Jammu & Kashmir High Court - Srinagar Bench
Syed Owais Mehraj vs Central Bureau Of Investigation ... on 11 May, 2015
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR 561-A No. 68 of 2014 Syed Owais Mehraj Petitioners Central Bureau of Investigation Srinagar Respondents !Mr. M. A. Rathore, Advocate ^Mr. S. A. Makroo, ASGI. Honble Mr. Justice Muzaffar Hussain Attar, Judge Date: 11/05/2015 : J U D G M E N T :
(Oral) In this petition the order of Special Judge Anticorruption dated 07.02.2013 is called in question on the ground that the learned trial Judge has not applied his mind to the facts of this case and Section 464 Cr.P.C has not been complied with.
Report under Section 173 Cr.P.C has been filed against eleven persons including the petitioner also before the Court of the Special Judge Anticorruption, Srinagar in challan FIR No.4(A) of 2011 under Section 120-B read with 420, 467, 468, 471 RPC and Section 5(1)(d) read with 5(2) of Prevention of Corruption Act. The petitioner is arraigned accused No.2 in the report filed under Section 173 Cr.P.C.
Before the trial Court could consider the case for framing of charge or discharge of the accused, an application was filed on behalf of petitioner through his brother, who is also accused in the case, for proceeding against the petitioner in terms of Section 464 and 465 Cr.P.C.
The learned trial Court on 21.11.2013 examined the petitioner by putting him some questions. The questions put to the petitioner and the answers given by him thereto are taken note of:-
Q.1: Where you are standing at this time and in whose presence?
A: I am standing in the court in presence of Judge Sahib.
Q.2: What is the profession of your father?
A: My father is a contractor by profession.
Q.3: What is the name of your elder brother accompanying you
in the court?
A: The name of my elder brother is Syed Afaq Mehraj.
Q.4: For what purposes you appear in the court?
A: I appear in the court in connection with a case against me.
Q.5: Whether you have engaged any counsel for defending
your case?
A: Yes. I have engaged counsel for the defence of my case.
The Court in view of the questions put to the petitioner-accused and answers given by him recorded finding that the petitioner-accused is not of unsound mind.
Learned counsel for the petitioner submitted that duty was cast on the learned trial Judge to deal with the petitioner in accordance with Section 464 Cr.P.C, inasmuch as, an application has been filed on his behalf, which is supported by the material to indicate that the petitioner is of unsound mind.
In order to deal with this matter in proper perspective, Section 464 Cr.P.C and Section 465 Cr.P.C are taken note of:-
464. Procedure in case of accused being lunatic-
(1) When a Magistrate holding an inquiry or a trial has reason to believe that the accused is of unsound mind and consequently incapable of making his defence, the Magistrate shall inquire into the fact of such unsoundness, and shall cause such person to be examined by the Chief Medical Officer of the Province or such other medical officer as [the Government] direct, and thereupon shall examine such Chief Medical Officer or other officer as a witness, and shall reduce the examination to writing.
(1-a) Pending such examination and inquiry, the Magistrate may deal with the accused in accordance with the provisions of section 466.
(2) If such Magistrate is of opinion that the accused is of unsound mind and consequently incapable of making his defence, he shall record a finding to that effect and shall postpone further proceedings in the case. 465. Procedure in case of person committed before Court of Session or High Court being lunatic-
(1) If any person committed for trial before a Court of Session or the High Court appears to the Court at his trial to be of unsound mind and consequently incapable of making his defence the Court shall, in the first instance, try the fact so such unsoundness and incapacity, and if the Court is satisfied of the fact, the Judge shall record a find to that effect and shall postpone further proceedings in the case. (2) The trial of the fact of the unsoundness of mind and incapacity of the accused shall be deemed to be part of his trial before the Court. Section 464(1) prescribes that when a Magistrate holding an inquiry or trial has reason to believe that the accused is of unsound mind and consequently incapable of making his defence, he shall inquire into the matter and shall cause such a person to be examined by the Chief Medical Officer of the Province or such other medical officer as the Government direct, and thereupon shall examine such Chief Medical Officer as a witness and shall reduce the examination in writing. It is further provided in terms of sub Section (1)(a) of Section 464 Cr.P.C that pending such examination and inquiry, the Magistrate may deal with the accused in accordance with the provisions of Section 466. It is further prescribed by sub Section (2) of Section 464 Cr.P.C that if such Magistrate is of opinion that the accused is of unsound mind and consequently incapable of making his defence, he shall record a finding to that effect and shall postpone proceedings in the case.
Sub Section (1) of Section 464 Cr.P.C mandates that when a Magistrate holding an inquiry or a trial has reason to believe that the accused is of unsound mind, then he has to follow the procedure prescribed therein. The procedure for conducting trial before the Special Judge Anticorruption, in view of criminal amendment Act, is that of the procedure which is followed in trials before the Magistrates. Section 464 Cr.P.C is thus applicable in the facts of this case.
In order to initiate action under Section 464 Cr.P.C, the Magistrate, at first, shall have reason to believe that the accused is of unsound mind. In order to arrive at such prima facie conclusion, the Magistrate himself has to undertake an exercise to ascertain the same. The expression reason to believe that the accused is of unsound mind and consequently incapable of making his defence, mandates that before having recourse to Section 464 (1-a) and 464(2) Cr.P.C, the trial court/Magistrate has to undertake an exercise to record a prima facie finding, for having, reasons to believe, that accused is of unsound mind. The learned trial Judge in this case has put as many as five questions to the petitioner-accused. The learned trial Judge has recorded finding that the petitioner is of sound mind.
This Court has examined the questions put to the petitioner-accused and answers given by him. From the examination of the questions put to the petitioner-accused and the answers given by him, no reasonable person will have reason to believe that the petitioner is of unsound mind. It is only after the Magistrate records some reasons that the accused is of unsound mind then he has to follow the provisions contained in Section 464 Cr.P.C.
In this case learned trial Judge has recorded the finding that the petitioner-accused is not of unsound mind.
The questions put to the accused-petitioner and the answers given by him do satisfy this Court also that the petitioner is not of unsound mind.
In the aforesaid fact situation the order of learned trial Judge does not call for any interference. This petition is accordingly dismissed.
(Muzaffar Hussain Attar) Judge SRINAGAR 11.05.2015 Sarveeda