Jammu & Kashmir High Court - Srinagar Bench
Mohammad Altaf Mohand And Anr. vs C.B.I And Ors. on 26 March, 2018
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
561-A No. 66/2010
Date of Order: 26.03.2018
Mohammad Altaf Mohand and anr. Vs. C.B.I and ors.
Coram:
Hon'ble Mr Justice Sanjeev Kumar, Judge.
Appearance:
For petitioner(s)/Appellant(s): Mr. Z.A Qureshi, Sr. Advocate and Mr. S.H Thakur, Advocate.
For respondent(s): Mr. T.M Shamsi, ASGI along with Mr. Kiran Pandit, I.O.
i/ Whether to be reported in Yes
Press/Media?
ii/ Whether to be reported in Yes
Digest/Journal?
1. The death of two hapless ladies, namely, Asiya Jan and Neelofar Jan, under mysterious circumstances on the intervening night of 29 th and 30th May, 2009 shook the whole valley particularly the township of Shopian. Since the exact cause of death of these young ladies was not immediately known, as such, the speculations and rumors started spreading like wild fire. Everybody had his own version to the circumstances that might have led to the unfortunate incident. Some vested interests got an opportunity to make capital out of this misery also. Police of Police Station, Shopian immediately swung into action after receiving a missing report with respect to the aforesaid Neelofar Jan and Asiya Jan. Upon search, the police party recovered the dead bodies of the two ladies aforesaid from Rambiara Nallah near Zawoora bridge and Arahama (about 1 ½ kms downstream from Zawoora bridge) respectively in the morning of 30.05.2009. Since the cause of death of these ladies was not immediately known, as such, the Police Station, Shopian started inquest proceedings on the same day i.e 30.05.2009. Deputy Inspector General, South Kashmir, Anantnag 561-A No. 66/2010 Page 1 of 20 also set up a Special Investigation Team headed by Sh. Mushtaq Ahmed Shah, SDPO, Awantipora to conduct the inquest proceedings under Section 174 Cr.PC. Accordingly, the inquest proceedings were conducted by the Special Investigation Team (SIT). During the course of inquest proceedings, the dead bodies were subjected to post-mortem examination. The post-mortem was conducted twice by two different teams of doctors. The first post-mortem report indicated the probable cause of death in case of Asiya Jan as Haemorrhage followed by Cardiovascular arrest and Neurogenic shock in case of Neelofar Jan, whereas the post-mortem report prepared by the second team of doctors confirmed Sexual assault on Asiya Jan and her death by Hemorrhagic Shock due to bleeding from multiple injuries. As regards Neelofar Jan, the second report recorded death due to Neurogenic shock with confirmation of "sexual interc". In the light of aforesaid opinions of medical experts, who conducted the post-mortem on the deceased ladies, offences under Sections 302, 326, 342, 201, 120-B RPC were added in case F.I.R No. 112/2009 and accordingly, the inquest proceedings were closed.
2. It may be pertinent to mention here that keeping in view the sensitivity of the issue which had given birth to speculations and rumors pointing fingers on the involvement of security agencies, the Government of J&K appointed Sh. Justice (Retd.) Muzaffar Jan as One man Commission of Enquiry on 01.06.2009 to enquire into the incident. The One Man Commission during its enquiry recorded the statement of concerned police officers, doctors, eye witnesses, FSL experts, DM Shopian and the members of the family of the deceased. The Commission in its report indicted local police and also recommended departmental action against some police officers, doctors and FSL experts. On the intervention of the Court in PIL (OWP No. 515/2009) filed by the Kashmir Bar Association, Srinagar, a high level Special Investigation Team (SIT) was constituted to hold free and fair investigation into the incident. The said SIT recorded the statements of GHULAM 561-A No. 66/2010 Page 2 of 20 MOHIUDDIN LONE AND ABDUL RASHID PAMPORI under Section 164- A Cr.PC on 18.06.2009 before the Chief Judicial Magistrate, Shopian. The SIT also subjected all the 407-type police vehicles of Shopian to examination by experts of FSL Srinagar. This was done by the SIT as the aforesaid two witnesses had, in their statement, stated that they had seen a blue coloured Tata 407-police vehicle parked near Zawoora bridge with some masked uniformed police personnel standing there and had heard cries of women for help from the said vehicle. Some hair samples that had been recovered from some of these 407-type vehicles were also sent to CFSL, CBI New Delhi for examination but no clue could be obtained from such examination also. The proceedings undertaken by the SIT could not culminate into any definite opinion as to the cause of death of the ladies, therefore, the investigation remained inconclusive. The record further reveals that pursuant to the orders of this Court dated 15.07.2009, the SIT had arrested four police officers who too were later on granted bail by the High Court on 11.09.2009. Since the matter involved death of two young ladies and the cause of death had become an enigma despite probe having been conducted by high powered SIT constituted by the Government. The Government, with a view to arrive at truth of the matter, decided to handover the investigation to some independent agency. Accordingly, vide its communication dated 09.09.2009, requested the Government of India to handover the investigation to Central Bureau of Investigation (CBI). Acceding to the request of the State Government, the Government of India vide notification No. 228/46/2009-AVD-II dated 15.09.2009 transferred the investigation of F.I.R No. 112/2009 dated 06.06.2009 of Police Station, Shopian to the CBI. The F.I.R was re-registered by the CBI on 15.09.2009 and the investigation was entrusted to Special Investigation Team (SIT of CBI) constituted by the Director CBI. During the investigation, the SIT of the CBI found that a criminal conspiracy was hatched by some doctors, lawyers and private persons with the object to implicate and 561-A No. 66/2010 Page 3 of 20 defame the personnel of police/security forces and to get them convicted of capital offence and in furtherance of said criminal conspiracy, the accused persons created false evidence i.e false post-mortem reports, fudged slides of samples taken from the dead bodies, induced and threatened the witnesses to depose falsely to implicate the security forces in the case of rape and murder of the two ladies. The SIT of CBI after thorough investigation and getting the post-mortem re-conducted after exhuming the dead bodies, came to the conclusion that the death of the ladies had happened due to Asphyxia by drowning and that there was no evidence of rape or murder. The investigation was, thus, recommended to be closed against the police officials initially named in the FIR for commission of offences under Sections 376, 302 etc. and instead a charge-sheet was filed against 13 accused including the petitioners herein for commission of offences under Section 120-B RPC read with Sections 167, 193, 194 and 195-A RPC.
3. From a perusal of the record and the charge-sheet filed by the respondents, it reveals that accused doctors had prepared false post-mortem reports to support the theory of rape and murder of the deceased ladies, whereas it was later on conclusively proved by the finding of AIIMS/CFSL New Delhi that the death of the deceased ladies had occurred due to ante-mortem drowning. The respondents, in their investigation, did not find any evidence to support the offence of rape or murder.
4. During the course of investigation, the SIT of respondent No. 1 also found that apart from falsification of various post-mortem reports and the fudging of evidence by the accused doctors associated in the post-mortem examination of the deceased ladies, there was a concerted effort made by some Advocates including the petitioners herein alongwith some private persons, namely, Ali Mohammad Sheikh and Zahoor Ahmad Ahanger to create further false evidence for implicating the police/security forces in a false case of rape and murder of the two ladies.
561-A No. 66/2010 Page 4 of 205. During the course of investigation, the statements of two star eye witnesses, namely, Ghulam Mohiuddin Lone and Abdul Rashid Pampori who had earlier deposed in their statements recorded under Section 164-A Cr.PC pointing fingers towards the involvement of security personnel in the rape and murder of deceased ladies, were got recorded once again by the CBI on 27.10.2009 under Section 164-A Cr.PC. The need to record the statement of aforesaid witnesses once again arose because during the course of investigation these witnesses disclosed to the SIT of CBI that the earlier statements made by them were got recorded under duress and pressure from some Advocates and others with a view to implicate the security forces in the incident.
6. In the statement of Ghulam Mohiuddin Lone recorded by the Magistrate second time at the instance of CBI on 27.10.2009 under Section 164-A Cr.PC it is stated that about 5 to 10 days after the death of Neelofar Jan and Asiya Jan, Advocates Abdul Majid Mir, Mohammad Yusuf Bhat, Mushtaq Ahmad Gatoo, Altaf Mohand (petitioner No. 1), and Mubarak (petitioner No. 2) came to his house and they were accompanied by Ali Mohammad Sheikh and brother of Shakeel, namely, Abdul Majid Mir. They all took him to the bridge. He further stated that the aforesaid persons including the petitioners inquired from him about the incident. Though he told them that he did not have the knowledge about the said incident but they took him to Shakeel's residence, where Abdul Hai, father of Neelofar Jan caught hold of his neck and asked him to state the truth. Ghulam Mohiuddin Lone repeated that he did not have the knowledge about the incident but, in the meantime, Advocate Abdul Majid Mir thrashed him and took him to another room, where a lot of other people were also present. He further stated that Abdul Majid Mir told him that if he did not give the statement i.e. "I have seen police vehicle near the bridge", they would burn his house and shop and would eliminate his entire family. He, therefore, stated that due to this intimidation, he made a statement first before the Jan Commission on 09.06.2009 and then before the Chief Judicial Magistrate 561-A No. 66/2010 Page 5 of 20 Shopian on 18.06.2009. He again confirmed that he had no knowledge about the occurrence and had not seen the police vehicle near the bridge nor had he heard any cries of women coming from the said vehicle. He further added that Advocate Abdul Majid Mir had given him the inducement that if he would give the false statement of their choice then he would be provided one shop at the bus stand Shopian and also a good amount of money. Similarly, Abdul Rashid Pampori, another star eye witness whose statement had earlier been recorded under Section 164-A Cr.PC on 18.06.2009 also resiled from the aforesaid statement. He also attributed the false statement made by him earlier under pressure from the accused Advocates. This was revealed by him in his statement which was got recorded by the CBI on 27.10.2009 once again under Section 164-A Cr.PC. In his statement made under Section 164-A Cr.PC on 27.10.2009, Abdul Rashid Pampori stated that he had given a false statement earlier under pressure from witness Ghulam Mohiuddin Lone and police personnel. He also stated that the Advocates of the Shopian Bar had pressurized Ghulam Mohiuddin Lone for giving the said false statement. He, however, deposed that he had not seen any police vehicle parked near the bridge nor had he heard the cries of women coming from the said vehicle.
7. On the basis of aforesaid statements coupled with the statements of Hasina and her husband Azad Ahmad Tureay, the CBI concluded that accused Advocates namely Abdul Majid Mir, Mushtaq Ahmad Gatoo, Mohammad Yusuf Bhat, Altaf Mohand and Mubarak in league with Ali Mohammad Sheikh and Zahoor Ahmad Ahanger induced, assaulted and threatened Ghulam Mohiuddin Lone and others to make false statements implicating the police/security forces in the commission of offence of rape and murder of the deceased ladies. It was concluded by the investigation that this was done in furtherance of conspiracy to defame the police personnel. Ghulam Mohiuddin Lone and Abdul Rashid Pampori had been compelled to make false statements before the Jan Commission as well as CJM Shopian when their statements were recorded 561-A No. 66/2010 Page 6 of 20 under Section 164-A Cr.PC. The investigation further concluded that the accused Advocates had also tried to induce Hasina and her husband Azad Ahmad Tureay to make similar statements. In nutshell, the investigation by the CBI concluded as under:-
(i) That death of Neelofar Jan and Asiya Jan had occurred due to ante-mortem drowning.
(ii) That the commission of offences under Sections 302, 326, 376 and 201 RPC was not proved. The accused doctors namely Dr. Nighat Shaheen, (A-1), Dr. Ghulam Qadir Sofi (A-2), Dr. Maqbool Mir (A-3), Dr. Ghulam Mohammad Paul (A-4), Dr. Bilal Ahmad Dalal (A-5) and Dr. Nazia Hassan (A-6) had conspired to defame, discredit and cause injury to personnel of police/security forces by getting them wrongfully convicted for a capital offence and for doing so created false reports and fudged the glass slides said to contain vaginal smear of deceased ladies.
(iii) That the accused Advocates namely Abdul Majid Mir (A-7), Mushtaq Ahmad Gatoo (A-8), Mohammad Yusuf Bhat (A-9), Altaf Mohand (A-10) and Sheikh Mubarak (A-11) in league with Ali Mohammad Sheikh (A-12) and Zahoor Ahmad Ahanger (A-13) had induced, assaulted and threatened the witnesses to make false statements implicating the police/security forces in a false case of rape and murder of the two deceased ladies in order to defame, discredit and cause injury to such personnel by getting them wrongfully convicted for capital offences.561-A No. 66/2010 Page 7 of 20
(iv) That the offences under Section 120-B RPC read with Sections 167, 193, 194 and 195-A RPC were proved against all the accused.
8. On the basis of aforesaid investigation conducted by CBI, the challan came to be presented before the CJM Srinagar.
9. The petitioners are aggrieved of the challan presented against them and have challenged the FIR re-registered by CBI on 15.09.2009 and the challan titled CBI Vs. Dr. Nighat Shaheen and others presented by the CBI before the Court of CJM Srinagar.
10. Before proceeding further, it may be noted that the challan which is subjudice before the Court of Chief Judicial Magistrate has not proceeded further due to the instant proceedings and, therefore, the stage of framing of charge has not yet reached.
11. Needless to say that it would be open to the petitioners to raise all contentions, which they have projected in this petition at the time of framing of charge. They are well within their right to demonstrate before the learned trial Court that the evidence collected by the CBI against them is not sufficient to send them for trial for the offences under Section 120-B RPC read with Sections 167, 193, 194 and 195-A RPC. The petitioners, thus, may not be permitted to short circuit the process and challenge the challan under the inherent jurisdiction of this Court vested in terms of Section 561-A Cr.PC.
12. When confronted with the aforesaid position, the learned senior counsel Sh. Z.A Qureshi, ably assisted by Sh. S.H Thakur, Advocate insists that the instant case is a fit case where the inherent jurisdiction of this Court under Section 561-A Cr.PC is required to be exercised to prevent abuse of the process of law. It is contended that going by the evidence collected by the CBI and accepting the same to be truthful on the face of it, the offences attributed to the petitioners in the challan have not been made out and, therefore, putting the petitioners to the agony of undergoing a long drawn trial is not only a sheer abuse of the 561-A No. 66/2010 Page 8 of 20 process of law but would also be a serious miscarriage of justice. Learned Senior counsel further submits that allowing such trial to continue against the petitioners would be travesty of justice and the petitioners who are Advocates by profession would be put to irreparable loss and injury. Relying upon several judgments of the Supreme Court, the learned counsel argues that the powers of the Court under Section 561-A Cr.PC are of wide amplitude and, therefore, can be exercised at any stage of the proceeding and that the instant case is one of the rarest cases where proceeding with the trial against the petitioners would be a sheer abuse of the process of law for the trial is most likely to end in acquittal being a case of no evidence against the petitioners.
13. Elaborating his arguments, learned Senior Counsel would submit that the only incriminating evidence that has been collected by the CBI during its investigation is the statement of Ghulam Mohiuddin Lone recorded before the Judicial Magistrate on 27.10.2009 at the instance of CBI in which the aforesaid witness resiled from his earlier statement, that too, recorded under Section 164- A Cr.PC before CJM Shopian on 18.06.2009. In the second statement recorded at the instance of CBI, the aforesaid witness stated that he was made to make the false statement earlier due to pressure of the petitioners and other accused persons. He has in particular named Advocate Abdul Majid Mir, who thrashed him and took him to another room where a lot of persons were present who all rebuked him. He, however, has not directly implicated the petitioners herein for inducing, threatening or pressurizing him to make the false statement, argues the learned counsel for the petitioners. The statement of witness Ghulam Mohiuddin Lone supported by the statement of Abdul Rashid Pampori recorded second time at the instance of CBI does not in any manner, implicate the petitioners in the conspiracy to create false evidence to implicate the police/security personnel in a false case of rape and murder of the deceased ladies, submits learned counsel for the petitioners. Learned counsel for the petitioners also pointed out the manner in which the second statement was got 561-A No. 66/2010 Page 9 of 20 recorded by the CBI before the Magistrate. He vehemently assails the veracity of the second statement and would argue that as a matter of fact, the second statement was induced by the CBI for shielding the police personnel, who as per the first statement of these witnesses were clearly involved in the commission of offence under Sections 302, 376 RPC etc.
14. While concluding his arguments, learned counsel submits that it is a case of no evidence against the petitioners and the so called evidence collected by the CBI to implicate the petitioners is neither truthful and trustworthy nor the same is admissible in law. He also goes to the extent of urging that even if the evidence collected by the CBI as against the petitioners is taken to be gospel truth, the offences as attributed to the petitioners are not made out. He took this Court to the provisions of Sections 120-B RPC read with Sections 167, 193, 194 and 195-A RPC and contended that ingredients of none of the aforesaid offences are made out against the petitioners.
15. Per contra, the learned counsel appearing for the respondents submits that the CBI after conducting a fair and free investigation and on the basis of evidence collected has rightly concluded that the petitioners were involved in the commission of offences under Section 120-B RPC read with Sections 167, 193, 194 and 195-A RPC and that there was concerted effort on the part of the accused Advocates including the petitioners and the private persons to create false evidence to implicate the police/security personnel in the commission of offences of rape and murder of the deceased ladies. This, submits learned counsel for the respondents, was orchestrated by the petitioners and other accused Advocates alongwith some private persons to defame and discredit the security agencies for oblique purposes. He submits that in the statements made by the two star witnesses i.e Ghulam Mohiuddin Lone and Abdul Rashid Pampori coupled with the statements of Hasina and her husband Azad Ahmad Tureay, there is enough evidence to show that the petitioners were part of the conspiracy hatched to pressurize the aforesaid witnesses to falsely depose 561-A No. 66/2010 Page 10 of 20 before the Jan Commission and before the Chief Judicial Magistrate, Shopian and implicate the police personnel in the commission of offence of rape and murder of the deceased ladies.
16. Apart from merits, submits learned counsel for the respondents, the petition invoking the inherent jurisdiction of this Court under Section 561-A Cr.PC may not be maintainable. He urges that since the challan is pending disposal before the trial Court and charges are yet to be framed, as such, the petitioners cannot be permitted to short circuit the procedure and directly approach this Court by way of this petition. He further submits that veracity, truthfulness and the admissibility of the evidence recorded during investigation are the subject matter of trial and this Court while exercising the inherent jurisdiction under Section 561-A Cr.PC cannot conduct the trial to find out the truthfulness, admissibility and veracity of the evidence collected during investigation, more so, when the trial Court is yet to frame the charges after considering all aspects of the matter. He, therefore, urges that the contention of the petitioners that none of the offences attributed to the petitioners have been made out is a contention which can be well raised before the trial Court which will have opportunity to go through the challan thoroughly and decide whether the offences, as alleged in the challan, are made out against the petitioners or not. He, thus, argues that in view of the preponderance of the evidence collected by the investigating agency directly implicating the petitioners in the crime, it is not available to the petitioners to say that the instant case is a case of no evidence, where the interference of this Court is called for, that too, at the threshold.
17. The scope of interference by this Court in exercise of inherent jurisdiction vested in terms of Section 561-A Cr.PC is well explained by the Supreme Court in the case of State of Haryana Vs. Bhajan Lal; 1992 (Supp.) 1 SCC 335. The Supreme Court while formulating the category of cases by way of illustration, wherein extraordinary power under the provisions of Section 482 Code of 561-A No. 66/2010 Page 11 of 20 Criminal Procedure which is pari materia with Section 561-A Cr.PC, could be exercised by the High Court to prevent the abuse of process of the Court, laid down thus:-
"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulate and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an Investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a 561-A No. 66/2010 Page 12 of 20 specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
18. That prior to Bhajan Lal's case (supra), the Supreme Court when confronted with a plea for quashing the prosecution at the initial stage by invoking the inherent jurisdiction under Section 482 Cr.PC in the case of Madhavrao Jiwajirao Scindia and ors. Vs. Sambhajirao Chandrojirao Angre and ors.; (1988) 1 SCC 692, observed in para 7 as under:-
"7. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the Court cannot be utilized for any oblique purpose and where in the opinion of the Court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage."
19. While the scope of interference by this Court in the criminal proceedings at its threshold in the exercise of powers conferred by Section 561-A Cr.PC is now firmly delineated by the several judgments of the Supreme Court but, what was observed by the Supreme Court in the case of Preeti Gupta and anr. Vs. State of Jharkhand and anr.; (2010) 7 SCC 667 in paragraph 16 and 17 is equally noteworthy. For facility of reference, both the paragraphs of the judgment aforesaid are reproduced hereunder:-
"16. Reference to the following cases would reveal that the courts have consistently taken the view that they must use this extraordinary power to prevent injustice and secure the ends of 561-A No. 66/2010 Page 13 of 20 justice. The English Courts have also used inherent power to achieve the same objective. It is generally agreed that the Crown Court has inherent power to protect its process from abuse. In Connelly Vs. Director of Public Prosecutions (1964) AC 1254; Lord Devlin stated that where particular criminal proceedings constitute an abuse of process, the court is empowered to refuse to allow the indictment to proceed to trial. Lord Saimon in Director of Public Prosecutions Vs. Humphrys (1977) AC 1 stressed the importance of the inherent power when he observed that it is only if the prosecution amounts to an abuse of the process of the Court and is oppressive and vexatious that the judge has the power to intervene. He further mentioned that the court's power to prevent such abuse is of great constitutional importance and should be jealously preserved. "17.The powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. The 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 but court's failing to use the power for advancement of justice can also lead to grave injustice. The High Court should normally refrain from giving a prima facie decision in a case where all the 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 such magnitude that they cannot be seen in their true perspective without sufficient material. Of Course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage."
20. In the backdrop of aforesaid legal position, the case set up by the petitioners for quashing the criminal proceedings in the challan pending before the CJM, Srinagar needs to be examined. Admittedly, it is not a case where the impugned proceedings are manifestly attended with mala-fide or have been instituted maliciously with an ulterior motive for wreaking vengeance on the petitioners or with a view to spite them due to private and personal grudge. No doubt, the powers vested in this Court by virtue of Section 561-A Cr.PC are wide in amplitude but the very vastness of the power would require great caution in its exercise.
21. As rightly said, the inherent power should not be exercised to stifle a legitimate prosecution but at the same time, if the Court comes to the 561-A No. 66/2010 Page 14 of 20 conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice would be met if the proceedings assailed are quashed, it would not hesitate to intervene. Similarly, if from the perusal of the challan and the evidence collected by the investigating agency, the Court is satisfied that the evidence collected if taken at its face value and accepted in its entirety, does not prima facie constitute any offence or make out a case against the petitioners, it would be well justified to interfere even at threshold stage and quash the proceedings, for no useful purpose would be served by sending the petitioners to trial and making them to undergo the agony when this Court is more than certain that on the basis of evidence collected, there are no chances of the petitioners being held guilty on the conclusion of the trial.
22. In the light of the aforesaid, I have carefully examined the evidence, particularly the one collected by the respondents to prove the involvement of the petitioners in fabricating/creating false evidence by pressurizing, inducing and threatening the eye witnesses to make false depositions implicating the police/security personnel in the commission of offences of rape and murder of the deceased ladies.
23. From the perusal of statements of two star witnesses, namely, Ghulam Mohiuddin Lone and Abdul Rashid Pampori, got recorded by the CBI before the Judicial Magistrate under Section 164-A Cr.PC, I find that there is sufficient evidence against the petitioners that they alongwith others threatened and induced Ghulam Mohiuddin Lone and Abdul Rashid Pampori to give false evidence, first before the Jan Commission and then before the CJM Shopian when their statements under Section 164-A Cr.PC were got recorded by the police station, Shopian to implicate the personnel of police/security so as to procure their conviction of capital offence. The ingredients of Section 195-A RPC are, therefore, met. For facility of reference, Section 195-A RPC is reproduced hereunder:-
561-A No. 66/2010 Page 15 of 20"195A Threatening or inducing any person to give false evidence.
Whoever-
(i) Threatens any person with any injury to the person, reputation or property or to the person or reputation of any one in whom that person is interested; or
(ii) Induces any person through any means, to cause such person to give false evidence, shall be punished with imprisonment of either description for a term of which may extend to seven years, or with fine, or both."
24. The evidence collected by the respondents when examined in the light of the provisions of Section 195-A RPC, this Court has no doubt in mind that the respondents have collected sufficient evidence against the petitioners which prima facie show the involvement of the petitioners in threatening and inducing the witnesses to create false evidence to implicate the security personnel in the commission of offences. However, Section 193 RPC would not be attracted in the case for the simple reason that the Section provides punishment to a person who intentionally gives false evidence "in any stage of judicial proceeding"
or fabricated false evidence for the purpose of being used in any stage of judicial proceeding. Before analysing the provisions of Section 193 RPC, it would be appropriate to reproduce Section 193 RPC, which reads as under:-
"193. Punishment for false evidence.
Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of either description for a term which may extent to seven years, and shall also be liable to fine;
and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a tem which may extent to three years, and shall also be liable to fine."
25. From perusal of Section 193 RPC, it is abundantly clear that the Section provides punishment to a person who intentionally gives false evidence in any 561-A No. 66/2010 Page 16 of 20 stage of judicial proceeding or fabricate false evidence for the purpose of being used in any stage of initial proceedings.
26. Going by the evidence collected during the investigation by the respondents which has culminated into presentation of challan, the false evidence which was alleged to have been created by the petitioners intentionally is the statements made by Ghulam Mohiuddin Lone and Abdul Rashid Pampori before the Jan Commission, and the CJM Shopian under Section 164-A Cr.PC. Admittedly, these statements were made during the course of investigation and, therefore, cannot be said to be a false evidence given in any stage of judicial proceeding.
27. Now, the question "whether that allegations against the petitioners of inducing and threatening the witnesses to make false statement before the Jan Commission as also the CJM, Shopian amounts to fabricating false evidence"
needs determination. "Fabrication of false evidence" is defined in Section 192 RPC which, for facility of reference, is reproduced hereunder:-
"192. Fabricating false evidence Whoever causes any circumstances to exist or [makes any false entry in any book or record, or electronic record or makes any document or electronic record containing a false statement] intending that such circumstances, false entry or false statement may appear in evidence in a judicial proceedings, or in a proceeding taken by law before a public servant as such, or before an arbitrator and that such circumstance, false entry or false statement, so appearing in evidence, may cause any person who in such proceeding is to form an opinion upon the evidence, to entertain an erroneous opinion touching any point material to the result of such proceeding, is said "to fabricate false evidence"
Fabrication of false evidence could be attributed to a person who causes any circumstance to exist or makes any false entry in any book or record, or electronic record or makes any document or electronic record containing a false statement intending that such circumstance, false statement may appear in the evidence in the judicial proceedings or in a proceedings taken by law before a public servant.
561-A No. 66/2010 Page 17 of 2028. I do not find any evidence in the challan which would show that the petitioners were responsible to cause any circumstance to exist or made any false entry in any book or record or electronic record with an intention that the same may be used in the judicial proceedings or in any proceedings taken by law before a public servant or arbitrator etc.. Once the evidence collected by the respondents even if taken to be truthful on its face value and admissible in evidence, the same does not indicate that there has been any fabrication of false evidence by the petitioners.
29. That being so, the commission of offence under Section 193 RPC is not made out against the petitioners.
30. Insofar as Section 167 RPC is concerned, the same pertains to a public servant framing an incorrect document intended to cause injury and, therefore, would not be attracted against the petitioners. The petitioners are neither the public servants nor were they, in any manner, instrumental in framing any incorrect document. The aforesaid offence appears to have been pressed into service against the accused doctors who had allegedly prepared false post- mortem reports confirming the commission of offences of rape and murder. The petitioners, however, appear to have been dragged into the aforesaid charge by aid of Section 120-B RPC. The only question now remains to be determined is as to whether there was a criminal conspiracy hatched by the petitioners alongwith others for the commission of offences alleged against them.
31. From a perusal and careful scrutiny of the evidence collected by the investigating agency, it is abundantly clear that there had been no meeting of minds or prior concert between the accused doctors who conducted the post- mortem on the deceased ladies and the petitioners who allegedly made Ghulam Mohiuddin Lone and Abdul Rashid Pampori to make false statements before the Jan Commission and the learned CJM Shopian. The investigation, however, reveals that petitioners came into action only after the two post-mortems had 561-A No. 66/2010 Page 18 of 20 already been conducted on the deceased ladies confirming the commission of offences of rape and murder.
32. Going by the evidence collected by the respondents, the petitioners came in picture later and their role started when they approached Ghulam Mohiuddin Lone to falsely depose before the Jan Commission as well as the CJM, Shopian to implicate police/security agencies. There is not an iota of evidence in the challan from where it could be even inferred that there was some meeting of mind or prior concert which could be termed as conspiracy between the accused doctors who falsified the record and fabricated the evidence and the petitioners who made the two witnesses to depose falsely. However, the conspiracy between the petitioners and other accused-Advocates including two other persons named in the challan could be inferred but that conspiracy was only limited to inducing and pressurizing the two witnesses to falsely depose before the Jan Commission and the CJM Shopian, implicating the personnel of police/security in the commission of the crime which, if proved, is punishable under Section 195-A RPC.
33. In view of the aforesaid analysis, I have no hesitation to hold that putting the petitioners to trial for the commission of offences under Sections 167, 193 and 194 RPC read with Section 120-B RPC would be a sheer abuse of the process of law as the evidence collected in the challan even if accepted in its entirety as the gospel truth, would not make out a case of commission of aforesaid offences. I, however, find sufficient evidence available in the challan to prima facie indicate the involvement of the petitioners alongwith others for commission of offences under Section 195-A RPC. The argument of the learned counsel for the petitioners that the evidence collected by the respondents in the shape of statements of Ghulam Mohiuddin Lone and Abdul Rashid Pampori recorded under Section 164-A Cr.PC before Judicial Magistrate is untrustworthy and inadmissible in law cannot be accepted at this stage for the simple reason that the truthfulness, veracity or even the 561-A No. 66/2010 Page 19 of 20 admissibility of a particular piece of evidence cannot be gone into these proceedings being a subject matter of trial. However, nothing prevents the petitioners to raise all these contentions before the trial Court, when the matter comes up for framing of the charge.
34. Viewed thus, the petition is partly allowed. The challan against the petitioners, insofar as it pertains to the commission of offences under Section 193, 194 and 167 RPC read with Section 120-B RPC, is quashed. However, the challan would proceed as against the petitioners for offence under Section 195- A RPC. It is, however, made clear that the petitioners would be at liberty to raise all contentions and arguments available to them at the time of framing of the charge and nothing said hereinabove would be taken as an expression of opinion on the merits of the case, insofar as, the charge-sheet against the petitioners for commission of offences under Section 195-A RPC is concerned.
35. Disposed of accordingly.
(Sanjeev Kumar) Judge Srinagar
26. 03.2018 Tarun Judgment is pronounced by me in terms of Rule 138 (3) of the Jammu and Kashmir High Court Rules, 1999.
(M.K Hanjura) Judge Srinagar 26.03.2018 561-A No. 66/2010 Page 20 of 20