Nazir Ahmad Dar vs State Through Police Station Nowgam

This quashment petition filed under Section 561-A Cr.P.C. (now repealed and replaced by Section 482 Cr.P.C.) is directed against the Order dated

2nd July, 2018, as well as final report submitted by the police bearing File No. 84/alif titled State versus Nazir Ahmad Dar and Anr. pending before the

Forest Magistrate, (Sub Judge), Srinagar.

Briefly put the facts as projected by the petitioner in the petition are; petitioner was booked by respondent in FIR No. 142/2013 for commission of

offences under Section 384, 511and 506 RPC. On completion of investigation, the respondent found the involvement of the petitioner in commission of

alleged offences established and, accordingly, presented final report before the Forest Magistrate, (Sub Judge), Srinagar, hereinafter ‘the trial

court’.

The petitioner is facing trial before the trial court. The petitioner was also put under preventive detention under Public Safety Act, but upon

consideration, the Department of Home, revoked the detention order holding that the grounds of detention were fake, false and baseless. The

Department of Home also observed that the case FIR No. 142/2013 dated 11.11.2013 would also stand disposed of.

The grievance of the petitioner is that despite the Home Department of the State having found the case foisted on the petitioner as false and

baseless, the police submitted the charge sheet before the court and the trial in the matter is proceeding before the trial court. In the aforesaid

backdrop, the petitioner has invoked the inherent jurisdiction of this Court for quashing the proceedings in FIR No. 142/2013, which are subjudice

before the trial court. The principal ground of challenge urged by the learned counsel for the petitioner is that once the Home Department has found

the allegations leveled against the petitioner totally false and frivolous and has revoked the detention order passed under Public Safety Act, it is

incumbent upon the police to withdraw from the prosecution and relieve the petitioner from the agony of trial.

Having heard learned counsel for the petitioner and perused the record, I am of the view that petitioner has miserably failed to make out a case for

quashment of order dated 2nd July, 2018 passed by the trial court. It is true that the Government in the Home Department considered the detention

order dated 06.12.2013 passed by the District Magistrate, Srinagar and in the exercise of its powers conferred by Section 19 (1) of the Jammu and

Kashmir Public Safety Act, 1978, revoked the same. It is also observed in the order dated 18th March, 2014 that the charge sheet/grounds of

detention were false, fake and baseless and, therefore, FIR No. 142/2013 dated. 11.11.2013 would also stand disposed of.

As is contended by Mr. B.A.Dar, learned Sr. AAG, appearing for the respondents, the Government in the Home Department or for that matter in

any other department is not competent to dispose of an FIR duly registered in a police station and investigated by the police. Registration of an FIR

and its investigation falls in the exclusive domain of the police and no other Authority, whosoever, it may be, can direct its disclosure. Needless to point

out that FIR once registered has to be investigated by the police. It may end in presentation of a challan/final report in terms of Section 173 Cr.P.C.

before the competent court of jurisdiction or it may end up in a closure report. Even in the event the police after investigation prepares a closure

report, the proceedings in the FIR would not terminate unless this closure report is accepted by the court. That apart, the court, before whom, a

closure report in a case is presented, is well within its powers not to agree with the police, take cognizance and proceed against the accused named in

the FIR. The Department of Home, therefore, is not competent to close the proceedings in the FIR and the dismissal of challan and discharge of

accused in a case falls in the exclusive jurisdiction and domain of the trial court. That being the position, it is difficult to accept the argument of Mr.

Andrabi that in view of the findings of the Home Department that the allegations against the petitioner are false and frivolous, the trial should have

dismissed the challan, is bereft of any merit and legal substance. The Government, if convinced, that the allegations against the petitioner in the FIR

are false and frivolous and the petitioner is not required to be prosecuted, can proceed under law and request the Public Prosecutor to withdraw from

the prosecution. In such situation also, it shall be solely for the court concerned to permit such withdrawal.

As is evident from the impugned order, the case is yet to come up for framing of charges and at this stage the petitioner will be at liberty to raise all

available pleas justifying his discharge from the offences alleged against him. He is free to demonstrate before the trial court that the allegations

levelled against him in the FIR are not substantiated and the offences under Section 384, 511 and 506 RPC are not made out against him.

For the forgoing reasons, I find no merit in this petition and the same is, accordingly, dismissed along with connected CM(s).