Shabir Ahmad Malla vs SHO Police Station Shopian And Ors

Sanjay Dhar, J

The petitioner has challenged FIR No.316/2016 for offences under Section 148, 436 RPC and Section 3 of the Prevention of Damage to Public Property Act registered with Police Station Shopian.

In the impugned FIR it is alleged that on 19.09.2016 a mob of people attacked building of Government Primary School Chatawatan Tehsil Shopian, as a result of which the building was razed to the ground. Besides this, the adjacent building of Panchayat Ghar was also gutted. On receiving this information, the police registered the impugned FIR and started investigation of the case.

It has been contended by the petitioner that he has not been named in the impugned FIR nor he is involved in the alleged offences. That the police has falsely implicated him on the basis of some fabricated information due to animosity. It is contended that another FIR bearing No.272/2016 was also lodged by the police in which charge sheet was filed against the accused including the petitioner but the same was dismissed by Principal Sessions Judge Shopian vide his judgment dated 28.12.2019. It is further averred that the petitioner has been appointed as a Fireman in the Fire and Emergency Services Department but because of the pendency of the impugned FIR, his salary is not being released. It is contended that the investigating agency has not conducted proper investigation of the case and if the same is done, the petitioner would be exonerated of all the allegations. It is also contended that the impugned FIR does not disclose commission of any offence by the petitioner as he has not been named therein. Lastly it has been contended that the investigation of the case is not being conducted expeditiously which is causing prejudice to the rights of the petitioner.

Status report on behalf of the official respondents has been filed. In their report the respondent No.1 has submitted that the investigation of the case has been conducted and the statements of the witnesses under Section 161 Cr.PC have also been recorded. According to respondent No.1, involvement of 29 persons including the petitioner has surfaced in the case. Out of them, 8 accused persons have been arrested and later on released on bail while as 12 more accused persons have also been arrested. It has however been submitted that arrest of 9 more accused persons is still awaited.

I have heard learned counsel for the parties and perused the material on record including the case diary.

It is true that in the impugned FIR names of accused persons are not mentioned and obviously name of the petitioner does not figure therein.

However, a perusal of the case diary reveals that there are statements of eye witnesses recorded under Section 161 Cr.PC out of whom at least 3 witnesses have categorically named the petitioner as being part of the mob who set on fire the school building and the panchayat ghar. Therefore, it is not a case where there is no material on record of the case diary to suggest the involvement of the petitioner in the alleged crime.

It is a settled law that a criminal prosecution can be quashed against a person only if from the contents of the FIR and the material collected during investigation of the case no cognizable offence is disclosed against a person. However, in the instant case though the petitioner is not named in the impugned FIR, but there is definite material on record to suggest his involvement in the alleged crime. Therefore, the prosecution against the petitioner in such circumstances cannot be scuttled by quashing the same. The power of the High Court under Section 482 of the Cr.PC cannot be invoked to quash a genuine prosecution.

For the foregoing reasons, I do not find any merit in this petition. The same is dismissed. However, the investigating agency is directed to complete the investigation of the case expeditiously so that the culprits are brought to book and the innocent persons are not dragged unnecessarily while keeping the investigation pending for years together.

The case diary be returned.