Jammu & Kashmir High Court
Muzamal Aziz vs Ut Of J&K And Another on 13 December, 2024
Author: Javed Iqbal Wani
Bench: Javed Iqbal Wani
Serial No. 1
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
CRM(M) No. 808/2024
CrlM No. 1662/2024, 1846/2024
Muzamal Aziz .....Appellant(s)/Petitioner(s)
Through: Mr. Narinder Kumar Attri, Advocate.
vs
UT of J&K and another ..... Respondent(s)
Through: Mr. Eishan Dadichi, GA.
Coram: HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
ORDER
13.12.2024
ORAL
1. In the instant petition filed under Section 482 Cr. P.C., the petitioner
herein seeks quashing of FIR No. 76/2024 dated 14.09.2024 registered
with Police Station, Gool, Ramban for commission of offence under
Section 376 IPC.
2. Facts:-
On a compliant filed by the respondent 2 herein before the respondent
1 herein, the impugned FIR came to be registered against the petitioner
herein, in that, in the said complaint, the respondent 2 herein had
stated that she was in contact with the petitioner herein on Instagram
and during the said course, one day in the month of January 2024, the
petitioner herein invited her to his residence, where the petitioner
herein committed rape upon her whereafter sometime pain arose in her
abdomen, whereupon she contacted the petitioner herein on phone and
CRM(M) No. 808/2024
CrlM No. 1662/2024, 1846/2024 2informed him about the same, however, the petitioner blocked her
number thereafter and in the meantime she came in contact with
another boy, namely, Shahid Ahmed, who became her friend and after
few days, she came to know that she has become pregnant, which she
divulged to her family and informed them that the child is of the
petitioner herein and that when the delivery time of the child came
nearer, her family told the said position to the brother of above named
Shahid Ahmed, namely, Jameel Ahmed on phone, whereafter, the said
the Shahid Ahmed told her family members on phone that he will
accompany the complainant to hospital and that when she went to the
hospital at Srinagar, she was accompanied with her family members,
the said Shahid Ahmed and his mother and in the hospital, she
delivered a baby girl, however, the said Shahid Ahmed as also her
family members ran away and the complainant remained alone with
the baby girl in the hospital.
3. Upon registration of the impugned FIR, according to the prosecution
version, investigation came to be set into motion and both the
petitioner herein as also the above named Shahid Ahmed came to be
implicated as accused persons.
4. The petitioner herein has challenged the impugned FIR on multiple
grounds urged in the petition including that the FIR does not reveal
commission of offence in question and that the prosecution launched
against the petitioner herein is an abuse of process of court and that
word to word perusal of the impugned FIR does not disclose the
ingredients of the alleged offence and that the alleged offence leading
CRM(M) No. 808/2024
CrlM No. 1662/2024, 1846/2024 3
to the pregnancy of the complainant, seemingly is attributed to the
other accused, inasmuch as the complainant being a major appears to
have had consensual sex leading to her pregnancy.
5. Status report has been filed by the respondent 1 in compliance to the
order passed by this Court, wherein it is being, inter alia, stated that
during the course of investigation, statement of the complainant was
got recorded under Section 183 Cr. P.C. and consequently offence
under Section 376 IPC came to be deleted and offences under Sections
376-D, 34 and 506 IPC came to be incorporated and after completion
of the investigation, said offences were found to have been committed
by the petitioner herein and the other accused, namely, Shahid Ahmed,
while stating further that the DNA profiling report of the petitioner
herein and that of the baby girl born to the complainant revealed that
the petitioner herein is her biological father and that the investigation
in the FIR has been completed and the offences in question are found
to have been established against the accused persons including the
petitioner herein.
Heard learned counsel for the parties and perused the record.
6. Before proceeding further in the matter, it would be appropriate in the
first instance to refer to the ambit and scope of inherent power vested
in this Court under Section 482 Cr. P.C. (now Section 528 BNSS),
which ambit and scope, in fact, has been dealt with and deliberated
upon by the Apex Court in a series of judgements including in case
titled as “Neeharika Infrastructure Pvt. Ltd. vs. State of
CRM(M) No. 808/2024
CrlM No. 1662/2024, 1846/2024 4
Maharastra & Ors” reported in AIR 2021 SC 1918 wherein at Para
7 following has been laid down:-
7. While considering the aforesaid issue, law on the exercise of
powers by the High Court under Section 482 Cr.P.C. and/or
under Article 226 of the Constitution of India to quash the
FIR/complaint and the parameters for exercise of such powers
and scope and ambit of the power by the High Court
under Section 482 Cr.P.C. and/or under Article 226 of the
Constitution of India are required to be referred to as the very
parameters which are required to be applied while quashing the
FIR will also be applicable while granting interim stay/protection.
7.1 The first case on the point which is required to be noticed is
the decision of this Court in the case of R. P. Kapur (supra).
While dealing with the inherent powers of the High Court under
Section 561-A of the earlier Code (which is pari materia with
Section 482 of the Code), it is observed and held that the inherent
powers of the High Court under Section 561 of the earlier Code
cannot be exercised in regard to the matters specifically covered
by the other provisions of the Code; the inherent jurisdiction of
the High Court can be exercised to quash proceedings in a proper
case either to prevent the abuse of the process of any court or
otherwise to secure the ends of justice; ordinarily criminal
proceedings instituted against an accused person must be tried
under the provisions of the Code, and the High Court would be
reluctant to interfere with the said proceedings at an interlocutory
stage. After observing this, thereafter this Court then carved out
some exceptions to the above-stated rule, which are as under:
“(i) Where it manifestly appears that there is a legal bar
against the institution or continuance of the criminal
proceeding in respect of the offence alleged. Absence of the
requisite sanction may, for instance, furnish cases under
this category.
(ii) Where the allegations in the first information report or
the complaint, even if they are taken at their face value and
accepted in their entirety, do not constitute the offence
alleged; in such cases no question of appreciating evidence
arises; it is a matter merely of looking at the complaint or
the first information report to decide whether the offence
alleged is disclosed or not.
(iii) Where the allegations made against the accused
person do constitute an offence alleged but there is either
CRM(M) No. 808/2024
CrlM No. 1662/2024, 1846/2024 5no legal evidence adduced in support of the case or the
evidence adduced clearly or manifestly fails to prove the
charge. In dealing with this class of cases it is important to
bear in mind the distinction between a case where there is
no legal evidence or where there is evidence which is
manifestly and clearly inconsistent with the accusation
made and cases where there is legal evidence which on its
appreciation may or may not support the accusation in
question.
In exercising its jurisdiction under Section 561- A the High Court
would not embark upon an enquiry as to whether the evidence in
question is reliable or not. That is the function of the trial
Magistrate, and ordinarily it would not be open to any party to
invoke the High Court’s inherent jurisdiction and contend that on
a reasonable appreciation of the evidence the accusation made
against the accused would not be sustained.”
7.2 In the case of Kurukshetra University (supra), this Court
observed and held that inherent powers under Section
482 Cr.P.C. 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. In the case before this Court, the High Court
quashed the first information report filed by the Kurukshetra
University through Warden and that too without issuing notice to
the University, in exercise of inherent powers under Section
482 Cr.P.C. This Court noticed and observed that the High Court
was not justified in quashing the FIR when the police had not even
commenced investigation into the complaint filed by the Warden
of the University and no proceedings were at all pending before
any Court in pursuance of the FIR.
7.3 Then comes the celebrated decision of this Court in the case of
Bhajan Lal (supra). In the said decision, this Court considered in
detail the scope of the High Court powers under Section
482 Cr.P.C. and/or Article 226 of the Constitution of India to
quash the FIR and referred to several judicial precedents and
held that the High Court should not embark upon an inquiry into
the merits and demerits of the allegations and quash the
proceedings without allowing the investigating agency to
complete its task. At the same time, this Court identified the
following cases in which FIR/complaint can be quashed:
“102.(1) Where the allegations made in the first
information report or the complaint, even if they are
CRM(M) No. 808/2024
CrlM No. 1662/2024, 1846/2024 6taken at their face value and accepted in their entirety
do not prima facie constitute any offence or make out a
case against the accused.
(2) Where the allegations in the first information report
and other materials, if any, accompanying the FIR do
not disclose a cognizable offence, justifying an
investigation by police officers under Section 156(1) of
the Code except under an order of a Magistrate within
the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the
FIR or complaint and the evidence collected in support
of the same do not disclose the commission of any
offence and make out a case against the accused.
(4) Where the allegations in the FIR do not constitute a
cognizable offence but constitute only a non-cognizable
offence, no investigation is permitted by a police officer
without an order of a Magistrate as contemplated
under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint
are so absurd and inherently improbable on the basis of
which no prudent person can ever reach a just
conclusion that there is sufficient ground for proceeding
against the accused.
(6) Where there is an express legal bar engrafted in any
of the provisions of the Code or the Act concerned
(under which a criminal proceeding is instituted) to the
institution and continuance of the proceedings and/or
where there is a specific provision in the Code or the Act
concerned, providing efficacious redress for the
grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended
with mala fide and/or where the proceeding is
maliciously instituted with an ulterior motive for
wreaking vengeance on the accused and with a view to
spite him due to private and personal grudge.”
7.4 In the case of Golconda Lingaswamy (supra), after
considering the decisions of this Court in the cases of R. P. Kapur
(supra) and Bhajan Lal (supra) and other decisions on the
exercise of inherent powers by the High Court under Section
CRM(M) No. 808/2024
CrlM No. 1662/2024, 1846/2024 7
482 Cr.P.C., in paragraphs 5, 7 and 8, it is observed and held as
under:
“5. Exercise of power under Section 482 of the Code in a
case of this nature is the exception and not the rule. The
section does not confer any new powers on the High
Court. It only saves the inherent power which the Court
possessed before the enactment of the Code. It envisages
three circumstances under which the inherent
jurisdiction may be exercised, namely: (i) to give effect
to an order under the Code, (ii) to prevent abuse of the
process of court, and (iii) to otherwise secure the ends of
justice. It is neither possible nor desirable to lay down
any inflexible rule which would govern the exercise of
inherent jurisdiction.
No legislative enactment dealing with procedure can
provide for all cases that may possibly arise. Courts,
therefore, have inherent powers apart from express
provisions of law which are necessary for proper
discharge of functions and duties imposed upon them by
law. That is the doctrine which finds expression in the
section which merely recognises and preserves inherent
powers of the High Courts.
All courts, whether civil or criminal, possess in the
absence of any express provision, as inherent in their
constitution, all such powers as are necessary to do the
right and to undo a wrong in course of administration of
justice on the principle quando lex aliquid alique
concedit, conceditur et id sine quo res ipsa esse non
potest (when the law gives a person anything, it gives
him that without which it cannot exist). While exercising
powers under the section, the Court does not function as
a court of appeal or revision. Inherent jurisdiction under
the section though wide has to be exercised sparingly,
carefully and with caution and only when such exercise
is justified by the tests specifically laid down in the
section itself. It is to be exercised ex debito justitiae to
do real and substantial justice for the administration of
which alone courts exist. Authority of the court exists for
advancement of justice and if any attempt is made to
abuse that authority so as to produce injustice, the court
has power to prevent such abuse. It would be an abuse
of the process of the court to allow any action which
CRM(M) No. 808/2024
CrlM No. 1662/2024, 1846/2024 8would result in injustice and prevent promotion of
justice.
In exercise of the powers court would be justified to
quash any proceeding if it finds that initiation or
continuance of it amounts to abuse of the process of
court or quashing of these proceedings would otherwise
serve the ends of justice. When no offence is disclosed by
the complaint, the court may examine the question of
fact. When a complaint is sought to be quashed, it is
permissible to look into the materials to assess what the
complainant has alleged and whether any offence is
made out even if the allegations are accepted in toto.
7. In dealing with the last category, it is important to
bear in mind the distinction between a case where there
is no legal evidence or where there is evidence which is
clearly inconsistent with the accusations made, and a
case where there is legal evidence which, on
appreciation, may or may not support the accusations.
When exercising jurisdiction under Section 482 of the
Code, the High Court would not ordinarily embark upon
an enquiry whether the evidence in question is reliable
or not or whether on a reasonable appreciation of it
accusation would not be sustained. That is the function
of the trial Judge. Judicial process, no doubt should not
be an instrument of oppression, or, needless harassment.
Court should be circumspect and judicious in exercising
discretion and should take all relevant facts and
circumstances into consideration before issuing process,
lest it would be an instrument in the hands of a private
complainant to unleash vendetta to harass any person
needlessly. At the same time the section is not an
instrument handed over to an accused to short-circuit a
prosecution and bring about its sudden death…..
8. As noted above, the powers possessed by the High
Court under Section 482 of the Code are very wide and
the very plenitude of the power requires great caution in
its exercise. Court must be careful to see that its decision
in exercise of this power is based on sound principles.
The inherent power should not be exercised to stifle a
legitimate prosecution.
High Court being the highest court of a State should
normally refrain from giving a prima facie decision in a
case where the entire facts are incomplete and hazy,
CRM(M) No. 808/2024
CrlM No. 1662/2024, 1846/2024 9more so when the evidence has not been collected and
produced before the Court and the issues involved,
whether factual or legal, are of magnitude and cannot be
seen in their true perspective without sufficient material.
Of course, no hard- and-fast rule can be laid down in
regard to cases in which the High Court will exercise its
extraordinary jurisdiction of quashing the proceeding at
any stage. [See Janata Dal v. H. S. Chowdhary [(1992)
4 SCC 305: 1993 SCC (Cri) 36 :AIR 1993 SC 892] and
Raghubir Saran (Dr.) v. State of Bihar [AIR 1964 SC 1
: (1964) 1 Cri LJ 1] .]It would not be proper for the High Court to analyse the
case of the complainant in the light of all probabilities in
order to determine whether a conviction would be
sustainable and on such premises, arrive at a conclusion
that the proceedings are to be quashed.
It would be erroneous to assess the material before it
and conclude that the complaint cannot be proceeded
with. In a proceeding instituted on complaint, exercise of
the inherent powers to quash the proceedings is called
for only in a case where the complaint does not disclose
any offence or is frivolous, vexatious or oppressive. If
the allegations set out in the complaint do not constitute
the offence of which cognisance has been taken by the
Magistrate, it is open to the High Court to quash the
same in exercise of the inherent powers under Section
482 of the Code. It is not, however, necessary that there
should be meticulous analysis of the case before the trial
to find out whether the case would end in conviction or
acquittal.
The complaint/FIR has to be read as a whole. If it
appears that on consideration of the allegations in the
light of the statement made on oath of the complainant
or disclosed in the FIR that the ingredients of the offence
or offences are disclosed and there is no material to
show that the complaint/FIR is mala fide, frivolous or
vexatious, in that event there would be no justification
for interference by the High Court. When an information
is lodged at the police station and an offence is
registered, then the mala fides of the informant would be
of secondary importance. It is the material collected
during the investigation and evidence led in court which
decides the fate of the accused person. The allegations of
CRM(M) No. 808/2024
CrlM No. 1662/2024, 1846/2024 10mala fides against the informant are of no consequence
and cannot by themselves be the basis for quashing the
proceeding.”
7.5 In the case of Zandu Pharmaceutical Works Ltd. (supra), in
paragraph 11, this Court has observed and held as under:
“11. … the powers possessed by the High Court under
Section 482 of the Code are very wide and the very
plenitude of the power requires great caution in its
exercise. Court must be careful to see that its decision in
exercise of this power is based on sound principles. The
inherent power should not be exercised to stifle a
legitimate prosecution. The High Court being the highest
court of a State should normally refrain from giving a
prima facie decision in a case where the entire facts are
incomplete and hazy, more so when the evidence has not
been collected and produced before the court and the
issues involved, whether factual or legal, are of
magnitude and cannot be seen in their true perspective
without sufficient material. of course, no hard-and-fast
rule can be laid down in regard to cases in which the
High Court will exercise its extraordinary jurisdiction of
quashing the proceeding at any stage.
It would not be proper for the High Court to analyse the
case of the complainant in the light of all probabilities in
order to determine whether a conviction would be
sustainable and on such premise arrive at a conclusion
that the proceedings are to be quashed. It would be
erroneous to assess the material before it and conclude
that the complaint cannot be proceeded with. In a
proceeding instituted on complaint, exercise of the
inherent powers to quash the proceedings is called for
only in a case where the complaint does not disclose any
offence or is frivolous, vexatious or oppressive. If the
allegations set out in the complaint do not constitute the
offence of which cognizance has been taken by the
Magistrate, it is open to the High Court to quash the
same in exercise of the inherent powers under Section
482 of the Code.
It is not, however, necessary that there should be
meticulous analysis of the case before the trial to find
out whether the case would end in conviction or
acquittal. The complaint has to be read as a whole. If it
CRM(M) No. 808/2024
CrlM No. 1662/2024, 1846/2024 11appears that on consideration of the allegations in the
light of the statement made on oath of the complainant
that the ingredients of the offence or offences are
disclosed and there is no material to show that the
complaint is mala fide, frivolous or vexatious, in that
event there would be no justification for interference by
the High Court. When an information is lodged at the
police station and an offence is registered, then the mala
fides of the informant would be of secondary
importance. It is the material collected during the
investigation and evidence led in court which decides the
fate of the accused person. The allegations of mala fides
against the informant are of no consequence and cannot
by themselves be the basis for quashing the
proceedings.”
7.6 In the case of Sanapareddy Maheedhar Seshagiri (supra), in
paragraph 31, it is observed and held as under:
“31. A careful reading of the abovenoted judgments
makes it clear that the High Court should be extremely
cautious and slow to interfere with the investigation
and/or trial of criminal cases and should not stall the
investigation and/or prosecution except when it is
convinced beyond any manner of doubt that FIR does
not disclose commission of any offence or that the
allegations contained in FIR do not constitute any
cognizable offence or that the prosecution is barred by
law or the High Court is convinced that it is necessary to
interfere to prevent abuse of the process of the Court.
In dealing with such cases, the High Court has to bear in
mind that judicial intervention at the threshold of the
legal process initiated against a person accused of
committing offence is highly detrimental to the larger
public and societal interest. The people and the society
have a legitimate expectation that those committing
offences either against an individual or the society are
expeditiously brought to trial and, if found guilty,
adequately punished. Therefore, while deciding a
petition filed for quashing FIR or complaint or
restraining the competent authority from investigating
the allegations contained in FIR or complaint or for
stalling the trial of the case, the High Court should be
extremely careful and circumspect.
CRM(M) No. 808/2024
CrlM No. 1662/2024, 1846/2024 12
If the allegations contained in FIR or complaint disclose
commission of some crime, then the High Court must
keep its hands off and allow the investigating agency to
complete the investigation without any fetter and also
refrain from passing order which may impede the trial.
The High Court should not go into the merits and
demerits of the allegations simply because the petitioner
alleges malus animus against the author of FIR or the
complainant. The High Court must also refrain from
making imaginary journey in the realm of possible
harassment which may be caused to the petitioner on
account of investigation of FIR or complaint. Such a
course will result in miscarriage of justice and would
encourage those accused of committing crimes to repeat
the same. However, if the High Court is satisfied that the
complaint does not disclose commission of any offence
or prosecution is barred by limitation or that the
proceedings of criminal case would result in failure of
justice, then it may exercise inherent power
under Section 482 Cr.P.C.”
7.7 In the case of Arun Gulab Gawali (supra), this Court set
aside the order passed by the High Court quashing the criminal
complaint/FIR which was even filed by the complainant. In the
case before this Court, prayer for quashing the FIR before the
High Court was by the complainant himself and the High Court
quashed the FIR/complaint in exercise of the powers
under Section 482 Cr.P.C. Quashing and setting aside the
judgment and order passed by the High Court quashing the FIR,
this Court in paragraphs 13 and 27 to 29 has observed as under:
“13. The power of quashing criminal proceedings has to
be exercised very sparingly and with circumspection and
that too in the rarest of rare cases and the Court cannot
be justified in embarking upon an enquiry as to the
reliability or genuineness or otherwise of allegations
made in the FIR/complaint, unless the allegations are so
patently absurd and inherently improbable so that no
prudent person can ever reach such a conclusion. The
extraordinary and inherent powers of the Court do not
confer an arbitrary jurisdiction on the Court to act
according to its whims or caprice. However, the Court,
under its inherent powers, can neither intervene at an
uncalled for stage nor can it “soft- pedal the course of
justice” at a crucial stage of investigation/proceedings.
CRM(M) No. 808/2024
CrlM No. 1662/2024, 1846/2024 13
The provisions of Articles 226, 227 of the Constitution of
India and Section 482 of the Code of Criminal
Procedure, 1973 (hereinafter called as “Cr.P.C”) are a
device to advance justice and not to frustrate it. The
power of judicial review is discretionary, however, it
must be exercised to prevent the miscarriage of justice
and for correcting some grave errors and to ensure that
stream of administration of justice remains clean and
pure.
However, there are no limits of power of the Court, but
the more the power, the more due care and caution is to
be exercised in invoking these powers. (Vide State of W.
B. v. Swapan Kumar Guha [(1982) 1 SCC 561 : 1982
SCC (Cri) 283 : AIR 1982 SC 949] , Pepsi Foods Ltd. v.
Special Judicial Magistrate [(1998) 5 SCC 749 : 1998
SCC (Cri) 1400] , G. Sagar Suri v. State of U. P.
[(2000) 2 SCC 636 : 2000 SCC (Cri) 513 : AIR 2000 SC
754] and Ajay Mitra v. State of M. P. [(2003) 3 SCC 11
: 2003 SCC (Cri) 703] )
xxx xxx xxx
27. The High Court proceeded on the perception that as
the complainant himself was not supporting the
complaint, he would not support the case of the
prosecution and there would be no chance of conviction,
thus the trial itself would be a futile exercise. Quashing
of FIR/complaint on such a ground cannot be held to be
justified in law. Ordinarily, the Court of Session is
empowered to discharge an accused under Section
227 Cr.P.C even before initiating the trial.
The accused can, therefore, move the trial court itself for
such a relief and the trial court would be in a better
position to analyze and pass an order as it is possessed
of all the powers and the material to do so. It is,
therefore, not necessary to invoke the jurisdiction
under Section 482 Cr.P.C for the quashing of a
prosecution in such a case. The reliance on affidavits by
the High Court would be a weak, hazy and unreliable
source for adjudication on the fate of a trial. The
presumption that an accused would never be convicted
on the material available is too risky a proposition to be
accepted readily, particularly in heinous offences like
extortion.
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CrlM No. 1662/2024, 1846/2024 14
28. A claim founded on a denial by the complainant even
before the trial commences coupled with an allegation
that the police had compelled the lodging of a false FIR,
is a matter which requires further investigation as the
charge is levelled against the police. If the prosecution is
quashed, then neither the trial court nor the
investigating agency has any opportunity to go into this
question, which may require consideration. The State is
the prosecutor and all prosecution is the social and legal
responsibility of the State. An offence committed is a
crime against society and not against the victim alone.
The victim under undue pressure or influence of the
accused or under any threat or compulsion may resile
back but that would not absolve the State from bringing
the accused to book, who has committed an offence and
has violated the law of the land.
29. Thus, while exercising such power the Court has to
act cautiously before proceeding to quash a prosecution
in respect of an offence which hits and affects the society
at large. It should be a case where no other view is
possible nor any investigation or inquiry is further
required. There cannot be a general proposition of law,
so as to fit in as a straitjacket formula for the exercise of
such power. Each case will have to be judged on its own
merit and the facts warranting exercise of such power.
More so, it was not a case of civil nature where there
could be a possibility of compromise or involving an
offence which may be compoundable under Section
320 Cr.P.C, where the Court could apply the ratio of
Madhavrao Jiwajirao Scindia [(1988) 1 SCC 692 :
1988 SCC (Cri) 234 : AIR 1988 SC 709] .”
What emanates from the aforesaid position of law enunciated by the
Apex Court in the judgment (Supra) is that when a prayer for quashing
of a FIR is made by an accused, the Court exercising power under
Section 482 Cr. P.C. (now Section 528 BNSS) has only to consider
whether the allegations under the FIR disclose commission of a
cognizable offence or not and that the High Court must keep its hands
off and allow the investigating agency to complete the investigation
CRM(M) No. 808/2024
CrlM No. 1662/2024, 1846/2024 15
without any fetter and also refrain from passing any order which may
impede the trial and also the High Court should not go into the merits
and demerits of the allegations simply because the accused alleges
malus animus against the author or FIR or the complainant and that
quashment of FIR has to be an exception and a rarity than an ordinary
rule as the inherent power of the Court do not confer an arbitrary
power or jurisdiction upon the High Court.
7. Coming back to the case in hand, the fundamental ground urged by the
petitioner in the instant petition while seeking quashment of the FIR in
question is two-fold; firstly that the FIR does not disclose the
commission of the offence on account of non existence of the
ingredients thereof and secondly that the complainant have had
consensual sexual relationship being a major, thus, not making out a
case covered in the impugned FIR.
8. Insofar as the aforesaid first plea of the petitioner is concerned, perusal
of the CD file produced by the counsel for the respondent 1 reveals
that the plea is factually incorrect, in that, the Investigating Agency
upon conclusion of the investigation has gathered evidence pointing
towards the involvement of the petitioner herein in the commission of
offences.
9. Insofar as the aforesaid next plea of the petitioner is concerned, the
said plea cannot be either looked into or deliberated upon at this
threshold stage by this Court in exercise of inherent power vested in
this Court, in that, the question of alleged consensual physical
relationship of the petitioner and complainant/respondent 2 herein can
CRM(M) No. 808/2024
CrlM No. 1662/2024, 1846/2024 16
be determined only after the case is put to trial and evidence in this
regard is led before the trial court.
10. Thus, in view of the aforesaid position obtaining in the matter,
inasmuch as having regard to the position and principles of law laid
down by the Apex Court, as noticed and referred in the preceding
paras, this Court is not inclined to interfere in the matter in exercise of
its inherent power.
11. Resultantly, the instant petition fails and the same along with the
connected applications is dismissed.
12. It is however made clear that any observations made hereinabove shall
be deemed to have been made only for the purposes of disposal of the
instant petition and the same shall not be construed to be an expression
of any opinion as to the guilt or innocence of the petitioner.
13. The CD file produced by the counsel for the respondent 1 is returned
back in the open court.
(JAVED IQBAL WANI)
JUDGE
Jammu
13.12.2024
Sahil Padha
Whether the order is speaking: Yes/No.
Whether the order is reportable: Yes/No.
Sahil Padha
2024.12.16 17:26
I attest to the accuracy and
integrity of this document