Sanjay Kumar Gupta ORDER
Sanjay Kumar Gupta, J.
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 mala fide 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 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 arm 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 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 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 mala fide 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 mala fide, 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 MANU/SC/1101/2012 : 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 MANU/JK/0351/2008 : 2009 (1) JKJ 138 and "Roshan Sharma Vs. State of J & K and Ors., reported in MANU/JK/0125/2017 : 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 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 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 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 MANU/SC/8586/2008 : 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 extraordinary 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.
(13) In State of Bihar v. J.A.C. Saldanha MANU/SC/0253/1979 : (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 MANU/SC/0117/1971 : (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 MANU/SC/0147/1974 : (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 MANU/SC/0102/1977 : (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 MANU/SC/0470/1988 : (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."
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 J & K 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.
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