Abdul Khaliq Bhat & Ors. vs State of J & K

The petitioners, who, pursuant to the commitment of the Final Police Report, filed after the investigation of FIR No. 40 of 2009, registered at

Police Station, Pattan, under Sections 302/34 RPC have been sent for trial to the Sessions Court at Baramulla, have questioned in this Petition, the

learned Sessions Judge's order of September 16,2009, directing further investigation in the case.

I have considered the submissions advanced by learned counsel for the parties at the Bar for and against the impugned order, and perused the

records of the trial Court.

Learned Sessions Judge has passed the order impugned in the Petition on Public Prosecutor's application, contents whereof read thus:

May it please your honour,

The application is with due regards submitted as under:

That the afore mentioned case is fixed for hearing today on 6th of August, 2009 and in the said case the police had recorded the statements of

few witnesses and statements of important witnesses have not been recorded by the police during investigation whose evidence in the case is very

necessary as they are eye witnesses of the occurence.

That there are certain important things which require to be investigated in the case.

That the important witnesses such as Ashiq Hussain Bhat, Gh. Hussain Bhat, Sona Ullah Bhat and Ali Mohd. Bhat sons of late Mohd. Ramzan

Bhat(deceased) and Imtiyaz Ahmed Bhat S/o Mohammad Qasim Bhat who are the witnesses of the occurrence and their evidence have been left

by the Investigating Officer.

That since the case is of a heinous nature and the accused persons have committed serious offence of murder and important facts have been left

by the prosecution during the investigation of the case.

That in case this application is not allowed, the accused persons will take the benefit of that and the accused persons will be remained

unpunished for the heinous offence which they have committed deliberately and intentionally.

In view of the above facts and circumstances, it is prayed that the Hon'ble Court maybe pleased to pass an order for further investigation of the

case.

Facts stated in paragraph No.3 of the Public Prosecutor's application are, however, not borne out from the records, in that, the Final Police

Report, filed by the Police in the Court, mentions the names of all the persons who have been referred by the Public Prosecutor in paragraph No.3

of his application, as eye witnesses to the occurrence.

This apart, the Final Police Report, is accompanied by the copies of the statements of these witnesses recorded under Section 164A of the

Code of Criminal Procedure by learned Judicial Magistrate, Pattan.

While allowing the Application, learned Sessions Judge, appears to have been swayed by his finding that the learned Judicial Magistrate, Pattan

had not taken care to record the statements himself or on his dictation. He has further found the statements to have been recorded in a slipshod

manner, making no sense.

I have seen the statements recorded by the learned Judicial Magistrate, Pattan. There is no material on records, on the basis whereof, the

criticism of the learned Judicial Magistrate, regarding recording of the statements under Section 164A Cr.P.C, by the learned Sessions Judge, may

be justified, which even otherwise was unwarranted, besides being unnecessary, at this stage of the case, when the learned Sessions Judge had yet

to address himself to find the existence or otherwise of a case for trial of the petitioners.

The observation made by the learned Sessions Judge that the witnesses examined in the case had unwillingly stated about the occurrence, too is

uncalled for, in that, neither was there any occasion for him so to do nor is his observation, even otherwise justified.

This apart, while considering the Public Prosecutor's Application seeking an order for reinvestigation of the case, the learned Sessions Judge has

erred in not properly construing the provisions of Section 173(8) of the Code of Criminal Procedure.

The Application filed by the Public Prosecutor does not indicate any such facts, on which an order for further investigation of the case may be

warranted.

In terms of the provisions of Section 173(8) of the Code of Criminal Procedure, an Officer Incharge of the Police Station, regardless of his

having filed the Final Police Report, in the Court, is empowered to obtain further evidence, oral or documentary, pertaining to the offence

investigated earlier and forward its report or reports regarding such evidence in the Court seized of the case.

The Prosecutor's application, does not talk of any such intention of the Officer Incharge of the Police Station to obtain further oral or

documentary evidence in the case, And nor had the learned Sessions Judge considered the Final Police Report and the material accompanying

therewith, on the basis whereof, the petitioners are sought to be put up for trial, so as to find out as to whether or not any further investigation of

the case was warranted on any indicated aspects, and in such view of the matter, learned Sessions Judge's direction for further investigation of the

case, on mere ipse dixit of the Public Prosecutor, and that too, on an application based on incorrect facts, was unnecessary, unwarranted and

unjustified.

The learned Sessions Judge has, therefore, erred in exercising jurisdiction under Section 173(8) of the Code of Criminal Procedure in allowing

Public Prosecutor's Application and passing the order impugned in this Petition.

The order passed by the learned Sessions Judge, therefore, needs to be quashed.

Accordingly, allowing the Petition, order dated 16.09.2009 of learned Sessions Judge, Baramulla is quashed and he is directed to proceed

with the case, in accordance with law.

Parties through their counsel are directed to appear before the trial Court on November 21,2009.