Jammu & Kashmir High Court
Abrar Afzal vs Ut Of J&K And Ors on 18 March, 2023
Author: Rajnesh Oswal
Bench: Rajnesh Oswal
Sr. No. 35
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
CRM(M) No. 269/2021
CrlM No. 759/2021
CrlM No. 760/2021
CrlM No. 2020/2022 in
Bail App No. 305/2021
Abrar Afzal .....Appellant(s)/Petitioner(s)
Through: Mr. A. M. Malik, Advocate.
Vs
UT of J&K and ors. ..... Respondent(s)
Through: Mr. Bhanu Jasrotia, GA for R-1 and 2.
Mr. Anmol Sharma, Advocate for R-3 and 4.
Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
ORDER
18.03.2023 CRM(M) No. 269/2021 The present petition has been filed by the petitioner for quashing of FIR No. 0055 dated 12.05.2021 for commission of offences under sections 366, 376 & 109 of IPC registered with Police Station, Darhal at the instance of respondent no. 3 on the ground that the petitioner had solemnized marriage with respondent No. 3 on 27.04.2021, regarding which Nikah Nama dated 27.04.2021 and marriage agreement dated 05.05.2021 were also executed between the petitioner and respondent No. 3.
It has been stated that after the execution of the marriage agreement, while the petitioner and respondent No. 3 were coming back from Shahdra Sharief, they were attacked by respondent No. 4 and others, regarding which a complaint was also registered before the learned Munsiff, Thanamandi and statement of respondent No. 3 was also recorded, wherein she has stated that she was threatened by respondent No. 4 and others and she simultaneously admitted the factum of her marriage with the petitioner. 2 CRM(M) No. 269/2021 CrlM No. 759/2021 CrlM No. 760/2021
CrlM No. 2020/2022 in Bail App No. 305/2021 Further, it is averred that while the petitioner and respondent No. 3 were going to their home situated at village Bhangai, respondent No. 4 and others attacked them and after administering severe beatings to the petitioner, abducted his wife and took her with them at their residence and thereafter due to the pressure exerted by respondent No. 4 upon the respondent No. 3, she has lodged an FIR impugned. On these grounds, the petitioner has sought the quashing of the abovementioned FIR.
Response stands filed by the official respondents, wherein it has been stated that this petition is not maintainable. Further, it has been stated that the petitioner is a hardcore criminal and is involved in many other cases. Besides, factual aspects of the case have also been narrated. It is also stated that the execution of the Nikah Nama as well as the marriage agreement is the subject matter of investigation by the Police and the statements recorded before the concerned Magistrate are not conclusive proofs in themselves so as to warrant the quashing of the FIR.
Response also stands filed by respondent No. 3, wherein it has been stated that the disputed questions of facts have been raised by the petitioner, those cannot be considered and adjudicated upon while deciding the petition under section 482 Cr.P.C.
Mr. A. M Malik, learned counsel for the petitioner submits that respondent No. 3 has not denied execution of Nikah Nama as well as marriage agreement and further she has not denied the statement made by her before the concerned Magistrate.
Mr. Bhanu Jasrotia, learned GA submits that disputed questions of facts cannot be adjudicated while deciding the petition under section 482 Cr.P.C. 3 CRM(M) No. 269/2021 CrlM No. 759/2021 CrlM No. 760/2021
CrlM No. 2020/2022 in Bail App No. 305/2021 Mr. Anmol Sharma, learned counsel appearing for the respondent Nos. 3 and 4 has reiterated the submissions made by Mr. Bhanu Jasrotia and he further contends that the petitioner has been detained under Public Safety Act. (for short ' the PSA').
Heard and peruse the record.
A perusal of the record reveals that the petitioner has sought quashing of FIR on the basis of marriage agreement as well as Nikah Nama. Besides that the petitioner has also placed reliance upon the statement made by the respondent No. 3 before the concerned Magistrate, wherein respondent No. 3 admitted solemnization of her marriage with the petitioner. Be that as it may, these are the defences available to the petitioner and he is well within his rights to raise all these pleas before the Investigating Officer or before trial court in the event charge sheet is laid.
In view of the above, this petition for quashing the FIR No. 0055 dated 12.05.2021 registered with Police Station, Darhal at the instance of respondent No. 3, is disposed of with a liberty to the petitioner to raise the pleas regarding execution of marriage agreement as well as Nikan Nama between the petitioner and respondent No. 3 and also the statement made by the respondent No. 3 in the complaint before the Investigating Officer.
Disposed of.
Bail App No. 305/2021 The petitioner has been detained under PSA but still the Investigating Officer has not taken any pain to seek the custody of the petitioner in the FIR mentioned above. As the petitioner has raised certain issues those are matter of investigation and at this stage it cannot be said that the defence raised by the 4 CRM(M) No. 269/2021 CrlM No. 759/2021 CrlM No. 760/2021 CrlM No. 2020/2022 in Bail App No. 305/2021 petitioner is imaginary or fallacious in nature, as such, this Court is of considered view that the petitioner deserves to be enlarged on bail in the event of his arrest by the Investigating Officer in the FIR No. 0055 dated 12.05.2021 for commission of offences under sections 366, 376 & 109 IPC registered with Police Station, Darhal at the instance of respondent No. 3 on the following conditions:-
1. His furnishing of two solvent sureties to the tune of Rs.
50,000/- and personal bonds of the like amount to the satisfaction of Investigating Officer.
2. He shall not make any attempt to contact with the prosecution witnesses during bail either physically or through any other mode.
3. He shall appear before the Investigating Officer as and when required.
4. He shall not leave the Union Territory of Jammu and Kashmir without the prior permission of Investigating Officer. As the petitioner is detained under PSA, this order shall have no bearing upon his detention under PSA.
Disposed of.
(Rajnesh Oswal) Judge Jammu 18.03.2023 Bunty Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No.