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2011 DIGILAW 375 (JK)

State Of J&K v. Gh. Qadir Sofi

2011-07-29

MUZAFFAR HUSSAIN ATTAR

body2011
(Oral) 1. Order of discharge passed by learned Additional Sessions Judge, Pulwama on 04.09.2010 passed in FIR no. 11/Sessions of 2010 arising out of FIR no. 121 of 2010 P/S, Pulwama, is called in question, in this criminal revision petition. 2. Heard learned counsel for the parties. Considered the matter. 3. Learned counsel for the petitioner submitted that order of discharge has been passed by the learned trial Judge as if he was considering the matter at the conclusion of the trial and was required to record a finding about the guilt or innocence of the accused. Learned counsel submitted that the evidence which was available on the record of the trial Court and also other material would prima facie show commission of offence under Section 376(2) (d) RPC. Learned counsel submitted that learned trial Judge had travel beyond his jurisdiction in delving deep into the material and evaluating the evidence as if the respondent was to be either convicted or acquitted. Learned counsel submitted that in terms of Section 268 Cr.P.C. accused could be discharged, when Judge would find that there is no sufficient ground for proceedings against him. Learned counsel submitted that in the facts and circumstances of this case, there was ground for presuming that the accused has committed the offence and was required to be put on trial by framing the charge against him. Learned counsel, accordingly, prayed for setting aside of the order impugned in this petition. 4. Mr. A. R. Bhat learned counsel appearing for respondents submitted that considering the entire material available on record, it could not be said that accused has committed offence which would warrant for framing of charge against him and for putting him on trial. Learned counsel submitted that site plan annexed with the report under Section 173 Cr. P. C. would not support prosecution case and that alleged crime of rape could not be video-graphed from the small hole of the door. Learned counsel submitted that lady in order to save herself has made false acquisition against the respondent and in fact she had not approached the Police. Learned counsel submitted that in these circumstances, there was no ground for framing charge against the accused and the learned trial Judge in his wisdom has rightly discharged the accused. Learned counsel submitted that lady in order to save herself has made false acquisition against the respondent and in fact she had not approached the Police. Learned counsel submitted that in these circumstances, there was no ground for framing charge against the accused and the learned trial Judge in his wisdom has rightly discharged the accused. Learned counsel submitted that person from whom mobile phone was alleged to have been borrowed by the prosecution witness who video graphed the alleged act of rape, has stated that he does not remember as to whether mobile phone was borrowed from him or not. 5. In order to appreciate the arguments advanced at the Bar, it will be appropriate to give brief resume of the facts of this case. 6. Perusal of the FIR shows that DSB, Pulwama sent written report along with memory card of the mobile pone, which was duly endorsed by the SSP Pulwama, to Police Station, Pulwama alleging therein that Mr. Ghulam Qadir Sofi, CMO Pulwama is a doctor by profession and is posted at Pulwama. It is also alleged in the FIR that about seven years back he was posted as Block Medical Officer, Pulwama. It is also alleged that on some complaint of a women he was transferred from the said place. It is stated that in the FIR that he was posted as Dy. Chief Medical Officer for a period of 5/6 years and thereafter was posted as Chief Medical Officer, Pulwama. It is also alleged in the FIR that instead of performing his duties in the hospital, he would mostly spent his time in private clinic despite the fact that he would draw non practising allowances (NPA) as well. Besides alleging other things in the FIR, it was also alleged that sometime back respondent-CMO had subjected one unidentified woman to rape in his clinic. It is on this basis case IFR no. 121/2010 P/S Pulwama under Section 376(2)(d) was registered against respondent-CMO. During the investigation of the case, police identified lady who was allegedly subjected to rape by respondent. 7. Statement of the prosecution witnesses were record. Statements of some of prosecution witnesses were also recorded under Section 164(a) Cr.P.C. 8. It is on this basis case IFR no. 121/2010 P/S Pulwama under Section 376(2)(d) was registered against respondent-CMO. During the investigation of the case, police identified lady who was allegedly subjected to rape by respondent. 7. Statement of the prosecution witnesses were record. Statements of some of prosecution witnesses were also recorded under Section 164(a) Cr.P.C. 8. Perusal of record of the trial Court reveals that statement of Bilal Ahmad Tehli and Halima were recorded under Section 164(a) Cr.P.C. and statement of some other witnesses were also recorded under Section 161 Cr.P.C. Bilal Ahmad Tehli in his statement has deposed that he is working in clinic for last seven years. Vijay Clinic belongs to one Rattan Lal Koul and Bashir Ahmad Sheikh. In one room of the clinic, respondent-doctor is also practicing medicine. The said clinic is situated in the Auquaf building on Tahab Road. It is also alleged that on 06.09.2009 at about 4:00 p.m. a lady came to the clinic and at that point of time there was no other patient in the clinic. It is also stated by Bashir Ahmad Tehli that when lady entered into the clinic of the doctor, the accused bolted the door from inside. Prosecution witness further stated that he peeped through the hole of the door and found the lady and respondent doctor in suspicious manner and he narrated this to Shabir Ahmad and took his mobile phone and through the hole of the door recorded what was going inside. He has alleged that respondent accused was raping the lady. 9. Halima during investigation under Section 164 (a) has stated that she was ill and she went to the hospital at Pulwama, where respondent-doctor told her to come to her clinic. She has deposed that after some days she went to the clinic of respondent-accused at about 4:00 p.m. She further stated that there were some patients at that time. She has further stated in her statement that moment she entered the room of the respondent-accused, he bolted the door from inside and despite her resistance the respondent-doctor, allegedly committed rape on her. She also stated that she had not consented for the act. She also stated that she maintained silence as she has children and she did not want to have any adverse effect on them. But now she is making the statement. She also stated that she had not consented for the act. She also stated that she maintained silence as she has children and she did not want to have any adverse effect on them. But now she is making the statement. Prosecution also recorded the statement of some other witnesses and seized the blanket, mobile and memory card during the investigation of the case. Statement of the some other witnesses and collected seized material, blanket was sent to the Forensic Laboratory. Certificate of potency was also obtained. Rent agreement of the clinic was also seized. After completion of the investigation the police submitted report under Section 173 Cr.P.C. along with material supporting the case against the respondent. 10. It will be profitable to take note of Section 268 and 269 of Cr. P.C. Svt. 1989 (for short Svt. 1989): "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 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." 11. Section 376(2)(d) provides punishment of rape when same is committed by public servant taking advantage of his official position, and commits rape on a woman in his custody as such public servant or in the custody of public servant subordinate to him. Section 376(2)(d) provides punishment of rape when same is committed by public servant taking advantage of his official position, and commits rape on a woman in his custody as such public servant or in the custody of public servant subordinate to him. Section 268 provides 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 whereas section 269 provides that if in the opinion of the Judge there is ground for presuming that the accused has committed an offence which is exclusively triable by the Court of Sessions he may frame charge against the accused. 12. The language used by legislatures in these two provisions of law is materially different. To discharging the accused, finding has to be recorded even for prima facie purpose that there is no sufficient ground for proceeding against the accused, whereas in terms of Section 269, court has only to record opinion that there is ground for presuming that the accused has committed offence. For discharging the accused Court has to record reasons that there are no sufficient ground to proceed against the accused while framing the charge against the accused Court has to record opinion that there is ground for presuming accused has committed offence. 13. What emerges from the aforementioned two provisions of law is that trial Judge has to record reasons if he finds there are no sufficient grounds for proceeding against the accused. For framing the charge he has only to record his opinion that there is ground for presuming the offence has been committed. Thus, for discharging of accused heavy burden is placed on the Court as he has to record reasons to indicate that there are no sufficient ground to proceed against the accused. 14. Hon'ble Supreme Court in plethora of judgments has laid parameters as to how case is to be considered at the stage of charge/ discharge of an accused. 15. Evidence and the material available before the learned trial Judge is not to be scanned and evaluated in the manner as if court has to find whether accused has committed the guilt or he is innocent. 15. Evidence and the material available before the learned trial Judge is not to be scanned and evaluated in the manner as if court has to find whether accused has committed the guilt or he is innocent. At that stage he has only to consider the material for framing opinion as to whether prima facie offence is committed which would require accused to be put on trial. 16. Unfortunately, learned trial Judge in this case has dealt with the matter as if he was considering the case either to convict or to acquit the accused. The material evidence which is available do prima facie show that accused has committed offence for which report under Section 173 Cr.P.C. has been filed against him. The evidence on record does warrant for framing of charge against the accused. Argument of learned counsel for respondents that there is contradiction in the statement of the witnesses inasmuch as, one witness has stated that there were no persons in the clinic of the respondent-doctor at the time when alleged offence was committed and prosecution witnesses has stated that there were some person, will not call for discharging of the accused in the face of overwhelming prima facie evidence. More so, the person who has video-graphed the occurrence and the prosecutrix (Halima) has in unambiguous terms stated that she was raped against her will, but could not divulge the same to avoid its adverse impact on her children. The defense whatever is available to the respondent-accused can be pressed into service during the trial of the case. 17. For the aforestated reasons, it is held that order impugned passed in this petition is illegal. Learned trial Judge, while discharging the accused, has forgotten to take into consideration the settled principles of law. Learned trial Judge being a senior Judge has not dealt with matter in the way he ought to dealt. For the above stated reasons, this petition is allowed. Order impugned no. 11/Sessions of 2010 dated 04.09.2010 passed by the Additional Sessions Judge, Pulwama is quashed. Respondent to appear before the learned trial Court and learned trial Court to proceed with the matter in accordance with law. Registry to return the record forthwith. Registrar General to place copy of this order on the personal file of learned trial Judge.