Fayaz Ahmed Lone vs State Of J&K
2021 Latest Caselaw 154 j&K

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             HIGH COURT OF JAMMU AND KASHMIR
                        AT JAMMU

                                              Reserved on : 15.02.2021
                                              Pronounced on: 19.02.2021

                                                 CRMC No.384/2018
                                                 IA No.1/2018



Fayaz Ahmed Lone                                                 ...Petitioner(s)


                           Through:- Mr.Ankur Sharma, Advocate
      V/s

State of J&K                                                    ...Respondent(s)
                          Through:- Mr. Aseem Sawhney, AAG
Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE

                                 JUDGMENT

1. This petition under Section 561-A Cr.P.C. is directed against

order dated 30.08.1999 passed by the learned 4th Additional Sessions

Judge, Srinagar ["the Trial Court"] in criminal challan titled State v.

Mushtaq Ahmad Ganie and others, arising out of FIR No.11/1996 of Police

Station, Pulwama.

2. In terms of the order impugned, the Trial Court has arraigned

the petitioner along with seven other persons as accused in the challan, on

the basis of statements of the prosecution witnesses recorded during trial.

The case set up by the petitioner is that the petitioner is not named by the

police in the FIR nor was his involvement found during the course of

investigation. It is submitted that in the challan presented before the Trial

Court, the police did not arraign the petitioner as accused and rightly so, as

neither the petitioner was named in the FIR nor he was named by any of

the prosecution witnesses, whose statements were recorded by the police

during investigation. It is, thus, argued that in the absence of specific role

ascribed to the petitioner in the commission of the offence alleged in the

challan, the petitioner could not have been arraigned as an accused with the

aid of Section 351 Cr.P.C.

3. Heard learned counsel for the parties and perused the record.

4. At the outset, it may be noted that the impugned order dated

30.08.1999 passed by the Trial Court was also subject matter of challenge

in 561-ANo.97/2011 filed by one Mohamma Akbar Najar, who like the

petitioner was subsequently arraign as accused in the challan.

5. The aforesaid 561-A petition was allowed by this Court vide

judgment dated 25.08.2015 and the order impugned to the extent of

accused Mohammad Akbar Najar was set aside. What was held by this

Court in its judgment dated 25.08.2015 in paragraph No.6 is reproduced

herein below:-

"6. Apart from the aforesaid, the witness stated that he had disclosed the names of all other persons involved in the case before police which comprised of 8 persons including the petitioner, specified in the impugned order. A bare look at the testimony of PW Ghulam Mohammad Sheikh reveals that though this witness has implicated the aforesaid eight persons including the petitioner, however, no role has been ascribed to them. In absence of corroboration of testimony of this witness in regard to presence of the accused at the venue of crime by other witnesses referred to in the impugned

order and keeping in view the bald assertion of this witness regarding participation of the petitioner in the alleged crime without ascribing any role to the petitioner in the alleged occurrence, invoking of jurisdiction under section 351 Cr.P.C. is neither warranted nor can the same be said to be judicious exercise of power by trial court. There are no justifiable grounds, muchless a compelling reason to invoke jurisdiction under the aforesaid provision. It cannot be overlooked that the name of the petitioner does not figure in FIR lodged on 13.01.1996 and it is for the first time that he has been implicated by PW Ghulam Mohammad Sheikh in his deposition on 08.06.1998 without ascribing a definite role to him. In absence of any definite/distinct role attributed to the petitioner, the solitary deposition of PW Ghulam Mohammad Sheikh, who admittedly, did not notice the presence of petitioner at the venue of crime, cannot be made the basis for recording satisfaction in regard to his complicity in the alleged crime. The impugned order is an abuse of process of court and same cannot sustain."

6. The petitioner is similarly situated with the accused-

Mohammad Akbar Najar, as both were named by PW-Ghulam Mohammad

Sheikh without ascribing any role played by them in the commission of

crime. This Court in its judgment dated 25.08.2015 rightly found that

exercise of jurisdiction by the Trial Court under Section 351 Cr.P.C. was

not warranted.

7. Borrowing the reasoning given by this Court in the aforesaid

judgment, I am of the considered view that merely naming the petitioner as

one of the accused without ascribing any specific role played by him in the

commission of offence under Section 302, 307, 120-B RPC & 7/25 of

Indian Arms Act for which FIR No.11/1996 was registered at Police

Station, Pulwama, the petitioner cannot be arrayed as accused and

subjected to trial.

8. In a recent judgment, Hon‟ble the Supreme Court in the case

of Labhuji Amratji Thakor and others v. The State of Gujrat and

another, (2019) 12 SCC 644 placing reliance upon a Constitution Bench

judgment in the case of Hardeep Singh v. State of Punjab and others,

(2014) 3 SCC 92 reiterated the scope of Section 319 Cr.P.C., which is in

pari materia to Section 351 of J&K Cr.P.C. Paragraph Nos. 6 to 10 are

relevant and are, thus, reproduced hereunder:-

"6. Section 319 Cr.P.C. provides that where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed. The Court, thus, during the trial on the basis of any evidence is fully empowered to proceed against any person, whose name was not even included in the F.I.R. or the Charge Sheet. The parameters of exercise of power under Section 319 Cr.P.C has been explained by this Court time and again. It is sufficient to refer to Constitution Bench judgment in Hardeep Singh (supra), where this Court had considered the following issue amongst others:- "6.4.

(iv) What is the nature of the satisfaction required to invoke the power under Section 319 CrPC to arraign an

accused? Whether the power under Section 319(1) CrPC can be exercised only if the court is 7 satisfied that the accused summoned will in all likelihood be convicted?"

7. The Constitution Bench judgment in the above judgment has held that under Section 319 Cr.P.C. Court can proceed against any person, who is not an accused in a case before it. The Constitution Bench, however, has held that the person against whom the Court decides to proceed, "has to be a person whose complicity may be indicated and connected with the commission of the offence".

8. Answering the Issue No.(iv) as noticed above, in Paragraph Nos. 105 and 106 of the judgment, following was laid down by the Constitution Bench:-

"105. Power under Section 319 CrPC is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner.

106. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court, not necessarily tested on the anvil of cross- examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes

unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 CrPC. In Section 319 CrPC the purpose of providing if "it appears from the evidence that any person not being the accused has committed any offence" is clear from the words "for which such person could be tried together with the accused". The words used are not "for which such person could be convicted". There is, therefore, no scope for the court acting under Section 319 CrPC to form any opinion as to the guilt of the accused."

9. The Constitution Bench has given a caution that power under Section 319 Cr.P.C. is a discretionary and extraordinary power, which should be exercised sparingly and only in those cases where the circumstances of the case so warrant. The crucial test, which has been laid down as noted above is "the test that has to be applied is one which is more than prima facie case as exercised at the time of framing 9 of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction." The present is a case, where the trial court had rejected the application filed by the prosecution under Section 319 Cr.P.C. Further, in the present case, the complainant in the F.I.R. has not taken the names of the appellants and after investigation in which the statement of victim was also recorded, the names of the appellants did not figure. After carrying investigation, the Charge Sheet was submitted in which the appellants names were also not mentioned as accused. In the statement recorded before the Police, the victim has named only Natuji with whom she admitted having physical relations and who took her and with whom she went out

of the house in the night and lived with him on several places. The mother of victim in her statement before the Court herself has stated that victim girl returned to the house after one and a half months. In the statement, before the Court, victim has narrated the entire sequence of events. She has stated in her statement that accused Natuji used to visit her Uncle‟s house Vishnuji, where she met Natuji. She, however, stated that it was Natuji, who had given her mobile phone. Her parents came to know about she having been given mobile phone by Natuji, then they went to the house of Natuji and threatened Natuji. After one month, Natuji gave another mobile phone to the victim, who had taken it. She stated that in the night at 12 „o‟ clock, Natuji alongwith his three friends had taken her to Morbi in a jeep. She further stated that she and Natuji stayed for three days at the said place and Natuji had intercourse with her at the said place. When Natuji came to know about lodging of complaint, he took her to Modasa in the jeep. The jeep was given by Labhuji and other two appellants were also in the jeep. She further stated that Labhuji, Shashikant and Jituji came in the jeep and took her and Natuji to the Police Station, where the police interrogated her and she recorded her statement. Natuji was charged with Sections 363 and 366 I.P.C. and Sections 3 and 4 of the POCSO Act.

10. In the present case, there are not even suggestion of any act done by appellants amounting to an offence referred to in Sections 3 and 4 of the POCSO Act. Thus, there was no occasion to proceed against the appellants under POCSO Act."

9. Viewed in the light of legal position adumbrated in the

aforesaid judgment as also in the Constitution Bench Judgment in the case

of Hardeep Singh (supra), I am of the considered view that the order

impugned is not sustainable in law and deserves to be quashed. The Trial

Court has arraigned the petitioner and few others including Mohammad

Akbar Najar, petitioner in 561-A No.97/2011, as accused only on the basis

of a statement of one of the prosecution witnesses namely Ghulam

Mohammad Sheikh, who has though named the petitioner and others as

accused but has failed to ascribe any role to them in the commission of the

crime. As rightly held by the Supreme Court that power under Section 319

Cr.P.C. (351 of State Cr.P.C.) is discretionary and extraordinary and is

required to be exercised sparingly and only in those cases where

circumstances of the case so warrant. The crucial test, whch has been laid

down is "the test that has to be applied is one which is more than prima

facie case as exercised at the time of framing of charge, but short of

satisfaction to an extent that the evidence, if goes unrebutted, would lead to

conviction."

10. An objection was also raised by Mr. Sawhney, learned AAG

with regard to the maintainability of the petition on the ground that the

impugned order was passed way back in the year 1999 whereas the

petitioner has approached this Court only in the year 2018. This has been

countered by learned counsel for the petitioner by stating that in the instant

case, the petitioner came to know of the impugned order only when warrant

of arrest was sought to be executed against him recently.

11. Mr. Ankur Sharma, learned counsel for the petitioner has

referred to the objections filed by the respondents in which the respondent

has indicated the steps taken for execution of the warrants against the

petitioner without any fruitful results for pretty long time. As is noted by

this Court in its order dated 25.08.2015 passed in the case of Mohammad

Akbar Najar, the wrongful arraignment of the petitioner during trial has

only contributed to the delay in the trial.

12. For the foregoing reasons, I find merit in this petition. The

same is, accordingly, accepted and order impugned dated 30.08.1999

insofar as it pertains to the petitioner, namely, Fayaz Ahmad Lone is

quashed and set aside.

(Sanjeev Kumar) Judge JAMMU.

19.02.2021 Vinod.

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

VINOD KUMAR 2021.02.19 17:19 I attest to the accuracy and integrity of this document