Mehraj-Ud-Din Khan Alias Raja ... vs State Of J&K & Another
2021 Latest Caselaw 449 j&K/2

                                 IN THE HIGH COURT OF JAMMU AND KASHMIR
                                               AT SRINAGAR

                                            (THROUGH VIRTUAL MODE)

                                                                     Reserved on: 07.04.2021
                                                                     Pronounced on:19.04.2021


                                                  CRMC No.110/2019

                          MEHRAJ-UD-DIN KHAN ALIAS RAJA KHAN
                                                                             ...PETITIONER(S)
                                           Through: - Mr. Gulzar Ahmad Bhat, Advocate.

                          Vs.

                          STATE OF J&K & ANOTHER
                                                                           ...RESPONDENT(S)

                                             Through: - Ms. Asifa Padroo, AAG.


                          CORAM:      HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE


                                                         JUDGMENT

1) Impugned in this petition filed by the petitioner under Section

561-A of the J&K Code of Criminal Procedure is an order dated 13th

of November, 2015, passed by the Court of learned Additional

Sessions Judge, Sopore ("the trial court", for short) in file No.84

titled State vs. Imtiyaz Ahmad Mir and others. In terms of the

impugned order, protest petition filed by the respondent No.2 for

constituting a Special Investigation Team (SIT) for further

investigation of the case has been disposed of and a direction has been

MOHAMMAD ALTAF BHAT 2021.04.19 14:45 I attest to the accuracy and integrity of this document

issued to add the petitioner herein as an accused in the pending

challan.

2) Briefly stated, the facts leading to the filing of this petition are

that on 20th of April, 2014, Police Station, Sopore, received an

information from reliable sources that some unknown terrorists had

barged into the house of one Khazir Mohammad Naikoo and indulged

in indiscriminate firing killing one Nazir Ahmad on spot and injuring

Shri Shabir Ahmad. On this information, an FIR bearing No.95/2014

under Section 302/307 RPC and 7/25 Arms Act was registered by the

police and investigation in the matter set in motion. While the

investigation was going on, the injured Shabir Ahmad also succumbed

to his injuries and died. The Investigating Officer recorded the

statement of witnesses and on that basis took into custody some

suspected persons for interrogation. The accused Imtiyaz Ahmad Mir,

who was arrested in FIR No.113/2014, made a confessional statement

to the extent that prior to the occurrence he along with accused Aijaz

Ahmad had inspected and identified the house of Khazir Mohammad

Naikoo, the father of deceased Nazir Ahmad, at the instance of one

Shri Muzaffar Ahmad Naikoo. And that, he along with accused Aijaz

Ahmad had made said Muzaffar Ahmad Naikoo aware about the

situation. His further statement was that he along with Javaid Ahmad

Mantoo, Sameer Ahmad Wani and Mehmood Bai proceeded towards

the house of Khazir Mohammad Naikoo in a Maruti car along with

Sajad Ahmad Malla and cordoned off his house. Three gunmen MOHAMMAD ALTAF BHAT 2021.04.19 14:45 I attest to the accuracy and integrity of this document

entered his house and started indiscriminate firing in which Nazir

Ahmad Naikoo died on spot and Shabir Ahmad got seriously injured

etc. etc.

3) On the basis of disclosure statement made by accused Imtiyaz

Ahmad Mir, the vehicle used in the crime was seized. The accused

Imtiyaz Ahmad Mir and Aijaz Ahmad were arrested in the FIR on 27th

of July, 2014. The accused Sajad Ahmad Malla was also formally

arrested in the FIR in question. Muzaffar Ahmad Naikoo and Sameer

Ahmad Wani could not be traced and they were proceeded under

Section 512 Cr. P. C. The other accused, namely, Mehmood Bai was

already killed in an encounter on 22nd June, 2014.

4) The Investigating Officer after completing the requisite

formalities presented the challan before the trial court for disposal

under law. The trial court, on the basis of material collected during

investigation, framed charges against accused Imtiyaz Ahmad Mir,

Aijaz Ahmad and Sajjad Ahmad Malla, who pleaded not guilty and

claimed to be tried. The prosecution commenced its evidence and

examined witness PWs 1 to 5 and PW 8 out of 14 witnesses listed by

the prosecution. The statement of Khazir Mohammad Naikoo, the

de facto complainant, who figured at serial No.1 in the list of

prosecution witnesses, was also recorded by the trial court.

5) While the prosecution witnesses in the case were being

examined, Khazir Mohammad Naikoo, the father of deceased Nazir

MOHAMMAD ALTAF BHAT 2021.04.19 14:45 Ahmad Naikoo, filed a protest petition before the trial court seeking a I attest to the accuracy and integrity of this document

direction to SSP, Baramulla, to constitute a SIT to investigate FIR

No.95/2014 so that the actual perpetrators of double murder are

brought to book. The protest petition was filed, primarily, on the

allegation that one Ghulam Nabi Naikoo, who happens to be the

brother of Khazir Mohammad Naikoo ("the protest petitioner"

hereinafter), was the person who had actually hatched a conspiracy for

committing the murder of entire family of the protest petitioner and

with a view to fulfill that object, the respondents named in the protest

petition had, in connivance with army officials, STF and local police,

raided the house of protest petitioner on 20 th of June, 2014. They

made forcible entry into the house of protest petitioner and resorted to

indiscriminate firing resulting into death of Nazir Ahmad Naikoo and

Shabir Ahmad Naikoo. The protest petitioner also claimed to have

identified the petitioner herein whose mask had accidentally fallen. It

was also urged that the police shielded the actual perpetrators of the

crime and implicated some other persons who were not even remotely

connected with the commission of offence. The effort was only to

make the double murder case look like a militancy related case. The

protest petitioner also claimed to have represented before DIG but

with no avail because despite being instructed, the SHO concerned,

for unlawful considerations, did not book the real culprits in the

double murder case.

6) Having failed to persuade the police to conduct a fair

investigation in the matter, the protest petitioner also approached this MOHAMMAD ALTAF BHAT 2021.04.19 14:45 I attest to the accuracy and integrity of this document

Court by way of a petition bearing OWP No.576/2015 which was

disposed of by this Court vide order dated 15.05.2015 by relegating

the protest petitioner to a remedy before trial court and by giving an

opportunity to the protest petitioner to re-agitate the matter, if the

grievances of the petitioner remained un-redressed. This is how the

protest petitioner filed a protest petition before the trial court.

7) The protest petition came to be considered by the trial court and

the trial court in the light of Statements of PW (1) Khazir Mohammad

Naikoo, the protest petitioner, and PW (2) Mohammad Maqbool

Naikoo, came to the conclusion that the complicity of the petitioner

herein in the commission of crime registered vide FIR No.95/2014

was established and, therefore, there was hardly any point to direct

further investigation in the case. The trial court invoked the powers

conferred upon it under Section 351 of Cr. P. C and directed that the

petitioner herein be arraigned as an accused in the case after putting

him on show cause notice. This was done by the trial court vide its

order dated 13th of November, 2015.

8) On being put on notice, the petitioner herein filed his objections

to the protest petition and sought recalling of order dated 13 th of

November, 2015. The trial court, after providing an opportunity of

being heard to the petitioner concluded that the petitioner herein had

not been able to make out any case for recalling of order dated 13 th of

November, 2015. The trial court, vide its order dated 15th of October,

2018, formally arraigned the petitioner herein as an accused in the FIR MOHAMMAD ALTAF BHAT 2021.04.19 14:45 I attest to the accuracy and integrity of this document

and directed him to appear on the next date of hearing. Both these

orders i.e. orders dated 13th of November, 2015 and 15th of October,

2018, are subject matter of challenge in this petition.

9) The impugned orders have been assailed by the petitioner, inter

alia, on the following grounds:

(i) That the evidence on record was not sufficient on the basis

of which the trial court could have made a prima facie

opinion with regard to the complicity of the petitioner with

the crime registered under FIR No.95/2014;

(ii) That the trial court erroneously pressed into service the

provisions of Section 319 of the Central Code of Criminal

Procedure whereas the case was governed by Section 351 of

the State Code and under Section 351, it is only a person

attending a Criminal Court who can be detained by the trial

court and arraigned as a accused in a pending challan;

(iii) That the petitioner was neither named in the FIR nor any

evidence came against him during the course of

investigation and, therefore, the statements of PW (1) and

PW (2) were an afterthought and motivated. The petitioner

was involved in the crime by the aforesaid witnesses

because of a land dispute between his brother-in-law,

namely, Ghulam Nabi Naikoo, and the protest petitioner.

MOHAMMAD ALTAF BHAT 2021.04.19 14:45 I attest to the accuracy and integrity of this document

10) Mr. Gulzar Ahmad, learned counsel appearing for the petitioner

has reiterated the aforesaid grounds which he has taken in the petition

and submits that the petitioner, who is innocent and is not, in any

manner, connected with the crime be let off and the impugned orders

set aside.

11) Per contra, Ms. Asifa Padroo, learned Additional Advocate

General, has supported the impugned orders. She would argue that

even under Section 351 of the State Code of Criminal Procedure, there

is enough power vested in the trial court to summon any person and

arraign him as an accused if there is sufficient evidence on record to

establish his complicity in the crime pending trial.

12) Having heard learned counsel for parties and perused the

record, it is necessary to first set out Section 351 of the State Code of

Criminal Procedure which was then in force when the impugned

orders were passed:

" 351. Detention of offenders attending Court.--

(l) Any person attending a criminal Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of inquiry into or trial of any offence of which such Court can take cognizance and which, from the evidence, may appear to have been committed, and may be proceeded against as though he had been arrested or summoned.

(2) When the detention takes place after a trial has been begun, the proceedings in respect of such person shall be commenced afresh, and the witnesses reheard."

MOHAMMAD ALTAF BHAT 2021.04.19 14:45 I attest to the accuracy and integrity of this document

13) From a reading of Section 351(supra), it transpires that the trial

court is empowered to detain a person for the purposes of inquiry into

or trial of any offence of which such Court can take cognizance and

proceed against him as though he had been arrested or summoned

provided such person is in attendance in the Court. Sub-section (2)

further provides that the proceedings in respect of such person shall be

commenced afresh and the witnesses reheard if the arraignment of

such person has taken place after the trial has begun.

14) Plain reading of the Section 351 of Cr. P. C suggests that the

jurisdiction of the trial court to arraign a person as an accused and

proceed against him in the trial is limited only to a person attending

the Court but putting a purposeful interpretation of Section 351 and

the manner, in which the trial court has proceeded in the instant case,

does make it abundantly clear that if the trial court from the evidence

before it is of the view that the complicity of such person in the crime

under trial is established, it may summon such person and direct him

to show cause as to why he be not impleaded as party/accused in the

trial. It is only when such person is in attendance before the trial court

and fails to show sufficient cause as to why he could not be arraigned

as an accused in the challan pending trial, the trial court can pass an

appropriate order directing such person to be arraigned as an accused.

The proceedings in respect of such arraigned accused shall, however,

be commenced afresh and the witnesses reheard.

MOHAMMAD ALTAF BHAT 2021.04.19 14:45 I attest to the accuracy and integrity of this document

15) It is true that Section 351 of the State Code of Criminal

Procedure is not in pari materia with Section 319 of the Central Code,

which is now applicable to the Union Territory of Jammu and

Kashmir after the promulgation of Jammu and Kashmir

Reorganization Act, 2019, yet the two meet the same contingencies.

Section 319 of the Central Cr. P. C is an improvised version of

Section 351 of the State Code. This has happened due to the

amendments carried in the Central Code of Criminal Procedure.

16) Be that as it may, I am of the considered view that even under

Section 351 of the State Code of Criminal Procedure, the trial court is

empowered to summon a person to attend the Court and arraign him

as an accused if the evidence led before it in an inquiry or trial is

sufficient to connect him with the crime. The test is that the evidence

should be sufficient enough to form an opinion with regard to the

prima facie involvement of the person sought to be arraigned as an

accused with the offences under inquiry or trial. From the statements

of prosecution witnesses, PW (1) Khazir Mohammad Naikoo and PW

(2) Mohammad Maqbool Naikoo, the involvement of petitioner in the

gruesome crime of murder of two youths, namely, Nazir Ahmad

Naikoo and Shabir Ahmad, is, prima facie, established. As a matter of

fact, there is testimony of PW (4), namely, Mohammad Maqbool

Bhat, also indicating the involvement of the petitioner in the crime.

17) The trial court has carefully considered the evidence led before

it during trial and concluded that the involvement of the petitioner in MOHAMMAD ALTAF BHAT 2021.04.19 14:45 I attest to the accuracy and integrity of this document

the crime was, prima facie, established. It did not pass an order of

arraignment of the petitioner as an accused straightway but before

doing so, the trial court put the petitioner on show cause notice and

gave him adequate opportunity to defend his position. The petitioner

filed detailed objections to the protest petition to make out a case for

recalling of show cause notice. The trial court, after threadbare

discussion and taking into account all relevant considerations, came to

the conclusion that the complicity of the petitioner with the crime was,

prima facie, established and, therefore, it was in the interests of justice

to arraign him as an accused in the case.

18) I do not find any illegality or infirmity in the impugned orders,

which would impel me to exercise inherent jurisdiction vested by

virtue of Section 561-A Cr. P. C. The petition is found to be without

any merit and the same is, accordingly, dismissed. Interim direction, if

any, shall cease to be in operation.

19) Trial court record along with copy of this order be sent back to

the trial court.

(Sanjeev Kumar) Judge Srinagar;

19.04.2021 "Bhat Altaf, PS"

                                             Whether the order is speaking:          Yes/No
                                             Whether the order is reportable:        Yes/No




MOHAMMAD ALTAF BHAT
2021.04.19 14:45
I attest to the accuracy and
integrity of this document