or
if there is any impediment to the institution or continuance of proceedings
but the High Court does not ordinarily inquire as to whether the evidence is
reliable or not. Where again, investigation into the circumstances of an
alleged cognizable offence is carried on under the provisions of the Criminal
Procedure Code, the High Court does not interfere with such investigation
because it would then be the impeding investigation and jurisdiction of
statutory authorities to exercise power in accordance with the provisions of
the Criminal Procedure Code.

(15) In Jehan Singh v. Delhi Administration (1974) 4 SCC 522 the
application filed by the accused under Section 561-A of the old Code for
quashing the investigation was dismissed as being premature and
incompetent on the finding that prima facie, the allegations in the FIR, if
assumed to be correct, constitute a cognizable offence.

(16) In Kurukshetra University v. State of Haryana (1977) 4 SCC 451, this
Court pointed out:

It surprises us in the extreme that the High Court thought that in the
exercise of its inherent powers under Section 482 of the Code of Criminal
Procedure, it could quash a first information report. The police had not even
commenced investigation into the complaint filed by the Warden of the
University and no proceeding at all was pending in any court in pursuance
of the FIR. It ought to be realized that inherent powers do not confer an
arbitrary jurisdiction on the High Court to act according to whim or caprice.
That statutory power has to be exercised sparingly, with circumspection and
in the rarest of rare cases.(emphasis supplied)

(17) In State of Bihar v. Murad Ali Khan (1988) 4 SCC 655 this Court held
that the jurisdiction under Section 482 of the Code has to be exercised
sparingly and with circumspection and has given the working that in
exercising that jurisdiction, the High Court should not embark upon an
enquiry whether the allegations in the complaint are likely to be established
by evidence or not.”

CRMC No. 98/2018 Page 8 of 9

18. 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. 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
petitioners. These are not applicable in present set of circumstances,
because these laws have been made in different set of facts. In “Vinay
Tyagi Vs. Irshad Ali @ Deepak and others” (supra), the matter was
pertaining to investigation conducted by two agency, one by police and
another by CBI; police filed charge sheet, while CBI filed closure report.
Apex Court held that, Court is required to consider both reports. Further, it
has been held that higher court may direct for fresh or de-novo
investigation. In “Abdul Maroof Vs. State and ors, Court was dealing
with final appeal against conviction u/s 376/RPC and in “Roshan
Sharma Vs. State of JK and ors. although this court has quashed the
FIR in offence u/s 376 RPC, but facts of that case are quite different .

19. 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
17.10.2018
Ram Krishan

CRMC No. 98/2018 Page 9 of 9

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