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2017 DIGILAW 131 (JK)

State of J&K v. Mehmood Ahmed

2017-03-15

MOHAMMAD YAQOOB MIR

body2017
JUDGMENT : 1. On 30.03.2002 in a Fidayeen attack at Raghunath Temple, two Fidayeens met their fate i.e. they died. The case regarding the occurrence was registered as FIR No. 134/2002, P/s Bahu Fort which on completion of investigation resulted in filing of the Challan (Charge-sheet) against the respondents (accused) for commission of offences punishable under Section 3 of Enemy Agents Ordnance Act, 2/3 of Prevention and Suppression of Sabotage Act, Sections 302/307 and 120-B RPC. The case was committed to the Court of Learned Sessions Judge Jammu. The respondents (accused) opposed the framing of charge on the ground that prima facie no evidence at all is available; therefore there is no question of putting the respondents to trial. 2. Learned trial court after appreciating the arguments and scanning the material collected by the investigating agency for the limited purpose of ascertaining as to whether prima facie respondents (accused) are involved so as to be put on trial. 3. Learned trial court upon consideration of the record of the case and documents submitted therewith and after hearing learned public prosecutor as well as the counsel for the accused has found that no sufficient grounds exist for proceeding against the accused as such has discharged the accused (respondents). 4. Dissatisfied, the State decided to challenge the said order dated 30.10.2006 in connection therewith a sanction has been accorded vide Government Order No. 3708-LD (ACQ) of 2006 dated 06.12.2006 for filing of the review petition. The review could be filed only before the Court which passed the order. There is no provision in the Code of Criminal Procedure prescribing for review of the order passed by the Court exercising criminal jurisdiction. Learned Sr. AAG based on such sanction after realizing the legal position has filed the revision petition but before filing such revision petition normally sanction should have been got granted for filing revision petition which has not been. This petition is liable to be rejected on the said ground. That apart the question again is as to whether learned trial court has exercised its jurisdiction properly and as to whether there has been any miscarriage of justice. 5. This petition is liable to be rejected on the said ground. That apart the question again is as to whether learned trial court has exercised its jurisdiction properly and as to whether there has been any miscarriage of justice. 5. It is trite that at the time of framing or other wise of the charge, the trial court is not required to evaluate the evidence nor is obliged to meticulously sift and scan the entire material collected by the investigating agency, enquiry into pros and cons is impermissible but it is also trite that framing of charge is not an idle formality and it is in that context in keeping with the mandate of Chapter XXIII of the Code of Criminal Procedure in particular reference to Sections 268 & 269 CrPC, the learned trial court has to evaluate the material collected during investigation for the purposes of ascertaining as to whether prima facie case against the accused exist so as to put the accused on trial. The grounds must exist for presuming that the accused have committed the offence when the wording employed is such then it becomes the legal obligation of the learned trial court to evaluate the material/ evidence based on which charge can be framed. 6. From the order impugned it appears that the learned trial court has been totally alive to the legal position and has thereafter passed a well reasoned order. While discharging the accused (respondents), learned Trial Court while referring to the entire record has drawn a conclusion that there is not an iota of incriminating evidence against the accused persons which would link them with the commission of offences directly or indirectly. It is also noticed in the order that 84 witnesses have been shown as listed witnesses, out of whom PWs 1 to 67 are cited as Eye-witnesses. These 67 witnesses have only and only implicated two unidentified militants who were killed in an encounter with the security forces. In their statements, there is not a whisper against the accused (respondents). It is also recorded that even it is not shown anywhere that these two militants were accompanied by any other person. These 67 witnesses have only and only implicated two unidentified militants who were killed in an encounter with the security forces. In their statements, there is not a whisper against the accused (respondents). It is also recorded that even it is not shown anywhere that these two militants were accompanied by any other person. An attempt has been made to show that the respondents are involved by referring to a letter issued by Inspector, Toll Post Manda, Akhnoor wherein it has been shown that a Truck No. 4167-JKS has passed through the Toll Post but in the letter it is specifically stated that the Truck was empty and nowhere it is said that any person was carrying any arms or ammunition in the Truck at the time of its checking. 7. Learned trial court has also taken note of the statements of PWs 68 to 71 and has noticed that these witnesses have said something about Virinder Sharma S/o Vishal Sharma and about the disclosure statement made by said person but still these witnesses too have not shown any type of association of the accused (respondents) with the two militants or with Virinder Sharma. It is also made clear from the records that it is no where emerging or surfacing that any arm or ammunition was recovered at the instance of the respondents. 8. Learned Trial Court after discussing all aspects precisely that too on the strength of the material collected during the investigation and produced before the Court along with charge sheet has finally concluded that prima facie no ground exists against the accused which would persuade the trial court to put the respondents on trial. 9. Learned trial court has also made it clear that the material against the two militants existed but since they were killed, so has to be ignored. But there was sufficient material showing involvement of one Virinder Sharma S/o Vishal Sharma who has not been arrayed as accused. Noticing that with seriousness, learned trial court has directed notice to be served upon the investigating officer to show cause as to why he had not arrayed Virinder Sharma S/o Vishal Sharma as one of the accused in the case. 10. Today during the hearing, learned Sr. Noticing that with seriousness, learned trial court has directed notice to be served upon the investigating officer to show cause as to why he had not arrayed Virinder Sharma S/o Vishal Sharma as one of the accused in the case. 10. Today during the hearing, learned Sr. AAG was pointedly asked to show even a single word appearing in the statement of the listed cited witnesses so as to persuade this Court to take a view different to what has been taken by the learned trial court or to show whether the learned trial court has erred in concluding that no ground exists for presuming commission of offence by the respondents but the records disabled him to negative the same. 11. A well reasoned judgment passed by the learned trial court does not call for any interference. Even though revision may fail on technical ground but it also fails on merits, accordingly is dismissed. 12. Copy of the order be sent to learned trial court so as to proceed in the matter vis-a-vis Virinder Sharma and the investigating officer, in accordance with its order dated 30.10.2006.