Ajay Kumar vs State Of Jammu & Kashmir

Through the instant petition filed under Section 561-A of the Code of Criminal Procedure (hereinafter for short, Cr.P.C) petitioner seeks quashing of the FIR No.0019 of 2019 dated 19.02.2019 registered with Police Station Bishnah against the petitioner for commission of offence under Sections 376, 318, 420 RPC and the investigation/ proceedings being conducted against the petitioner in the said FIR.

The case of the petitioner is that complainant had acquaintance with the petitioner and she showed her desire to marry the petitioner, but the family of the complainant was against the said marriage because of the reason that the petitioner is driver by profession. Even the family of the petitioner was also not agreeable to the marriage of the petitioner with the complainant. It is stated that the complainant is having close nexus and proximity with the officials of Police Station, Women Cell, Gandhi Nagar, Jammu and in order to put pressure on the petitioner to marry her, she started threatening the petitioner of his false implication in a criminal case. It is further stated that complainant filed some complaint with Police Station, Women Cell, Jammu on 11.01.2019 and petitioner was called to the police Station where the complainant alleged that conversation with regard to her marriage with the petitioner was done and further alleged that the petitioner has committed rape on her as a result of which she became pregnant. Complainant further alleged that she had taken medicine and her pregnancy aborted.

Learned counsel for the petitioner states that neither in the complaint filed by the complainant nor in the enquiry conducted by the Police Station, Women Cell Jammu, the time, date, and place of alleged rape were indicated and further that there was no evidence brought on record, which even remotely demonstrated the fact that the complaint was pregnant and abortion was done. It is stated in the complaint, that the complainant also attempted to rope the parents of the petitioner. It is further stated that complainant has close nexus with an official of Police Station, Women Cell, Jammu, therefore, because of the influence and pressure yielded by the complainant through one of the police officials got her complaint referred to Police Station, Bishnah. A Special Govt. vehicle along with its driver and a selection grade constable was deputed to Police Station, Bishnah to get the impugned FIR registered against the petitioner. It is stated that based upon the docket sent by the Police Station, Women Cell, Jammu the respondent without conducting any enquiry and without associating the petitioner with any such enquiry, registered the impugned FIR No.0019 of 2019 dated 19.02.2019 and with the registration of the said FIR, petitioner was arrested on 19.02.2019.

Learned counsel for the petitioner further states that petitioner is languishing in Jail notwithstanding the fact that all the allegations alleged against the petitioner are totally baseless, concocted, frivolous and without any evidence or otherwise.

The petitioner is aggrieved of the impugned FIR No.0019 of 2019 dated 19.02.2019 and challenges the same on the following grounds:-

That the impugned FIR registered by the respondent No. 1 on the docket received from Police Station, Women Cell, Jammu is totally illegal and based upon such accusations and allegations which are far-far away from truth; that the petitioner has no relation of any sort with the complainant nor has he ever had any sexual relation with the complainant at any point of time; that the allegations alleged by the complainant in her complaint are highly vexatious and have been alleged for the pure motive of harassing and blackmailing the petitioner, as the petitioner from day one has told the complainant that he will not go against the wishes of his parents; that the allegations as contained in the impugned FIR if evaluated and weighed on the touchstone of provisions as contained in Sections 376, 318 and 420 RPC, no case much less a case for commission of offence punishable under Sections 376, 318 and 420 RPC is made out against the petitioner.

Same grounds have been taken in the bail application.

Contents of the FIR No.0019 of 2019 dated 19.02.2019 registered with Police Station Bishnah, reads as under:-

"on 19.02.2019, constable Mohd. Manzoor bearing No. 2008/J and driver Selection Grade Constable Parvinder Singh bearing No. 1713/J posted at Women Cell, Jammu came in an official vehicle alongwith a docket which was written in Urdu, the contents of the docket are under:-

To the SHO P/S Bishnah

That complainant, name A (name withheld ) D/o Mohan Lal R/o Najwal, Tehsil Bishnah has presented a complaint dated 11.01.2019 against accused person, namely, Ajay Kumar S/o Tilak Raj (2) Nimo Devi W/o Tilak Raj (3) Tilak Raj S/o unknown, R/o Kotli Charkan Tehsil Bishnah. On the basis of the said complaint the concerned Police Station called both the parties in the Police Station and during investigation complainant has stated that she was going to marry with Ajay Kumar. Ajay Kumar committed rape with her forcibly, due to which she became pregnant, thereafter she came to her house and taken some medicines due to which her pregnancy got aborted. The said accused kept her in dark stating that he would marry her. Thereafter the complainant came to know the said accused has married another woman, namely, Arti D/o Bishan Lal R/o Balchak and documents attested by notary has been made by him. After the investigation offences under section 376/420/318RPC was registered which does not pertain to the instant women cell and the same has been transferred to Police Station, Bishnah and the investigation in the case may be conducted accordingly and oblige. Dated 19.02.2019 Sd/Women Cell Gandhi Nagar.

On the basis of the said docket offences under Sections 376/420/318 RPC were registered and investigation of the case was started. Because the case is a special type of case and a separate report in this regard will be presented. The investigation of the case has been handed over to SI Pankaj Kumar who has arrested the alleged accused Ajay Kumar and Tilak Raj have been arrested, there body search has been taken and have been lodged in the Police Station."

Status report has been filed by the respondent, stating therein that on 19.2.02019, a docket/application received through SHO Women Police Station Gandhi Nagar Jammu that a girl namely-A, D/o Mohan Lal age 24 years R/o Najwal, Tehsil Bishnah, District Jammu was raped by one Ajay Kumar S/o Tilak Raj age 26 years R/o Kotli Charkan, Tehsil Bishnah, District Jammu on the pretext of marriage and when she became pregnant she was miscarriaged by the said accused by giving pill. It is further stated that on this, a case FIR No. 19/2019 U/Ss 376/318/420 RPC was registered in Police Station Bishnah and investigation of the case was entrusted to SI Ankuj Kumar and during the course of investigation, I.O visited the spot, prepared the site plan and recorded the statement of witness under Section 161 Cr.P.C. and also got the medical examination of the victim, namely, Nisha Devi and the slides of the victim were sent to FSL Srinagar for Chemical Analysis. The accused, namely, Ajay Kumar S/o Tilak Raj was arrested on 19.02.2019 and the statement of victim, u/s 164-A Cr.P.C was recorded before JMIC Bishnah and after depositing the slides of victim at FSL Srinagar, FSL receipt was attached in the challan and on the basis of said investigation offences under Sections 318/376/420 RPC proved against the accused person namely, Ajay Kumar S/o Tilak Raj R/o Kotli Charkan, Tehsil Bishnah, District Jammu. It is further stated in the status report that the challan of the above said case FIR No.19/2019 was produced before the Court of JMIC Bishnah on 20.04.2019, against Ajay Kumar, who is in judicial custody and FSL report is pending.

In support of his contention, learned counsel for the petitioner relies upon a decision of Hon'ble Supreme Court reported in 2013 AIR (SC) 2071, Deepak Gulati vs. State of Haryana. Reliance is also placed on the judgments of this Court rendered in Roshan Sharma vs State of J&K and ors., reported in 2017 (6) JKJ 223; and Manik Seth Vs. State, CRMC No. 263/2018 decided on 22.02.2019.

I have considered the rival contentions of parties.

Now admittedly challan in present case has been produced before competent court of law. So said court is seized of the matter. There is no dispute with regard to law that even after presentation of challan, the FIR can be quashed. But for quashing the FIR, it has to be shown that there was some legal bar in any law right from inception for lodging of FIR. But in present case, counsel for petitioner has failed to project any such bar in lodging of FIR. The petitioner has raised disputed question of facts, which cannot be considered in this petition. Exercise of power under Section 561-A Cr.P.C. is the exception and not rule- Inherent jurisdiction of High Court under this section may be exercised:-

To giveeffectto an order under the Code.

To prevent abuse of the process of Court.

To otherwise secure the ends of justice.

Bare perusal of this section makes it clear that the provisions of the Code are intended to limit or affect the inherent powers of the High Courts. Obviously the inherent power can be exercised only for any of the three purposes specifically mentioned in the section. This inherent power cannot naturally be invoked in respect of any matter covered by the specific provisions of the Code. It is only if the matter in question is not covered by any specific provision of the Code then this section can come into operation, subject further to the requirement that the exercise of such power must serve either of the three purposes mentioned in the said section. Under section 561 A Cr.P.C., High court does not conduct a trial or appreciate evidence or function as court of appeal or revision. This power has to be exercised sparingly with circumspection and in the rarest of rare cases. While exercising powers under Section 561-A of the Cr.P.C. the Court has to keep in mind that it should not ordinarily embark upon any legal order passed by any Court.

In present case, all the grounds taken in petition are pertaining to appreciation of facts, which this court cannot appreciate in detail. As already held petitioner has failed to apprise the court as to what is legal bar engrafted in any law for police to investigate the matter and produce challan before court below. All the grounds taken in memo of petition and those argued are defenses which accused has to establish during course of trial before court below. The law cited is not applicable at this stage, because trial has already been commenced.

So petitioner has not made out any case for quashing the FIR, which has been investigated; and as per status report filed by respondent, offences under section 376/318/420RPC have been proved against the petitioner from investigation conducted. Hence, without commenting on merit of case, this petition is dismissed along with all connected MP(s), if any.

So far as BA No. 27/2019 is concerned, I am of the view that at this stage, this court cannot entertain this application as matter is sub judice before competent court. Previous application for grant of bail has been dismissed during investigation stage; now trial has commenced, so petitioner can file a fresh petition before trial court, who shall consider the same on its own merits.

Both the petitions are disposed of accordingly.