Jammu & Kashmir High Court
Mohd. Taj And Others vs State Of J&K And Another on 8 December, 2021
Sr. No. 23
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
CRMC No. 739/2017
Mohd. Taj and others .....Appellant(s)/Petitioner(s)
Through: Mr. Ankush Manhas, Advocate.
Vs
State of J&K and another ..... Respondent(s)
Through: None.
Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
ORDER
In this petition, the petitioners have impugned the charge-sheet as also
the order dated 30.11.2017 by virtue of which charges for commission of offences
under Section 419, 109 RPC have been framed against them.
The allegations against the petitioners are that on 29.11.2009 while the
Army was conducting the written examination for entry into the Army as soldiers,
during the course of checking, it was found that 21 candidates were impersonating
and they had appeared in place of the actual candidates, who had applied for entry
as soldiers. During the investigation, it was found that the actual candidates were
Mohd. Yousuf, Imran Ahmed, Salim Rafiq, Murtaza Chowdhary, Mukhtar
Ahmed, Julfikar Ali, Javid Iqbal, Ibrar Anjum, Sajid Ahmed, Sahraj Ahmed,
Sagir Ahmed, Khalid Ahmed, Tariq Farooq, Farid Ahmed, Mohd. Aftab, Mansoor
ahmed, Tahir Khan, Akhil Sharma, Jafar Iqbal, Liyaqat Ali and Sahil Ahmed.
These persons had not appeared in the said examination but the petitioners
appeared on their behalf in the said examination.
The learned trial Court after hearing the arguments on
charge/discharge, framed the charges for commission of offences under Sections
419, 109 RPC against the petitioners. Petitioners have impugned the said order
primarily on the following grounds:
(i) That the original candidates on whose behalf the petitioners were
allegedly appearing in the examination have neither been arrayed
as accused nor have been cited as witnesses and in absence of that,
there are lean chances of conviction of the petitioners.
(ii) That there is no record that the examination was being conducted
on 29.11.2009.
(iii) That the essential ingredients of section 419 RPC are missing.
Mr. Ankush Manhas, learned counsel appearing on behalf of petitioners
reiterated the submissions made in the petition.
None appeared for the respondents.
Heard and perused the record.
From the record, it is evident that the allegations against the petitioners
are that the petitioners have impersonated the candidates, who have applied for
their entry in Army as soldiers. The first contention of the petitioner that there are
no chances of conviction as the candidates, who had applied for their entry in
Army as soldiers have neither been impleaded as accused nor cited as witnesses,
is of no consequence as at the time of considering the issue on charge/ discharge,
the trial Court has not to return any findings vis-a-vis conviction or acquittal of
the accused. The trial court has only to sift the evidence so as form an opinion as
to whether sufficient material is available on record that necessitates the accused
to be put to trial. As such, the first contention of the petitioners is without any
substance and the same is rejected.
The second contention of the petitioner is that no documentary
evidence has been placed on record with regard to the fact that the examination
was conducted on 29.11.2009. This contention too deserves to be rejected. Facts
may be proved by oral or documentary evidence.
The petitioners have a right to cross examine the witnesses during the
course of trial and the petitioners can put their defence to the said witnesses
during the course of examination.
The last contention of the petitioner is that essential ingredients of the
offence under section 419 RPC are missing, is also without any substance. The
petitioners were impersonating original candidates and they may not have been
doing that for charity only and must have been doing for some consideration.
Law is well settled that the Court is not expected to hold a mini trial at
the time of consideration of issue on charge/discharge. Learned counsel appearing
for the petitioners have placed reliance upon the judgment of Apex Court in case,
titled, Ram Jas V State of Uttar Pradesh, 1974 AIR (SC) 1811. The same is not
applicable in the present facts and circumstances of the case as the said judgment
was rendered after the due trial when the parties had led their evidence before the
Court.
In view of what has been discussed above, there is no merit in the
petition. As such, the same is dismissed.
(RAJNESH OSWAL)
JUDGE
Jammu
08.12.2021
Sahil Padha
Whether the order is speaking: Yes/No.
Whether the order is reportable: Yes/No.
