Aziz Ul Rehman vs Union Territory Of J&K
2021 Latest Caselaw 532 j&K

                                                        5




                                HIGH COURT OF JAMMU AND KASHMIR
                                           AT JAMMU


                                                                     CRM(M) 236/2020
                                                                     CrlM No. 842/2020

                                                                     Reserved on : 22.04.2021
                                                                     Pronounced on: 29.04.2021

               Aziz Ul Rehman
                                                                               .....Petitioner(s)

                                           Through :- Mr. P.N.Raina Sr. Advocate with
                                                      Mr. J. A. Hamal Advocate


                                   V/s

               Union Territory of J&K                                      .....Respondent(s)
                                           Through :- Mr. Bhanu Jasrotia G.A.


               Coram: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE

                                            JUDGMENT

1. Through the medium of instant petition under Section 482 of Cr.P.C,

the petitioner has challenged order dated 28.02.2020 passed by the learned

Additional Sessions Judge, Rajouri (hereinafter referred to as the 'trial

Court') whereby charges for offences under Sections 302/109/34 RPC and

8/21/27 NDPS Act have been framed against the accused including the

petitioner herein.

2. Before coming to the instant petition, let me give brief background

of the facts leading to filing of instant petition.

On 29.06.2019, the police of Police Station, Manjakote received an

information that one person namely Mohd Mukhtyar had consumed some

narcotic drug and that he has been taken to Government Medical College

Hospital, Jammu from Rajouri Hospital for his treatment where he

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breathed his last in suspicious circumstances. The police initiated the

inquest proceedings under Section 174 Cr.P.C so as to ascertain the cause

of death of the deceased. During these proceedings, it was found that the

deceased had advanced a sum of Rs.80,000/- to the accused Irfan Khan

and when the said amount was demanded back by the deceased, the

aforesaid accused in connivance with other accused, after purchasing four

doses of heroine (Chitta), administered double dose of Chitta to the

deceased with an intention to kill him. As a result of this, the deceased fell

unconscious. He was taken to Rajouri Hospital for treatment where from

he was referred to the Government Medical College Hospital, Jammu

where he breathed his last. Accordingly, the police registered a FIR

bearing Registration No. 74/2019 for offences under Sections 302/109

RPC and started investigation of the case. During investigation of the case,

the statements of witnesses under Section 161 Cr.PC and the statements of

some material witnesses under Section 164- A Cr.P.C were recorded. Upon

investigation of the case, offences under Sections 302/109/34 RPC and

8/21/27 NDPS Act were found established against the accused including

the petitioner herein. The charge-sheet was, accordingly, laid before the

learned trial Court.

3. After hearing the parties, the learned trial Court vide its

detailed order dated 28.02.2020, which is impugned herein, framed the

charges for offences under Sections 302/109/34 RPC and 8/21/27 NDPS

Act against the accused including the petitioner herein.

4. The petitioner has challenged the impugned order of framing of

charges on the grounds that there is no material on record assembled by

the investigating agency to even remotely suggest that the other accused

had purchased doses of drug that was administered to the deceased from

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the petitioner and co-accused Rohit Sharma on payment of Rs.2000/-; that

the learned trial Court, while framing the charges against the petitioner

herein, has acted as a Post Office without ascertaining as to whether there

was any material on record to support the allegations made by the

prosecution against the petitioner in the charge-sheet; that even though two

of the prosecution witnesses have indicated in their statements certain facts

against the petitioner, yet those statements are absurd and inherently

improbable on which no reliance can be placed for proceeding against the

petitioner; and that the impugned order, so far as it relates to framing of

charges against the petitioner, is unsustainable in law.

5. Learned counsel for the petitioner while elaborating the aforesaid

grounds with reference to the material on record, has placed reliance upon

the judgments of the Supreme Court in the cases of State of Karnataka vs

L. Muniswamy and others, (1977) 2 SCC 699 and Satish Mehra vs.

State (NCT of Delhi ) and another, (2012) 13 SCC 614

6. The respondent has contested the petition by filing its objections to

the same. In its objections, the respondent has reiterated the facts narrated

in the charge sheet and it has defended the impugned order by stating that

the same is in accordance with law and that it does not call for any

interference.

7. I have heard learned counsel for the parties and perused the material

on record including the trial Court record.

8. Sections 268 and 269 of J&K Cr.P.C, which are applicable to the

instant case, govern the field of framing of charges /discharging an accused

in a trial before a Court of Sessions. It would be advantageous to reproduce

the aforesaid two provisions of the Code.

"268. Discharge:

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                                                          4                    CRM(M) 236/2020

If upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the judge considers that there is no sufficient ground for proceedings against the accused, he shall discharge the accused and record his reasons for so doing .

269. Framing of Charge

(1) If, after such consideration and hearing as aforesaid, the Judge is of 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 or warrant cases instituted on police report;

b) is exclusively triable by the Court , he shall frame in writing a charge against the accused.

(2) Where the Judge frames any charge under clause (b) of sub- section (1) the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried."

9. From a conjoint reading of afore-quoted provisions, it is clear that,

at the time of framing of charge or considering the plea of accused for his

discharge, a Court of Sessions has to take into consideration the record of

the case and the documents submitted therewith as also the submissions of

the accused and the prosecution. If, after undertaking the aforesaid

exercise, a Court of Sessions, is of the opinion that there is no sufficient

ground for proceeding against the accused, the accused has to be VINOD KUMAR 2021.04.29 11:53 I attest to the accuracy and integrity of this document 5 CRM(M) 236/2020

discharged and if it finds that there is ground for presuming that the

accused has committed an offence triable by the Court of Sessions, framing

of charge in writing against the accused has to follow.

10. The Supreme Court in the case of Amit Kapoor vs. Ramesh

Chander and another, (2012) 9 Supreme Court Cases 460, 2012 9 SCC

460 while considering the scope of provisions contained in Sections 227

and 228 of Cr.PC, which are in pari materia with the provisions contained

in Sections 268 and 269 of J&K Cr.P.C, has, in para 17 of the judgment

observed as under:

"Framing of a charge is an exercise of jurisdiction by the trial court in terms of Section 228 of the Code, unless the accused is discharged under Section 227 of the Code. Under both these provisions, the court is required to consider the „record of the case‟ and documents submitted therewith and, after hearing the parties, may either discharge the accused or where it appears to the court and in its opinion there is ground for presuming that the accused has committed an offence, it shall frame the charge. Once the facts and ingredients of the Section exists, then the Court would be right in presuming that there is ground to proceed against the accused and frame the charge accordingly. This presumption is not a presumption of law as such. The satisfaction of the court in relation to the existence of constituents of an offence and the facts leading to that offence is a sine qua non for exercise of such jurisdiction. It may even be weaker than a prima facie case. There is a fine distinction between the language of Sections 227 and 228 of the Code. Section 227 is expression of a definite opinion and judgment of the Court while Section 228 is tentative. Thus, to say that at the stage of framing of charge, the Court should form an opinion that the accused is certainly guilty of committing an offence, is an approach which is impermissible in terms of Section 228 of the Code"

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11. Elaborating further, the Supreme Court went on to observe that at

the initial stage of framing of a charge, the Court is concerned not with

proof, but with a strong suspicion that the accused has committed an

offence, which, if put to trial, could prove him guilty. It was further

observed that the Court has only to see that the material on record and the

facts would be compatible with the innocence of the accused or not. The

final test of guilt, according to the Supreme Court, is not to be applied at

that stage. While making these observations, the Supreme Court referred to

its following observations in the case of State of Bihar vs. Ramesh Singh,

(1977) 4 SCC 39.

"4. Under Section 226 of the Code while opening the case for the prosecution the Prosecutor has got to describe the charge against the accused and state by what evidence he proposes to prove the guilt of the accused. Thereafter comes at the initial stage the duty of the Court to consider the record of the case and the documents submitted therewith and to hear the submissions of the accused and the prosecution in that behalf. The Judge has to pass thereafter an order either under Section 227 or Section 228 of the Code. If "the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing", as enjoined by Section 227. If, on the other hand, "the Judge is of opinion that there is ground for presuming that the accused has committed an offence which-- ... (b) is exclusively triable by the Court, he shall frame in writing a charge against the accused", as provided in Section 228.

Reading the two provisions together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and VINOD KUMAR 2021.04.29 11:53 I attest to the accuracy and integrity of this document 7 CRM(M) 236/2020

weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or Section 228 of the Code. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. It the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example. If the scales of pan as to the guilt or innocence of the accused are something like even, at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an order under Section 227 or Section 228, then in such a situation ordinarily and

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generally the order which will have to be made will be one under Section 228 and not under Section 227."

12. From the aforesaid ratio laid down by the Supreme Court, it is clear

that, at the time of framing of a charge, the Court is not expected to make a

roving enquiry into the pros and cons of the matter and weigh the evidence

as if it was conducting the trial. The material on record has to be evaluated

only to find out whether the offences which the accused is alleged to have

committed are made out. The evidence assembled by the investigating

agency is required to be sifted and weighed by the Court only for the

limited purpose of finding out, whether or not, a prima face case against

the accused is made out.

13. There can be no two opinions about the aforesaid proposition of law

and even the judgments, cited at the Bar by learned counsel for the

petitioner, lay down the same ratio. Thus, while determining the legality of

the impugned order passed by the learned Trial Court, the material

available on record before it, has to be analyzed in the light of the aforesaid

legal position.

14. The allegation against the petitioner herein, as per the charge sheet,

is that the co-accused, namely Irfan Khan, Aijaz Ahmed and Raza Arshad

Mehmood, in order to eliminate the deceased, purchased doses of drug

(Chitta) from the petitioner herein and co-accused Rohit Sharma for a sum

of Rs.2000/- and later on, a double dose injection of the drug was

administered by these accused to the deceased which proved fatal. The

motive for the crime as per the prosecution case is that accused Irfan Khan

owed a sum of Rs.80,000/- to the deceased, which he was demanding back.

15. Learned counsel for the petitioner has vehemently argued that there

is neither any material on record assembled by the investigating agency VINOD KUMAR 2021.04.29 11:53 I attest to the accuracy and integrity of this document 9 CRM(M) 236/2020

during investigation of the case to even remotely suggest that the doses of

drug were purchased by the above named three accused from the petitioner,

nor there is any material on record to suggest that the alleged transaction

took place against a payment of Rs.2000/-. The contention of learned

counsel for the petitioner in this behalf may be having some merit, but

then, this is not the only circumstance alleged against the petitioner and the

co-accused Rohit Sharma.

16. We have on record statement of PW Zulfikar recorded under Section

164- A CrPC in which he has stated that on the day of occurrence at about

4 p.m, while he was passing through a road, he saw five accused including

the petitioner herein conversing with each other in an adjoining ground. He

has further stated that the accused Irfan Khan was telling the other four

accused that the deceased Mukhtiar is required to be eliminated to which

the other four accused expressed their agreement. PW Liaqat Ali has made

a similar statement under Section 161 Cr.P.C.

17. Learned counsel for the petitioner has submitted that the aforesaid

two statements are inherently improbable and are not capable of being

relied upon for the purpose of framing of charge against the petitioner. I am

afraid, this Court cannot pronounce a verdict on the reliability or otherwise

of these statements of the witnesses at the time of framing of charge. The

aforesaid witnesses have clearly stated that they heard the conversation

going on between the five accused and, as per this conversation, the

accused expressed their agreement to execute the plan of eliminating the

deceased. It is not a case where the witnesses have overheard this

conversation from a third person. Therefore, the version given by these two

witnesses is an admissible piece of evidence and the same cannot be

thrown out at this stage of the proceedings.

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18. From the statements of the aforesaid two witnesses, it is clear that

there is a strong suspicion that the petitioner as well as the co-accused

Rohit Sharma had connived with the other three accused in executing the

plan of eliminating the deceased. A strong suspicion against the accused

may not be sufficient for holding him guilty at the conclusion of the trial,

but the same would be a good ground for framing of charge against the

accused, if such a suspicion leads the Court to think that there is a ground

for presuming that the accused has committed the offence. At the stage of

framing of charge, a Court is not to see whether there is sufficient ground

for conviction of the accused.

19. I am supported in my aforesaid view by the judgment of the Supreme

Court in the case of State of Karnataka vs M. R. Hiremath, (2019) 7

SCC 515. Para 25 of the said judgment is relevant to the context and the

same is reproduced as under:

" The High Court ought to have been cognizant of the fact that the trial court was dealing with an application for discharge under the provisions of Section 239 of the CrPC. The parameters which govern the exercise of this jurisdiction have found expression in several decisions of this Court. It is a settled principle of law that at the stage of considering an application for discharge the court must proceed on the assumption that the material which has been brought on the record by the prosecution is true and evaluate the material in order to determine whether the facts emerging from the material, taken on its face value, disclose the existence of the ingredients necessary to constitute the offence. In the State of Tamil Nadu vs N Suresh Rajan, (2014) 11 SCC 709, adverting to the earlier decisions on the subject, this Court held:

"29...At this stage, probative value of the materials has to be gone into and the court is not expected to go deep VINOD KUMAR 2021.04.29 11:53 I attest to the accuracy and integrity of this document 11 CRM(M) 236/2020

into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage".

20. Thus, considering the material on record in the light of aforesaid

ratio laid down by the Supreme Court, there appears to be sufficient ground

for presuming that the petitioner has committed the offences. At this stage,

it would not be open for this Court to pronounce a verdict on the reliability

of the statements of PWs Zulfikar and Liaqat Ali, who have clearly in their

statements linked the petitioner with the commission of the alleged crime.

21. For the foregoing reasons, I do not find any merit in this petition.

The impugned order of learned trial Court is well reasoned and lucid. The

same does not call for any interference. The petition is, accordingly,

dismissed.

(SANJAY DHAR) JUDGE Jammu 29.04.2021 Sanjeev PS

Whether the order is speaking : Yes Whether the order is reportable :Yes

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