Abid Ahmad Khan vs UT Of J&K

Sanjay Dhar, J

1) The petitioner has challenged order dated 20.08.2021 passed by Principal Sessions Judge, Kupwara, whereby charges for offences under Section 302 of IPC and Sections 3/181 of the Motor Vehicles Act have been framed against him.

2) A perusal of the record reveals that on 09.05.2020, complainant PW1-Khazir Mohammad Khan, lodged a written report with Police Station, Kupwara, alleging therein that on 28.04.2020, the petitioner and co-accused had beaten up his wife and other family members, as a result of which his wife and son had received injuries. It was further reported that in this regard FIR No.88/2020 stands registered. It was further alleged that the petitioner had threatened the complainant on that very day that he would finish off his son. The report goes on to allege that on 09.05.2020, the son of the complainant, namely, Junaid Ahmad Khan, was run over by the vehicle bearing No.JK09A-1593, that was being driven by the petitioner and that the said act was done by the petitioner intentionally to kill his son. On the basis of this report, the police registered FIR No.102/2020 for offences under Section 302 IPC read with Sections 3/181 of the Motor Vehicles Act and started investigation of the case.

3) It was revealed during the investigation of the case that there was a long standing enmity between the complainant and the father of the petitioner in connection with a land dispute. It was also found that twelve days prior to the occurrence i.e. on 28.04.2020, a scuffle had taken place between the complainant party on one side and the father of the accused as well as his associates on the other side on the land located near the village regarding which FIR Nos.88/2020 and 91/2020 stand registered. The investigating agency found that the petitioner was driving the vehicle with which the deceased was hit, without the driving licence and the vehicle in question belonged to co-accused Nazir Ahmad Khan. It was also found that the petitioner had intentionally driven the vehicle in such a manner so as to knock the deceased down in order to cause his death. Thus, according to the challan, the offences under Section 302 of IPC and 3/181 of the Motor Vehicles Act were established against the petitioner whereas offence under Section 5/180 of the Motor Vehicles Act stands established against the co-accused.

4) I have heard learned counsel for the parties and perused the material on record including the trial court record.

5) It has been contended by learned counsel for the petitioner that the allegations made in the charge sheet and the evidence in support thereof assembled by the investigating agency, even if taken at their face value, do not disclose the ingredients of the offence under Section 302 IPC against the petitioner. It has been further contended that the learned Sessions Judge has, while framing the charges against the petitioner in terms of the impugned order, misdirected himself and has not considered the material on record in its right perspective. Elaborating the aforesaid contention, the learned counsel has submitted that the earlier FIR lodged by father of the deceased nowhere provides that the petitioner or his father had extended any life threats to the complainant party. According to the learned counsel, the death of the deceased has occurred on account of rash and negligent driving of the vehicle in question by the petitioner and, as such, only offence under Section 304-A of IPC is made out against the petitioner.

6) Before testing merits of the contentions raised by learned counsel for the petitioner, it would be necessary to understand the legal position as regards the factors which are required to be taken into account while framing charges against an accused. The scope of the power of this Court to interfere with an order of framing charge is also required to be noticed.

7) The Supreme Court had an occasion to consider both these questions in the case of Amit Kapoor v. Ramesh Chander and another, (2012) 9 SCC 460. The Court has, after noticing the provisions contained in Section 227 and 228 of the Code of Criminal Procedure, which relate to framing of charge against an accused, observed as under:

“17. 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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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. All that the court has to see is that the material on record and the facts would be compatible with the innocence of the accused or not. The final test of guilt is not to be applied at that stage. We may refer to the well settled law laid down by this Court in the case of State of Bihar v. 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 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 12 CRMC No.24/2017 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 generally the order which will have to be made will be one under Section 228 and not under Section 227.”

8) From a perusal of the aforequoted ratio laid down by the Supreme Court, it is clear that at the time of framing of charge even a strong suspicion against an accused would justify framing of charge. The Court at this stage is not required to see whether the accused can be finally held guilty of the offence but it has to see whether there exist sufficient grounds for proceeding against the accused. The Court has to see whether, on the basis of material on record, ingredients constituting the alleged offences are, prima facie, made out. For this limited purpose, sifting of evidence is permissible but probative value of the material brought on record by the prosecution cannot be gone into at this stage.

9) In the same judgment, the Court also examined the scope of power of the High Court under Section 482 of Cr. P. C to interfere with an order framing a charge. The Court, after noticing the scope and power of revision vis-à-vis scope of inherent powers of the High Court under Section 482 of Cr. P. C, made certain observations. Paras 18 and 25 of the judgment are relevant to the context and the same are reproduced as under:

“18. It may also be noticed that the revisional jurisdiction exercised by the High Court is in a way final and no inter court remedy is available in such cases. Of course, it may be subject to jurisdiction of this court under Article 136 of the Constitution of India. Normally, a revisional jurisdiction should be exercised on a question of law. However, when factual appreciation is involved, then it must find place in the class of cases resulting in a perverse finding. Basically, the power is required to be exercised so that justice is done and there is no abuse of power by the court. Merely an apprehension or suspicion of the same would not be a sufficient ground for interference in such cases.

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Having examined the inter-relationship of these two very significant provisions of the Code, let us now examine the scope of interference under any of these provisions in relation to quashing the charge. We have already indicated above that framing of charge is the first major step in a criminal trial where the Court is expected to apply its mind to the entire record and documents placed therewith before the Court. Taking cognizance of an offence has been stated to necessitate an application of mind by the Court but framing of charge is a major event where the Court considers the possibility of discharging the accused of the offence with which he is charged or requiring the accused to face trial. There are different categories of cases where the Court may not proceed with the trial and may discharge the accused or pass such other orders as may be necessary keeping in view the facts of a given case. In a case where, upon considering the record of the case and documents submitted before it, the Court finds that no offence is made out or there is a legal bar to such prosecution under the provisions of the Code or any other law for the time being in force and there is a bar and there exists no ground to proceed against the accused, the Court may discharge the accused. There can be cases where such record reveals the matter to be so predominantly of a civil nature that it neither leaves any scope for an element of criminality nor does it satisfy the ingredients of a criminal offence with which the accused is charged. In such cases, the Court may discharge him or quash the proceedings in exercise of its powers under these two provisions.

10) From a careful analysis of the aforesaid ratio laid down by the Supreme Court, it is clear that if upon considering record of the case the Court finds that no offence is made out or there is a legal bar to prosecution against the accused, then only interference in the order of framing charge is warranted and the accused may be discharged.

11) With the aforesaid legal position in mind, let us now analyze the material on record so as to test the merits of contention of the learned counsel for the petitioner. The allegations made in the charge sheet, as already noted, are that there was a land dispute going on between complainant party and the accused party and in this regard, previously scuffles had taken place between them, as a consequence whereof as many as two FIRs i.e. FIR No.88/2020 and FIR No.91/2020 stand registered. It is alleged in the charge sheet that on the fateful day, the petitioner drove the vehicle in question at a high speed with an intention to knock down the deceased and, accordingly, he knocked down the deceased and as a consequence of this, he suffered fatal injuries.

12) During the course of the investigation, the investigating agency has recorded the statements of at least three prosecution witnesses, namely, Nazir Ahmad Khan, Tariq Ahmad Bhat and Bashir Ahmad, under Section 164 of the Cr. P. C. PW-Nazir Ahmad Khan has stated that on 9th May, 2020, he had gone to the market to purchase bread and he found a Maruti car bearing No.JK09A-1593 proceeding from Helmatpora, that was being driven by the petitioner. He has further stated that from a distance of fifteen feet, he heard a loud sound and found the deceased lying on the road side in an injured condition as he was hit by the aforesaid vehicle. He has gone on to state that at first, the petitioner was driving the vehicle at a slow speed and as soon as he reached near the shop, he increased its speed and knocked down the deceased. He has also stated that on 28th April, 2020, a scuffle had taken place between accused party and the complainant party as there is a land dispute going on between the parties. The statement of PW-Bashir Ahmad Khan is also on similar lines. The said witness has further stated that as soon as the petitioner saw the deceased, he increased the speed of his vehicle and knocked him down. Though PW-Tariq Ahmad Bhat has not seen the actual occurrence with his own eyes but he has stated that he heard a loud noise from his shop and when opened the door, he found a boy lying in a pool of blood. He also found the vehicle with which the boy was hit, lying at a distance of about 25 feet.

13) From the aforesaid statements of the prosecution witnesses, it is clear that there was a previous enmity between the families of the petitioner and the complainant party as there was a long standing land dispute going on between them. Thus, there is material on record to show that there was a strong motive for the petitioner to commit the murder of the deceased. The statements of the afore-named prosecution witnesses, prima facie, show that the petitioner used the vehicle in question as a weapon of offence and he intentionally knocked down the deceased with his vehicle. In fact, PW-Bashir Ahmad Khan has stated that the petitioner increased the speed of his vehicle only upon spotting the deceased whereafter he was knocked down by the said vehicle. Thus, it is prima facie established that the petitioner/accused had previous enmity with the deceased and he intentionally, by using the vehicle in question as a weapon of offence, cause the death of the deceased by knocking him down. The contention of learned counsel for the petitioner that here is no material on record to suggest that the petitioner had intentionally caused death of the deceased is belied from the material on record.

14) Learned counsel for the petitioner has further contended that in the earlier FIR, there was no mention of threats having been extended by the family of the accused to the family of the deceased, as such, there was no material on record as regards the motive for commission of the crime. This contention is without any merit. As already noted hereinbefore, there is sufficient material on record of the challan to show that there was a long standing dispute going on between the parties that had led to registration of two FIRs. Merely because there is no mention of threats in these FIRs does not mean that there was no previous enmity between the families of the accused and the deceased.

15) For the foregoing discussion, it is clear that there is sufficient material on record to frame charges for offences under Section 302 IPC and Sections 3/181 of the Motor Vehicles Act against the petitioner herein. Therefore, I find no justification to interfere with the impugned order passed by the trial court. The petition is, therefore, dismissed being devoid of merit.

16) A copy of this order be sent to the trial court for information.