PARVEENA BANOO Vs. STATE OF JK

JUDGEMENT

(1.) The petitioner/complainant in FIR no. 6/2006 under sec. 420/468/471 RPC of P/S Crime Branch Srinagar has been filed this petition for quashing the order passed by JMIC Special Magistrate 13th Finance Commission Srinagar on 18/12/2015, by virtue of which application filed by state under sec. 540 Cr.p.c has been dismissed.

(2.) The case of the petitioner is that petitioner and private respondent were husband and wife and were married with each other in the year 1997 in accordance with shariat law and thereafter were living as husband and wife. That private respondent was insincere and disloyal to the petitioner and was not faithfully at any stage of life. The petitioner being well placed officer in the state services was getting heavy salary which was seized from the petitioner by the private respondent and she would remain always out of the pocket, the petitioner was not knowing what the private respondent is doing as the petitioner was transparent and sincere wife of the private respondent. That the private respondent made the petitioner to purchase a house in Bemina Housing Colony Srinagar and other house hold things including a Murati Car bearing registration No. JKOIE-6667 in the year 2003 and same was used by the private respondent for immoral acts as he was having the extramarital relation at the back of the petitioner. That one morning the petitioner came to know after fifteen years that the private respondent has contracted another marriage and is living life with that woman. That when the immoral acts of the private respondent were surfaced to the petitioner and other social relations and society at large, the private respondent started to dispose of the belongings of the petitioner .That above referred car was one of such things which was being alienated by the private respondent and the petitioner thereafter filed a complaint before Special Crime Branch Srinagar as private respondents has prepared some fake documents with regard to the alienation of the murati car. That the above said complaint was investigated and at preliminary verification the private respondent accordingly registered FIR bearing No. 06/2006 was lodged at P/S Crime Branch u/s 420, 468 and 471 RPC. That the matter was investigated and it was found a fit case for trial both technically as well as traditionally and Challan was produced before the Court of law which was transferred to court of Sub Judge Special Mobile Magistrate Under 13th Financial Commission Srinagar. That the petitioner tried to participate the proceedings as the petitioner came to know that the private respondent has won over the prosecution machinery as whole, but the petitioner was prevented by the prosecution and said court at the instance of the prosecution on the simple ground that petitioner is stranger in the proceedings. That the prosecution remained unconcerned with the case during the trial and allowed the case go on with snails speed and did not took the pains to call the witnesses and the evidence at proper time and almost all the material witness were missed by the prosecution and the case went without recording the evidence of the material witnesses. That the trial court finally closed the witnesses of the prosecution on 13/10/2015. That the petitioner jibed the issue with the prosecutions and told them categorically that they have entered in illegal compromise with the accused person and have wilfully, deliberately, knowingly and purposely avoided the production of the evidence and the petitioner is going to take the issue with the Commissioner and the Home Minister. That the prosecution loss the senses for and while but they called upon the petitioners that they will ensure that all the prosecution witnesses are produced before the court to prove the case against the private respondent and there are abundant provisions in the law and the all the material witnesses would be called before the Court. That the petitioner against believed in the prosecution and trusted them to do whatever could be done by them to prove the guilt of the private respondent. The prosecution moved an application for recalling the witnesses' No. 2, 3,5,6,9 and 10 under sec. 540 of the Cr PC and placed the same before the Court. The petition did not know that this is another favour of the prosecution being done to the private respondent. That the court considered the matter and the application on the basis of the pleadings mentioned therein and passed and vide order dtd. 18/12/2015 rejecting the application of the prosecution being the application without any reasons and vague, besides calling it as review of the order dtd. 13/10/2015 when the prosecution witnesses were closed.

(3.) Petitioner being aggrieved of the order dtd. 18/12/2015, and the order of the closing of the witnesses of the prosecution and challenges the same on the following grounds and the grounds are taken in alternative without prejudice to each other. That the proceedings u/s 540 Cr PC are the independent proceedings and are to be considered to the independently on the basis of the pleadings and the reasons mentioned therein the application without being influenced by the previous recording the proceedings of the case. The order impugned has been passed by the trial court under the misconception of the law being contrarily to the law as such is not sustainable in the eyes of the law thus liable to be set-aside as illegal. That the prosecution has mentioned specifically mentioned the number of the witnesses in the application moved by the prosecution and there was no ambiguity in identifying the witnesses whom the prosecution is intending to call for the witnesses but despite that the trial court has returned baseless and meritless finding that the application is vague as it has not defined the witnesses which the prosecution is intending to recall for the tendering their evidence. Thus the petitioner seeks the shelter before this Court. That the FIR's in which has been lodged at the instance of the petitioner has disclosed the commission of the heinous offences with regard to the property by a husband against his wife.