Gh. Mohd. Gojri vs Hilal Ahmad Bhat

Ali Mohd. Magrey, J.—This petition filed under Section 561-A Cr.P.C. seeks setting aside of order dated 15.03.2014 passed by the

learned Judicial Magistrate, Budgam, in File No. 341, whereby the learned Magistrate in the proceeding under Section 100 Cr.P.C. has issued

search warrant in the name of the Sub-Divisional Police Officer, Magam, to search the alleged confinee, namely, Alia Gul and produce her before

the court on the next date of hearing. The petitioners in this petition have also challenged the order dated 28.02.2014 passed by the learned 2nd

Additional Sessions Judge, granting anticipatory bail in favour of respondent No. 1 herein. Facts as pleaded in the petition are briefly noted. It is

alleged that minor daughter of petitioner No. 1, named, Alia Gul, whose date of birth is stated to be 06.12.1995, was kidnapped by respondent

No. 1 on 03.12.2013 and subjected to rape. The petitioner reported the matter to Police Station, Parimpora, but the Police did not register the

FIR. Constrained, he filed writ petition, OWP No. 19/2014, which was disposed of by order dated 15.1.2014 by a Coordinate Bench of this

Court with direction to the Police concerned to register the FIR. Consequent upon the said direction, a case FIR No. 06/2014 was registered at

Police Station, Parimpora, for offence under Section 363 RPC. Thereafter, the police recovered the girl and her statement under Section 164-A

Cr.P.C. was got recorded before the Additional Munsiff, Srinagar, wherein she stated that she was kidnapped by respondent No. 1 accompanied

by four persons and was raped by respondent No. 1 herein.

Consequent upon the above, in order to avoid being arrested, it is stated that respondent No. 1 filed an application before 2nd Additional

Sessions Judge, Srinagar, seeking anticipatory bail. It is stated that the learned 2nd Additional Sessions Judge, Srinagar, vide order dated

28.02.2014 granted anticipatory bail in favour of respondent No. 1 till 15.03.2014 which was subsequently extended up to 19.03.2014. The

petitioner made an application before the learned 2nd Additional Sessions Judge, Srinagar, for cancellation of the bail, according to the petitioner

bail has been cancelled, therefore, no cause survives with reference to cancellation of bail.

It is the case of the petitioners that after committing heinous offence, the respondent No. 1 is pressurizing the petitioners to withdraw the FIR

and to go for a compromise. To achieve that objective, it is alleged that the respondent No. 1 is harassing the petitioners. In pursuit of his nefarious

design and objective, it is alleged, respondent No. 1 has filed an application under Section 100 Cr.P.C. before the Judicial Magistrate, Budgam.

The learned Magistrate, vide order dated 15.03.2014, has issued a warrant, directing the police to search the girl, Alia Gul, and produce her

before the Court. It is stated that the said girl, Alia Gul, is not in illegal confinement but is in the custody of petitioner No. 1 and his family members

and that petitioner No. 1 is the father of said Alia Gul and, therefore, her legal guardian.

It is stated in the petition that when the aforesaid order dated 15.03.2014 was passed by the learned Magistrate, petitioner No. 1 was

personally present in the Court and submitted before the Court that she was in her legal custody, as being her natural guardian, and that said Alia

Gul was ill, but the Court did not take his submissions into consideration. The petitioners allege that the order so passed by the learned Magistrate

is an abuse of the process of law.

Notice of this petition was issued to the other side on 18.03.2014. While issuing notice, a Coordinate Bench has ordered stay of the execution

of the warrant of search.

I have heard learned counsel for the parties and considered the matter.

Perusal of order dated 15.03.2014 passed by the learned Magistrate reveals that on the date the said order was passed, none had appeared

before the Court on behalf of the non-applicants. The order further reveals that on a previous date of hearing in the case, viz. 13.03.2014,

petitioner No. 1 herein, i.e., the father of the girl, Aliya Gul, had been present in the Court and he had filed an undertaking before the Court that the

girl was in his custody and that he would produce the girl before the Court as and when directed to do so. The Court order does not disclose that

the petitioner No. 1 herein, or any other person acting on his behalf, had brought the factum of registration of the FIR against the applicant or the

factum of her being a minor girl to the notice of the learned Magistrate. Since, Alia Gul against whom search warrants have been issued in the name

of Sub Divisional Police Officer (SDPO), Magam to produce her before the Court on the next date of hearing, is daughter of petitioner No. 1, and

is not in illegal confinement, but is in the custody of petitioner No. 1 and his family members, and therefore, her legal guardian, as such the

impugned order is unwarranted and proceeding uncalled for and unnecessary, therefore, deserve to be quashed.

So far as the grievance of the petitioners against the order dated 28.02.2014 passed by the learned 2nd Additional Sessions Judge, Srinagar, in

the application for grant of anticipatory bail is concerned, respondent has been arrested and anticipatory bail is cancelled, therefore, the competent

court shall deal with regular bail in accordance with law. That apart, the bail application, as reported by the learned 2nd Additional Sessions in

terms of his report dated 26.03.2014, stands already disposed of by order dated 25.03.2014. It appears that the learned Additional Sessions

Judge, Srinagar, has placed the original order passed by him alongwith his report for perusal of this Court. Registry is directed to detach the said

order from the file and return it to the learned 2nd Additional Sessions Judge without folding it and in a sealed cover forthwith, rather today itself,

through a special messenger.

This petition, for the foregoing reasons, is, allowed and order impugned dated 15.03.2014 passed by the Ld. Judicial Magistrate, Budgam shall

stand quashed. Consequently the proceedings initiated by the Ld. Magistrate U/s 100 Cr.P.C. against Alia Gul shall stand dropped.

The Registry is directed to communicate a copy of this order in its entirety to the learned Judicial Magistrate. Before parting with the file, it

needs a mention here that by order dated 07.04.2014 the Registry was directed to list this petition alongwith the Review Petition filed by the

petitioners herein against order dated 31.12.2013 passed in OWP No. 2003/2013 together with the record of the writ petition as also the

subsequent writ petition, OWP No. 19/2014. In pursuance thereof, the Registry has placed the relevant record alongside this petition together with

the Review Petition and a Condonation Petition filed therein. Since this petition now stands allowed, separate orders have been passed in the

Condonation Petition filed in the Review Petition. Consequently, the Condonation Petition and the Review petition, together with records of the

two writ petitions, are ordered to be detached from this file and listed separately in terms of the orders passed therein.