Mohammad Reshi vs Aziz Sheikh and Ors.

This revision is directed against an order passed on 28111979, by the learned Add). Sessions Judge, Srinagar. The material portion of the order

reads as under :

The counsel for the defense argued before me and explained the facts of the case whereby he submits that the accused No 1 Aziz Sheikh cannot

be charged under Section 302 RPC. on the basis of the evidence which has been recorded against him by the police. In this connection he has

referred to the statement of Mst. Zooni, wife of the accused No. 1 and urged before the court that the said witness has. however, of her own

admitted that the deceased was indulging in adultery with her and had also on more than one occasion indulged in intercourse with her, This is the

statement which he has given before the Magistrate under Section 164 Cr. P, C. The learned counsel for the accused stressed before the court that

this misbehavior of the deceased was enough to shock and provoke the accused to commit the crime by inflicting a blow by a wooden club

(Dugnoo) on the deceased that the evidence on record fully establishes the fact that the accused had no intention to kill the deceased but he had

only under sudden provocation and shock inflicted a blow on the deceased as he had misbehaved throughout with his wife which could not be

tolerated by him,

2 In these circumstances, the defense counsel has urged that the accused Aziz Sheikh may be charged under Section 304 RPC. The learned A.PP.

has opposed this point. At the close of the arguments, the learned A.P P. made an application to the court whereby he sought pardon for the

accused namely Mohammed Yussuf and submitted that the prosecution wants to cite him as a witness in this case as he is a coaccomplice and will

help the prosecution in seeking the conviction against the accused. The Statement of the accused was recorded and he has stated that he was

coaccomplice in the commission of the crime and wi1 give truthful statement if he is made an approver in the case. In view of the statement of

Mohamad Yussuf accused, pardon is granted and he is allowed to make a statement before the court The accused Mohd Yussuf is thus deleted

from the list of the accused and the prosecution is at liberty to cite him as a witness in the case.

3: In view of the facts discussed above, a prima facie case under Section 304 RPC. is found established against Aziz Sheikh accused and an

offence under Section 201/34 RPC: is made out against the rest of the accused. Accordingly the accused Aziz Saeikh, Razak Rather and Fateh

Sheikh, are charged under Section 304/201/34 RPC. 201/34, RPC and 201/34 RPC. respectively.

The charge was read over and explained to the accused and they pleaded not guilty to the charge. The prosecution is now directed to produce

evidence on the next date of hearing. Put up on 11 121979.

The petitioner's case is that on the available material there was sufficient ground for proceeding against Aziz Sheikh accused under Section 302

RPC. and that the view expressed by the learned Add, Sessions Judge to the effect that such evidence disclosed only an offence under Section

304 RPC. is wholly misconceived and erroneous.

The respondent has taken a preliminary objection regarding the maintainability of this revision on two grounds. Firstly, that the order is in the

nature of an interlocutory order, Secondly, that the revision is by a private party and as such incompetent In Mst. Asha Vs. Abdul Rahim and ors,

(Cr. Revision No, 28 of 1986) it has been held by this court that Section 2o8 Cr. P, C. does not contemplate that there should be an express

order of discharge, where in the opinion of the Sessions Judge, an offence friable exclusively by the court of Sessions is made out though not being

the same for which a charge was brought against the accused. Any such order would amount to an implied order of discharge which can be the

subject matter of revision as much as an express order of discharge. Accordingly the order of the Addl, Sessions Judge charging the accused Aziz

Sheikh of an offence under Section 304 RPC. amounts to an order impliedly discharging him of the offence under Section 302 RPC. in respect of

which he was committed for trial to the court of Sessions. So viewed, the order cannot be treated as an interlocutory order. The first ground fails

7 Coming to the second ground, the general rule is that in a case which has proceeded on a police report, a private party has no locus standi (See

AIR 1966 S C. 911) But this Rule is not without exceptions. It is open to the High Court to set aside the order at the instance of a private party

where the order is violated by manifest error of law or procedure which has resulted in the miscarriage of justice.) (See AIR 1962 S. C. 1788).

Assuming that the petitioner, who was the first informant, is a private party, the question that really arises is whether the impugned order is vitiated

by any manifest error of law or procedure which has resulted in miscarriage of justice.

The learned Sessions Judge has held and it is not disputed before me, that the testimony of Mst Zooni wife of Aziz Sheikh accused forms the

corner stone of the prosecution case. In her statement under Section 164 Cr. P. C. she has admitted that the was having an affair with the

deceased who had even indulged in sexual orgy with her. This circumstance has influenced the Addl. Sessions Judge in converting the offence from

one under Section 302 RPC into one under Section 304 RPC. One could understand the conversion if the allegation or admission were to the

effect that the accused had found his wife in a compromising position with the deceased, But that is not really so. The witness has simply suggested

that the accused had strong suspicion against her on account of her illicit connections with the deceased. That was not enough to convert the

offence from one under Section 302 RPC. into one under Section 304 RPC. Thus she order of the Addl. Sessions Judge, is manifestly erroneous

in law and there can be hardly any doubt that it has resulted in miscarriage of justice. Therefore, this is a fit case in which this court should 'interfere

in exercise of its revisional powers even if it were held that the petitioner is merely a private party.

The result, therefore, is that the revision is allowed. The impugned order in so far as it relates to Aziz Sheikh accused, is set aside. The Addl.

Sessions Judge Is directed to frame a for the charge against him in accordance with law. The parties have been directed to appear before the

Addl. Sessions Judge, Srinagar, on 30th of October, 1980.