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2014 DIGILAW 255 (JK)

Javaid Ahmad Dar v. State Of J&K

2014-06-13

MOHAMMAD YAQOOB MIR

body2014
1. Vide order dated 14.11.2011, trial court (Court of Additional Sessions Judge, Jammu) after hearing learned APP and the counsel for the accused, as required in terms of Section 268 Cr. P. C, has concluded that prima-facie accused (petitioner herein) is established to have committed offence punishable under Section 409 RPC, 30 Police Act and 3/4, of the Police Enhanced Penalties Ordinance, 2005 and consequently charge has been framed. 2. Dissatisfied there with, petitioner has challenged the said order by medium of this petition under Section 561-A Cr. P. C contending therein that specifically it was projected before the trial court that Section 3/4 of the Police Enhanced Penalties Ordinance, 2005(hereinafter for short `the Ordinance') is not applicable. The trial court has referred to the argument but has left it undecided. Same is to result in defeating the ends of justice, in effect, amounts to abuse of the process of law. 3. Learned counsel for the petitioner would contend that the Ordinance is not applicable. Section 4 the Ordinance prescribes punishment of death sentence or imprisonment for life. Once the charge sheet is framed against the petitioner, he shall be disabled from claiming concession of bail, that is how the order impugned is to result in miscarriage of justice and will amount to abuse of process of the court. 4. Buttressing this argument, learned counsel would submit that Section 4 will apply to the enemy and in view of the acts alleged, the petitioner will not fall within the definition of enemy. Furthermore, the Ordinance was made applicable in view of a particular emergency which had arisen in the year 1948 AD, which position has undergone change and for curbing latest activities of terrorism and other connected activities, various Acts came into force from time to time. 5. Learned AAG, Mr. Naik, would submit that the power under Section 561-A Cr. P. C. has to be exercised sparingly. The petitioner has to face the trial and such are the questions for trial, not open to interference by invoking powers under Section 561-A Cr. P. C. 6. Considered the rival submissions. 7. It is trite that the power under Section 561-A Cr. P. C has to be exercised with circumspection rarely so as to avoid abuse of the process of court and to ensure ends of justice are not defeated. Petitioner has to face the trial. P. C. 6. Considered the rival submissions. 7. It is trite that the power under Section 561-A Cr. P. C has to be exercised with circumspection rarely so as to avoid abuse of the process of court and to ensure ends of justice are not defeated. Petitioner has to face the trial. If a Section of an Ordinance is wrongly applied, that essentially shall have to be prejudicial to the interests of the accused but may be prejudicial to the trial as well. When such situation arose, Court has to exercise its inherent powers under Section 561-A so as to keep the proceedings of the trial within its bounds. The Ordinance has been promulgated and published in Government gazette in the year Svt. 2005 (1948 A.D.). The Ordinance provides for enhanced punishment in the cases of certain offences. The preamble of the Ordinance provides that an emergency has arisen which makes it necessary to provide for enhanced punishment in the case of offences committed by any member of the Police Force. The enemy under Section 2 of the Ordinance has been defined as under: "Enemy" means and includes a person who, directly or indirectly, participates or assists in the campaign recently undertaken by the raiders from outside in subverting the Government establishment by law. 8. In the definition, words employed "being recently undertaken by the raiders from outside in subverting the Government established" would mean that in the year 1948, raiders came from outside to subvert the Government. 9. In order to make Police Force more accountable and more sensitive, Section 4 has been incorporated which reads as under: "4. Penalty for assisting the enemy Any member of the Police Force, who, by any of his acts or illegal omission assists or attempts to assist or abets assisting the enemy, shall be liable to a sentence of death or imprisonment for life." The plain wording of Section 4 would show that for making Section 4 applicable, the important ingredient is that the member of the Police Force must have assisted the enemy. Now who is the enemy. Enemy at that time was the `raider' from outside, as is clearly indicated in the definition. The petitioner is neither outside nor has assisted any outsider. Now who is the enemy. Enemy at that time was the `raider' from outside, as is clearly indicated in the definition. The petitioner is neither outside nor has assisted any outsider. The allegation against him is that he has absented from duty and had carried his weapon i.e. AK 47 Rifle bearing registration No. MK 395048 Butt No. 4 along with one magazine and 30 rounds of same bore, which was issued in his favour and subsequently during investigation it has been found that he has sold the same weapon to one person resident of State, namely, Sajad alias Tahir District Commander of banned outfit Hizbul Mujahideen for a consideration of Rs. 40,000. The said Sajad got killed in an encounter and the rifle was seized from him. This act of the petitioner, prima-facie, fall within the ambit of Section 409 RPC and also within the ambit of Section 30 of Police Act. 10. In addition thereto, it is to be seen as to whether the act committed by the petitioner would also attract applicability of the other laws which have come into force from time to time on the basis of emergencies as have arisen. In the year 1985, when terrorist activities were on rise, the situation arose for passing the Act called the Terrorist and Disruptive Activities (Prevention) Act, 1985 (for short TADA). Then again situation has undergone change and the emergency arose for bringing in fresh legislation. Accordingly, the Prevention of Terrorism Act, 2002 (for short POTA) was enacted repealing TADA. Then again situation has undergone change necessitating a new law to be introduced, consequently the Unlawful Activities(Prevention) Act, 1967 was amended in the year 2008. In the said Act all activities relating to terrorism and other unlawful activities are taken care of and punishments are prescribed. Section 48 of the said Act reads as under:- "48. Effect of Act and Rules, etc., inconsistent with other enactments- The provisions of this Act or any rule or order made there-under shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or any instrument having effect by virtue of any enactment other than this Act" . The plain language used would suggest that the Unlawful Act shall have overriding effect to the extent provisions of any other enactment or any instrument provisions of which shall be inconsistent with Unlawful Activities Act. The plain language used would suggest that the Unlawful Act shall have overriding effect to the extent provisions of any other enactment or any instrument provisions of which shall be inconsistent with Unlawful Activities Act. The Act of the petitioner may also attract applicability of Section 18 of the Unlawful Activities Act, which reads as under: 18.Punishment for conspiracy, etc.--Whoever conspires or attempts to commit, or advocates, abets, advises or incites, directs or knowingly facilitates the commission of, a terrorist act or any act preparatory to the commission of a terrorist act, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine." The plain language would suggest that the alleged act of the petitioner of having sold the weapon to the District Commander of the banned outfit Hizbul Mujahideen falls within its scope, therefore, petitioner, in addition to Section 409 RPC, 30 Police Act, can also, prima-facie, be said to have committed offence punishable under Section 18 of the Unlawful Activities Act. 11. Learned trial court after referring to the argument vis-a-vis non-applicability of Section of the Ordinance has chosen not to decide the same which should not have been done. When a point is raised, same is required to be decided. The words employed in Section 269 Cr. P. C provides for hearing the submissions of the accused and then to find out as to whether sufficient grounds exist or not. The word "hearing" has its own importance. It is not an idle formality, therefore, trial court has not exercised power properly. 12. It is settled that roving enquiry into pros and cons of the case is not permissible at the stage of framing or otherwise of the charge, framing of the charge is not an idle formality. Prosecution case has not to be accepted as a gospel truth. Limited analyses has to be made for finding out prima-facie strength of the case. At the same time proper application of the provisions of law cannot be ignored. 13. Provisions of the Ordinance clearly are not applicable to the case of the petitioner because those provisions are applicable to an enemy or to a member of the Police Force who had assisted the enemy. At the same time proper application of the provisions of law cannot be ignored. 13. Provisions of the Ordinance clearly are not applicable to the case of the petitioner because those provisions are applicable to an enemy or to a member of the Police Force who had assisted the enemy. The enemy, as stated above, as per the Ordinance at that time was the outsider raider, therefore, petitioner does not fall within that category. The alleged act is committed in the year 2007. The law as applicable in the year 2007 i.e. Unlawful Activities Act, as amended in the year 2008, takes care of such situations. It can safely be concluded that, prima-facie, act of the petitioner does not fall within the scope of Section 3/4 of the Ordinance. Therefore, order of the trial court to the extent indicated deserves to be modified, as such, is modified. 14. Prima-facie, sufficient grounds exist for presuming that the accused-petitioner has committed the offence punishable under Section 409 RPC, 30 Police Act and Section 18 of the Unlawful Activities Act. Accordingly, learned trial court shall re-frame the charge against the petitioner and to ensure expeditious trial of the case. 15. Petition succeeds to the extent indicated above. 16. Copy of the order be sent to the trial court for information.