Can't Evaluate Victim's Statement Recorded U/S 164A CrPC While Exercising Inherent Powers U/S 482 CrPC: J&K&L HC

Placing reliance on the apex court judgment in Rajeev Kaurav v. Bai Sahab (2020), Justice Rajnesh Oswal observed that the petition for quashing of FIR registered under Section 376 of the Ranbir Code cannot be sustained:

"I have gone through the contents of the application as also the statement of prosecutrix recorded under Section 164-A Cr. P.C. The allegations levelled against the petitioner are not only with regard to having sex on the pretext of marriage but also with regard to the forcible sex on 10.02.2016 in the house of respondent No. 2. This Court, while exercising power under Section 561-A (now 482) Cr. P.C. cannot critically evaluate the statement of the prosecutrix as recorded under Section 164-A Cr. P.C during the course of investigation."

The petitioner, in his FIR quashing petition, had stated that the allegations levelled by the complainant do not make out an offence under Section 376 RPC. The petitioner also submitted there were no sexual relations with the complainant on the false pretext of marriage. The petitioner counsel also argued that the FIR was registered in violation of SC judgment in Priyanka Srivastava v. State of U.P (2015).

In Priyanka Srivastava (supra) the Supreme Court had delved into the procedure following refusal to register FIR. It was stipulated that there has to be prior applications under Section 154(1) and 154(3) while filing a petition under Section 156(3). 

The respondent counsel, Additional Advocate General Aseem Sawhney, submitted that there are specific allegations about the commission of rape by the petitioner at the complainant's house in 2016 and hence the FIR is not illegal. He also submitted that the FIR was registered after an application was produced by the complainant along with the order of Special Municipal Judicial Magistrate 1st Class, Jammu.

After hearing both sides, the court observed that the FIR discloses the commission of a cognisable offence under Section 376 RPC and the contention of petitioner about violation of Priyanka Srivastava judgment does not hold good.

"A perusal of the FIR reveals that the same was registered on the basis of the application endorsed by the learned Magistrate as mentioned above and the Station House Officer of the concerned Police Station after perusing the contents of the application as also the order passed by the learned magistrate registered the FIR", the court added.

Therefore, the court held that there was no merit in the quashing petition and dismissed the same.

Case Title: Sanjeev Kumar v. State of Jammu & Kashmir & Anr.

Case No: CRMC No. 163/2016

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