Jammu & Kashmir High Court - Srinagar Bench
Showkat Ahmad Teesa vs State And Ors. on 12 September, 2017
HIGH COURT OF JAMMU AND KASHMIR-
SRINAGAR
Case No: 561-A 47/2017 Dated : 12th of Sept, 2017
SHOWKAT AHMAD TEESA VERSUS STATE AND ORS.
ORDER SHEET
CORAM:
HON'BLE MR. JUSTICE M.K.HANJURA- JUDGE
i. Whether to be approved for
reporting in NET : YesNo
ii. Whether to be approved for
reporting in Digest/Journal : Yes/No
FOR THE PETITIONER/s : MR. G.Q.BHAT
FOR THE RESPONDENT/s: . MR.R.A.KHAN, AAG & SUHAIL HAQANI
(M.K.HANJURA-J)
01/ One Bilal Ahmad Dar S/O Ghulam Mohammad Dar R/O
Lazbal, Kadipora, Anantnag, lodged a written report before the
authorities of the Police Post, Sher Bagh, Anantnag, on 09-07-2016
at about 1400 hrs., stating therein that the accused - Showkat Ahmad
Teesa S/O Ghulam Qadir Teesa R/O Kadipora, Anantnag, caught
hold of his mother -Mst. Fatima Bano, at Kadipora, Anantnag,
subjected her to beating, as a consequence of which, she gave up the
ghost. In furtherance of this report, a case F.I.R bearing No.
196/2016, for an offence u/s 302, was registered against the accused,
with which the investigation commenced. After the conclusion of the
investigation of the case, the police authorities laid a report in terms of
Section 173 Cr.PC against the accused, before the Court of Judicial Magistrate,
Anantnag, for an offence u/s 304 RPC. The learned Magistrate, by his
order dated 06-10-2016, committed the case to the Court of
learned Sessions Judge, at Anantnag, u/s 205-D Cr.PC.
02/ By order dated 20-02-2017, the Court of Principal Sessions
Judge, Anantnag, directed that from the perusal of the
material/evidence, in particular the ocular evidence, the only
conclusion that can be drawn is that there are sufficient grounds to
presume that the accused, in furtherance of an intention to cause
the death of the deceased, has beaten and assaulted the deceased, and
has, thus, committed an offence punishable u/s 302 RPC.
03/ The accused/petitioner filed the instant petition for quashing
the order dated 20.02.2017, of the learned Session Judge, Anantnag,
impugned herein, on the grounds, inter alia, that the same amounts
to the abuse of the process of Court and it has resulted in grave
miscarriage of justice. The Learned Sessions Judge, in terms of the
order impugned has held that a, prima-facie, case against the
petitioner/accused is made out for the commission of an offence, u/s
302 RPC and, has, accordingly, charged him for the commission of
the said offence. He has proceeded to state that although he brought
it to the notice of the Court below that no case is made out against
him, yet the learned Judge, framed a formal charge against him by
dint of the impugned order. It is further pleaded that the trial Court
did not consider the material on record to find out whether the
ingredients of the offence u/s 302 RPC are made out in the case.
Neither the offence u/s 302 RPC, with which the petitioner has been
charged, nor an offence u/s 304 RPC, under which the charge sheet
has been laid before the Court in terms of section 173 Cr.PC can be
said to have been committed by the accused taking into consideration
the facts and circumstances of the case. The Court below, after taking
a cue from the statements of some witnesses, has erroneously
concluded that the accused/petitioner has committed the offence u/s
302 RPC. The order is bad and perverse. It cannot sustain in the eyes
of the law and is liable to be quashed along with the charge sheet.
04/ Heard and considered.
05/ It needs must be said that the law is that the powers of the
High Court u/s 561-A of the Code of Criminal Procedure are very
wide and the very plenitude of the powers requires great caution in
its exercise. 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. The
High Court, being the highest Court of a State, should normally
refrain from giving a prima facie decision in a case where the entire
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 magnitude and cannot be
seen in their true perspective without sufficient material.
06/ Looking the instant case from the above perspective, the
charge framed against the petitioner/accused by the learned Judge, is
based on the material, gathered by the Investigating Agency during
the course of investigation and presented before the Court below in
the form of police report/challan. The learned Sessions Judge after
evaluating the material available on record has passed a reasoned
order and has formally charged the petitioner/accused for the
aforementioned offences. The order of the learned Sessions Judge
does not call for any interference at this stage, in view of the law
laid down by the Hon'ble Apex Court of the country in the case of
Kanti Bhadra Shah and Anr. V. State of West Bengal, Cr. LJ 746,
wherein it has been held as under :
(8) We wish to point out that if the trial Court decides to frame a
charge there is no legal requirement that he should pass an
order specifying the reasons as to why he opts to do so.
Framing of charge itself is prima facie order that the trial
Judge has formed the opinion, upon considering the police
report, and other documents and after hearing both sides, that
there is ground for presuming that the accused has committed
the offence concerned.
.............................................
Even in cases instituted otherwise than on police report the Magistrate is required to write an order showing the reasons only if he is to discharge the accused.........." 07/ The same view has been repeated and reiterated in the case of Dinesh Tiwari v. State of U.P and Anr., reported in (2014) 13 SCC 137, the relevant excerpts of which are reproduced below :
"12. In the instant case, it is not alleged that the Sessions Judge has not followed Sections 226 and 227 Cr.PC before framing the charge. Further, it is not the case of the appellant that the Court has not given him hearing at the stage of discharge under section 227 Cr.PC. For framing the charge under section 228, the Judge is not required to record detailed reasons as to why such charge is framed. On perusal of record and hearing the parties at the stage of discharge under section 227 Cr.PC, if the Judge is of the opinion that there is ground for presuming that the accused has committed an offence, he is competent to frame charge for such offence even if not mentioned in the charge-sheet. We find no merit in this appeal. The appeal is accordingly dismissed."
08/ The learned Judge has spelt out the reasons that constrained him to formally charge the accused/petitioner for the commission of an offence u/s 302 RPC. However, even if the reasons would not have been recorded still then the order impugned could not be called in question on the analogy of the law down (supra). It is only when the trial Court opts to discharge the accused that reasons prompting the trial Judge to discharge the accused/petitioner are required to be recorded.
09/ Looking at the instant matter from another angle, it is trite that at the stage of framing the charge, the Court has to assess and evaluate the documents and the material on record. If, on such assessment and evaluation, the facts of the case taken at their face value, disclose the commission of an offence, the Court can well be within its domain and power to charge the accused for the offence. The Court has not to peep deep into the case to find the probative value of the material placed on record. The Court is not required to appreciate the evidence in order to arrive at the conclusion whether, or not, the material produced is sufficient or insufficient. The reasons given by the learned Sessions Judge and the conclusions arrived at are based on the sound principles of the law and the facts applied to the case. The learned Sessions Judge, after giving a brief resume of the evidence collected during the course of investigation of the case, has opined that the evidence, on the face of it, leads one to conclude that the accused/petitioner has committed the offence of section 302 RPC with which he has been charged. The statements of the witnesses that have been recited in the order are that the accused/petitioner subjected the deceased to beating with kicks and blows and assaulted her with a plastic staff on her head and neck, as a consequence of which, she fell down. She turned unconscious and was immediately evacuated to the hospital situated at a nearby place, where she was declared dead on the day of the occurrence itself. On the basis of this evidence, the Court below framed an opinion that, prima facie, the commission of an offence u/s 302 RPC is made out against the accused/petitioner. It cannot, therefore, be said that the learned Sessions Judge, Anantnag, erred in reaching at such a conclusion.
10/ Sub section (1) of section 269 of the Central Procedure Code, provides that if, after such consideration and hearing as aforesaid, the learned Judge is of the opinion that there is ground for presuming that the accused has committed an offence which ; a) is not exclusively triable by the Court of Sessions, he may frame charge against the accused and by order, transfer the case to the Chief Judicial Magistrate or any Judicial Magistrate competent to try the case, and thereupon the Chief Judicial magistrate or any Judicial magistrate, to whom a case may have been transferred, shall try the offence in accordance with the procedure provided for the trial of warrant cases instituted on police report; b) is exclusively triable by the Court, he shall frame in writing a charge against the accused. 11/ What comes to the fore from the perusal of the sub section (1) of section 269 supra, is that the main thrust is on the words "committed an offence", meaning thereby that the learned Judge has not to judge the matter with closed eyes but he has to see, whether the commission of "an offence", is disclosed from the documents and the material placed before him. In doing so, he is not obliged to stick to the opinion framed in the report laid under section 173 Cr.PC, if the facts and circumstances of the case, prima facie, disclose the commission of an offence other than the one stated in the police report, on the same set of facts and the material on record. The emphasis and impetus being on the words "an offence", the connotation would be any offence, the commission of which is disclosed in the peculiar circumstances of a case. The Court is not supposed to act as a person who speaks for the investigating Agency. The Court has to frame a charge, applying its own independent mind to the facts and circumstances of a given case and can modify the section or sections incorporated in the police report. This is what has precisely been done by the learned Sessions Judge here in this case.
12/ For the reasons discussed, I do not find that the order of learned Sessions Judge, Anantnag, suffers from any infirmity, illegality and warrants interference. Therefore, no case is made out for exercise of inherent powers under Section 561-A Cr.PC. Petition is, accordingly, dismissed along with connected MPs and Bail Application No. 19/2017.
13/ A copy of this order along with the relevant record shall be sent to the Court below, with utmost dispatch, for proceeding in the matter in accordance with the law.
TARIQ Mota SRINAGAR.
12 -09-2017 (M.K.HANJURA) JUDGE