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HC uphold discharge of 6 accused, directs proceeding against IO

Kashmir Times. Dated: 3/17/2017 10:11:34 AM

JAMMU, Mar 16 (JNF): In a criminal revision filed by state against order of Trial Court whereby Trial Court discharged six accused on October 30, 2006, Jammu & Kashmir High Court Jammu wing upheld judgment of Trial Court with the direction that copy of the order be sent to trial court so as to proceed in the matter vis-à-vis Investigating Officer, in accordance with its order dated October 30, 2006.
According to case, on March 30, 2002 in a Fidayeen attack at Raghunath Temple, two Fidayeens met their fate i.e. they died. The case regarding occurrence was registered as FIR number 134 of 2002, Police Station Bahu Fort which on completion of investigation resulted in filing of challan (charge-sheet) against respondents (accused) for commission of offences punishable under section 3 of Enemy Agents Ordnance Act, 2/3 of Prevention and Suppression of Sabotage Act, Sections 302, 307 and 120-B RPC. The case was committed to the Court of Sessions Judge Jammu. The respondents (accused) opposed the framing of charge on the ground that prima facie no evidence at all is available and therefore there is no question of putting the respondents to trial.
After hearing Senior AAG SS Nanda appearing for state whereas Advocates Rupak Ratta and KK Pathan appearing for respondents, Justice Mohammad Yaqoob Mir observed that it is trite that at the time of framing or other wise of the charge, the trial court is not required to evaluate the evidence nor is obliged to meticulously sift and scan the entire material collected by the investigating agency, enquiry into pros and cons is impermissible but it is also trite that framing of charge is not an idle formality. It is in that context in keeping with the mandate of Chapter XXIII of Code of Criminal Procedure in particular reference to Sections 268 & 269 CrPC, trial court has to evaluate the material collected during investigation for the purposes of ascertaining as to whether prima facie case against the accused exist so as to put accused on trial. The grounds must exist for presuming that accused have committed offence when the wording employed is such then it becomes legal obligation of trial court to evaluate material/evidence based on which charge can be framed.
High Court further observed that from the order impugned it appears that the trial court has been totally alive to the legal position and has thereafter passed a well reasoned order. While discharging the accused (respondents), Trial Court while referring to the entire record has drawn a conclusion that there is not an iota of incriminating evidence against the accused which would link them with the commission of offences directly or indirectly. It is also noticed in the order that 84 witnesses have been shown as listed witnesses, out of whom Prime Witness 1 to 67 are cited as eye-witnesses. These 67 witnesses have only and only implicated two unidentified militants who were killed in an encounter with the security forces. In their statements, there is not a whisper against the accused (respondents).
It is also recorded that even it is not shown anywhere that these two militants were accompanied by any other person. An attempt has been made to show that the respondents are involved by referring to a letter issued by Inspector, Toll Post Manda, Akhnoor wherein it has been shown that a truck bearing JKS-4167 has passed through the Toll Post but in the letter it is specifically stated that truck was empty and nowhere it is said that any person was carrying any arms or ammunition in truck at the time of its checking.
High Court further observed that Trial Court after discussing all aspects precisely that too on strength of material collected during investigation and produced before Court along with charge sheet has finally concluded that prima facie no ground exists against accused which would persuade the trial court to put respondents on trial and trial court has also made it clear that material against the two militants existed but since they were killed, so has to be ignored. But there was sufficient material showing involvement of Virinder Sharma son of Vishal Sharma who has not been arrayed as accused. Noticing that with seriousness, trial court has directed notice to be served upon the investigating officer to show cause as to why he had not arrayed Virinder Sharma son of Vishal Sharma as one of the accused in case.
Justice Yaqoob Mir further observed that today during the hearing, Senior AAG was pointedly asked to show even a single word appearing in the statement of listed cited witnesses so as to persuade this Court to take a view different to what has been taken by trial court or to show whether trial court has erred in concluding that no ground exists for presuming commission of offence by respondents but the records disabled him to negative the same and a well reasoned judgment passed by trial court does not call for any interference. Even though revision may fail on technical ground but it also fails on merits, accordingly is dismissed.
High Court further directed Registry to send copy of this order to trial court so as to proceed in the matter vis-à-vis Virinder Sharma and the investigating officer, in accordance with its order dated October 30, 2006.