Hans Raj Parihar & Ors vs State Of J&K And Anr on 23 December, 2022

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Jammu & Kashmir High Court

Hans Raj Parihar & Ors vs State Of J&K And Anr on 23 December, 2022

1. Through the medium of instant criminal transfer application filed under Section 526 of the Code of Criminal Procedure, Svt. 1989, the applicants seeking transfer of the criminal challan/case titled „State vs Hans Raj Parihar and others‟ for the commission of offences under Sections 120-B, 302 and 364 RPC from the Court of learned Sessions Judge Bandipore to any other Criminal Court of equal or superior jurisdiction at Jammu.

2. It is stated in the application that the applicants and the proforma respondent herein who belong to the J&K Police Department, are facing criminal trial for the charge under Sections 302, 364 and 120-B RPC in the above titled case being File No. 67/B, 53/B/Session in the court of learned Sessions Judge, Bandipore. The aforesaid criminal challan owes its genesis to the FIR No.52/2006 of Police Station Sumbal, Registered on 14.03.2006, investigation whereof culminated into the filing of the Charge sheet by the police in the Court of learned CJM Sopore on 18.04.2007 wherein besides the petitioners four more persons came to be arrayed as 2 CRTA No. 19/2018 accused namely 1.Col.Vikram Singh, 2. Major Naveen Yadav, 3. Havaldar K. Manhasdas, 4 Naik Manoj Singh (all Army Personnel); that the prosecution deliberately and intentionally presented the aforesaid challan in absence of the accused Army Personnel, the said Army personnel have then approached the Hon‟ble High Court by filing 561-A Cr.P.C and got the trial of the case stayed and it was only in the year 2013 after the said stay was vacated by the High Court, Srinagar the army personnel left with no other option opted for the trial of Army personnel by the Army Authorities before the court of learned CJM Bandipora the above said challan came to be bifurcated and the trial of the petitioners commenced; that since then the prosecution is leading evidence and is still in the process of leading the evidence and only 12 witnesses have been examined and 66 witnesses are yet to be examined.

3. Heard and considered.

4. Learned counsel for the petitioners vehemently argued that almost all the local witnesses from Ajas have been examined at Bandipora and some local witnesses have been left over by the prosecution on their own as the prosecution does not want to examine them. It is further argued that out of the remaining sixty six (66) witnesses, forty seven (47) witnesses are police officials, seven (7) witnesses are from Kokernag, three (3) are from Kulgam one (1) is from Anantnag and seven (7) are from Srinagar. It is further argued that for the private witnesses from Kulgam, Kokernag, Srinagar and Anantnag which is at least 180 km away from Bandipora, it is easy, feasible and safe for them to come to Jammu as the witness in spite of going to Bandipore, which is a very dangerous area regarding militant activities and Jammu is also at the same distance as is Banipore for them and prayed that the present application be allowed and the aforesaid case may kindly be transferred to any other Criminal Court of Competent jurisdiction at Jammu.

5. Learned counsel for the respondents has orally opposed the application seeking transfer the aforesaid case from the Court of learned Sessions Judge Bandipore to any other Criminal Court of equal or superior jurisdiction at Jammu on the ground that only 12 witnesses have been recorded so far and the petitioners have also not stated about the present status of the case as to whether any further prosecution witnesses have 3 CRTA No. 19/2018 been recorded or not. It is also argued that in case the aforesaid case is transferred to Jammu, inconvenience would be caused to the local witnesses cited in the challan. The order relied upon by the learned counsel for the petitioners, is of the year 2015, it is apt to reproduce order dated 12.05.2015 is as under:

"PP is present. The accused are brought in custody. L.C is also present. Learned PP has submitted that no PW is present in the Court. He has submitted in the court that he does not want any left-over witnesses out of PWs from Ajas to be examined in the Court. He seeks time to produce the other evidence in the case. File shall come up for statements of PWs

6 to 9. Put up on 01.06.2015. The accused are sent to judicial lockup and be produced on the next date."

6. The learned counsel for the respondents has argued that it would be appropriate if the direction be given to the respondents to send the present status of the case as how many witnesses have been recorded after the order dated 12.05.2015.

7. In view of the aforesaid facts and circumstances of the case, respondent No.1- SHO Police Station, Sumbal, Srinagar is directed to file the fresh status report, as to how many prosecution witnesses have been examined since 12.05.2015 till today, with regard to File No. 67/B, 53/B/Session pending in the Court of learned Sessions Judge, Bandipore, arising out of FIR No. 52/2006 on the next date of hearing.

8. The Registrar Judicial of this Court is directed to get the report from Court of learned Sessions Judge, Bandipore in File No. 67/B, 53/B/Session with regard to the aforesaid fact through FAX also.

9. List on 10.02.2023.

(Mohan Lal) Judge Jammu:

23.12.2022 Vijay

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