Advocates:
['F A WANI', '', 'IMRAN ASHRAF', 'MIR MAJID BASHIR', '', 'MR/ Q R SHAMAS']

IN THE HIGH COURT OF JAMMU AND KASHMIR

AT SRINAGAR

Reserved on: 13.06.2021

Pronounced on: 15.07.2021

CRMC No.11/2018

CrlM No.419/2019 & IA No.1/2018

Ghulam Qadir Bhat and others

…PETITIONER(S)

Through: Mr. F.A.Wani, Advocate

Vs.

State of J&K and another

….RESPONDENT(S)

Through: Mr. Mir Suhail, AAG for R-1

Mr. Mir Majid Bashir, Advocate for R-2

CORAM:HON’BLE MR. JUSTICE SANJEEV KUMAR, JUDGE

JUDGMENT

1)

The petitioners, four in number i.e. father and his three sons,

have jointly filed this petition under Section 561-A Cr.P.C. seeking

quashment of FIR No.06/2018 under Sections 406, 420, 120-B and

506 (ii) RPC registered in Police Station Magam primarily on the

ground that while the learned Judicial Magistrate 1^st Class (Sub-

Judge), Pattan [<the Trial Magistrate=] had taken cognizance and was

seized of the complaint filed by respondent No.2, the police of Police

Station, Magam was not competent to register an FIR on the same

facts and set in motion the investigation.

2 CRMC No.11/2018

2)

With a view to appreciating the grounds taken by the petitioners

to challenge the registration of impugned FIR, it is necessary to first

set out material facts:-

Respondent No.2 is brother of Mst. Asifa Rasool, who

conducted nikah ceremony with petitioner No.2, Ghulam Rasool Bhat

on 29.12.2016. Soon after the nikah ceremony and before the ruksati

of Mst. Asifa Rasool, a dispute arose between the parties to marriage.

It is allegation of respondent No.2 that the petitioners had concealed

the factum of petitioner No.2 already having a wife and a subsisting

marriage with her. As is usual, during nikah ceremony some cash

amount and gold ornaments by way of mehar were handed over to

Mst. Asifa Rasool. As is claimed, an effort was made to amicably

resolve the dispute. It is the allegation of respondent No.2 that the

petitioners called him along with Mehar items at their residence at

Archanderhama on 26.012.2017 at 7.30 p.m where the petitioners by

deceitful means made respondent NO.2 to deliver gold items, clothing

and cash etc, which, as per the complainant, were retained by the

petitioners with an intention to misappropriate the same.

Be that as it may, it is in this background of allegations,

respondent No.2 filed a complaint before the Trial Magistrate on

28.12.2017 for taking appropriate action against the petitioners herein.

The Trial Magistrate after recording the statement of respondent No.2

and one of his witnesses, namely, Abdul Khaliq Dar, deferred the

issuance of process and directed SDPO Magam for conducting inquiry

3 CRMC No.11/2018

under Section 202 of the Code of Criminal Procedure with a view to

ascertain the truth and falsehood of the allegations made in the

complaint. This was done by the Trial Magistrate vide its order dated

28.12.2017. While the matter was before the SDPO, Magam for

conducting investigation in the matter, it transpires that on

08.01.2018, respondent No.2 launched parallel proceedings and filed a

written complaint on same allegations before the Incharge Police

Station, Magam seeking registration of FIR against the petitioners.

Interestingly, while the Trial Magistrate was seized of the matter and

awaiting inquiry report in terms of Section 202 Cr.P.C. from the

SDPO, Magam, Police Station Magam registered FIR No.06/2018

under Sections 406, 420, 120-B and 506(ii) RPC and set the

investigation in motion. It is this FIR the petitioners are aggrieved of

and have challenged the same, inter alia, on the grounds noticed

herein above.

3)

On being put on notice, S.H.O. Police Station, Magam has filed

his status report. In the status report he has not dealt with the specific

contention of the petitioners that the Trial Magistrate, Pattan was

already seized of the complaint containing same allegations, as have

been made the basis o