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2016 DIGILAW 219 (JK)

Zeenat Masih v. State of J&K

2016-04-26

MOHAMMAD YAQOOB MIR

body2016
JUDGMENT : Mohammad Yaqoob Mir, J. 1. Petitioners seek quashment of order dated 22.04.2008, in pursuance whereof charge has been framed against the petitioners for commission of offences punishable under Section 429/34 RPC. The charge as framed against the petitioners (accused) is that on 15.10.2010, the cow and calf of the complainant were grazing in the field when accused in furtherance of common intention, administered flour mixed with poison and killed them, therefore, have committed the offence punishable under Section 429/34 RPC. For a period of over two years from the date of framing of charging not even a single witness out of listed 13 witnesses has been examined. 2. The first contention of the learned counsel for the petitioners is that the report lodged was frivolous. The investigating officer without proper investigation has filed report under Section 173 Cr. P.C. and then learned trial court mechanically framed the charge. The petitioner No. 1, a 70 year old lady, is residing with her children in the house constructed on the land which was given to her husband by the father of PW Chaman Lal. Chaman Lal had been asking them to vacate the land and the house which they refused. Same has been made basis for involving the accused. 3. It is no more res integra that at the time of framing or otherwise of the charge, all that Magistrate is required to do is to, prima facie, satisfy himself on the basis of the material collected by the Investigating Agency about the involvement of the accused in the commission of offence. It is also settled that the power under Section 561-A Cr.P.C is to be exercised sparingly with circumspection and in rarest cases. However, again it has been settled that the exercise of such power depends on the fact position of the case, there can't be any hard and fast rule. The power is such which has object of avoiding abuse of process of the court and to secure the ends of justice from being defeated. 4. Learned counsel for the petitioners tried to project that the witnesses examined under Section 161 are all hear say witnesses. Trial court has not looked into the statements of the witnesses, instead has mechanically framed the charge, as a result whereof, trial would be only in the name of trial, results are quite obvious i.e failure of the case. 5. Learned counsel for the petitioners tried to project that the witnesses examined under Section 161 are all hear say witnesses. Trial court has not looked into the statements of the witnesses, instead has mechanically framed the charge, as a result whereof, trial would be only in the name of trial, results are quite obvious i.e failure of the case. 5. In view of the submissions made, perused the statement of Chaman Lal as recorded under Section 161, postmortem report and the report of Forensic Science Laboratory based on which no fault could be found with the order passed by the trial court providing for framing of the charge. 6. May be contention of the learned counsel for the petitioners to the effect that, in fact, Chaman Lal, a listed witness, had some grievance about the land and house in possession of the petitioners, based on which he may have tried to implicate the accused but at the stage of framing or otherwise of the charge, such a position cannot be looked into as being matter for trial. 7. One of the petitioners i.e. petitioner Zeenat Masih being very old and according to learned counsel not even able to walk, that cannot be ground for discharge. True it is that fair and expeditious trial is a matter of right. Trial court has framed charged, as mentioned above, on 22.04.2008 Up to the year 2011, even a single witness has not been examined but perusal of the trial court records reveals that the delay has been occasioned by the accused themselves. 8. Be that as it is, in the given facts and circumstances, without commenting upon the merits of the case, the case is not such which warrant interference by exercising power under Section 561-A Cr.P.C. However, keeping in view the age of the case and the position of the petitioners, trial of the case is required to be concluded with reasonable dispatch, preferably within a period of six months, by scheduling the case for examination of the witnesses in a manner so as to conclude the trial within the time fixed. 9. One of the accused is stated to be fairly old and unable to walk, shall remain exempted from personal appearance before the trial court subject to appearance of her counsel except for such hearings when her presence in the opinion of the trial court shall be indispensable. 9. One of the accused is stated to be fairly old and unable to walk, shall remain exempted from personal appearance before the trial court subject to appearance of her counsel except for such hearings when her presence in the opinion of the trial court shall be indispensable. Counsel for the petitioners will advise them to ensure presence before the trial court on 7th May, 2016. 10. Trial court record along with copy of the order be sent back forthwith.