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2015 DIGILAW 441 (JK)

Akbar Najar v. State of J&K

2015-08-25

BANSI LAL BHAT

body2015
JUDGMENT : Bansi Lal Bhat, J. 1. Petitioner, Mohammad Akbar Najar, through the medium of instant petition filed in terms of the provisions of Section 561-A of the Code of Criminal Procedure, (for brevity 'Cr.P.C.') seeks quashment of the impugned order dated 30.08.1999 passed by 4th Additional Sessions Judge, Srinagar, in a criminal challan titled State v. Mushtaq Ahmad Ganie and others, on the ground that on the basis of FIR No. 11/1996 registered at Police Station, Pulwama, the aforetitled challan alleging commission of offence under Sections 302, 307, 120-B Ranbir Penal Code and 7/27 of Indian Arms Act, came to be filed and was pending trial before the Sessions Judge, Pulwama, from where it was transferred to the Court of 4th Additional Sessions Judge, Srinagar, wherein the petitioner despite being a stranger to the case was arrayed as an accused by virtue of order dated 30.08.1999 and he came to be arrested on 07.11.2009. It is contended that in terms of the impugned order, the trial court has arrayed one Mohammad Akram Najar S/O Ghulam Rasool Najar alias Akil Najar R/O Gundibagh, Kakapora, as accused, whereas petitioner named Mohammad Akbar Najar S/O Ghulam Rasool Najar R/O Gundibagh, Kakapora, Tehsil and District Pulwama, has been arrested and is presently lodged in judicial lock-up against whom charges are yet to be framed. Petitioner claims to be innocent having no knowledge about the alleged occurrence. It is contended that the petitioner had no knowledge of being arrayed as an accused in the aforesaid case. It is further contended that no witness has implicated the petitioner or assigned any role to him in the alleged occurrence before the investigating agency and the petitioner did not figure as accused in the challan. It is further contended that prosecution had actually filed a motion before the trial court seeking direction for further investigation of the case in terms of the provisions of section 173(8) Cr.P.C. but the same came to be treated as application under section 351 Cr.P.C. it is further contended that in the aforesaid application the prosecution had sought further investigation only in regard to role of accused-Mushtaq Ahmad R/O Gundibagh Kakapora and Bashir Ahmad R/O Alochi Bagh, Pulwama, in the alleged occurrence and no prayer was made in regard to petitioner. Quashing of the impugned order is also sought on the ground that there is no sufficient evidence against the petitioner and no role has been assigned to him in the alleged occurrence. The impugned order is further assailed on the ground that the same has been passed without providing opportunity of being heard to the petitioner against whom non-bailable warrants were issued to secure his presence to face trial alongwith other accused. Heard learned counsel for the parties, perused the record and considered the matter. 2. Section 351 Cr.P.C. is reproduced hereunder : "(1) Any person attending a criminal Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of inquiry into or trial of any offence of which such Court can take cognizance and which, from the evidence, may appear to have been committed, and may be proceeded against as though he had been arrested or summoned. (2) When the detention takes place after a trial has been begun, the proceedings in respect of such person shall be commenced afresh, and the witnesses reheard." Section 351 Cr.P.C. broad contours whereof are pari materia with section 319 of Central Cr.P.C., vests discretion with the trial court to arraign a person other than the one arraigned as an accused in the case to stand trial together with the accused already arraigned, if such court is satisfied on evidence collected during the trial that such other person who was not initially arrayed as an accused has committed an offence for which he could be tried together with the accused already arrayed. It is well settled that mere doubt arising from evidence about involvement of such other person in the offence would not warrant invoking of the above provision. The court must be reasonably satisfied from evidence already collected about such other person having committed an offence and that such other person could as well be tried alongwith already arraigned accused. The discretionary power vested in the court under section 351 Cr.P.C. should be exercised to achieve the objective of criminal justice system. It is also settled proposition of law that there is no compelling duty on the court to proceed against other "persons. A court is not supposed to proceed against such other person whenever it comes across evidence connecting such person also with the commission offence. It is also settled proposition of law that there is no compelling duty on the court to proceed against other "persons. A court is not supposed to proceed against such other person whenever it comes across evidence connecting such person also with the commission offence. The apex Court held in Michael Machado v. Central Bureau of Investigation reported in AIR 2000 SC 1127 that a judicial exercise is called for keeping a conspectus of the case, including the stage at which the trial has proceeded already and the quantum of evidence collected till then and also the amount of time which the court had spent for collecting such evidence. The Hon'ble Apex Court again in Lok Ram v. Nihal Singh reported in AIR 2006 SC 1892 reiterated the statement of law that power vested under the aforesaid provision is discretionary and the trial court, on being satisfied that the evidence brought on record warranted other persons not arrayed as accused to face trial, is within its jurisdiction to add such other person not arraigned as accused initially. It is further held that the trial court can take such a step to add such persons as accused only on the basis of evidence adduced before it, and not on the basis of material available in the charge sheet or the case diary. Such power can be exercised by the court suo moto or on an application by someone including accused already before it. The power is discretionary and such discretion must be exercised judiciously having regard to the facts and circumstances of the case. Such power should be used very sparingly and only if compelling reasons exist for taking action against a person against whom action had not been taken earlier. 3. Parameters laid down for exercise of this extra ordinary power, in the light of the catena of judicial authorities on the subject, would embrace the consideration that such power is to be invoked with reference to the stage of proceedings, the amount of evidence adduced during trial and overt acts of commission attributed to such other person who was not charge sheeted earlier. Mere suspicion about involvement of such other person would not warrant exercise of such power. Likewise, mere presence of such other person at the venue of crime without ascribing a role to him would not justify his arraignment. Mere suspicion about involvement of such other person would not warrant exercise of such power. Likewise, mere presence of such other person at the venue of crime without ascribing a role to him would not justify his arraignment. The evidence brought on record should specify a role to such other person which constitutes an offence either in individual capacity or in tandem with the accused already facing trial. Thus, an act of commission constituting an offence, whether as assailant in prosecution of common object or in individual capacity, would be a sine quo non for arraigning such other person as accused to face trial together with the accused already standing trial. The court must be satisfied from evidence on record about the participation of such other person in the alleged occurrence as perpetrator of crime to whom a distinct/definite role has been ascribed by the witnesses examined at the trial. There may be cases where names of many people not arraigned as accused may figure in the deposition of witnesses, more particularly in cases of mob violence or group crime. Such persons cannot be arrayed as accused under this provision unless some act of commission assigning a definite role to such persons is ascribed in the evidence brought on record. 4. Adverting to the facts of the case in hand, be it seen that the learned trial court had initially been approached with a motion for directing further investigation in terms of section 173(8) Cr.P.C. Trial court treated the motion as one under section 351 Cr.P.C. This was done at the instance of learned Additional Public Prosecutor and learned defence counsel consented to such course being adopted. It is undisputed that the trial court could invoke power under section 351 Cr.P.C. at the instance of the parties or even exercise suo moto power. No fault can be found on this score as it was projected before the trial court that evidence has come against some persons not arrayed as accused before it. However, exercise of such power, as noticed, depended upon a variety of factors. Trial court referred to testimonies of PW Ghulam Mohammad Sheikh, Nazir Ahmad Sheikh, Farooq Ahmad and Mst. Amina, to justify exercise of such power for arraigning as many as eight persons not initially arrayed as accused. These included one Mohammad Akram Najar alias Akil Chhan S/O Ghulam Rasool Najar R/O Gundibagh Kakapora. Trial court referred to testimonies of PW Ghulam Mohammad Sheikh, Nazir Ahmad Sheikh, Farooq Ahmad and Mst. Amina, to justify exercise of such power for arraigning as many as eight persons not initially arrayed as accused. These included one Mohammad Akram Najar alias Akil Chhan S/O Ghulam Rasool Najar R/O Gundibagh Kakapora. Petitioner has altogether denied the factum of being aforesaid person. However, steering clear of controversy in this regard which could be resolved by the trial court by directing verification of the identity of the arrested person, be it seen that out of four prosecution witnesses relied upon by the trial court for arraying the petitioner under section 351 Cr.P.C., only PW Ghulam Mohammad Sheikh has deposed about the identity of assailants. He claims to have identified Mushtaq Ahmad S/0 Master Abdul Gani R/O Gundibagh Kakapora, Bashir Ahmad Bhat S/O Khaliq Bhat R/O Alochi Bagh, Kakapora and Mushtaq Ganie, all of whom he accused of being armed with guns. His deposition gives minute details of gruesome murder of his brothers committed by gun wielding accused, who barged into his house, demanding presence of PW Ghulam Mohammad Sheikh and spraying bullets on the family members who were huddled up in a room of their house. 5. Apart from the aforesaid, the witness stated that he had disclosed the names of all other persons involved in the case before police which comprised of 8 persons including the petitioner, specified in the impugned order. A bare look at the testimony of PW Ghulam Mohammad Sheikh reveals that though this witness has implicated the aforesaid eight persons including the petitioner, however, no role has been ascribed to them. In absence of corroboration of testimony of this witness in regard to presence of the accused at the venue of crime by other witnesses referred to in the impugned order and keeping in view the bald assertion of this witness regarding participation of the petitioner in the alleged crime without ascribing any role to the petitioner in the alleged occurrence, invoking of jurisdiction under section 351 Cr.P.C. is neither warranted nor can the same be said to be judicious exercise of power by trial court. There are no justifiable grounds, muchless a compelling reason to invoke jurisdiction under the aforesaid provision. There are no justifiable grounds, muchless a compelling reason to invoke jurisdiction under the aforesaid provision. It cannot be overlooked that the name of the petitioner does not figure in FIR lodged on 13.01.1996 and it is for the first time that he has been implicated by PW Ghulam Mohammad Sheikh in his deposition on 08.06.1998 without ascribing a definite role to him. In absence of any definite/distinct role attributed to the petitioner, the solitary deposition of PW Ghulam Mohammad Sheikh, who admittedly, did not notice the presence of petitioner at the venue of crime, cannot be made the basis for recording satisfaction in regard to his complicity in the alleged crime. The impugned order is an abuse of process of court and same cannot sustain. 6. In view of the foregoing discussion, this petition under section 561-A Cr.P.C. merits acceptance. I do so accordingly. The petition is allowed and the impugned order dated 30.08.1999, qua the petitioner, is quashed. Petitioner shall be set at liberty forthwith. Since I have quashed the impugned order by virtue whereof the petitioner was in judicial lock-up and directed the release of the petitioner forthwith, therefore, the bail petition filed by the petitioner shall stand settled. 7. Disposed of alongwith all connected Cr.M.Ps. 8. Perusal of the record reveals that the trial was commenced on 05.03.1998 when charges were framed against the accused, who pleaded not guilty and claimed to be tried. More than 17 years have elapsed since then. The impugned order has contributed to delay in trial to the extent of around six years as the trial court has embarked upon a fresh exercise of framing charges against the petitioner which, however, did not take off, owing to filing of instant petition. Trial is required to be wrapped up within the shortest possible time. Same can be ensured by directing day to day trial. Learned trial court is, accordingly, directed to resume the proceedings from the stage reflected in interim order dated 22.05.2010, examine the remaining witnesses on day to day basis and conclude the trial before the close of current year. Registry is directed to remit the record forthwith to the court below.