1. Quashment of the order dated 25.3.2011, passed by the Court of Ses sions Judge, Shopian, is sought. In terms of the said order charge against the petitioners (accused) for commis sion of offences punishable under Sec tions 148, 149, 447, 427, 435, 436 RFC has been framed and the prosecution has been asked to lead evidence. 2. Learned counsel for the petition ers in the petition has formulated three issues for consideration and determi nation, same are reproduced here-un-der:- i. Whether the investigating of ficer has the power to record the statement of a witness un der section 161 Cr. P. C even as the statement of such a witness has already been recorded in terms of section 164-A Cr. P. C? ii. Whether such statement hav ing been recorded under section 161 Cr. P. C, notwithstanding the bar provided under the pro viso to section 161 as amended vide Criminal Laws (Amendment) Act 2007, can be read against the accused persons for the pur poses of framing the charges against them? iii. Whether the statement made by a witness and recorded by a judicial magistrate in terms of section 164-A Cr. P. C has a s,u-perior evidentiary value as against the one purported to have been recorded by the Inves tigation Officer under section 161 Cr. P. C in contravention of the proviso thereof? 3. Learned counsel would contend that the statements of three prosecution witnesses, namely, Zamrooda Bano, Umar Ali and Shagufta, have been recorded under Section 164-A Cr. P.C on 2.1.2009, the investigating officer should not have recorded their state ments under Section 161 Cr. P. C be cause Section 164-A provides that if during the course of investigation, in connection with the offences punish able with death or imprisonment for seven years or more, statements of the witnesses appear to be material and essential for proper investigation of the case, the police officer shall take such witnesses to the nearest Magistrate for recording their statements. 4. First proviso to sub-section (3) of Section 161 provides that when in re spect of offences specified in sub-sec tion (1) of Section 164-A, a person is required for recording his statement, then his statement shall not be reduced into writing by the police officer under this sub-section. 5. Learned counsel would contend that in view of the said proviso the statements as recorded under Section 161 Cr.
5. Learned counsel would contend that in view of the said proviso the statements as recorded under Section 161 Cr. P. C were to be excluded from consideration while considering the question of framing or otherwise of the charge. 6. The submission of learned at the first instance appeared to be very at tractive but, on closer scrutiny, is found to be without any substance. It is true that in terms of aforesaid proviso state ments of such witnesses were not to be recorded under Section 161 Cr. P. C but in the instant case statements under Section 161 Cr. P. C of the said witnesses have been recorded on 27.12.2008, subsequent thereto need for recording their statements under Section 164-A Cr. P. C has been found necessary, therefore, have been taken to the Magistrate of 2nd January, 2009 and it is only on that date their state ments under Section 164-A Cr. P. C. have been recorded. 7. Now the question which arise for consideration is as to what prejudice is caused to the accused. In this con nection learned counsel would contend that in the statements recorded under Section 161 Cr. P. C, these witnesses have given specific names of the ac cused persons where as in the state ments under Section 164-A names of the accused have not been given, in stead it has been stated that inhabit ants of the village attacked and de stroyed the house, set on fire one shed-and one scooter was also damaged. Same is true about the statement of one Umar Ali. So far as statements of Shagufta and Zamrooda are concerned, in their statements recorded under Section 164-A Cr. P. C, they have cat egorically stated, among other things, that the accused destroyed the plinth and beat the family members. It is true that the names have not been men tioned but it is stated that the "accused" also attacked. That apart, there are as many as five witnesses to the occur rence. Witness No.1 Ali Mohammad Lone was not present at the time of occurrence but Shabir Ahmad Lone, who is witness to the occurrence, has given names of all the accused in his statement recorded under Section 161 Cr. P.C and has also stated about the acts of the accused. 8.
Witness No.1 Ali Mohammad Lone was not present at the time of occurrence but Shabir Ahmad Lone, who is witness to the occurrence, has given names of all the accused in his statement recorded under Section 161 Cr. P.C and has also stated about the acts of the accused. 8. While framing charge what the Court is required to do is to satisfy that prima facie sufficient grounds exist for presuming commission of the offence. Roving enquiry into pros and cons is not required. The test which has to be ap plied at the stage of framing of charge is somewhat different as to what is to be applied at the final stage of the trial. The material which has been collected by the investigating agency during the course of investigation has to be con sidered, that is what has been done by the trial court. On the complete scru tiny of the trial court record more par ticularly material collected by the in vestigating agency during investiga tion, the order which has been passed by the trial court framing charge against the accused was the only op tion. There was no question of dis charge. 9. For the stated reasons, this peti tion is found to be devoid of force, as such, dismissed. 10. Trial court record along with copy of the order be sent back forthwith where the accused shall appear on 19.3.2012.