561-A Cr. PC No: 10/2011 1. In the instant petition filed under section 561-A Cr. PC, petitioners challenge order dated 21.07.2010 passed by the court of Sessions Judge, Jammu, in file no: 03/Sessions, whereby petitioners have been charged for alleged commission of offence punishable under sections 302, 342, 120-B and 201 of RPC and order dated 3.11.2010 passed by the court of Sessions Judge, Jammu, in file no: 665/Cr. Misc whereby petitioners' bail application has been rejected, with a prayer for setting aside both the aforesaid orders. 2. Facts which have arisen for disposal of the instant petitions are detailed out as under: 3. FIR No: 77 of 2003 stands registered with Police, Crime Branch, Jammu, against the petitioners and respondent no: 2 for alleged commission of offence punishable under sections 302, 342, 120-B, 201 RPC and final report in terms of section 173 Cr. PC filed before the learned Chief Judicial Magistrate, Budgam, which stood committed to learned Sessions Judge, Budgam. 4. From perusal of records it is revealed that court of learned Sessions Judge, Budgam, framed charge on 29.5.2006 against the petitioners. Statement of PW Bashir Ahmed Dar was in progress when case came to be transferred to the court of learned 1st Additional Sessions Judge, Srinagar. Testimony of PW Bashir Ahmed Dar was concluded. Prosecution examined PW Abdul Rehman Wani. Thereafter, trial was stayed by the Hon'ble Apex Court. Finally, the Hon'ble Apex Court directed transfer of case to the court of learned Sessions Judge, Jammu. The learned trial court allowed motion for recalling of PW Bashir Ahmed. Thereafter, PWs Bashir Ahmed, Mohd Ismail, Mohd Akbar and Abdul Ahad were examined by the learned trial court. Petitioners meanwhile preferred petition under section 561-A Cr. PC before this court which was allowed with the observation that charges framed against the petitioners by learned Sessions Judge, Budgam, suffered from voice of unfairness. The charges were quashed and the learned trial court was directed to proceed in the matter afresh. This happened on 29.10.2008. After hearing fresh arguments on charge/discharge learned 3rd Additional Sessions Judge, Jammu, framed charges under section 120-B/201/342/302 RPC against petitioners-accused. Accused Waris Shah (approver) was directed to be examined at the trial as witness for prosecution. The charges were quashed and the learned trial court was directed to proceed in the matter afresh. This happened on 29.10.2008. After hearing fresh arguments on charge/discharge learned 3rd Additional Sessions Judge, Jammu, framed charges under section 120-B/201/342/302 RPC against petitioners-accused. Accused Waris Shah (approver) was directed to be examined at the trial as witness for prosecution. This order directing framing of charges which was passed by learned 3rd Additional Judge, Jammu, on 4.2.2009 was assailed before this court through the medium of a petition filed by petitioners Ichpal Singh and Gurmeet Singh under section 561-A Cr. PC. The impugned order was set aside and this court in terms of order dated 2.4.2009 directed the learned trial court to hear the parties afresh on question of framing of charge and record its finding whether the case is fit for framing of charge or discharge. It appears that thereafter petitioners again approached this court seeking transfer of case to any other court and in terms of order dated 16.11.2009, this court directed transfer of case to the court of learned Sessions Judge, Jammu. 5. It appears that challan in the aforesaid case was presented by respondent no: 1 in the year 2005 in absence of the petitioners and respondent no: 2 and subsequently, respondent no: 2 was arrested on 30.1.2005 and petitioners were arrested thereafter. In the said FIR it is alleged that petitioners and respondent no: 2 had arrested Mohammad Ayub Dar hereinafter referred to as deceased and killed him in custody while interrogating regarding where-abouts of his real brother Gulzar Ahmed Dar a dreaded militant. It was further alleged that respondent no: 2 had deliberately lodged false FIR No: 34/1999 with a view to screening the petitioners. Therefore, in order to establish these facts respondent no: 1 relied upon statement of real brother of the deceased namely Bashir Ahmed Dar recorded in terms of section 161 Cr. PC and statement of respondent no: 2 (Approver) recorded in terms of section 164 of the aforesaid code. 6. While framing charge against the petitioners for commission of alleged offence and rejecting bail application, the trial court has passed two separate orders dated 21.7.2010 and 3.11.2010 respectively. Both orders are herein after referred to as orders impugned. 7. PC and statement of respondent no: 2 (Approver) recorded in terms of section 164 of the aforesaid code. 6. While framing charge against the petitioners for commission of alleged offence and rejecting bail application, the trial court has passed two separate orders dated 21.7.2010 and 3.11.2010 respectively. Both orders are herein after referred to as orders impugned. 7. Petitioners seeks indulgence of this court in setting aside both the orders inter-alia on the following grounds: (A) Because the orders impugned are against law and are liable to be set aside. There is not even an iota of evidence which may prima facie establish the complicity of the petitioners. (B) Because while passing the order dated 21.7.2010 the trial court has ignored and misunderstood the mandate of law as envisaged by EXCEPTION 3 of Section 300 of the Ranbir Penal Code and the medical report of the deceased. As per the final medical report the cause of death of the deceased was those bullet injuries which he had received during the cross firing. There is no evidence on the record that the petitioners had any sort of ill will against the deceased or had caused any external bodily injuries to him. Therefore, while passing the said order the trial court has scarified the petitioners legal and Constitutional rights at the alter of a false statements of Bashir Ahmed Dar and respondent no: 2. (C) BECAUSE while passing the order dated 21.7.2010 the trial Court has committed a glaring error of law by relying upon the inadmissible statements of respondent no: 02 recorded in terms of Section 164 of the Code of Criminal Procedure. (D) BECAUSE while passing the order dated 3.11.2010 the trial court has committed a serious error of law. (E) BECAUSE it would be an abuse of process of law if the orders impugned are not quashed for the reasons stated above. 8. On notice, respondent no: 1 appeared through Mr. Gagan Basotra, learned Sr, AAG and respondent no: 2 through Mr. Sunil Sethi, Sr. learned counsel. 9. Mr. Gagan Basotra, learned Sr. (E) BECAUSE it would be an abuse of process of law if the orders impugned are not quashed for the reasons stated above. 8. On notice, respondent no: 1 appeared through Mr. Gagan Basotra, learned Sr, AAG and respondent no: 2 through Mr. Sunil Sethi, Sr. learned counsel. 9. Mr. Gagan Basotra, learned Sr. AAG, at the very outset has questioned maintainability of the instant petition filed under section 561-Cr.PC and submitted that impugned orders are consistent with mandate of law governing the subject and discretion vested in this court under section 561-A Cr.PC can be exercised only to prevent abuse of process of court and to secure ends of justice but in the present case there is no abuse of process of court and orders impugned are based on substantial material. 10. Question as to whether orders impugned whereby petitioners have charged under section 161 Cr. PC can be quashed at this very stage?. The answer is in negative for the following reasons: 11. Sufficient material has come on record before the learned trial court and on perusal of the evidence, learned trial court had passed impugned orders and discussed all relevant evidence whereby petitioners were charged of offence punishable under sections 302, 342, 201 & 120-B RPC. 12. Mr. B. S. Salathia, learned Sr. counsel, submits that case related to incident which took place on intervening night of 1st and 2nd June' 1999 which resulted in registration of FIR No: 34/1999. The said FIR stands investigated and closed as not approved on 11.10.2000 and registration of fresh case was only on the direction of J&K Human Right Commission dated 26.8.2003. Mr. B. S. Salathia, learned Sr. counsel, submits that news items pertaining to registration of FIR No: 34/1999 was published in newspaper Kashmir Times in its issue dated 6.6.1999. On the basis of said news items J&K Human Rights Commission took suo moto cognizance in the matter and directed respondent no: 1 to investigate and inquire about it, therefore, surprisingly FIR No: 34/1999 was on the one hand investigated by Police Station Chrar Sharief and on the other hand respondent no: 1 (Crime Branch ) investigated the same. Mr. B. S. Salathia, learned Sr. Mr. B. S. Salathia, learned Sr. Counsel further submits that Police Station Chrar Sharief having closed the investigation qua FIR No: 34/1999 on 11.10.2000 and respondent no: 1 on the basis of inquiry and order of J&K State Human Rights Commission dated 26.8.2003 registered FIR No: 77 of 2003 against petitioners and respondent no: 2 on 20.11.2003 which as per the submission is not permissible under law. Mr. B.S. Salathia, learned Sr. counsel, further submits that the learned trial court has ignored all important issues raised vis-a-vis closure of earlier investigation which has resulted in miscarriage of justice. Submission of Mr. B. S. Salathia, learned Sr. counsel cannot be accepted, as the learned trial court has after examining and scanning the evidence collected by prosecution framed an opinion whereby petitioners and respondent no: 2 have been charge-sheeted and found guilty of the offence punishable under sections 302, 342, 201 & 120-B RPC, therefore, order cannot be declared to have been passed having result of abuse of process of court or having resulted in miscarriage of justice. 13. Mr. B. S. Salathia, learned Sr. counsel, appearing for the petitioners wants this court to take a final view on perusal of the learned trial court order and facts pleaded in the petition for setting aside impugned orders and also quashment of FIR No: 34/1999, which cannot be done by this court in exercise of power under section 561-Cr.PC. As per settled position of law, Hon'ble Supreme Court has detailed out circumstances under which power can be exercised to prevent abuse of process of court or otherwise secure ends of justice. 14. It is apt to reproduce Section 561-A Cr.PC herein: "561-A. Saving of inherent power of High Court. Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice." 15. This remedy can be invoked/pressed into service or may be exercised in the following circumstances: (i) to pass orders in order to give effect to an order passed under Cr.P.C. (ii) to prevent abuse of process of Court (iii) to otherwise secure the ends of justice: and (iv) to prevent mis-carriage of justice. 16. This remedy can be invoked/pressed into service or may be exercised in the following circumstances: (i) to pass orders in order to give effect to an order passed under Cr.P.C. (ii) to prevent abuse of process of Court (iii) to otherwise secure the ends of justice: and (iv) to prevent mis-carriage of justice. 16. Apex Court in the cases reported AIR 1960 SC 866 , AIR 1964 SC 01, AIR 1972 SC 484 , AIR 1974 SC 1146 , AIR 1977 SC 1489 , AIR 1977 SC 2229 , AIR 1980 SC 326 , AIR 1989 SC 01, AIR 1990 SC 494 , AIR 1991 SC 1260 , AIR 1992 SC 064, AIR 1992 SC 892, AIR 1996 SC 309 , AIR 1996 SC 2983 , AIR 1999 SC 3596 , AIR 1999 SC 1044 , AIR 1999 SC 1216 , AIR 2002 SC 671 , AIR 2004 SC 3967 , AIR 2005 SC 3212 , SLJ 2005 VOL-I 118 : JKJ[HC] 2004 (3) 609, 2008 AIR SCW 1003, 2008 AIR SCW 1993, 2008 AIR SCW 1998, 2008 AIR SCW 4614, 2008 AIR SCW 7680, 2008 AIR SCW 2778, AIR 2010 SC 201 has discussed the scope of Section 561-A Cr.P.C corresponding to Section 482 Cr.P.C of Central Code has laid down the following tests: "(i) Where the allegations made in the first information report or the complaint even if are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (ii) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (iii) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (iv) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of Magistrate as contemplated under Section 155(2) of the Code. (iv) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of Magistrate as contemplated under Section 155(2) of the Code. (v) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (vi) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party: (vii) Where a criminal proceeding is manifestly attended with malafide and/or where the proceedings is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." 17. Apex Court also held that power is to be exercised cautiously, carefully and sparingly and Court has not to function as a Court of appeal or revision. It has also laid down the parameters and guidelines in cases titled as K.L.E Society & Ors v. Siddalingesh reported in 2008 AIR SCW 1993; A.P v. Bojjoori Kanthaiah reported as 2008 AIR SCW 7860 and Reshma Bano v. State of Uttar Pradesh reported in 2008 AIR SCW 1998. 18. Apex Court in AIR 2004 SC 3967 , AIR 1972 SC 484 , AIR 1974 SC 1446, AIR 1977 SC 2229 , AIR 1989 SC 01, has laid down the same principle. It is apt to reproduce para 10, 13, 14, 15, 17 & 19 out of the judgment titled as Som Mittal v. Govt. of Karnataka reported in 2008 AIR SCW 1003 herein: "10. In a catena of decisions this Court has deprecated the interference by the High Court in exercise of its inherent powers under Section 482 of the Code in a routine manner. It has been consistently held that the power under Section 482 must be exercised sparingly with circumspection and in rarest of rare cases. Exercise of inherent power under section 482 of the Code of Criminal Procedure is not the rule but it is an exception. It has been consistently held that the power under Section 482 must be exercised sparingly with circumspection and in rarest of rare cases. Exercise of inherent power under section 482 of the Code of Criminal Procedure is not the rule but it is an exception. The exception is applied only when it is brought to the notice of the Court that grave miscarriage of justice would be committed if the trial is allowed to proceed where the accused would be harassed unnecessarily if the trial is allowed to linger when prima facie it appears to Court that the trial would likely to be ended in acquittal. In other words, the inherent power of the Court under section 482 of the Code of Criminal Procedure can be invoked by the High Court either to prevent abuse of process of any Court or otherwise to secure the ends of justice." "13 In State of Bihar v. J.A.C Saldanha (1980) 1 SCC 554 this Court pointed out at SCC P. 574: "The High Court in exercise of the extraordinary jurisdiction committed a grave error by making observations on seriously disputed questions of facts taking its cue from affidavits which in such a situation would hardly provide any reliable material. In our opinion the High Court was clearly in error in giving the direction virtually amounting to a mandamus to close the case before the investigation is complete. We say no more." "14. In Hazari Lal Gupta v. Rameshwar Prasad (1972) 1 SCC 452 this Court at SCC P. 455 pointed out: "In exercising jurisdiction under section 561-A of the Criminal Procedure Code, the High Court can quash proceedings if there is no legal evidence or if there is any impediment to the institution or continuance of proceedings but the High Court does not ordinarily inquire as to whether the evidence is, reliable or not. Where again, investigation into the circumstances of an alleged cognizable offence is carried on under the provisions of the Criminal Procedure Code, the High Court does not interfere with such investigation because it would then be the impeding investigation and jurisdiction of statutory authorities to exercise power in accordance with the provisions of the Criminal Procedure Code." "15. Where again, investigation into the circumstances of an alleged cognizable offence is carried on under the provisions of the Criminal Procedure Code, the High Court does not interfere with such investigation because it would then be the impeding investigation and jurisdiction of statutory authorities to exercise power in accordance with the provisions of the Criminal Procedure Code." "15. In Jehan Singh v. Delhi Administration (1974) 4 SCC 522 the application filed by the accused under section 561-A of the old Code for quashing the investigation was dismissed as being premature and incompetent on the finding that prima facie the allegations in the FIR if assumed to be correct, constitute a cognizable offence." "17. In State of Bihar v. Murad Ali Khan (1988) 4 SCC 655 this Court held that the jurisdiction under Section 482 of the Code has to be exercised sparingly and with circumspection and has given the working that in exercising that jurisdiction, the High Court should not embark upon an enquiry whether the allegations in the complaint are likely to be established by evidence or not." "19. We may observe here that despite this Court consistently held in catena of decisions that inherent power of the High Court should not be exercised according to whims and caprice and it has to be exercised sparingly with circumspection and in the rarest of rare cases, we often come across the High Court exercising the inherent power under Section 482 of the Code of Criminal Procedure in a routine manner at its whims and caprice setting at naught the cognizance taken and the FIR lodged at the threshold committing grave miscarriage of justice. While it is true that so long as the inherent power of Section 482 is in the Statute Book, exercise of such power is not impressible but it must be noted that such power has to be exercised sparingly with circumspection and in the rarest of rare cases, the sole aim of which is to secure the ends of justice. The power under Section 482 is not intended to scuttle justice at the threshold." 19. It will be profitable to take note of Section 268 and 269 of Cr. PC Svt 1989 (for short Svt 1989). The power under Section 482 is not intended to scuttle justice at the threshold." 19. It will be profitable to take note of Section 268 and 269 of Cr. PC Svt 1989 (for short Svt 1989). "268: Discharge: If upon consideration of 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." 20. The language used by legislatures in these two provisions of law is materially different. To discharge the accused, finding has to be recorded even for prima facie purpose that there is no sufficient ground for proceedings 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 grounds to proceed against the accused while for framing the charge against the accused Court has to record opinion that there is ground for presuming accused has committed offence. 21. 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. 21. 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. 22. 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. 23. 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. 24. After completion of investigation police submitted report under section 173 Cr. PC along with materials supporting the case against petitioners. Learned trial court has framed charge against petitioners keeping in view the mandate of sections 268 and 269 Cr. PC Svt 1989. It is profitable to refer to another Apex Court judgment rendered on the point in case P. Vijayan v. State of Kerala & anr reported in (2010)2 Supreme Court Cases 398. Para 10 of the said judgment is reproduced below: "10. Before considering the merits of the claim of both the parties, it is useful to refer to section 227 of the Code of Criminal Procedure 1973 which reads as under: 227. Discharge:- If upon consideration of the record of the case and the documents submitted herewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is no sufficient ground for proceedings against the accused he shall discharge the accused and record his reasons for so doing. If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage he is not to see whether the trial will end in conviction or acquittal. If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage he is not to see whether the trial will end in conviction or acquittal. Further the words " not sufficient ground for proceeding against the accused" clearly show that the Judge is not a mere post office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary for the court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really the function of the court, after the trial starts." Para 20 of the said judgment reads thus: "20. Learned counsel for the appellant at the foremost submitted that even if the alleged confession of Constable Ramachandran Nair is found to be correct, in view of the fact that the said Ramachandran Nair is no more and died long ago, in the light of section 30 of the Evidence Act 1872 and in the absence of joint trial, the same cannot be used against the appellant. It is not in dispute that Constable Ramachandran Nair is not alive and there is no question of joint trial by the prosecution against the other two accused along with the said Ramachandran Nair." 25. It is well settled that at the stage of framing of charge, the trial court has not to examine and assess in detail the materials placed on record by the prosecution, but what is required to be seen is to consider the sufficiency of material to establish the offence alleged against a particular accused. The charge can be quashed, if there is no sufficient ground for proceeding with the trial even after fully accepting the evidence on record. 26. Sufficient ground for proceeding as contemplated in section 268 of State Code does not contemplate sufficient ground for conviction or acquittal, but a ground for putting the accused on trial. The charge can be quashed, if there is no sufficient ground for proceeding with the trial even after fully accepting the evidence on record. 26. Sufficient ground for proceeding as contemplated in section 268 of State Code does not contemplate sufficient ground for conviction or acquittal, but a ground for putting the accused on trial. The expression "sufficient ground" would mean availability of such material on record, if accepted at its face value, if suggests a strong possibility that the accused has committed the offence charged with, the court can frame the charge. It is firmly established principle of law that where the material collected during investigation creates even a grave suspicion in the mind of the court that the accused has committed the offence, the charge must be framed. In the aforesaid two judgments of Hon'ble Supreme Court, the view taken by Apex Court in Union of India v. Prafulla Kumar Samal repotted in 1979 SCC (Cri) 609 is reiterated. 27. In Prafulla's case (supra), the Supreme Court adverting to various decisions enumerated a broad test while considering the question of framing of charge under section 227 of Code of Criminal Procedure (Central Code), observed that undoubtedly the trial court has the power to sift and weigh the evidence at the time of considering the case for charge, but for the limited purpose of finding out, whether or not a prima facie case is made out against the accused and where the material placed before the Court discloses grave suspicion against the accused, the court will be fully justified in framing a charge and proceeding with the trial. It is further held in the said judgment that this will depend upon the facts of each case and it is difficult to lay down a rule of universal application. It is further held that no doubt in exercising the jurisdiction, the court cannot act merely as a post office or a mouth piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court and any basic infirmity appearing in the case and so on. The note of caution is that the Judge should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. 28. Further Mr. The note of caution is that the Judge should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. 28. Further Mr. B. S. Salathia, learned Sr. Counsel, submits that there is no evidence available on record connecting the present petitioners with commission of alleged offence. According to him, evidence so collected does not make out a case of murder involving the petitioners. 29. On the strength of evidence on record discussed in detail by learned trial court and also examined by this court, it becomes clear that learned trial court has scanned evidence more than required which is sufficient for framing charge. 30. Per contra, Mr. Gagan Basotra, learned Sr. AAG, submits that evidence on record collected by the prosecution makes it clear without any doubt that petitioners are involved in heinous crime of murder of Mohd Ayub Dar. Mr. Gagan Basotra, learned Sr. AAG, submits that evidence collected is based on statements recorded of independent persons as also of police personnel including Waris Shah (Approver) and beyond any shadow of doubt, prosecution has established case of murder against the petitioners. Mr. Gagan Basotra, learned Sr. AAG, further submits that based on totality of evidence on record, involvement of the present petitioners prima facie is made out which is sufficient for framing charge, therefore, rightly charged by the learned trial court. Supporting the impugned orders, Mr. Gagan Basotra, learned Sr. AAG, asks for dismissal of the instant petition. 31. It is profitable to refer to judgment of Apex Court rendered on the point reported as AIR 2001 Supreme Court 1507 titled Smt Om Wati & anr v. State through Delhi Admn & Ors. In the said judgment the Apex Court reminded the High Courts of their statutory obligation to not to interfere at the initial stage of framing the charges merely on hypothesis, imagination and farfetched reasons which in law amount to interdicting the trial against the accused persons. Unscrupulous litigants should be discouraged from protecting the trial and preventing culmination of the criminal cases by having resort to uncalled for and unjustified litigation under the cloak of technicalities of law. 32. Mr. B. S. Salathia, learned Sr. Unscrupulous litigants should be discouraged from protecting the trial and preventing culmination of the criminal cases by having resort to uncalled for and unjustified litigation under the cloak of technicalities of law. 32. Mr. B. S. Salathia, learned Sr. counsel appearing for the petitioners has referred to and relied upon judgment of Hon'ble Supreme Court 2001 (3) (Cri) SC 183 titled Laxman Mahadeo Sariputra v. State of Maharashtra and submitted that taking total value of the case on record, a case for murder is not made out. He contended that even if entire allegation is taken as proved, offence cannot go beyond section 304, Part I of RPC in view of the Exception No: 3 contained under section 300 of RPC. 33. Hon'ble Supreme Court in the aforesaid case has while considering the matter for grant of bail refrained from expressing out final view on the matter and left point raised worthy to be considered by the trial court. Therefore, no support can be taken from the judgment referred to and relied upon by Mr. B. S. Salathia, learned Sr. Counsel for modifying charge from 302 RPC to 304-1 RPC. Otherwise also, learned trial court has scanned the evidence of prosecution and came to a fair conclusion of framing charge against the petitioners under section 302 RPC. This court has also scanned the evidence while perusing the trial court record and support the view taken by the trial court because prosecution has succeeded in collecting the evidence which points towards the petitioners for their involvement in murder of Mohd Ayub Dar (deceased). Statement of Waris Shah (Approver) recorded under section 164 Cr. PC is not a self inculpatory and inadmissible as regards culpability of accused Ichpal Singh alias Shunty and Gurmeet Singh. Mr. Waris Shah ( approver ) has admitted that Mohd Ayub Dar (deceased) was murdered in custody and witnessed spraying of bullets by accused Ichpal Singh on dead body of deceased and accused have concocted a story of cross firing (fake encounter) and lodged a false FIR leading to registration of case under FIR No: 34/199. His confessional statement is not self exculpatory. Waris Shah (Approver) has admitted that Mohd Ayub Dar (deceased) was taken into custody along with his brother Bashir Ahmed Dar. His confessional statement is not self exculpatory. Waris Shah (Approver) has admitted that Mohd Ayub Dar (deceased) was taken into custody along with his brother Bashir Ahmed Dar. After he left the spot, Ichpal Singh came to him and informed him that Mohd Ayub Dar is died in cross firing which cross firing never took place and concocted story was made by Ichpal Singh alias Shunty. 34. Contention of Mr. B. S. Salathia, learned Sr. Counsel is that if the evidence on record is taken in its entirety it does not make out offence under section 302 RPC and petitioners at the most should be charged under section 304-1 RPC. 35. The learned trial court alleged beating of the deceased with an intention to cause bodily injuries and it caused death of victim which amounts offence fall within clause II of section 300 RPC, therefore, the trial court orders are consistent with scheme of the law. 36. Viewed thus I do not find any illegality or irregularity in the orders passed by the learned trial court. Resultantly the petition in hand is dismissed being devoid of merits. 37. Before parting with I would like to make it clear that opinion expressed by me in this judgment should not be regarded as an opinion on merits of the case for expression thereof could not be avoided on the evidence collected by the prosecution in support of its case against the petitioners, for a very limited purpose i.e to arrive at a prima facie conclusion hereinabove and nothing more. Cr.MA No: 08/2011 38. As main petition filed under section 561-Cr.PC stands dismissed and impugned orders upheld by this court, therefore, there is no merit in this Cr.MA which is also dismissed. However, the petitioners are at liberty to move before the learned trial Court with an application seeking bail. 39. Registry to send down copy of judgment/order along with trial Court records to the learned trial Court for further proceedings. Parties are directed to appear before the learned trial court on 28.09.2013. Because of pendency of matter for a considerable time, the learned trial Court shall speed up the proceedings on fast track basis. B. A No: 100/2012 40. In terms of order passed on 5.11.2011, the present petition stands clubbed with 561-A Cr. PC No: 10/2011. Parties are directed to appear before the learned trial court on 28.09.2013. Because of pendency of matter for a considerable time, the learned trial Court shall speed up the proceedings on fast track basis. B. A No: 100/2012 40. In terms of order passed on 5.11.2011, the present petition stands clubbed with 561-A Cr. PC No: 10/2011. After hearing learned counsel for the parties, this court is of the opinion that separate order is required to be passed in the instant petition on the strength of pleadings and submission made, therefore, the present petition is de-linked and taken up for final disposal separately.