Jammu & Kashmir High Court - Srinagar Bench
Sajad Ahmad Khan vs State And Others on 24 September, 2021
Author: Vinod Chatterji Koul
Bench: Vinod Chatterji Koul
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
...
CRMC no.171/2018
Reserved on: 20.08.2021
Pronounced on: 24.09.2021
Sajad Ahmad Khan
.........Petitioner(s)
Through: Mr S.H.Thakur, Advocate
Versus
State and others
..........Respondent(s)
Through: Mr Sajad Ashraf, GA
CORAM:
HON'BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE
JUDGEMENT
1. Exercise of powers under and in terms of provisions of Section 561-A of the Code of Criminal Procedure is sought for by petitioner in this petition to set-aside and quash the Order dated 11th April 2018, passed by Additional Sessions Judge, Handwara (for brevity "Trial Court").
2. Heard and considered.
3. Taking into account the case set up and submissions made by learned counsel for petitioner, it would be appropriate to reproduce certain grounds of challenge of instant petition in verbatim hereinafter:
"A, That the order passed by the trial court is patently against the mandate of the law a on the subject and the direction and the guidelines formulated by the hobble supreme court on the point, the learned trial court has brushed aside all the direction and guidelines which the trial court has to adopt while framing the charge against the accused person, that being so the judgment and the order passed by the trial court is patently against the law settled by the humble supreme court . Thus the impugned order is liable to be set aside.
B, That under the policy of the law adopted in framing the Penal code the offence of the murder has ban categorized in different categories commencing from the section 299 to 304 of Rambir Penal code, keeping in view the situation under which the death is caused, it could be intentional murder, it could death by mistake, it could be death the reliance and carelessness and it could be death in routine death, which is known as culpable homicide not amounting the murder. the punishment is different in different situation depending upon the gravity 2 CRMC no.171/2018 of the offence, state of mind and the situation. the presence case as put forward by the police under section 73 of Cr. P.C., even if accepted on its face value it simple case of death which falls within the definition 304 Part II. This aspect was highlighted and projected before the trial court but the trial court has not recorded any arguments on this aspect of the case, while passing the impugned judgement and order on 11-04- 2018 the case was fixed for the announcement of the judgement on 10- 04-2018 but the order has been passed on 11-04-2018 at the back of the petitioner and his counsel. Thus, the order impugned is liable to be set aside.
C, That the Hon'ble trial court has concealed the important fact which are in favour of the accused person, the factual position has been distorted in the impugned order which go to the root of the matter and the which would become the concreate base for discharge of the accused, the pits were vehemently argued before the trial court at the time of the framing the charge, in light of the appropriate supreme and high court citation. and in light of the provision of the law but neither the provisions of the law nor the citation have been reflected in the impugned order judgement, making the impugned judgement mare collection of the words and wastage of the papers and money of the state exchequer.
xxxxxxxx E, That from the perusal of the impugned order and impugned judgement it appears that the prosecution has failed to make out case of against the petitioner but the court has made the case against the petitioner. The court is acting as second wing of the prosecution..... xsxxxxxxx G. That the trial of the case is being conducted by the trial court in very uneasy manner and method, the job to be done by the prosecution is being done by the court, the prosecution is being given every chance to improve their case and in case the proceedings are allowed to go ahead in this fashion, the question of the fair and expeditors trail will be a distant dream for the petitioner."
4. Perusal of aforesaid grounds of challenge in the petition would unequivocally show that it is an ill-drafted petition. Nevertheless, taking into account that a litigant should not suffer due to an ill-drafted petition, it would be proper to see and consider what counsel for petitioner has argued. According to counsel for petitioner, impugned order is patently against mandate of law as under policy of law adopted in framing the Penal Code, the offence of murder is categorized in different categories commencing from Section 299 to 304 of Ranbir Penal Code keeping in view the situation under which death is caused, it could be intentional murder or it could be death by mistake or it could be death by carelessness or it could be death in routine death, which is known as culpable homicide, not amounting to murder, and the punishment is distinct in different situations, depending upon gravity of offence, state of mind and situation. It is contended that prosecution has 3 CRMC no.171/2018 failed to make out a case against petitioner as there are many loopholes in the prosecution case.
5. Next submission of counsel for petitioner is that after going through the material on record, it can be safely seen and concluded that there is only mere suspicion regarding involvement of petitioner in the case. His further submission is that framing of charge is not a civil exercise of visualizing whether there is a prima facie case made out against accused or not and this is an important principle of law that at the time of framing of charge, the Trial Court has not to sift and waive the evidence but has to appreciate whether there is a strong suspicion against accused. He contends that that there is no iota of mere suspicion muchless grave suspicion which renders impugned order to be quashed and that there is no sufficient ground for proceeding against petitioner.
6. Reply has been filed by respondents. They insist that allegations of petitioner are figment of his imagination and nothing else as there is established charge against accused/petitioner facing trial of a murder case. It is insisted that trial courts are within their duty to examine the material on record and then weigh its gravity before framing the charge against accused that took a serious charge of murder under Section 302 and that evidence placed on record makes it a fit case for conviction if the allegations are proved during conclusion of the trial. It is averred that Trial Court has given ample and sufficient opportunities to both prosecution as well as defence before framing charge against petitioner/accused.
7. Section 561-A of the State Code of Criminal Procedure, which is pari materia to Section 482 Central Code of Criminal Procedures, provides that nothing in the Code shall be deemed to limit or affect inherent powers of the High Court to make such order as may be necessary to give effect to any orders under the Code, or to prevent abuse of the process of any Court or otherwise to secure ends of justice. While exercising powers under Section 561-A Cr. P.C., the Court, however, has to keep in mind that it should not ordinarily embark upon an enquiry whether evidence in question is reliable or not or whether on a 4 CRMC no.171/2018 reasonable appreciation of it, accusation would not be sustained. This is the function of Trial Court. Though judicial process should not be an instrument of oppression or needless harassment but the Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances in consideration before issuing process under Section 561-A Cr.P.C., lest the Section becomes an instrument in the hands of accused persons to claim the differential treatment only because the accused persons can spend money to approach higher forums. This Section is not an instrument handed over to an accused to short circuit a prosecution and bring about its sudden death.
8. It is pertinent to mention here that it has been emphasized times without number through authoritative judicial pronouncements that inherent powers under Section 561-A Cr.P.C. are to be exercised rarely, sparingly and with due circumspection. The power cannot be used to stifle investigation or even prosecution as the law is to be allowed to have its own course and the investigation or prosecution to be taken to its logical end. A very limited scope is available to find out as to whether the case falls within broader parameters as provided and envisaged under Section 561-A Cr. P.C.
9. When Sections 227 and 228 of the Code of Criminal Procedure read together in juxtaposition, as they have got to be, it would be clear that at the initial stage of the trial, the truth, veracity and effect of evidence that prosecutor proposes to adduce are not to be meticulously judged. Any weight is also not to be attached to the probable defence of accused. It is not obligatory for the court at that stage of the trial to consider in any detail and weigh in a sensitive balance whether facts, if proved, would be incompatible with innocence of accused or not. The standard of test and judgment that is to be finally applied before recording a finding qua guilt or otherwise of accused is not exactly to be applied at the stage of deciding the matter under Section 227 or 228 of the Code. The court, at that stage, is not to see whether there is 5 CRMC no.171/2018 sufficient ground for conviction of accused or whether the trial is sure to end his conviction.
10.It is settled position of law that at the stage of framing of charge, probative value of the statement cannot be gone into, which would come to be decided at the closure of the trial inasmuch as at the stage of framing of charge, the court has to consider the material with a view to find out if there is ground for presuming that accused has committed offence or that there is no sufficient ground for proceeding against him and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction. When the case in hand is looked into the context of above well settled law, it flattens in all fours on the touchstone of law laid down by the Supreme Court and various High Courts. Remedy under Section 482 Cr. P.C. and inherent power should not be exercised by the Courts in a routine manner, rather should be exercised sparingly, carefully with caution and in the rarest of the rare cases. The Court has not to function as a court of appeal or revision. [Vide: Som Mittal v. Govt. of Karnataka, 2008 SCW 1003 and M.N.Ojha v. Alok Kumar Srivastav, AIR 2010 SC 201] .
11.A Bench of this Court in Mian Abdul Qayoom v. State and others, 20911 (I) JKJ 470 (HC), has held that the Court should refrain from making prima facie decision at the infancy stage or in a case where all the facts are incomplete and hazy.
12.It may not be out of place to mention here that inherent power cannot be naturally invoked in respect of any matter covered by a specific provision of the Code. It is only after the High Court is satisfied that either an order passed under the Code would be rendered ineffective or that the process of any court would be abused or that ends of justice would not be secured, then the High Court must exercise its inherent powers under Section 561-A/482 Cr. P.C. This power can be invoked only when an aggrieved party is unnecessarily harassed and has no other remedy open to it. The power under Section 482 Cr. P.C. is not intended to scuttle justice but to secure justice. In the present case, the matter pending trial before the Trial Court, has long since crossed the 6 CRMC no.171/2018 stage of framing of charge inasmuch as witnesses might have as well been adduced by parties before the Trial Court, more particularly owing to the fact that when the matter, at first instance, came up for consideration before a Bench of this Court on 4th May 2018, only notice was issued in the matter and no ad interim relief was granted. In such circumstances as well, the matter need not be interfered with.
13.Applying aforesaid test, the instant petition is bereft of any merit as petitioner has failed to make out a case for exercise of inherent powers under Section 561-A Cr. P.C. to quash impugned order. Having said so, petition on hand is dismissed with connected CM(s). Interim direction, if any, shall stand vacated.
14.Copy be sent down.
(Vinod Chatterji Koul) Judge Srinagar 24.09.2021 Ajaz Ahmad, PS Whether the order is reportable: Yes/No.