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2008 DIGILAW 393 (JK)

Ichpal Singh v. State

2008-10-29

SUNIL HALI

body2008
1. Through this petition, the petitioners seek quashment of order dated 29.05.2006 passed by the learned Sessions Judge, Budgam in case titled State Vs. Ichpal Singh and others wherein they have been charged under Section 302 RPC and other allied offences; 2. In order to appreciate the controversy, it is necessary to give brief resume of the case. On the basis of the recommendations of the State Human Rights Commission, the Crime Branch registered FIR No.77/2003 against three police officials. The Crime Branch investigated the case after recording the statements of the witnesses and presented the charge sheet before the learned Chief Judicial Magistrate, Budgam on 31.03.2005. However, it seems that due to absence of petitioners/accused Nos. 1 and 2, the committal court was not able to commit the case. One of the accused, namely, Waris Shah turned an approver in the case. The case was committed by the learned CJM, Budgam to the court of learned Sessions Judge, Budgam and proceedings under Section 512 Cr.P.C were initiated against the petitioners by the learned CJM, Budgam. Petitioner No.1 was produced before the court of learned Sessions Judge, Budgam on 04.02.2006 and petitioner No.2 was not apprehended and proceedings under Section 512 Cr.P.C were initiated against him. Accused No.3 contested the framing of charge while as present petitioners were not heard as they were not represented by any lawyer. 3. Learned District Judge Budgam after hearing public prosecutor and the counsel for the accused No.3 framed the charges against the accused under Sections 302, 120-B, 342 and 201 RPC vide order dated 29.05.2006. It is this order, which is challenged in the present petition. 4. It is the case of the petitioners that owing to the non-availability of the lawyer before the learned Sessions Judge, Budgam and due to hostile environment, they filed an application before this court for transfer of the criminal case from the court of Learned Sessions Judge Budgam to any other court of competent jurisdiction at Jammu. The said application was partly allowed and the case was transferred from the court of learned Sessions Judge, Budgam to the court of learned Sessions Judge, Srinagar. Against the said order of this court, the petitioners filed SLP before the Supreme Court. It was contended by the petitioners that the allegations alleged against them were that they killed a person, namely, Mohmamd Ayoub Dar son of Ab. Against the said order of this court, the petitioners filed SLP before the Supreme Court. It was contended by the petitioners that the allegations alleged against them were that they killed a person, namely, Mohmamd Ayoub Dar son of Ab. Rehman Dar resident of Charipora Pakerpora, Budgam during interrogation in the intervening night of Ist/2nd June, 1999 at Dalwan. Due to hostile atmosphere and in view of the political fall out of the case, no lawyer was ready to appear on their behalf at Budgam as also at Srinagar. 5. The Honble Supreme Court of India vide its order dated 10.03.2008 allowed the SLP and transferred the proceedings arising out of the aforesaid FIR No.77/2006 to the court of learned District and Sessions Judge Jammu. While disposing of the SLP, the Honble Apex Court observed that as the present petitioners remained unrepresented in the proceedings, therefore, we feel that their rights would be prejudicially affected if the proceedings are not allowed to be conducted outside Srinagar. It was under these circumstances that the case came to be transferred to the court of learned District and Sessions Judge, Jammu. 6. Coming to the question of framing charges against the petitioners on 29.05.2006. The petitioners have stated that since they remained unrepresented at the time of framing of charges, as such, the same are required to be quashed and they be permitted to argue the matter before the trial court for the purpose of framing of charges. 7. I have heard learned counsel for the parties and perused the record. For the purpose of framing of charges, the public prosecutor has the first right to open his case for describing the charges brought against the accused. 8. The following sections deal with regard to charge and discharge:- 267. Opening case for prosecution. When the accused appears or is brought before the court in pursuance of a commitment of the case under section 205-D the prosecutor shall open his case by describing the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused. 268. Discharge. Opening case for prosecution. When the accused appears or is brought before the court in pursuance of a commitment of the case under section 205-D the prosecutor shall open his case by describing the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused. 268. Discharge. If upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the judge considers that there is no sufficient ground for proceeding against the accused he shall discharge the accused and record his reasons for so doing. 269. Framing of charge. (1) if, after such consideration and hearing as aforesaid, the judge is of opinion that there is ground for presuming that the accused has committed an offence which- (a) is not exclusively triable by the court of sessions, he may frame charge against the accused and by order, transfer the case to the Chief judicial magistrate or any Judicial Magistrate competent to try the case, and thereupon the Chief Judicial Magistrate or any Judicial magistrate to whom a case may have been transferred shall try the offence in accordance with the procedure provided for the trial of warrant cases instituted on police report. (b) is exclusively triable by the court, he shall frame in writing a charge against the accused. (2) Where the judge frames any charge under clause (b) of sub-section (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried. 9. Section 267 Cr.P.C. envisages that the prosecutor shall open his case by describing the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused. Section 268 Cr.P.C. deals with the question of discharge. It envisages that upon consideration of the record of the case and documents submitted therewith and after hearing the submissions of the accused and the prosecution in this behalf, the judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing. Section 269 Cr.P.C. deals with the question of framing charge. Section 269 Cr.P.C. deals with the question of framing charge. It envisages that if, after such consideration and hearing as aforesaid, the judge is of opinion that there is ground for presuming that the accused has committed an offence which is exclusively triable by the court, he shall frame in writing a charge against the accused. 10. The essence of these provisions reveal that framing of the charge is not an ideal formality nor are the courts to act as spokesman of investigating agency while framing the charge. It envisages an obligation on the part of court to peruse the material on the basis of which charges are required to be framed. In order to arrive at any conclusion on the basis of the material before the court, it requires assistance of the public prosecutor and the defence counsel. If this right is denied to either of the parties, it may have result of putting a man to trial without there being any material, and conversely to discharge the accused where material is sufficient to put him on trial. Providing of legal assistance is the essence of legal system, more particularly in a case dealing with the criminal trial. Any order of discharging or charging a person, has to be done only after hearing the accused and public prosecutor. 11. In the present case, it clearly reveals that at the time of framing of charges the accused remained unrepresented by the counsel and this has also been affirmed by the Apex Court in its order dated 10.03.2008. The trial court had an obligation to provide legal assistance to the petitioners by invoking Section 340-A of Cr.P.C. This section clearly envisages that where in a trial before the Court of Sessions the accused is not represented by a pleader, and where it appears to the court that the accused has not sufficient means to engage a pleader, the court shall assign a pleader for his defence at the expense of the State. In the present case, the court has not taken any steps to ensure that the accused are duly represented at the time of framing of charge. The other aspect which the court has overlooked was that due to hostile atmosphere against them at Budgam, they were not permitted to defend themselves as no lawyer was available to defend their case. In the present case, the court has not taken any steps to ensure that the accused are duly represented at the time of framing of charge. The other aspect which the court has overlooked was that due to hostile atmosphere against them at Budgam, they were not permitted to defend themselves as no lawyer was available to defend their case. The court had to ensure that in case no lawyer was forthcoming, in such a situation amicus curiae, had to be appointed and in case he would also refuse to appear, the court would on its own motion either stay the trial or refer the matter to the High court for ordering its transfer to some other court where the accused could get fair trial. 12. I say so because Article 21 of the Constitution provides that a person is entitled to fair trial and in absence of the same, justice system is likely to collapse. In this case neither the court had taken any step to ensure that some amicus curiae could be appointed to defend the accused neither the accused nor the court has shown its sensitivity to the fact that the accused are undefended. The process of proving guilt against the accused has to be fair. Admittedly, the petitioners remained unrepresented before the Sessions Judge, Budgam. 13. I, therefore, hold that the charges framed against the petitioners by the learned Sessions Judge, Budgam suffers from vice of unfairness and are hereby quashed. The learned IIIrd Additional Sessions Judge, Jammu, where the case is pending, is directed to proceed in the matter afresh and hear the accused and public prosecutor on framing of charges. Consequently the order of proceedings taken after framing of charges shall stand quashed. 14. Let the accused appear before the learned IIIrd Additional Sessions Judge, Jammu on 10.11.2008. Disposed of along with connected Cr.M.P. if any.