State Of J&K vs Mushtaq Ahmad Parray & Ors

Sanjay Dhar, J

The instant suo moto proceedings owe their origin to a complaint made by one Mohammad Farooq, Vice Chairman, J&K RTI Movement, addressed to Hon’ble Mr. Justice Muzaffar Hussain Attar, Former Judge of this Court. It seems that the said complaint was forwarded by Hon’ble Mr. Justice Ali Mohammad Magrey to Hon’ble the Chief Justice in terms of his Do letter dated 8th June, 2015. It was highlighted in the said letter that the Presiding Officer of the Court of Principal Sessions Judge, Budgam, has, without affording sufficient opportunities to the prosecution to produce witnesses in a case arising out of FIR No.210/2011 for offences under Section 420, 467, 468, 409 and 109 RPC registered with Police Station, Beerwah, proceeded to close the prosecution evidence. The letter was endorsed by Hon’ble the Chief Justice to the Hon’ble Judge holding the roster and, accordingly, these suo moto proceedings were registered. Notice was issued to the learned Advocate General as also to the accused and the original record was called from the Court of Principal Sessions Judge, Budgam. This was done vide order dated 10th June, 2015.

Counsel for the State as well as counsel for the accused put in their appearance and it was submitted by learned counsel for the accused that the accused have challenged another FIR bearing No.26/2014 for offences under Section 5(2) of J&K Prevention of Corruption Act and Section 120-B of RPC registered with Police Station, Vigilance Organization, Kashmir, and the subject of the said FIR is the same allegations which are the subject matter of challan pending before the Court of Principal Sessions Judge, Budgam. On the basis of this statement of learned counsel for the accused, the file titled “Dr. Fayaz Ahmad Banday & Ors. Vs. State & anr” (CRMC No.53/2019) was clubbed with the instant suo moto revision petition.

A perusal of the minutes of the proceedings reveals that nobody has been appearing on behalf of the accused in this case for quite some time and today also, none has appeared on their behalf.

Having regard to the fact that the original record of the trial court has been summoned by this Court and the further proceedings before the trial court have been stalled, the instant proceedings are required to be decided at the earliest without waiting for the appearance of counsel for the accused. Accordingly, the matter has been taken up for consideration

I have heard Mr. Ilyas Laway, learned counsel for the State, and perused the trial court record.

It appears that a complaint dated 26.11.2011 was received by Block Medical Officer, Beerwah, from PW-Dr. Mohammad Assadullah, alleging therein that five cheques, particulars whereof are given in the said complaint, drawn in favour of accused Mushtaq Ahmad Parray, have been transferred from the official account of BMO, Beerwah in account of aforenamed accused on the basis of forged signatures during the period from 27.07.2011 to 30.08.2011, when the complainant was functioning as a Drawing and Disbursing Officer. The said complaint was forwarded by BMO, Beerwah, to SHO, P/S Beerwah and the FIR was registered and investigation was set into motion.

After investigation of the case, it was found that the accused persons have withdrawn and misappropriated lacs of rupees from the official account of BMO, Beerwah by committing forgery and, accordingly, offences under Section 420, 467, 468, 409 and 109 RPC were found established against them. The challan was laid before the learned Principal Sessions Judge, Budgam, who vide his order dated 22.08.2013 framed charges for the aforesaid offences against the accused persons. When the accused denied charges, the prosecution was directed to lead evidence in support of the charges. The learned trial court recorded statements of as many as 12 witnesses out of 24 witnesses cited in the challan and thereafter proceeded to close the evidence of the prosecution in terms of order dated 13.05.2015.

A perusal of the record shows that most of the material witnesses have not been examined by the trial court and the evidence of the prosecution has been closed as the prosecution could not produce these witnesses after having availed a number of opportunities.

Section 271 of the J&K Cr. P. C casts a duty upon the Court to fix a date for examination of the witnesses, if accused refuses to plead or does not plead guilty to the charges. Thus, once a date is fixed for examination of the witnesses, the prosecution has to produce the evidence in terms of Section 272(1) of the J&K Cr. P. C. The Supreme Court and this Court has in a series of judgments stressed that production of witnesses should not be left to the mercy of the prosecution alone. It has been emphasized that the trial court has to make all necessary efforts in order to ensure that material evidence is brought on record, especially in serious offences. The Court cannot sit as a mute spectator and leave it to the will and wish of the prosecution to produce the witnesses. During trial of a criminal case, a court has not to act as an umpire and count the mistakes committed by the prosecution and the defence but it has to arrogate to itself the role of an active participant in the criminal trial by making all efforts to unearth the truth. This would include summoning of material witnesses by issuing process for their attendance in the court. In fact, Section 540 of the J&K Cr. P. C, which is applicable to the instant case, vests power with the Criminal Court to summon and examine any witness whose evidence is necessary for the just decision of the case. Such power can be exercised by a Criminal Court at any stage of the proceedings, even after the trial has been closed.

In the backdrop of the foregoing legal position, let us now examine as to what has been done by the trial court in the instant case. As already stated, out of 24, only 12 prosecution witnesses have been examined by the trial court. A perusal of the record would reveal that most of the prosecution witnesses, whose statements have not been recorded by the trial court, are government servants or officials of the Jammu and Kashmir Bank. Therefore, it was the duty of the trial court to issue summons to these witnesses for securing their attendance before the Court, because normally government officials are reluctant to remain absent from their official duties for attending the court cases unless they receive summons from the Court. The learned trial court has not made any effort to summon at least the official witnesses and has proceeded to close the evidence of the prosecution just because the prosecution had failed to produce witnesses despite having availed a large number of opportunities. The order whereby the evidence of the prosecution has been closed by the learned trial court is, therefore, not sustainable in law.

For the foregoing reasons, the instant suo moto revision petition is allowed and order dated 13.05.2015 passed by the learned trial court, whereby evidence of the prosecution has been closed, is set aside. The learned trial court is directed to summon and examine all the material witnesses whose statements have not been recorded so far. Thereafter fresh statement of the accused under Section 342 of the J&K Cr. P. C shall be recorded and the proceedings shall be concluded expeditiously in accordance with law.

The suo moto revision petition stands disposed of.

The connected petition (CRMC No.53/2019) be de-linked and be listed separately on 18.12.2023.

A copy of this order along with trial court record be sent to the learned trial court for information and compliance.