Falak Sher Salaria vs State Of J&K

The present revision has been filed by the petitioner under section 435 Cr.P.C. read with section 561-A Cr.P.C. (now 482 Cr.P.C.) against the order

dated 15.11.2010 passed by the learned Principal Sessions Judge, Jammu (hereinafter to be referred as the trial court) in case, titled, State vs. Falak

Sher Salaria, by virtue of which a direction was issued to the respondent-SHO Police Station, Nawabad to register FIR against the petitioner. It is

stated in the petition that the petitioner is also facing trial in FIR No. 181/2007 registered with Police Station, Nawabad for commission of offences

under sections 366 and 376 RPC on the complaint of complainant, Abdul Rashid.

During the pendency of the challan, the complainant had laid an application under section 100 Cr.P.C. before the Chief Judicial Magistrate, Jammu

that came to be transferred to the court of learned Sub Registrar, Jammu, who issued the search warrant vide order dated 17.11.2008 and that was

not executed and it was reported by the concerned Police Station that the prosecutrix was not found on the address mentioned in the search warrant.

Thereafter, the complainant appeared before the learned trial court, where the petitioner was facing trial and on 25.03.2010 to depose in the pending

challan, however, on the submission made by the learned counsel appearing for the petitioner, the learned trial court directed the complainant to

produce the prosecutrix on the next date of hearing. On the next date of hearing, the complainant moved a motion whereby a prayer was made that

the petitioner and SHO, Miran Sahib be directed to produce the prosecutrix (Razia Begum), who happens to be his wife, in the court. On the

application, learned trial court passed the order impugned.

The petitioner has challenged the order impugned on the ground that the order has been passed without jurisdiction as the court of learned trial court

has exceeded the jurisdiction by directing registration of the FIR against the petitioner.

Mr. Mohd. Amair Awan, learned counsel for the petitioner has reiterated the grounds those have been taken in the memo of the petition. He has also

prayed that the present petition be treated as petition under section 561-A Cr.P.C.

Mr. Aseem Sawhney, learned AAG appearing for the State (Union Territory) is not averse to that, as such, this petition is treated as petition under

section 561-A Cr.P.C. Learned AAG submits that the learned Sessions Judge had the jurisdiction to order registration of the FIR once it came to his

knowledge that the offence has been committed.

Heard and considered the rival arguments of the parties.

A perusal of the record of the trial court reveals that the statement of the prosecutrix was recorded on 22.02.2013 and as Special Court was

constituted for trial of the designated offences, as such, the said challan was transferred to the court of 3rd Additional Sessions Judge, Jammu and the

learned Sessions Judge vide judgment dated 15.03.2013 has acquitted the petitioner when the prosecutrix made a statement that the petitioner has

done no wrong to her. It is also revealed from the record that in the application filed by the complainant, no request was made by him before the

learned trial court that FIR be registered against the petitioner but despite that the learned trial court by virtue of impugned order directed registration

of FIR and the only prayer that was made by the complainant, was to direct the petitioner and SHO, Police Station, Miran Sahib to produce the said

witness(prosecutrix). The order passed by the learned trial court is not sustainable on this ground also. Even if, there would have been any application

on the part of the witness(prosecutrix) to register FIR against the petitioner, the learned trial court should have referred to the magistrate concerned

instead of directing of registration of FIR itself.

In view of the categoric statement made by the prosecutrix and the subsequent acquittal of the petitioner vide order dated 15.03.2013, it would be

travesty of the justice, if the order dated 15.11.2010 directing the SHO concerned to register FIR, is allowed to remain in operation. For the purpose of

securing ends of justice and also in order to prevent the abuse of process of law, this Court deems it a fit case to exercise its power under section 561-

A Cr.P.C. to quash order dated 15.11.2010 (supra) by virtue of which the learned trial court had directed the SHO concerned to register FIR. As

such, the same is quashed.

Disposed of.

Record of the trial court be remitted back along with a copy of this order.