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2017 DIGILAW 757 (JK)

Bilal Ahmad Wani v. State of J&K

2017-08-28

M.K.HANJURA

body2017
JUDGMENT : M.K. HANJURA, J. 1. The petitioner seeks the indulgence of this Court in quashing the order dated 20.05.2017, impugned herein, of the Learned Special Judge Anti Corruption (Ist Additional Sessions Judge) Baramulla, passed in case bearing FIR No. 99 of 2008, under section(s) 5(2) of Prevention of Corruption Act read with Section 5(1)(d) of the Act, titled State v. Aijaz Ahmad Bhat & Ors., on the grounds, inter alia, that the order of the Trial Court amounts to abuse of process of Court and it has resulted in grave miscarriage of justice. The Learned Spl. Judge Anti-Corruption, in terms of the order impugned has held that a prima-facie case against the petitioner/accused is made out for the commission of offences, punishable under section(s) 5(2) of Prevention of Corruption Act read with Section 5(1)(d) of the Act, 120-B RPC, and has, accordingly, charged him for the commission of the offences, aforesaid along with the other accused. The petitioner/accused in the writ petition states that although he brought it to the notice of the court below that no case is made out against him, yet the learned Judge, framed a formal charge against him by the impugned order. It is pleaded that the petitioner/accused is a registered contractor with the State Forest Corporation, holding Registration No. 12. The petitioner/accused further states that the case does not show any "grave suspicion" against him to the effect that he has committed the alleged offence. The charge against him is groundless and the material produced by the prosecution does not demonstrate the commission of any offence by him. The reasons recorded by the Trial Court are erroneous. The prima facie conclusion drawn by the learned Trial Judge that the rates, fixed for extraction/transportation of the timber is also wrong. The Trial Judge has totally failed to appreciate the facts and has proceeded on wrong premises. It is further pleaded that the petitioner is not involved in any manner either with tendering process or with any official transactions. 2. On asking of the Court, Mr. B.A. Dar, learned Sr. AAG entered appearance on behalf of the respondent State. He has and stated that the Trial Court has framed the charge against the petitioner/accused on the basis of the material available on the file. The petition of the petitioner/accused merits dismissal and may, accordingly, be dismissed. 3. Heard and considered. 4. B.A. Dar, learned Sr. AAG entered appearance on behalf of the respondent State. He has and stated that the Trial Court has framed the charge against the petitioner/accused on the basis of the material available on the file. The petition of the petitioner/accused merits dismissal and may, accordingly, be dismissed. 3. Heard and considered. 4. It needs must be said that the law is that the powers of the High Court under Section 561-A of the Code of Criminal Procedure are very wide and the very plenitude of the powers requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. 5. Looking the instant case from the above perspective, the charge framed against the petitioner/accused by the learned Judge, is based on the material, gathered by the Investigating agency during the course of investigation and presented before the court below in the form of police report/challan. The learned Judge after evaluating the material available on record has passed a reasoned order and has formally charged the petitioner/accused for the aforementioned offences. The order of the learned Judge cannot be truncated at this stage, particularly in view of the law laid down by the Hon'ble Apex Court of the country in case of Kanti Bhadra Shah & Anr. v. State of West Bengal, Cr. LJ 746, wherein it has been held: (8) We wish to point out that if the trial Court decides to frame a charge there is no legal requirement that he should pass an order specifying the reasons as to why he opts to do so. Framing of charge itself is prima facie order that the trial Judge has formed the opinion, upon considering the police report, and other documents and after hearing both sides, that there is ground for presuming that the accused has committed the offence concerned. Framing of charge itself is prima facie order that the trial Judge has formed the opinion, upon considering the police report, and other documents and after hearing both sides, that there is ground for presuming that the accused has committed the offence concerned. Chapter XIX deals with provisions for trial of warrant cases instituted on police report. Section 239 reads thus: 239. When accused shall be discharged:- (1) If, upon considering the police report and the documents sent with it under Section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused and opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing. 9. The said Section shows that the Magistrate is obliged to record his reasons if he decides to discharge the accused. The next Section (Section 240) reads thus: 240. Framing of charge; (1) If upon such consideration examination, if any, and hearing, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punishable by him, he shall frame in writing a charge against the accused. (2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty of the offence charged or claims to be tried. (10) It is pertinent to note that this Section required a Magistrate to record his reasons for discharging the accused but there is no such requirement if he forms the opinion that there is ground for presuming that the accused had committed the offence which he is competent to try. In such a situation he is only required to frame a charge in writing against the accused. Even in cases instituted otherwise than on police report the Magistrate is required to write an order showing the reasons only if he is to discharge the accused........ 6. In the instant case, the learned Judge has spelt out the reasons that constrained him to formally charge the petitioner/accused for the aforementioned offences. Even in cases instituted otherwise than on police report the Magistrate is required to write an order showing the reasons only if he is to discharge the accused........ 6. In the instant case, the learned Judge has spelt out the reasons that constrained him to formally charge the petitioner/accused for the aforementioned offences. However, even if the reasons would not have been recorded still then the order impugned could not be called in question on the analogy of the law down (supra). It is only when the Trial Court opts to discharge the accused that reasons prompting the Trial Judge to discharge the petitioner/accused are required to be recorded. For the reasons discussed, I do not find that the order of learned Special Judge Anti-Corruption, Baramulla, suffers from any infirmity, illegality and warrants interference. Therefore, no case is made out for exercise of inherent powers under Section 561-A Cr.P.C. Petition is, accordingly, dismissed. Let a copy of this order be send to the Court below for proceeding in the matter in accordance with the law.