Mohd. Afzal And Anr. @APPELLANT@Hash State And Ors.

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 07th May, 2018 against them.

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, 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/2018/618284/GB dated 30th March, 2018.

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 16th 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 .

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

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.â€. 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 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.Â

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.Â

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.

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 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.

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 ofHaryana 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;Â 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.

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

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 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. Â

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.

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.

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.

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.

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.