HC holds arrest of SHO till next date

[ May 16, 2017 ] Jammu: Justice Janak Raj Kotwal of J&K High Court has issued notice to the State, IGP Jammu and others in a petition filed by Rajesh Sharma- Inspector in J&K Police, ex SHO Police Station Kanachak Jammu. Court has also stayed the arrest of Rajesh Sharma, ex SHO Police Station Kanchak in case any FIR is registered against him, till next date of hearing.This significant order giving major relief to the Police Inspector was passed by Justice Kotwal in open Court after hearing at length, Mr Aseem Sawhney Advocate with Utkarsh Pathania and Shiv Dev Thakur Advocates.It may be mentioned that the City Judge Jammu had passed an order under section 156 (3) CrPC in a complaint of one - lady (name omitted) alleging rape, abduction and beating in the Police Station Kanachak when the petitioner was posted as SHO Police Station Kanachak. In the Order the City Judge had directed the IGP Jammu to constitute an SIT in the matter and register an FIR against the petitioner and others.The SHO Police Station Kanachak Mr Rajesh Sharma was later attached with the DPL Jammu in this connection and has filed the petition in the High Court seeking quashing of the complaint and the order of City Judge dated 9.5.2017 through Advocates A K Sawhney and Aseem Sawhney.Adv Aseem Sawhney while making submissions before the High Court said that the allegations of the lady (complainant) at the very face of it are false and concocted just to wriggle out of a theft case which was registered at Police Station Kanachak, Jammu, where the complainant was arrested on 30.4.2017 and on her statement some of the stolen property i.e. gold ornaments were recovered. But then the complainant in connivance with certain other people have weaved a story and filed a false complaint levelling dirty allegations of 376 and 366 RPC while as the same are totally false and malafide and further submitted that the petitioner formed a team which recovered some gold items partially and even arrested mother of the accused- respondent no. 5 namely Sudesh Kumari W/o Puran Chand R/o Pathankote on 1.5.2017 and both were kept under custody of Lady Constables. The complainant lady and her mother were kept custody of the Police Station till 2.5.2017 and thereafter they were shifted to Women Cell, Jammu. Aseem Sawhney Advocate submitted that during their custody as per requirement of law and as envisaged in celebrated Judgment of D K Basu the accused/ arrestees were got medically examined after every 24 hours and remand was being obtained from concerned Magistrates. On 6.5.2017 the interim bail was granted to the complainant lady and her mother accused in the said case by the City Judge Jammu (Duty Magistrate) in Bail application moved by the accused / complainant lady and the Bail Application filed by the respondent no. 5, before the City Judge Jammu (JMIC) does not even contain an iota of whisper about the dirty allegations being levelled against the petitioner and others in the complaint filed later on as an afterthought and as a counterblast to the theft FIR u/s 379 RPC.He submitted that a matter of fact, the complainant and her mother are having criminal background started weaving a false story to counterblast and attack and demoralize the Police officers/ officials including the Petitioner. The complainant is being instigated and actively being supported by some local politicians against whom the Police cases were under investigation at Police Station Kanachak and were also using their contacts in the media to malign the image of the Police in general and petitioner and other officials in particular.Aseem Sawhney submitted that in compliance to the Orders of the City Judge Jammu, the Medical Board was constituted and the Board examined the accused/ complainant and filed report in the Court on 8.5.2017. It was opined that there were eleven (11) injuries on the body of victim/ accused and all were simple in nature and caused by blunt object. He submitted that it was clearly mentioned that there was no injury to genital organs or any sexual assault was overruled, therefore no question of sexual assault or rape arose, the counsel submitted. None of the injuries were found on the private parties as alleged in the complaint and there is no medical evidence of any sort of sexual assault or any other insertion of any bottle or blade cuts as being falsely alleged in the complaint. Thus the impugned order is based on false allegations which are not supported by medical evidence therefore the question of 376 RPC does not arise, but still the Court in a mechanical manner and in complete ignorance of the law and judgments laid down by the Supreme Court and various High Courts of the country has passed an ex facie illegal order which will have harsh and serious repercussions on the life, liberty, career and reputation of the petitioner.He further submitted that even the mother of the complainant lady who was co accused in the said theft case is a person with criminal antecedents and has been convicted by the Court of Addl Sessions Judge Pathankote in case FIR no. 20 of 20.3.2012 Police Station Div. no. II Pathankote under section 363 366A, 376 IPC, 120 B IPC and thefore they are people with criminal background. He alleged that complainant lady and her companions including mother are a gang of criminals and the antecedents of the lady were being verified, and thus she created this ploy to ensure the investigation being conducted her be diverted and the petitioner was the SHO of that time be shunted out.Adv. Aseem Sawhney submitted that basic legal flaw in the order is that the Ld Magistrate has resorted to exercise of powers under section 156 (3) CrPC after resorting to examination of the complainant under section 190 CrPC and then 200 CrPC. That the law is settled that once the statement of complainant or witnesses are recorded and they are examined under section 200 CrPC, the Magistrate could not have exercised powers under section 156 (3) CrPC.In this regard the Supreme Court has settled that once the Magistrate decides to proceed under section 200 CrPC, then section 156 (3) cannot be resorted to, which has been done, thus making the impugned Order illegal and liable to be set aside. He also submitted while directing under section 156 (3) CrPC the Magistrate could not issue directions of the tone and tenor of a Writ of Mandamus as the powers are with the Constitutional Court i.e. the High Court. The CrPC does not envisage such sweeping powers to the Ld Magistrate and what to talk of directing IGP Jammu to form a team or SIT that too of selected members of choice of respondent no. 3; the Magistrate under law cannot even ask the SHO beyond jurisdiction to inquire into the case but in the present case at the very first instance the Ld Court has directed the IGP Jammu to make a SIT of officers who are not in the jurisdiction of the Ld Court.The law is clear that the Magistrate has to exercise powers under section 156 (3) CrPC and can direct investigation but at the very first instance, has been swayed away and passed order beyond the realms of CrPC, thus the entire impugned order is illegal and therefore be quashed. He submitted that City Judge Jammu (JMIC) was not vested with the powers to have entertained the complaint directly as it is the CJM Jammu who entertains the same and transfers it and the powers are vested with the Ld CJM under section 192 CrPC. Even if the City Judge Jammu was the Duty Magistrate, then also only miscellaneous works, like bails and other applications are to be entertained by the Duty Magistrates and not regular complaints and challans, therefore on this count also the Order is illegal and defective and therefore be set aside.He also submitted that harassment on the name of investigation and arrest would be an assault on the Fundamental and legal rights of the petitioner moreso the valuable right to reputation, the career and life of the petitioner therefore the petitioner seeks the indulgence of the Court to protect the petitioner in view of Article 21 of the Constitution of India which protects life and liberty of every citizen including the right to reputation which is a valuable asset of Article 21. Court after hearing Adv Aseem Sawhney at length Stayed the arrest of the then SHO Kanachak, Rajesh Sharma till next date of hearing in case any FIR is filed against him, and directed the respondents State and Others to file reply . This order has been passed in open court. Xxxxxxxx DB rejects bail HM Ultra in Sarpanch murder case Jammu: In a much publicized murder case of Sher Mohammad Sarpanch village Changa in which Trial Court awarded fe-imprisonment and fine Rs 5000 to one Hizb-ul-MUjhadeen (HM) terrorist namely Tariq Mattoo Code Gorkha of Soti Gandoh, A Division Bench of State High Court Comprising Justice Alok Aradhe and Justice Janak Raj Kotwal after hearing Adv Rozina Afzal for the accused whereas Sr. AAG Seema Shekhar for the state, rejected the bail.According to the police case that on July 4, 2002 at 9.30 pm an information was received in PS Gandoh from reliable sources that terrorists Irfan Ali Code Babloo, Jan Mohammad Code Hamza and accused Tariq Matoo Code Gorkha entered the house of Sher Mohammad Rather, Sarpanch Halqua Changa and fired on Sher Mohammad killing him on spot. The terrorists after killing the deceased kept one IED nearby to cause damage to lives of security forces. On the strength of this report FIR No.57 for the commission of offences u/s 302 RPC, 7/27 A.Act and 3.PSS Act was registered in PS Gandoh.Division Bench after hearing both the sides observed that No doubt that the Supreme Court has held that where the appellant has served the half of the jail sentence, the appellant should normally may release on bail. Section 497-D of the Code of Criminal Procedure does not apply in this case for the reason that the said Section excludes offences for which imprisonment for life is provided for one of the sentences like offence under Section 302 RPC which is punishable with death or imprisonment for life. Besides that, it is pertinent to note that on 01.07.2014, the Division Bench of this Court had already rejected the prayer for bail, this Court do not find any ground to take a different view. Besides that, it is pertinent to mention that the appellant was absconding and was apprehended after filing of the charge sheet and two of the co-accuseds are still absconding. With these observations Court rejected the bail application.