Jammu & Kashmir High Court - Srinagar Bench
Shahid Ahmad Wani vs Delhi Administration & Anr on 13 August, 2013
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
561-A Cr. P.C No. 131 of 2013
Cr.MP No. 47 of 2013
Shahid Ahmad Wani
Petitioners
State & Ors.
Respondents
!Mr. Molvi Aijaz, Advocate
^None, Advocate
Honble Mr. Justice Mohammad Yaqoob Mir, Judge
Date: 13/08/2013
: J U D G M E N T :
1. Registration of the case as Crime No.1/2013 Police Station, Shopian, on completion of investigation has culminated in filing charge sheet (challan) before the Court of Judicial Magistrate 1st Class, Shopian who has committed the same to the Court of Learned Sessions Judge, Shopian. On a motion for transfer, vide order of this Court dated 31st May, 2013, case has been transferred to the Court of Sessions Judge, Pulwama.
2. Petitioner seeks quashment of the FIR No.1 of 2013 Police Station, Shopian and also the order dated 28.06.2013, passed by the Court of learned Sessions Judge, Pulwama where-under contentions of the petitioner for discharge have been rejected and petitioner has been put to trial for commission of offences punishable under Sections 363, 342 and 376 RPC.
3. It is trite that the power under Section 561-A Cr. P. C is to be exercised with circumspection. Special case has to be made out which would suggest that the process of law has been abused so as to cause miscarriage of justice. The Court has to be loath in exercising such power so that trial proceedings or other proceedings may not get protracted to the detriment of the object of the trial.
4. It is no more res integra that at the time of framing or otherwise of the charge, in keeping with the mandate of Sections 268 and 269 of the Code of Criminal Procedure, Samvat 1989 (which corresponds to Section 227 & 228 of the Central Code), the material collected during the course of investigating by the Investigating Agency has to form base for framing or otherwise of the charge. If on consideration of such material, prima-facie, commission of offence by the accused is not forthcoming, then the accused has to be discharged. Court has not to act as a mouthpiece of the prosecution so as to blindly accept what prosecution says.
5. The consideration and hearing at the stage of charge in a sessions trial is not an idle formality. It has an objective to be achieved i.e. material collected by the Investigating Agency must be such which ultimately connects the accused with the commission of offence so as to entail conviction. Sessions Court has been clothed with power to see that un-necessarily a person is not made to face the trial.
6. Learned counsel for the petitioner with eloquence at his command tried to project that there is no material, which would connect the accused with the commission of offence. According to him accused is a victim of conspiracy, for wrecking vengeance he has been falsely implicated in the case. In this connection, he has highlighted that Mst. Mehmooda, mother of the petitioner, on 02.01.20013 at about 4.30 PM was attacked by the complainant party, she was dragged, her hair were plucked, she was injured and her modesty was outraged, an application in this behalf was filed before the Court of Chief Judicial Magistrate, Shopian on 03.01.2013 who had endorsed the same to SHO, P/S Shopian for action under law. Then the matter was also taken up with District Magistrate, Shopian who vide his letter dated 04.01.2013 directed SSP, Shopian to intervene into the matter, lodge FIR against the culprits and to investigate the matter. Case was thereafter registered on 12.01.2013 as FIR No.8/2013 for commission of offences punishable under Sections 148, 341, 354, 323, 392, 336, 427 and 452 RPC against the complainant party. It is in the same background, in order to neutralize the action under law, the complainant party lodged FIR against the petitioner for commission of offence punishable under Section 376, 342 RPC. Such contention cannot prevail at this stage, it can be a defence to be proved during trial.
7. Next it is contended by the learned counsel for the petitioner that there is delay in lodging the FIR, same has not been taken note of. Registration of the case is outcome of publicity of the occurrence in electronic media and also on the basis of pressure mounted by Bar Association, Shopian. Such was the pressure mounted and continued that the petitioner was forced to move motion for transfer of the case from Shopian to Pulwama which has been accepted.
8. This contention has to be rejected because it is a matter which can be sorted out at trial, at the most, it can be set up as a defence to be proved during trial.
9. Learned counsel tried to lay much stress on the news items regarding occurrence as had appeared in the press and has placed copies of the same on record. However, same at this stage is of no help to the petitioner because press notes or any other document, which the accused wants to project in defence, is impermissible to be taken into consideration at the stage of framing or otherwise of the charge. No doubt, Court has power to truncate proceedings right at the stage of framing of the charge provided there is no material connecting the accused with the commission of the offence or documents of impeachable character are produced by the accused so as to negate the prosecution theory conclusively.
10. While going through the records, there is ample evidence which, prima-facie, shows involvement of the accused. Secondly there is no such document of unimpeachable character produced by the petitioner or available with the petitioner which would persuade the Court to hold that there is no prospect of the trial ending into conviction. From the judgment rendered by the Honble Apex Court captioned Satish Mehra vs. Delhi Administration & anr, reported in 1996(3) Crimes 85 (SC), following portions from paras 12 and 13 are relevant to be quoted:
.If the materials produced by the accused event at the early stage would clinch the issue, why should the Court shut it out saying that such documents need to be produced only after wasting a lot more time in the name of trial proceedings. Hence, we are of the view that Sessions Judge would be within his powers to consider even materials which the accused may produce at the stage contemplated in Section 227 of the code. .If the Sessions Jude is almost certain that the trial would only be an exercise in futility or a sheer waste of time it is advisable to truncate or ship the proceedings at the stage of Section 227 of the Code itself.
11. It is true that the material collected by the investigating agency is not to be accepted as a gospel truth and it is in the same background Court of Sessions has been empowered to sift material for limited purpose of ascertaining whether there is a case or not and now in view of the law laid down by the Honble Apex Court, Scope of Section 268 Cr. P. C has been widened so as to accept the documents as shall be produced by the accused even at the stage of charge provided such documents are of unimpeachable character not otherwise.
12. Next it is contended by learned counsel for the petitioner that it is only the prosecutrix who has stated against the petitioner whereas the statements of other witnesses recorded under Section 161 Cr. P. C do not in any manner support the version of the prosecutrix.
13. While considering the submission, what would emerge from the records is that the statement of the prosecutrix has been recorded under Section 164-A Cr. P. C. In her statement, to be precise, she has in clear terms given a complete account as to how she has been traumatized and, how she has been ravished. Few lines relevant to be quoted from her statement are, accused dragged her into a house, she cried but there was no one available. Door was shut by the accused, she tried to see if anyone is available and tried to save herself but in vain, accused caught hold of her, did pull down her trouser and sexually assaulted her forcibly, she was feeling as she was losing her breath, she was kept locked in a room, people could not come out as the accused is very dangerous and he intimidated her that in case she divulges it to any one she would be subjected to an awkward situation. Accused is a gangster.
14. Sameena, sister of the prosecutrix in her statement under Section 161 Cr. P. C has stated that she was told by the prosecutrix that the accused sexually assaulted her. Father of the prosecutrix, Shabir Ahmad, in his statement under Section 161 Cr. P. C has stated that on 25th November, 2012, her daughter (prosecutrix) was sexually assaulted by the accused as divulged by his daughter. The accused after committing such act had fled and gone out of State.
15. Learned counsel referred to the statements of certain witnesses recorded under Section 161 Cr. P. C, such as Shabir Ahmad Malik who has stated that he has no knowledge about the occurrence, same is statement of one Zahoor Ahmad Lone and ab. Rashid. One more witness Mushtaq Ahmad Wagay has stated that the accused and complainant party have some dispute. Contention of the learned counsel in this behalf tend to show that he wants appreciation of the evidence so as to ascertain truth and effect of the evidence which is totally impermissible. At the stage of framing or otherwise of the charge, evidence is not to be appreciated in a manner which is permissible after the trial. At this stage it is to be appreciated in a limited manner so as to ascertain prima facie involvement of the accused for the purposes of framing of charge.
16. The evidence which the prosecution proposes to adduce at the stage is only is to stand prima facie test of truthfulness. If strong suspicion exists which leads the Court to think that there is ground for presuming commission of offence by the accused, then it shall be impermissible for the Court to say that there are no sufficient grounds.
17. Statement of the prosecutrix recorded under Section 164-A Cr. P. C by no stretch of imagination is permissible to be ignored. Her statement shall be enough if finally, after cross examination, same inspires confidence for drawing the conclusion that the accused has committed the offence. The truth, veracity and effect of her deposition has to stand the test at the trial and in the process accused has also a right to defend. There is no other evidence, material or document which at this stage can be termed to be of unimpeachable character so as to negate the theory of prosecution so as to persuade the Court to truncate the proceedings.
18. It appears that the instant petition has been filed to gain the time and to delay the trial of the case which cannot be appreciated. Learned counsel for the petitioner during the course of arguments tried to highlight that the accused is tried to be victimized for various reasons and circumstances. It is to be made clear that the courts of law have to administer justice according to law. The question of victimization or otherwise is a theory which can be exposed during the course of trial of the case. Simply to say victimization at this stage is a theory to neutralize the impact of the case which cannot be accepted unless proved during trial.
19. For the stated reasons, the trial court, in keeping with the mandate of Sections 268 and 269 Cr. P. C, has appreciated the facts of the case and has properly applied the law. Impugned order does not call for any interference. The petition filed is totally misconceived, no notice is warranted to be issued to the other-side, as such, dismissed.
20. Trial court shall not be influenced by any of the observations made hereinabove in conducting the trial and in deciding the matter on its own merits
21. While parting, it shall be quite appropriate to observe and direct that the offence allegedly committed is very heinous. At the same time the urgency of truncating the proceedings, as the petitioner has been trying to project by stating that he is innocent, case requires fast track trial so that respective objectives are achieved. Learned Sessions Judge, Pulwama shall schedule the hearing of the case fortnightly and shall impress upon the prosecution to keep the witnesses in attendance so that case is not adjourned on any date of hearing without substantial proceedings, except for just cause.
22. Copy of the order be send to the trial court for information and compliance.
(Mohammad Yaqoob Mir) Judge Srinagar 13.08.2013 Mohammad Altaf