Sec. 164-A Cr.P.C. can be assessed and evaluated by Trial Court during framing of charges: High Court Of Jammu & Kashmir And Ladakh

The Petitioners had sought quashing of the criminal proceedings, initiated against them on the basis of the challan laid before the trial court. The Hon’ble High Court Of Jammu & Kashmir And Ladakh, at Srinagar before the Hon’ble Mr. Justice Sanjay Dhar, held such an opinion in the matter of Jalal-ud-din Mir & Others Vs. State Of J&K Through Sho P/S Sumbal [CRMC No.279/2017]. 

The facts of the case were related to a challenge of criminal challan by the petitioner for offences under Section 366, 376, 109 RPC registered with Police Station, Sumbal. It was stated that the case presented before the Court of Judicial Magistrate, 1st Class, Sumbal. It was argued by the petitioners that a false FIR bearing No.104/2009 was registered against them under offences of Section 366, 376, 109 RPC, with Police Station, Sumbal, Sonawari. In this case, wedlock happened between petitioner no. 1 and the prosecutrix, in accordance with Muslim Law on 30.05.2009. Petitioner no.1 and the prosecutrix executed a Nikah Nama and a marriage agreement. Both of them lived together as husband and wife for two months. However, the parents of the prosecutrix being not happy filed a false FIR against the petitioner. 

The statement recorded under Section 164-A Cr. P. C by the prosecutrix did not give rise to confidence and sounded absurd. The State being the respondent filed its status report wherein the Sumbal Police Station received a complaint from the father of the prosecutrix where it was alleged that the petitioner kidnapped his minor daughter and two more persons. However, after conducting their medical examination, it was found out that the prosecutrix was more than 18 years. Petitioner no.1 was arrested on  24.07.2009. 

The prosecutrix’s statement was recorded under Section 164-A Cr. P. C, wherein she has implicated all the petitioners. Her recording stated that she was taken to Rajasthan in a vehicle and was kept there for 2 months. During the said time span, she was raped by petitioner no.1 six or seven times. After two months she was recovered by the police when she was brought back to Srinagar. 

The Hon’ble High Court had viewed “… The contention of the petitioners that the petitioner No.1 had entered into wedlock with the prosecutrix cannot be gone into in these proceedings. The validity of the alleged marriage is a question which cannot be gone into in these proceedings.” 

After considering all the facts and submissions, the Hon’ble High Court pronounced that “The power under Section 561-A of J&K Cr. P. C is not to be exercised as a matter of routine. Such power has to be exercised sparingly with great circumspection so as to avoid miscarriage of justice. The material on record of the charge sheet clearly suggests that it is not a case where it can be stated that no offence is made out against the petitioners or that there has been miscarriage of justice. Therefore, I am of considered view that this is not a fit case where inherent power under Section 561-A of J&K Cr. P. C can be exercised.  For the foregoing reasons, no ground is made out which would warrant exercise of power under Section 561-A of J&K Cr. P. C. Petition being devoid of merit is dismissed.”

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Judgment reviewed by Bipasha Kundu

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