Jammu & Kashmir High Court - Srinagar Bench
Mohammad Yaqoob Thoker & Ors vs State Of J&K & Others on 18 May, 2022
Author: Sanjay Dhar
Bench: Sanjay Dhar
HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT
SRINAGAR
Reserved on: 13.05.2022
Pronounced on: 18.05.2022
CRMC No.29/2018
MOHAMMAD YAQOOB THOKER & ORS. ...PETITIONER(S)
Through: Mr. Shuja-ul-Haq, Advocate.
Vs.
STATE OF J&K & OTHERS ....RESPONDENT(S)
Through: Ms. Asifa Padroo, AAG &
Mr. Asif Maqbool, Dy. AG-for R1 to R4.
Mr. Aftab Ahmad, Adv-for R5
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1) The petitioners have challenged FIR No.353/2016 for offences under Section 147, 341, 354-B, 323, 506 RPC registered with Police Station, Pulwama, Kashmir.
2) The impugned FIR has been registered on the basis of a report lodged by respondent No.5/complainant. In the complaint lodged by the said respondent, it has been alleged that on 18.07.2016 at about 7.30 P.M, when she was busy in her household chores, she heard some noise whereafter she came out of her house and saw that her nephew was telling the accused/petitioners that 2 CRMC No.29/2018 petitioner No.1 had constructed a cattle shed by keeping a window towards his house, as a result of which he has to face the foul smell emanating therefrom. After this, the petitioners/ accused went away from there and she also returned to her house. After sometime when the complainant/respondent No.5 again came out of her house and was going through the street, the petitioners all of a sudden launched an attack upon her. They pelted stones upon her and threatened her. The petitioner No.1 took away dupatta from her head and caught hold of her hair whereas petitioners No.2 and 3 gave blows of fists and kicks to her. Petitioners No.4 and 5 are stated to have beaten her and torn her clothes. In the meantime, minor son of the complainant, namely, Mohsin Altaf came over there and petitioner No.2 hit him on his left arm with a stone. Thereafter some people gathered on spot and they saved the complainant and her son from the clutches of the petitioners. It has been further stated in the complaint that because complainant's husband was on duty, as such, she could not lodge the report promptly and when her husband came back from duty a few days back, she approached the police. It was further alleged in the complaint that petitioners are extending threats to the complainant and her family.
3) The petitioners have challenged the impugned FIR on the ground that respondent No.5 has lodged the impugned FIR in order to wreak vengeance upon them as a counter FIR bearing 3 CRMC No.29/2018 No.293/2016 stands registered against the complainant party at the behest of the petitioners. It is submitted that the petitioners moved a detailed representation before Director General of Police, J&K, who sought a report from Inspector General of Police. It is further averred that Inspector General of Police, Kashmir, submitted a detailed report with regard to registration of the two FIRs and it was categorically stated in the report that the complainant has exaggerated the story to implicate the petitioners in a false and frivolous case which has been lodged after a delay of more than one month from the date of the occurrence without explaining the reasons for the delay. The petitioners have placed on record copy of communication dated 16.05.2017 addressed by Inspector General of Police, Kashmir, to Director General of Police, J&K, Srinagar.
4) It is contended that the investigation in the impugned FIR has not been conducted in a fair and transparent manner and that the petitioners have been implicated on the basis of the influence exerted by ASI Dilbar Ahmad Rather, who is working as a Reader to SP, Pulwama. It is further contended that the allegations made in the impugned FIR are absolutely false and the same has been lodged after a period of 32 days from the date of the alleged occurrence without there being any explanation for the delay.
5) Respondents have contested the petition by filing a reply thereto. In fact, two status reports have been filed by the respondents indicating the progress of the investigation of the 4 CRMC No.29/2018 impugned FIR. Besides reiterating the facts narrated in the impugned FIR, the respondents have submitted that after investigation, offences under Section 341, 323, 354-B stand established against the petitioners and that charge sheet is likely to be filed against them.
6) I have heard learned counsel for the parties and perused the material on record including the Case Diary.
7) In the impugned FIR, the complainant has ascribed different roles to different petitioners. According to the complainant, all the petitioners launched an attack upon her. Petitioner No.1, after taking away dupatta of the complainant, caught hold of her hair, petitioners No.2 and 3 gave blows of fists and kicks to her whereas petitioners No.4 and 5 beat her and tore apart her clothes. The petitioner No.2 is stated to have pelted stones upon left arm of her son. During the investigation of the case, statements of the complainant and her witnesses including the eye witnesses have been recorded. In her statement, complainant has stated that all the accused/petitioners caught hold of her, dragged her by her hair, tore apart her clothes and she was made to go naked, with a view to outrage her modesty. Another eye witness, the nephew of the complainant, PW-Sheeraz Ahmad, has given a statement on similar lines. Besides this, there are other eye witnesses whose statements have been recorded by the investigating agency during the investigation of the case which include Mohammad Yousuf Thoker, 5 CRMC No.29/2018 Altaf Hussain Lone and Shabir Ahmad Zargar. Their statements are also on similar lines.
8) From the statements of the complainant and the eye witnesses recorded by the investigating agency during the investigation of the case, it appears that the complainant has been beaten up, dragged by petitioners, her cloths have been torn, which resulted in making her naked. Thus, it is not a case where there is no material on record to support the allegations made in the impugned FIR but it is a case where there is overwhelming material on record to substantiate the allegations made in the impugned FIR.
9) It has been vehemently contended by learned counsel for the petitioners that the impugned FIR has been lodged after 32 days of the alleged occurrence and there has been no explanation on behalf of the complainant for this delay. In the report lodged by the complainant, she has clearly stated that her husband was out on duty which prevented her from lodging the FIR. The Case Diary shows that further statement of the complainant has been recorded by the investigating agency on 17.02.2018, wherein she has explained the reasons for delay in lodging the report.
10) The question whether delay in lodging the FIR has been properly explained by the petitioner cannot be gone into by this Court in these proceedings. The effect of the delay and the question whether the delay in lodging the FIR has been properly explained has to be gone into by the trial court during the trial of the case. No 6 CRMC No.29/2018 opinion can be expressed on this aspect of the matter by this Court while exercising its powers under Section 482 of the Cr. P.C
11) Next it has been contended by learned counsel for the petitioners that the impugned FIR has been lodged by the complainant against them to wreak vengeance upon them as another FIR has been lodged against the complainant party at the behest of the petitioners, in which challan has already been filed against them.
12) Merely because another FIR stands registered against the complainant at the behest of the accused does not make the FIR lodged against the accused by the complainant false and frivolous. This circumstance does not offer a ground to quash the criminal proceedings, particularly when during investigation of the case, the investigating agency has assembled enough material on record to substantiate the allegations made in the impugned FIR. The question whether allegations in the impugned FIR are outcome of vengeance can also be gone into by the investigating agency during investigation of the case. This factor alone cannot offer a ground to an accused to ask for quashing of the criminal proceedings, which otherwise, have been found to be genuine.
13) Lastly, it has been contended by learned counsel for the petitioners that the Inspector General of Police, Kashmir, has opined that the complainant has exaggerated the allegations against the petitioners and on this ground, the prosecution is required to be 7 CRMC No.29/2018 quashed. The argument is without merit for the reason that internal correspondence between the police officers during the investigation of the case does not reflect the final opinion of the investigating agency. During the course of investigation of a case, various queries, observations and remarks are recorded by superior officers of the police but ultimately what is approved finally reflects the opinion of the investigating agency. If that opinion of the investigating agency is supported by the material assembled during the investigation of the case, the Court cannot quash the proceedings simply because some superior officer has, at some point in time during the investigation of the case, expressed a contrary opinion.
14) For the foregoing reasons, I do not find any merit in this petition. The same is, accordingly, dismissed.
15) The Case Diary be returned to the learned counsel for the official respondents.
(Sanjay Dhar) Judge Srinagar, 18.05.2022 "Bhat Altaf, PS"
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No