Research › Search › Judgment

J&K High Court · body

2018 DIGILAW 469 (JK)

Nisar Ahmad Khan v. State of JK

2018-07-04

M.K.HANJURA

body2018
JUDGMENT : 1. In this application, filed under Section 526 of the Code of Criminal Procedure, the applicant seeks the transfer of the criminal case bearing the title ‘State v. Nasir Ahmad Sheikh’, pending disposal before the Court of learned Principal Sessions Judge, Anantnag, to any other Court of competent jurisdiction at District Kulgam or at Srinagar, on the grounds that the daughter of the applicant was kidnaped in order to kill her. She was, subsequently, murdered by the accused and, accordingly, a chargesheet was laid before the Court of learned Principal Sessions Judge, Anantnag in the year 2014. It is stated that during the course of the trial, as many as thirty (30) witnesses were examined and it was on 16th of December, 2017, that the prosecution evidence was closed by the Court of the learned Principal Sessions Judge, Anantnag, without any rhyme or reason. Thereafter, the applicant filed an application under Section 540 of the Code of Criminal Procedure before the learned trial Court which was allowed and a month’s time was given to the prosecution to produce the left-over witnesses which, according to the applicant, was not sufficient. It is further contended that on 6th of February, 2018, the prosecution witness, namely, Mohammad Yousuf (witness No.34) was present before the Court. However, due to the non-availability of the Public Prosecutor, namely, Mr Showkat Ahmad Khan, the trial Court directed the APP, namely, Abid Ahmad Malik, to appear in the case and represent the prosecution. The APP, it is stated, is the son of the counsel for the accused and, therefore, the learned trial Court ought to have deferred the matter till the next date of hearing. It is also contended that this has caused a great deal of prejudice to the complainant/ applicant as the APP, who is the son of the counsel for the accused, was asked to represent the prosecution. It is further pleaded by the applicant that he has prepared a petition under Section 561-A of the Code of Criminal Procedure against the order of the closure of the prosecution evidence in the above titled case. It is further pleaded by the applicant that he has prepared a petition under Section 561-A of the Code of Criminal Procedure against the order of the closure of the prosecution evidence in the above titled case. In the end, it has been prayed that this Court may be pleased to allow the application and transfer the above mentioned criminal case to some other Court of competent jurisdiction at District Kulgam or at Srinagar for its disposal under law, as the same would meet the ends of justice. 2. The learned trial Court has, in pursuance of the directions of this Court, submitted the parawise report, wherein it is stated that after the closure of the evidence in the prosecution case detailed above, the PP filed an application for recording the statement of the prosecution witnesses Nos. 32 and 32, besides some Doctors without disclosing their names. The application was allowed to the extent of the prosecution witness Nos. 32 and 34 and the prosecution was directed to produce these two witnesses within a period of two months and not a month’s time, as stated by the applicant in his application. It is further contended that it is correct that on 16th of February, 2018, the learned PP, namely, Mr Showkat Ahmad Khan was not available and one of the witnesses, namely, Mohammad Yousuf/ PW-34, was in attendance before the Court. His part statement was recorded on the said date. The learned Sessions Judge has further stated that it is true that he called the APP appointed as such in the Court of the learned Additional Sessions Court, Anantnag. He appeared and submitted that since the other side is represented by his father, therefore, he expressed his unwillingness to get the witness examined and, accordingly, the CPO, who happens to be the Ex-Officio PP, was called and the statement of the said witness was recorded in part. 3. The accused has also filed his objections to the application of the applicant stating there that notwithstanding the fact that he has been falsely booked in FIR No.8/2014 by the authorities of the Police Station, Anantnag, the matter deserved to be decided expeditiously, yet the prosecution was given ample opportunity by the Court to produce its evidence. 3. The accused has also filed his objections to the application of the applicant stating there that notwithstanding the fact that he has been falsely booked in FIR No.8/2014 by the authorities of the Police Station, Anantnag, the matter deserved to be decided expeditiously, yet the prosecution was given ample opportunity by the Court to produce its evidence. It is further stated that after the closure of the evidence, the learned trial Court, on an application filed by the learned PP, allowed the prosecution to produce two witnesses within a period of two months and posted the case on 30th of January, 2018. It is further contended that the Presiding Officer of the learned trial Court directed the APP to examine the witness, who showed his reluctance to do so under the plea that his father is the defense counsel in the case and, therefore, he cannot conduct the proceedings of the case. Thereafter, the CPO appeared before the Court and examined the witness. It is further contended that PW 34 was a witness to the disclosure statement of the accused and the recovery memo of the bag and both the documents were exhibited and proved. 4. Heard and considered. 5. The main ground of attack of the applicant for seeking the transfer of the above mentioned criminal case to any other Court of competent jurisdiction for its trial is that on 16th of February, 2018, when the prosecution witness, namely, Mohammad Yousuf, was in attendance before the Court, he was examined by the APP, who is the son of the counsel representing the accused and, therefore, the learned trial Court should have deferred the matter till the next date of hearing. This, according to the applicant, has caused serious prejudice to him. 6. Looking at the entire material on record buttressed with the parawise report filed by the learned Principal Sessions Judge, as also the objections of the accused knock the bottom out of this contention of the applicant in stating that it was the son of the counsel who conducted the examination in chief of the witness. The fact of the matter is that it was the CPO, in his capacity as Ex-Officio PP, who was called and the statement of the witness was partly recorded. Therefore, there appears to be neither any truth nor any substance in the application of the applicant. The fact of the matter is that it was the CPO, in his capacity as Ex-Officio PP, who was called and the statement of the witness was partly recorded. Therefore, there appears to be neither any truth nor any substance in the application of the applicant. The same appears to be devoid of any merit. It entails dismissal, as a corollary to which, the same is dismissed. The learned Principal Sessions Judge shall proceed in the matter in accordance with the law. 7. Registry to send a copy of this order to the Court below for information.