Jammu, March 16: (Agencies) Justice Mohammad Yaqoob Mir of J&K High Court Jammu Wing in a criminal revision filed by the state against the order of Trial Court whereby Trial Court discharged six accused on October 30, 2006, upheld the judgment of trial court with the direction that copy of the order be sent to trial court so as to proceed in the matter vis-à-vis Virinder Sharma and the investigating officer, in accordance with its order dated 30.10.2006.
According to the case that on 30.03.2002 in a Fidayeen attack at Raghunath Temple, two Fidayeens met their fate i.e. they died. The case regarding the occurrence was registered as FIR No.134/2002, P/s Bahu Fort which on completion of investigation resulted in filing of the Challan (Charge-sheet) against the respondents (accused) for commission of offences punishable under Section 3 of Enemy Agents Ordnance Act, 2/3 of Prevention and Suppression of Sabotage Act, Sections 302/307 and 120-B RPC. The case was committed to the Court of Sessions Judge Jammu. The respondents (accused) opposed the framing of charge on the ground that prima facie no evidence at all is available; therefore there is no question of putting the respondents to trial.
Justice Mohammad Yaqoob Mir after hearing Sr. AAG SS Nanda appearing for the state whereas Advocates Rupak Ratta and KK Pathan appearing for the respondents, observed that it is trite that at the time of framing or other wise of the charge, the trial court is not required to evaluate the evidence nor is obliged to meticulously sift and scan the entire material collected by the investigating agency, enquiry into pros and cons is impermissible but it is also trite that framing of charge is not an idle formality and it is in that context in keeping with the mandate of Chapter XXIII of the Code of Criminal Procedure in particular reference to Sections 268 & 269 CrPC, the trial court has to evaluate the material collected during investigation for the purposes of ascertaining as to whether prima facie case against the accused exist so as to put the accused on trial. The grounds must exist for presuming that the accused have committed the offence when the wording employed is such then it becomes the legal obligation of the trial court to evaluate the material / evidence based on which charge can be framed.
High Court further observed that from the order impugned it appears that the trial court has been totally alive to the legal position and has thereafter passed a well reasoned order. While discharging the accused (respondents), Trial Court while referring to the entire record has drawn a conclusion that there is not an iota of incriminating evidence against the accused persons which would link them with the commission of offences directly or indirectly. It is also noticed in the order that 84 witnesses have been shown as listed witnesses, out of whom PWs 1 to 67 are cited as Eye-witnesses. These 67 witnesses have only and only implicated two unidentified militants who were killed in an encounter with the security forces. In their statements, there is not a whisper against the accused (respondents). It is also recorded that even it is not shown anywhere that these two militants were accompanied by any other person. An attempt has been made to show that the respondents are involved by referring to a letter issued by Inspector, Toll Post Manda, Akhnoor wherein it has been shown that a Truck No.4167-JKS has passed through the Toll Post but in the letter it is specifically stated that the Truck was empty and nowhere it is said that any person was carrying any arms or ammunition in the Truck at the time of its checking.
High Court further observed that Trial Court after discussing all aspects precisely that too on the strength of the material collected during the investigation and produced before the Court along with charge sheet has finally concluded that prima facie no ground exists against the accused which would persuade the trial court to put the respondents on trial and trial court has also made it clear that the material against the two militants existed but since they were killed, so has to be ignored. But there was sufficient material showing involvement of one Virinder Sharma s/o Vishal Sharma who has not been arrayed as accused. Noticing that with seriousness, trial court has directed notice to be served upon the investigating officer to show cause as to why he had not arrayed Virinder Sharma s/o Vishal Sharma as one of the accused in the case.
Justice Yaqoob Mir further observed that today during the hearing, Sr. AAG was pointedly asked to show even a single word appearing in the statement of the listed cited witnesses so as to persuade this Court to take a view different to what has been taken by the trial court or to show whether the trial court has erred in concluding that no ground exists for presuming commission of offence by the respondents but the records disabled him to negative the same and a well reasoned judgment passed by the trial court does not call for any interference. Even though revision may fail on technical ground but it also fails on merits, accordingly is dismissed.
High Court further directed Registry to sent the copy of this order to trial court so as to proceed in the matter vis-à-vis Virinder Sharma and the investigating officer, in accordance with its order dated 30.10.2006. JNF
Fidayeen attack at Raghunath Temple HC uphold discharge of six accused
