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Factual aspects of a case cannot be considered in a petition under section 482 IPC and can only be taken up by the trial court : The High Court of Jammu and Kashmir and Ladakh

The contention that mandates of law laid down in Priyanka Srivastava & Anr vs State of U.P.& others AIR SC, 2015 1758 has not been followed, cannot be considered now, as the concerned SHO after perusing the contents of the application filed under section 156(3) Cr.P.C., had registered the FIR and even after investigation, the Investigating Officer had come to the conclusion that the offence had been committed by the petitioner. The mandate of law laid down in Priyanka Srivastava’s case will not come to the rescue of the petitioner at this stage. The aforesaid has been established by the high Court in the case of Abdul Malik v. Union Territory of J&K and anr. [CRM(M) No. 130/2021] which was decided upon by a single judge bench comprising Justice Rajnesh Oswal on 6th August 2021.

The facts of the case are as follows. The present petition has been filed by the petitioner under section 482 Cr.P.C. for quashing the criminal proceedings, arising out of Challan, titled, Union Territory of J&K vs. Abdul Malik. It is stated that the petitioner has retired from the Army. Respondent No. 2 and her husband became greedy and started demanding money from the petitioner on the various pretexts but the petitioner refused to part with any of the amount of money, resulting in to hostility between the petitioner on the one hand and respondent No. 2 and her husband on the other hand. It is further stated that they indulged in a conspiracy in order to pressurize the petitioner by making a approaching the police station making false claims. The respondent no.2 stated that the petitioner in the absence of her husband, threatened her and committed rape upon her several times. The petitioner had challenged the criminal proceedings primarily on the ground that the respondent No. 2 had not complied with the mandate of law laid down in the case of Priyanka Srivastava & Anr vs State Of U.P.& others AIR SC, 2015 1758 case and straightway approached the Magistrate under section 156(3) Cr.P.C. and further respondent No. 2 had neither given any date of occurrence in the FIR nor in her statement recorded under section 164 Cr.P.C.

The court perused the facts and argument presented. It was of the opinion that “From the record, it is evident that the Investigating Officer has proved the offence under sections 341 and 376 IPC against the petitioner and challan for commission of aforesaid offences stands filed before the concerned Court. The contention raised by the learned counsel for the petitioner that mandate of law laid down in Priyanka Srivastava’s judgment (supra) has not been followed, cannot be considered now, as the concerned SHO after perusing the contents of the application filed under section 156(3) Cr.P.C., has registered the FIR and even after investigation, the Investigating Officer has come to the conclusion that the offence has been committed by the petitioner. The mandate of law laid down in Priyanka Srivastava’s case will not come to the rescue of the petitioner at this stage. So far as, other ground that there are major contradictions in the prosecution case, therefore, the challan is required to be quashed, is also misconceived and cannot be considered in a petition under section 482 IPC as these issues pertain to the factual aspects of the case, those require adjudication by the trial while finally adjudicating the challan. In view of the above, there is no merit in the instant case. The same is, as such, dismissed.”

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