Fayaz Ahmed Lone vs State Of J&K

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 Courtâ€​] in criminal challan titled State v. Mushtaq Ahmad Ganie and others, arising out of FIR No.11/1996 of Police Station, Pulwama.

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.

Heard learned counsel for the parties and perused the record.

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.

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.â€​

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.

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.

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?â€​

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 offenceâ€​.

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.

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 accusedâ€. The words used are not “for which such person could be

convictedâ€​. There is, therefore, no scope for the court acting under Section 319 CrPC to form any opinion as to the guilt of the accused.â€​

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.

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.â€​

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.â€​

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.

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.

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.