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Judgment
Extra-ordinary jurisdiction of this Court in terms of Article 226 of the Constitution of India read with Section 103 of the Constitution of Jammu and Kashmir State is being sought, in terms of the instant petition for commanding the respondents to further investigate/re-investigate FIR No.100/2014 dated 20.07.2014 registered at Police Station Thanamandi, District Rajouri under Sections 307,452,147,323 and 109 RPC. Further prayer is sought for commanding the respondents not to produce the challan in the Court of law till further investigation is brought to an end.
It is contended that the wife of the petitioner No.2, namely, Rakia Begum was caught hold by Mohd Shabir son of Makhna on 25.08.2013 and she was raped. FIR was registered being FIR No.140/2013 and investigation in respect thereto was conducted and the challan was produced in the Court of law. The private respondent and his brother with guilty intention and with the intention to take revenge filed a complaint and managed registration of FIR No.100/2014 against the petitioners. It is contended that the aforesaid FIR was registered against the petitioners only as counter blast just to take revenge of the earlier FIR. Hence, the instant petition on the grounds taken in it.
Heard learned counsel for the petitioners and perused the record.
Copy of First Information Report which has been lodged in Police Station, Thanamandi on 20.07.2014 at the instance of one Mohd Shan reveals that the allegations have been leveled against the petitioners herein for the commission of offences punishable under Sections 307,452,147,323 and 109 RPC.
Learned counsel while being heard has conceded that a petition under Section 561-A Cr. PC bearing No.466/2017 is pending consideration before this Court wherein a prayer has been made for quashment of the proceedings.
It is trite that power under Article 226 of the Constitution of India read with Section 103 of the Constitution of Jammu and Kashmir State is not to be exercised on mere asking. Nonetheless the fact that the powers conferred on the High Court under Article 226 of the Constitution of India read with Section 103 of the Jammu and Kashmir State are plenary in nature, they have to be used within recognized lines.
The Code of Criminal Procedure provides a well-defined mechanism for investigation of a cognizable case. It also provides how and when further investigation of a case can be made. In light of the admitted factual matrix of the case, I am of the opinion that powers under Section 173 read with other provisions of the Code of Criminal Procedure could be pressed into service in case the petitioners have any grievance necessitating further investigation in the matter. Nothing has been brought on record wherefrom it could be inferred that the petitioners at any point of time had approached the Investigating Agency or higher authorities of the Police for redressal of their grievances and of which the said Officer did not take any notice, compelling the petitioners to approach this Court for exercise of the jurisdictionunder Article 226 of the Constitution of India read with Section 103 of the Constitution of Jammu and Kashmir State. Their Lordships of the Hon'ble Apex Court in State of Haryana and another Vs. Chanan Mal, AIR 1976 SC 1654 held that any person, who applies for a writ or order in the nature of mandamus should, in compliance with a well-known rule of practice, ordinarily, first call upon the authority concerned to discharge its legal obligation and show that it has refused or neglected to carry it out within a reasonable time before applying to a Court for such an order even where the alleged obligation is established. Furthermore there being admission on the part of the petitioners that inherent powers of the Court have already been invoked with regard to the same subject and the petition under Section 561-A Cr.PC is pending before the Court, there is no scope for entertaining this petition. Same entails dismissal and thus, dismissed in limine, along with connected IA.