Jammu & Kashmir High Court
Surinder Kampani Aged 70 Years W/O Late vs State Of Jammu & Kashmir Through Sho ... on 29 May, 2023
Author: Mohan Lal
Bench: Mohan Lal
Sr.No. 3
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
CRR No. 69/2014
Reserved on: 27.04.2023
Pronounced on: 29.05.2023
Surinder Kampani aged 70 years w/o Late ....Petitioner(s)
Parkash Chander, R/O Abrol Nagar Pathankote
Punjab.
Through :- Sh. Sunil Sethi Sr. Advocate with
Ms. Sonica Parihar Advocate.
V/s
State of Jammu & Kashmir Through SHO Police ....Respondent(s)
Station Akhnoor.
Through :- Mr. Pawan Dev Singh, Dy AG
CORAM: HON‟BLE MR.JUSTICE MOHAN LAL, JUDGE
JUDGMENT
1. Petitioner by invoking the inherent jurisdiction of this court in terms of Section 561-A of the Code of Criminal Procedure (hereinafter referred as the „Code‟) has sought quashment of the Criminal Challan titled State of J&K Vs. Surinder Kampani & Others pending before the court of Ld. Pr. Sessions Judge Jammu in so far as it implicates the petitioner for commission of offences punishable u/ss 419, 420, 312, 315/34 RPC & Section 4 of the J&K Medical Termination of Pregnancy Act together with all the proceedings conducted against her, alongwith order dated 15-11-2014, whereby, charges have been framed against her for commission of aforesaid offences. It is averred, that petitioner is a citizen of State of Punjab and putting up at Pathankote District, she has retired from the Govt. services as CHO from health department, has vast experience and expertise in the field of gynecology i.e. delivery of new born babies by pregnant women to whom she has been providing help and assistance especially in rural areas where the females don't have the money and easy access to hospitals/nursing homes, the nature of social work being undertaken by the petitioner was an eyesore of various doctors in Akhnoor town whose business was adversely affected, respondent by succumbing down to the pressure and influence yielded by the gynecologists/doctors, registered a false and frivolous case amongst others against the petitioner being FIR no. 80/2010 for commission of offence punishable under sections 419, 420, 315, 312/34 RPC r/w Section 4 of the J&K Medical Termination of Pregnancy Act, and section 23 of Pre-Conception and Pre-natal sex selection/determination 2 CCR No. 69/2014 (Prohibition and Regulation) Act. It is moreso averred, that the allegations against petitioner in the aforesaid FIR are to the effect, that police on 3.4.2010 received an information that the petitioner in a portion of house of accused Kasturi Lal Mahajan (now deceased) which is stated to be a non- Governmental Hospital and is not approved by the Government for personal profit, with an intention to cheat, is holding out that its government registered clinic and by styling herself to be a doctor has installed a ultra sound machine whereby the petitioner and various other accused persons were alleged to have indulged in illegal test of pregnant women to determine the sex of their fetus and taking money from the women for the same and are alleged to have been carrying out illegal abortion of the girl fetus and 4/5 women on whom the illegal abortion was being performed were also present, hence petitioner alongwith other accused indicted for commission of offences aforementioned. It is stated, that petitioner has not caused miscarriage of a child nor prevented a child born alive, there is no evidence which remotely connect the petitioner with alleged commission of offences, petitioner was no involved in pre- determination of sex of fetus but in fact was providing her expertise and help to the pregnant women folk who were not able to afford costly Gynecologist of the town, petitioner was not found on spot in administering any drug to the women for the purpose of abortion. It is averred, that against the petitioner alongwith as many as other 6 accused persons namely, A-2 Radha Devi, A-3 Kasturi Lal, A-4 Tejeswar, A-5 Rajinder Kumar Sharma, A-6 Rakesh Kumar Gupta, A-7 Pooja Devi charge sheet/challan has been submitted in the court of Ld. Pr. Sessions Judge Jammu who vide impugned order dated 15-11-2014 has framed charges against the petitioner and others for commission of offences u/ss 419, 420, 315, 312/34 RPC r/w Section 4 of the J&K Medical Termination of Pregnancy Act, which is against law and facts, as the trial court has not recorded any reason or justification while arriving at the impugned conclusion of framing charges against the petitioner who is not remotely connected with the charges.
2. Ld. Counsel for petitioner while reiterating the grounds urged in the memo of Criminal Revision Petition and by submitting written arguments, has sought the quashment of the criminal proceedings as well as the impugned order dated 15-11-2014 framing charges against the petitioner by canvassing arguments, that there is no evidence in the form of lease deed or any document which can 3 CCR No. 69/2014 prove that petitioner was the owner of the centre where the ultrasound was opened by the owner of the centre, there is no witness to say that the petitioner claimed herself to be a doctor however she was only a health worker, there is no evidence on record which can prove that any drug was being administered on women to perform illegal abortions, there is no report regarding chemical examination of those drugs as to which drug was being given to the women, there is no scientific explanation that whether drug was administered or glucose was given to the women and when the drug was being administered it should have been seized by police and sent for laboratory for examination so that it could be analyzed whether drug could cause abortion or not. It is argued, that PW-Bindu Devi & PW-Jyoti Devi have stated in her statements before I.O. that both of them conducted ultrasound which confirmed that they were pregnant while as PW-Bindu Devi was having girl child in her fetus, PW-Anita Devi alongwith PW-Radha Devi got their ultrasound done from Krishna Ultrasound and the lady conducted ultrasound told Radha Devi that she has girl child fetus which is week and recommended to consult petitioner Kampani who in the meantime gave medicine to her and meanwhile police came and Kampani got arrested. It is moreso argued, that there is no witness who can say that Kampani has done the abortions in the centre, even the dead fetus was recovered from District Hospital Akhnoor and not from the center where petitioner was working as health worker, therefore, offences u/ss 419/420/312/315 RPC r/w Section 4/23 of J&K Medical Termination of Pregnancy Act and Pre- Conception and Pre-Natal Sex Selection/Determination (Prohibition and Regulation) Act are not made out against the petitioner. Prayer has been made for quashment of the proceedings.
3. Ld. Dy. AG for respondents has sought the dismissal of revision petition by strenuously portraying arguments, that the petitioner alongwith 6 accused persons has been charge sheeted by the trial court vide its order 15-11-2014 wherein the trial court by a detailed order has come to the opinion that there is a ground for presuming that accused persons have committed the offence. It is argued, that Ld. Counsel for petitioner has made submissions on the merits of the allegations and such defences are required to be considered during the trial, as the revisional court cannot conduct a "mini trial" while exercising jurisdiction in terms of section 482 (561-A) Cr.PC. Prayer has been made for dismissal of the petition.
4 CCR No. 69/20144. Heard Ld. Sr. Counsel for petitioner and Ld. Dy. AG for respondent and gone through the relevant law on the subject matter carefully. Hon'ble Supreme Court of India in it's recent judgment rendered on April 10, 2023, in 2023 LiveLaw (SC) 292 [Central Bureau of Investigation versus Aryan Singh Etc.] while discussing the scope and object of the powers of High Court u/s 482 (561-A) of the Code of Criminal Procedure and observing that at the stage of discharge the court has a very limited jurisdiction and is required to consider whether any sufficient material is available to proceed further against accused for which the accused is required to be tried or not, and the High Court cannot conduct "mini trial" at the stage by saying that charges are not proved, in head note of the case law and in paragraphs 2.3, 3.1, 4 , 4.1, 5.1 of the judgment held as under:-
Code of Criminal Procedure, 1973; Section 482 - High Court cannot quash criminal proceedings at section 482 Cr.P.C. stage by saying charges aren't proved - High Court cannot conduct a "mini trial" while exercising powers under Section 482 Cr.P.C. - At the stage of discharge and/or while exercising the powers under Section 482 Cr.P.C., the Court has a very limited jurisdiction and is required to consider "whether any sufficient material is available to proceed further against the accused for which the accused is required to be tried or not." - Whether the criminal proceedings was/were malicious or not, is not required to be considered at this stage. The same is required to be considered at the conclusion of the trial - What is required to be considered is a prima facie case and the material collected during the course of the investigation, which warranted the accused to be tried. 2.3 It is vehemently submitted that in the facts and circumstances of the case, the High Court has exceeded in its jurisdiction while quashing the entire criminal proceedings against the accused Aryan Singh and Gautam Cheema. It is vehemently submitted that while quashing the criminal proceedings, the High Court has observed that the allegations/charges against the accused have not been proved and that the prosecution is malicious. It is submitted that at the stage of deciding the quashing petitions against the order passed by the learned Trial Court, refusing to discharge the accused, the High Court ought not to have considered and/or observed that the charges are not proved. It is submitted that the charges are required to be proved during the trial and on the basis of the evidence led. It is further submitted that even the High Court has materially erred in observing that the prosecution is malicious. It is submitted that the investigation was handed over to the CBI, pursuant to the directions issued by the High Court and, thereafter, after conclusion of the investigation, the accused came to be chargesheeted and therefore, the initiation of the criminal proceedings/proceedings cannot be said to be malicious. It is submitted that whether any criminal proceedings is malicious, is also required to be considered at the conclusion of the trial and not at this stage, namely, at the stage of exercise of powers under Section 482 Cr.P.C. 3.1 Both the learned counsel appearing on behalf of the respective accused have made submissions on merits of the allegations made against each accused. However, all those submissions are the defences, which are required to be considered during the trial. Therefore, we are not elaborately dealing with and/or considering the submissions made on behalf of the CBI 5 CCR No. 69/2014 as well as the accused on merits on the allegations against the accused as any observation of this Court may affect either of the parties during the trial.
4. Having gone through the impugned common judgment and order passed by the High Court quashing the criminal proceedings and discharging the accused, we are of the opinion that the High Court has exceeded in its jurisdiction in quashing the entire criminal proceedings in exercise of the limited powers under Section 482 Cr.P.C. and/or in exercise of the powers under Article 226 of the Constitution of India.
4.1 From the impugned common judgment and order passed by the High Court, it appears that the High Court has dealt with the proceedings before it, as if, the High Court was conducting a mini trial and/or the High Court was considering the applications against the judgment and order passed by the learned Trial Court on conclusion of trial. As per the cardinal principle of law, at the stage of discharge and/or quashing of the criminal proceedings, while exercising the powers under Section 482 Cr.P.C., the Court is not required to conduct the mini trial. The High Court in the common impugned judgment and order has observed that the charges against the accused are not proved. This is not the stage where the prosecution/investigating agency is/are required to prove the charges. The charges are required to be proved during the trial on the basis of the evidence led by the prosecution / investigating agency. Therefore, the High Court has materially erred in going in detail in the allegations and the material collected during the course of the investigation against the accused, at this stage. At the stage of discharge and/or while exercising the powers under Section 482 Cr.P.C., the Court has a very limited jurisdiction and is required to consider "whether any sufficient material is available to proceed further against the accused for which the accused is required to be tried or not".
5.1 In view of the above and for the reasons stated above, present appeals succeed. The impugned common judgment and order passed by the High Court quashing and setting aside the criminal proceedings against the accused Aryan Singh and Gautam Cheema is/are quashed and set aside. The accused to face the trial for which they are chargesheeted. However, it is observed that all the contentions and defences, which are available to the respective parties are kept open, to be considered by the learned Trial Court during the trial.
Considering the fact that the allegations in the FIR relates back to the year 2014 and as more than eight years have passed, we direct the learned Trial Court to conclude the trial at the earliest, but not later than 12 months from the date of the receipt of the present order. CBI to produce the present order before the concerned Magistrate at the earliest. All concerned are directed to cooperate with the learned Trial Court in concluding the trial within the time prescribed mentioned hereinabove. Present appeals are allowed accordingly.
By the ratio of judgment (Supra) law is no longer res-integra, that in proceedings u/s 482 (561-A) Cr.PC High Court is not required to conduct "mini trial" and observe that charges against accused are not proved, this is not the stage where the prosecution is required to prove the charges which are required to be proved during trial on the basis of evidence led by the prosecution, the court has very lilmited jurisdiciton and is required to consider, "whether any sufficient material is available to proceed further against accused for which accused is required to be tried or not". Ratio of the judgment (Supra) squarely applies to the facts of the case in hand. It is noteworthy to 6 CCR No. 69/2014 reiterate here, that chargesheet against petitioner (A-1) and other 6 co-accused persons namely, A-2 Radha Devi, A-3 Kasturi Lal, A-4 Tejeswar, A-5 Rajinder Kumar Sharma, A-6 Rakesh Kumar Gupta & A-7 Pooja Devi has been laid before the court of Ld. Pr. Sessions Judge Jammu on 28-08-2012. Vide a detailed impugned order dated 15-11-2014 (comprising of 11 leaves), the Ld. Trial Court after taking into consideration and hearing of the prosecution and defence has come to the opinion that there is a ground for presuming that accused persons have committed offence and has accordingly framed charges against them to which all of them have pleaded not guilty and claimed trial. It is trite law, that the standard of test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of framing of charges u/ss 227/228 of Cr.PC, however, at this stage even a very strong suspicion founded upon materials before the court, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged may justify the framing of charge. [vide (1979)4 SCC 274 Supdt and Remembrancer Legal Affairs v. Anil Kumar Bhunja]. It is apt to reiaterate here, that the grounds urged by the petitioner in the revision petiion and the arguments canvassed by Ld. Counsel for the petitioner, touch the merits of the case/allegations against petitioner/accused and all these submissions are the defences available to petitioner/accused which as per law laid down in the judgment (Supra) are required to be considered during the trial. It is the cardinal principle of criminal jurisprudence that at the stage of quashing criminal proceedings against accused, the High Court while exercising powers u/s 482 Cr.PC is not required to conduct "mini trial" going in detail in the allegations and material collected during the course of investigation against accused and to observe that the charges against the accused are not proved.
5. In view of the above, and for the reasons stated above, I feel myself persuaded to hold that the Ld. Trial Court has not committed any illegality, impropriety and gross error in passing impugned order dated 15-11-2014, whereby, charges have been framed against the petitioner and other co-accused persons. Present petition being misconceived under law, legally unsustainable, is out rightly rejected and dismissed.
6. Disposed off accordingly.
Srinagar: (Mohan Lal)
29.05.2023 Judge
Issaq
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No