Criminal Proceedings cannot be quashed when there are major contradictions in the prosecution case : Jammu High Court

HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT JAMMU Reserved on : 23.07.2021 Pronounced on: 06.08.2021 CRM(M) No. 130 2021 Bail App No. 70 2021 Through : Mr. Anil Sethi Advocate Abdul Malik Union Territory of J&K and anr. Through : Bhanu Jasrotia GA Coram: HON’BLE MR. JUSTICE RAJNESH OSWAL JUDGE CRM(M) NO. 130 2021 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 arising out of FIR bearing No. 32 2020 registered with Women Police Station Rajouri for commission of offence under section 376 IPC. 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 pursuant to a conspiracy in order to pressurize the petitioner respondent No. 2 and her husband approached the Police Station 2 CRM(M) No. 130 2021 Rajouri and presented a concocted version of some incident having taken place two months prior to the said report. It is further stated that respondent No. 2 has never referred to any date of occurrence either in her report or in her statement recorded under Section 164 Cr.PC before the Magistrate. It is further stated that respondent No. 2 without approaching the SHO or the District Superintendent of Police concerned as required under law straightway filed an application before the learned Magistrate who vide order dated 13.10.2020 without application of the mind endorsed the same to the concerned SHO. The petitioner has challenged the criminal proceedings primarily on the ground that the respondent No. 2 has 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 has neither given any date of occurrence in the FIR nor in her statement recorded under section 164 Cr.P.C. On these grounds only the petitioner has filed the present petition for quashing the criminal proceedings arising out of FIR No. 32 2020 registered with Women Police Station Rajouri. Response stands filed by the respondents in which it is stated that on 14.10.2020 complainant lodged a written complaint at Women Police Station Rajouri against the petitioner stating therein that her husband had gone to Saudi Arabia for labour purpose. In absence of her husband the petitioner who is her neighbour and a retired Army personnel tried to develop illicit relation with her but she denied. The accused taking advantage of the absence of husband of respondent No. 2 threatened her with the dire consequences and committed rape forcibly with her many times. It is stated that two months back when she was returning to her home after leaving her children to nearby 3 CRM(M) No. 130 2021 Madrasa the petitioner who had hidden himself in the maize crops dragged her into the field and forcibly committed rape with her. During the course of investigation the Investigating Officer got the statement of the complainant recorded under section 164 Cr.P.C. in which she has stated that two months ago when she was returning home after delivering her children to nearby Madarsa the petitioner who was hiding in the maize crops restrained her way and torn her clothes. By all possible efforts she rescued herself from his clutches reached home and narrated the whole story to the family. After three days again when she went for leaving her children to Madarsa and while returning back the accused showed her knife and threatened her for dire consequences and raped her. After the conclusion of the investigation allegations for commission of offences under section 341 376 IPC were fully established against the petitioner and the charge sheet also stands filed in the Court on 29.12.2020. Mr. Anil Sethi learned counsel for the petitioner vehemently argued that the respondent No. 2 has straightway approached the learned Magistrate by way of an application under section 156(3) Cr. P.C. without first approaching the SHO and District Superintendent of Police concerned. He further argued that there are major contradictions in the prosecution story. On the other hand Mr. Bhanu Jastoria learned GA submitted that as the challan stands filed against the petitioner the petitioner can raise all the issues before the trial court. Heard learned counsel for the parties and perused the record. 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 4 CRM(M) No. 130 2021 Court. The contention raised by the learned counsel for the petitioner that mandate of law laid down in Priyanka Srivastava’s judgmenthas 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. Bail App No. 70 2021 arrest on 31.03.2021. The petitioner was granted bail by this Court in anticipation of As the challan stands filed against the petitioner before the trial court and the presence of the petitioner is required only during the trial the interim bail granted to the petitioner vide order dated 31.03.2021 is made absolute on the same terms and conditions. In the event the petitioner violates the conditions imposed by this Court vide order dated 31.03.2021 while granting bail the trial court shall be at liberty proceed in accordance with law. 5 CRM(M) No. 130 2021 The bail application is disposed of. Judge 06.08.2021 Karam Chand Secy Whether the order is speaking: Whether the order is reportable: 

Summary: Criminal proceedings is a serious and indispensable component of justice, while the law may believe that one is innocent before proven guilty, it also believes that one must tried justly for the crime giving equal opportunities for both the parties to prove their side. This was held in the judgment passed by a single bench judge comprising HON’BLE MR. JUSTICE RAJNESH OSWAL, JUDGE, in the matter Abdul Malik V. Union Territory of J&amp;K and anr. (CRM(M) No. 130/2021), dealt with an issue where the petitioner filed under section 482 Cr.P.C. for quashing the criminal proceedings, arising out of Challan, titled, Union Territory of J&amp;K vs. Abdul Malik. The Petitioner had retired from the Army and the respondent and her husband had become 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 the respondent and her husband on the other hand. It is further stated that pursuant to a conspiracy in order to pressurize the petitioner, the respondent and her husband approached the Police Station Rajouri and presented a concocted version of some incident having taken place two months prior to the said report. The petitioner has challenged the criminal proceedings primarily on the ground that the respondent has not complied with the mandate of law laid down in the case of Priyanka Srivastava &amp; Anr vs State Of U.P.&amp; others AIR SC, 2015 1758 case and straightway approached the Magistrate under section 156(3) Cr.P.C. and further the respondent had neither given any date of occurrence in the FIR nor in her statement recorded under section 164 Cr.P.C. The respondents stated that on 14.10.2020, thecomplainant lodged a written complaint at Women Police Station, Rajouri against the petitioner stating therein that her husband had gone to Saudi Arabia for labour purpose. In absence of her husband, the petitioner, who is her neighbour and a retired Army personnel, tried to develop illicit relation with her but she denied. The accused taking advantage of the absence of husband of respondent No. 2, threatened her with the dire consequences and committed rape forcibly with her many times. The counsel for the petitioner vehemently argued that the respondent No. 2 had straightway approached the learned Magistrate by way of an application under section 156(3) Cr. P.C. without first approaching the SHO and District Superintendent of Police concerned. He further argued that there are major contradictions in the prosecution story.