State of Jammu & Kashmir vs Ghulam Qadir Sofi (Dr.)

Muzaffar Hussain Attar, J.—Order of discharge passed by learned Additional Sessions Judge, Pulwama on 04.09.2010 passed in FIR No.

11/Sessions of 2010 arising out of FIR No. 121 of 2010 P/S, Pulwama, is called in question, in this criminal revision petition.

Heard learned counsel for the parties. Considered the matter.

Learned counsel for the petitioner submitted that order of discharge has been passed by the learned trial Judge as if he was considering the

matter at the conclusion of the trial and was required to record a finding about the guilt or innocence of the accused. Learned counsel submitted

that the evidence which was available on the record of the trial Court and also other material would prima facie show commission of offence u/s

376(2) (d) RPC. Learned counsel submitted that learned trial Judge had travel beyond his jurisdiction in delving deep into the material and

evaluating the evidence as if the respondent was to be either convicted or acquitted. Learned counsel submitted that in terms of Section 268

Cr.P.C. accused could be discharged, when Judge would find that there is no sufficient ground for proceedings against him. Learned counsel

submitted that in the facts and circumstances of this case, there was ground for presuming that the accused has committed the offence and was

required to be put on trial by framing the charge against him. Learned counsel, accordingly, prayed for setting aside of the order impugned in this

petition.

Mr. A.R. Bhat learned counsel appearing for respondents submitted that considering the entire material available on record, it could not be said

that accused has committed offence which would warrant for framing of charge against him and for putting him on trial. Learned counsel submitted

that site plan annexed with the report u/s 173 Cr.P.C. would not support prosecution case and that alleged crime of rape could not be video-

graphed from the small hole of the door. Learned counsel submitted that lady in order to save herself has made false acquisition against the

respondent and in fact she had not approached the Police. Learned counsel submitted that in these circumstances, there was no ground for framing

charge against the accused and the learned trial Judge in his wisdom has rightly discharged the accused. Learned counsel submitted that person

from whom mobile phone was alleged to have been borrowed by the prosecution witness who video graphed the alleged act of rape, has stated

that he does not remember as to whether mobile phone was borrowed from him or not.

In order to appreciate the arguments advanced at the Bar, it will be appropriate to give brief resume of the facts of this case.

Perusal of the FIR shows that DSB, Pulwama sent written report along with memory card of the mobile pone, which was duly endorsed by the

SSP Pulwama, to Police Station, Pulwama alleging therein that Mr. Ghulam Qadir Sofi, CMO Pulwama is a doctor by profession and is posted at

Pulwama. It is also alleged in the FIR that about seven years back he was posted as Block Medical Officer, Pulwama. It is also alleged that on

some complaint of a women he was transferred from the said place. It is stated that in the FIR that he was posted as Dy. Chief Medical Officer for

a period of 5/6 years and thereafter was posted as Chief Medical Officer, Pulwama. It is also alleged in the FIR that instead of performing his

duties in the hospital, he would mostly spent his time in private clinic despite the fact that he would draw non practising allowances (NPA) as well.

Besides alleging other things in the FIR, it was also alleged that sometime back respondent-CMO had subjected one unidentified woman to rape in

his clinic. It is on this basis case IFR No. 121/2010 P/S Pulwama u/s 376(2)(d) was registered against respondent-CMO. During the investigation

of the case, police identified lady who was allegedly subjected to rape by respondent.

Statement of the prosecution witnesses were record. Statements of some of prosecution witnesses were also recorded u/s 164(a) Cr.P.C.

Perusal of record of the trial Court reveals that statement of Bilal Ahmad Tehli and Halima were recorded u/s 164(a) Cr.P.C. and statement of

some other witnesses were also recorded u/s 161 Cr.P.C. Bilal Ahmad Tehli in his statement has deposed that he is working in clinic for last seven

years. Vijay Clinic belongs to one Rattan Lal Koul and Bashir Ahmad Sheikh. In one room of the clinic, respondent-doctor is also practicing

medicine. The said clinic is situated in the Auquaf building on Tahab Road. It is also alleged that on 06.09.2009 at about 4:00 p.m. a lady came to

the clinic and at that point of time there was no other patient in the clinic. It is also stated by Bashir Ahmad Tehli that when lady entered into the

clinic of the doctor, the accused bolted the door from inside. Prosecution witness further stated that he peeped through the hole of the door and

found the lady and respondent doctor in suspicious manner and he narrated this to Shabir Ahmad and took his mobile phone and through the hole

of the door recorded what was going inside. He has alleged that respondent accused was raping the lady.

Halima during investigation u/s 164(a) has stated that she was ill and she went to the hospital at Pulwama, where respondent-doctor told her to

come to her clinic. She has deposed that after some days she went to the clinic of respondent-accused at about 4:00 p.m. She further stated that

there were some patients at that time. She has further stated in her statement that moment she entered the room of the respondent-accused, he

bolted the door from inside and despite her resistance the respondent-doctor, allegedly committed rape on her. She also stated that she had not

consented for the act. She also stated that she maintained silence as she has children and she did not want to have any adverse effect on them. But

now she is making the statement. Prosecution also recorded the statement of some other witnesses and seized the blanket, mobile and memory

card during the investigation of the case. Statement of the some other witnesses and collected seized material, blanket was sent to the Forensic

Laboratory. Certificate of potency was also obtained. Rent agreement of the clinic was also seized. After completion of the investigation the police

submitted report u/s 173 Cr.P.C. along with material supporting the case against the respondent.

It will be profitable to take note of Section 268 and 269 of Cr.P.C. Svt. 1989 (for short Svt. 1989):

268: Discharge:

If upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the

prosecution in this behalf, 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. 269. Framing of charge If, after such consideration and hearing as aforesaid, the Judge is of opinion that there

is ground for presuming that the accused has committed an offence which

(a) is not exclusively triable by the Court of Sessions, he may frame charge against the accused and by order, transfer the case to the Chief Judicial

Magistrate or any Judicial Magistrate competent to try the case, and thereupon the Chief Judicial Magistrate or any Judicial Magistrate to whom a

case may have been transferred shall try the offence in accordance with the procedure provided for the trial of warrant cases instituted on police

report,

(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused.

Section 376(2)(d) provides punishment of rape when same is committed by public servant taking advantage of his official position, and

commits rape on a woman in his custody as such public servant or in the custody of public servant subordinate to him. Section 268 provides if

upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the

prosecution in this behalf 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 whereas section 269 provides that if in the opinion of the Judge there is ground for presuming that the accused

has committed an offence which is exclusively triable by the Court of Sessions he may frame charge against the accused.

The language used by legislatures in these two provisions of law is materially different. To discharging the accused, finding has to be recorded

even for prima facie purpose that there is no sufficient ground for proceeding against the accused, whereas in terms of Section 269, court has only

to record opinion that there is ground for presuming that the accused has committed offence. For discharging the accused Court has to record

reasons that there are no sufficient ground to proceed against the accused while framing the charge against the accused Court has to record opinion

that there is ground for presuming accused has committed offence.

What emerges from the aforementioned two provisions of law is that trial Judge has to record reasons if he finds there are no sufficient grounds

for proceeding against the accused. For framing the charge he has only to record his opinion that there is ground for presuming the offence has

been committed. Thus, for discharging of accused heavy burden is placed on the Court as he has to record reasons to indicate that there are no

sufficient ground to proceed against the accused.

Hon'ble Supreme Court in plethora of judgments has laid parameters as to how case is to be considered at the stage of charge/ discharge of an

accused.

Evidence and the material available before the learned trial Judge is not to be scanned and evaluated in the manner as if court has to find

whether accused has committed the guilt or he is innocent. At that stage he has only to consider the material for framing opinion as to whether

prima facie offence is committed which would require accused to be put on trial.

Unfortunately, learned trial Judge in this case has dealt with the matter as if he was considering the case either to convict or to acquit the

accused. The material evidence which is available do prima facie show that accused has committed offence for which report u/s 173 Cr.P.C. has

been filed against him. The evidence on record does warrant for framing of charge against the accused. Argument of learned counsel for

respondents that there is contradiction in the statement of the witnesses inasmuch as, one witness has stated that there were no persons in the clinic

of the respondent-doctor at the time when alleged offence was committed and prosecution witnesses has stated that there were some person, will

not call for discharging of the accused in the face of overwhelming prima facie evidence. More so, the person who has video-graphed the

occurrence and the prosecutrix (Halima) has in unambiguous terms stated that she was raped against her will, but could not divulge the same to

avoid its adverse impact on her children. The defense whatever is available to the respondent-accused can be pressed into service during the trial

of the case.

For the aforestated reasons, it is held that order impugned passed in this petition is illegal. Learned trial Judge, while discharging the accused,

has forgotten to take into consideration the settled principles of law. Learned trial Judge being a senior Judge has not dealt with matter in the way

he ought to dealt.

For the above stated reasons, this petition is allowed. Order impugned No. 11/Sessions of 2010 dated 04.09.2010 passed by the Additional

Sessions Judge, Pulwama is quashed. Respondent to appear before the learned trial Court and learned trial Court to proceed with the matter in

accordance with law. Registry to return the record forthwith. Registrar General to place copy of this order on the personal file of learned trial

Judge.