Jammu & Kashmir High Court
)Riyaz Ahmad vs State Of J&K on 8 May, 2012
Author: Muzaffar Hussain Attar
Bench: Muzaffar Hussain Attar
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. 561-A No. 106 OF 2009 AND 561-A 99 OF 2009 1)Riyaz Ahmad 2)Vikrant Sharma Petitioners State of J&K Respondent !Mr. B.S. Manhas, Adv. Mr. P.N. Bhat, Adv ^Mr. G. Basotra, AAG Honble Mr. Justice Muzaffar Hussain Attar, Judge. Date: 08.05.2012 :J U D G M E N T :
The petition in hand reveals further degeneration of human values. In order to achieve worldly positions and possessions, some people un-abashingly cast to winds all the age old norms.
The crime branch, while investigating the case FIR No. 11/2004, tumbled upon some material which resulted in registration of case FIR No. 38/2005 under Sections 420,467,468,471,120-B RPC. During investigation of the case, it transpired that the accused persons allegedly derived illegal benefits as a consequence of conspiracy whereby other persons were allowed to impersonate for them and got berths in various professional courses in the year 2005. The investigation culminated in filing of challan against the petitioners and other persons. Learned Trial Judge, while considering the matter on 12th March, 2009 ordered for framing of charges against the petitioners and some other persons for having allegedly committed offences under Section 420/120-B/471 RPC. It is this order, which is called in question, in these petitions.
Learned counsel for the petitioner submitted that one Apurab Gupta, who was also involved in case FIR No. 38/2009 along with other petitioners, though was also ordered to be put on trial, has been discharged by the learned Additional Sessions Judge in revision petition filed by the said person. Learned counsel in support of his contention produced certified copy of the order of learned Additional Sessions Judge, which is taken on record. Learned counsel submitted that the petitioners and Apurab Gupta having been implicated in one FIR and Apurab Gupta having been discharged, the petitioners also deserve to be discharged. Learned counsel submitted that the crime branch could not register the case on their own in view of the mandate contained in Notification/SRO 202 dated 3rd June, 1999. Learned counsel, on facts, submitted that there is no evidence which would connect the accused persons with the alleged offences and submitted that petitioners deserve to be discharged. Learned counsel in this behalf referred to and relied upon case titled Magan Behari Lal v. State of Punjab reported in 1977 AIR SC 1091.
Mr. P.N. Bhat, learned counsel appearing in 561-A NO. 99/2009 adopted the arguments of the learned counsel appearing in 561-A No. 106/2009.
Mr. Basotra, learned AAG, submitted that Apurab Gupta was ordered to be discharged by learned Additional Sessions Judge on the ground that the petitioners and said person were not similarly circumstanced and the alleged offences being of different years, so petitioners could not be discharged along with the Apurab Gupta. Learned counsel further submitted that crime branch which has registered the case, has power and authority to do the same, so no fault can be found in registration and investigation of the case. Learned counsel also submitted that there is sufficient evidence available on record which would warrant for framing of charges against the petitioners. Learned counsel also submitted that the learned trial court at the stage of framing of charges against the accused persons, has to only prima facie evaluate the material on record to find out as to whether the accused persons in the facts of the case deserve to be put on trial.
Chapter XXI of Code of Criminal Procedure, Svt. 1989 (for short Code) deals with the trial of warrant case by the Magistrates. Sub Section 2 of Section 251-A of the Code provides that if, upon consideration of the documents and making such examination, if any of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge him. Sub Section 3 of Section 251-A of the Code provides that if, after dealing with the case in the manner as mentioned hereinabove, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable in the said chapter, he shall frame charge in writing against the accused. The legislatures, in their wisdom, have provided two distinct and different expressions, inasmuch as, while a Magistrate has power to discharge the accused, but to arrive at such conclusion he has to record the satisfaction that the charge against the accused is groundless, in other words, he has to say that there is no evidence available on record, which would inculpate the accused person. For framing the charge against the accused person, the Magistrate has to formulate an opinion that there is ground for presuming that the accused has committed offence. The very expression used by the legislatures ground for presuming that the accused has committed offence would mean that availability of some evidence and material would give rise for presumption of commission of offences and would thus result in framing of charges.
Reverting back to the facts of this case, during the investigation of FIR 11/2004, the concerned police came into possession of some material which prima-facie did show the commission of offences, thus, mandating on the police under Section 154 of Cr. P.C. to register the case. The crime branch tumbled over the material while conducting investigation of FIR No. 11/2004 in terms of mandate contained in Section 154 Cr.P.C. and after finding that the material, so collected, disclosed commission of cognizable offence, was under statutory obligation to register the case. During the investigation, it was found on the basis of specimen signatures of the accused persons and on the evidence of the FSL that the accused persons in FIR No. 38/2009 have prima- facie committed the offence, report under Section 173 Cr.P.C. was filed.
Perusal of the record does show that there is a prima facie material/evidence available on record against the accused persons including the petitioners, inasmuch as, it has been prima-facie proved that the accused persons who have sought enrolment in different colleges did not take the examination and are beneficiaries of impersonation. This evidence is sufficient to require the accused persons including the petitioners to be put on trial by framing the charges against them.
The contention of the learned counsel for the petitioner is that Apurab Gupta has been discharged by the learned Additional Sessions Judge vide its judgment dated 27th April, 2009 but same will be of no help to the petitioner, inasmuch as, the learned revisional court has observed, while discharging Apurab Gupta, that the case of other persons is totally different from the case of Apurab Gupta. The arguments, so advanced at bar by the learned counsel for the petitioners, is, thus, repelled in the order itself upon which reliance was placed by the petitioners. The further contention of the learned counsel for the petitioners that crime branch had no power to register the case until such time orders in this behalf were issued by the head of the crime branch has to fail for reasons to follow. Even if, it is presumed that while registering the case there was non-compliance of Notification/SRO 202 of 1999 and the case was registered without orders of head of the department, it will not have any impact on the investigation as also trial of the case. Even if, the case is registered by the Police which has no jurisdiction, but when the investigation is conducted and resulted in filing of challan, the court which takes cognizance of the offences is not concerned as to whether the investigation has been conducted by the competent authority. The court has to take cognizance of offences and apply its mind to the case to ascertain as to whether the accused are to be put on trial. This view is based on the judgment of this Court in case titled State of J&K v. Abdul Rashid Zargar reported in 2009 (1) SLJ 210. The last contention of the learned counsel for the petitioners that the alleged kingpin who had allegedly mastermind the operation, was arrested by the police, but was not subjected to custodial interrogation, inference, thus, has to be drawn that he did not inculpate the petitioners in the commission of offences, can not be accepted in view of the record of the trial court which, prima-facie, shows commission of offences by the accused persons including the petitioners. The judgment of Magan Biharis case turns on its facts. The view was taken by the Honble Supreme Court when the trial was complete and accused was convicted. The court is dealing with the case at the stage of framing of charge and same yardstick can not be applied at the stage which has been taken at final adjudication of case.
For the above stated reasons these petitions being meritless are dismissed.
Record of the trial court be sent back.
(Muzaffar Hussain Attar) Judge JAMMU 08.05.2012 Shamim Ahmad