JUDGMENT

1. Petitioner has invoked the inherent jurisdiction of this court in terms of section 561-A of J&K CrPC (akin to section 482 of the Central CrPC) for quashing the order dated 06.10.2015 (for short ‘impugned order’) passed by Learned Judicial Magistrate [Special Mobile Magistrate (Electricity)] Batote, in a closure report arising out of FIR No. 42/2011 registered at Police Station, Batote for the commission of offence punishable under Section 376 RPC against the petitioner along with FIR (for short ‘impugned FIR’) .

2. It has been pleaded that the complainant had lodged a false and frivolous complaint against the petitioner for subjecting her to rape under the pretext of marriage. It has been pleaded that the complainant had initially lodged a false accusation against the petitioner and during investigation of the case, she had stated in her statement recorded during investigation before the Magistrate in terms of Section 164-A CrPC, where she admitted that she had been forcing the accused (petitioner herein) to marry her and she had voluntarily gone to Patnitop to meet him in connection with marriage proposal. As the petitioner refused to accept the proposal, she got infuriated and lodged a false and frivolous case of rape against him; that the complainant had shown the date of occurrence as 05.06.2011 and lodged the complaint on 08.06.2011 after a considerable delay. It has further been pleaded that the petitioner being a government employee did not want to lose his job and due to social and moral pressure created by the complainant, he agreed to execute a marriage agreement to pacify the complainant and after thorough investigation of the case a closure report was filed before the court below.

3. It was further alleged that during consideration of the closure report, the complainant on summons appeared and instead of filing any protest petition, pointed out the defects and shortcoming in the investigation and her fresh statement was recorded and impugned order was passed on that statement. The learned Magistrate appears to have come to the conclusion that the investigation by the respondent No.2 was shoddily conducted by the police in most casual and negligent manner, however, without pointing out the lapse in the investigation, the learned Magistrate rejected the closure report and directed Senior Superintendent of Police Ramban, to get the case re-investigated by an officer of the rank of not the less than DySP;

that the impugned order has been challenged on many counts.

4. Learned senior counsel appearing for the petitioner, however, restricted his arguments only to the legal issue that the Magistrate was not competent to order re-investigation of the case as has been authoritatively held by the Supreme Court of India in a case titled “Chandra Babu @ Moses vs State Through Inspector of Police & Ors.”, reported as 2015 (8) SCC 774, wherein it has been held that the Magistrate is not empowered to direct re- investigation or fresh investigation (de novo) in a case instituted on the basis of police report. Learned counsel for the petitioner prayed that in view of the facts and circumstances of the case and the legal position in view of the law laid down by the Apex Court, this petition be allowed and the order impugned directing re-investigation of the case and also the FIR No. 42/2011 registered at Police Station Batote, against the petitioner be quashed.

5. Learned counsel for the respondents submitted that the respondents had concluded the investigation into a closure report only, due to wavering stand taken by the complainant/prosecutrix, firstly alleging of the rape then resiling from that statement during her examination in terms of Section 164-A CrPC before the Magistrate and again alleging same-thing before the learned Magistrate when she was issued a notice while considering the closure report arising out of the case. He has further submitted that in the closure report action as warranted under Section 182 CrPC w