Abdul Rehman vs State of Jammu and Kashmir

S.K. Gupta, J.—Through the currency of this petition proceedings initiated against Abdul Rehman and another for offence under Sections

302/34 R.P.C. after the frame of the charge, pending in the Court of Sessions Judge, Poonch, have been sought to be quashed by invoking

inherent jurisdiction u/s 561-A of the Code of Criminal Procedure.

Facts relevant for the disposal of this petition, put tersely, are that on the recovery of the dead body of the deceased- Khalida Bi, wife of the

petitioner-Abdul Rehman, on 25.10.2001 by the police, it was sent for post mortem examination. On the receipt of the post mortem report,

proceedings were initiated by the Police Station, Poonch, u/s 174 Cr.P.C. On the conclusion of the proceedings, a case under Sections 302/34

R.P.C. stood registered at the behest of the concerned police officer vide communication dated 26.02.2002 against the petitioner and his brother-

Abdul Qayoom for having caused the death of Khalida Bi by pressing the nerves of both side of her neck (by throttling), as a result of which she

died and thereafter both the accused put the dead body of the deceased in a bag and threw it into the water by putting a white sheet on it and

keeping stones on its corners so that the dead body may not come on the surface of the water, and the investigation ensued.

After the completion of the investigation, challan against the accused/petitioner and his brother-Abdul Qayoom came to be presented before the

Court and the trial commenced after the frame of the charge before the Sessions Judge, Poonch. Out of totality of eighteen witnesses cited in the

challan, thirteen have been produced and examined by the prosecution to support the charge against the accused.

According to the petitioner, none of the witnesses has supported the prosecution case and most of them have been declared hostile. It is further

stated that nothing is borne out from their cross-examination to link the accused with the commission of the crime and in such circumstances,

continuation of the trial would amount to an abuse of the process of the Court as the remaining witnesses are only the formal witnesses. It is further

stated that the evidence adduced by the prosecution, even if believed at their face value, would not prove the charge against the accused.

I have heard learned Counsel appearing for the respective parties and perused the record meticulously.

There is no direct evidence and the prosecution case hinges on circumstantial evidence. Circumstantial evidence collected and relied upon

consisted of extra judicial confession made by the accused to Mohd. Hafiz and Nadeem Riaz, prosecution witnesses. But both these witnesses in

their evidence before the Court emphatically denied that the accused ever made a statement to have caused the death of the deceased, PW-

Mohd. Hafiz, when denied about Abdul Rehman to have confessed of killing the deceased and pleaded ignorance about the cause of death, was

declared hostile. The witness was not even confronted with the statement made by him u/s 161 -Cr.P.C., where he is stated to have deposed

before the police about the confession of killing the deceased by Abdul Qayoom-accused.

As regards medical opinion, Dr. Mohd Yunis conducted the post mortem examination of deceased-Khalida Bi and in his evidence before the

Court on 12.09,2003 stated that if a person is throttled with full force with an intent to kill him, there will be a mark of violence in and around the

neck in that event. Further evidence provided by the doctor is that if a person falls into the river or water in that case vagal inhibition can be caused

if he strikes forcibly against the upper abdomen. He further stated to have noticed slight discharge of water from the nostril. According to the

doctor, in this case, it may not be a case of killing the man and then throwing the dead body inside the river. Cardiac arrest can be caused by other

reasons also.

Mrs. Sindhu Sharma, learned Counsel appearing for the petitioner, vehemently urged that there is nothing incriminating against the accused

elicited from the prosecution evidence to support the charge and in such event continuation of the trial would amount to unnecessary harassment to

the accused resulting in an abuse of the process of the Court.

Mr. A.H. Qazi, learned Addl.AG appearing for the State, when taken through the record of the trial court including the evidence of the

prosecution witnesses recorded during trial, he admitted that most of the witnesses have been declared hostile and nothing is gathered from their

cross-examination to support accusation in the charge against the accused. His only submission was that as there are still some more witnesses to

be examined in the case and in such event the matter be left to the trial court where the petitioner may make an application in this behalf after the

entire evidence is recorded.

It is pertinent to point out that even the statement of investigating officer is of no avail to the prosecution, since the statements recorded u/s 161

Cr.P.C. have not been put to the witnesses in their cross-examination so as to ascertain its truthfulness from the investigating officer in his evidence

in the Court. Even Mr. Qazi during the course of argument did not dispute that the evidence assembled by the prosecution during trial is

qualitatively and quantitatively insufficient to connect the accused in any manner with the commission of offence. He also did not dispute that even

in their searching cross-examination, the prosecution could not elicit anything incriminating against the accused and support the charge against the

accused in the case.

Indubitably, the inherent power in the High Court is an inalienable attribute of the position it holds with respect to the courts subordinate to it.

The power is to be exercised ex-debitio justitia to it. The real and substantial justice for the administration of which alone courts exist. In other

words the authority of the court exists for the advancement of justice and if an attempt is made to abuse the authority, so as to produce injustice,

the court must exercise power to prevent that abuse. The purpose, thus, is to promote justice and to prevent injustice. It would, therefore, be an

abuse of process of the court to allow the trial to continue when the evidence on record even if taken it as it is, it is fairly certain that there is no

prospect of the case ending in conviction. The valuable time of the Court should not be wasted for continuing the trial only for the purpose of

completing the procedure to pronounce the conclusion on a future date. In such event, the continuance of the trial would only be an exercise in

futility and it is legally desirable to truncate or ship the proceedings at that stage, with a view to secure the ends of justice and prevent the abuse of

the process of the court.

It is advantageous to point out that when no offence is disclosed and the charge is not supported by the evidence adduced in the case, the High

Court may also examine the question of fact particularly when the continuation of the proceedings and trial is sought to be quashed. It is permissible

to look into the evidence to assess as to what are the allegations in the complaint and what is the evidence tendered by the witnesses examined in

the case. In other words, the only thing which the High Court may look into is whether there is any legal evidence against a person and for this

purpose may examine the evidence to find out if or not the trial in the case is to continue.

In R.P. Kapur Vs. The State of Punjab, , the Apex Court has laid down the guidelines about the use of inherent power by the High Court u/s

561-A Cr.P.C. Some of the cases which are categorized by the Supreme Court where the inherent jurisdiction to quash proceedings can be

exercised are as under:

(a) Where it manifestly appears that there is a legal bar against the institution or continuance of the criminal proceedings in respect of the offence

alleged. Absence of the requisite sanction may, for instance, furnish cases under this category.

(b) Where the allegations in the FIR/complaint even if they are taken at their face value do not constitute the offence alleged;

(c) Where the allegations made against the accused person do constitute an offence, but there is either no legal evidence produced in support of

the case or the evidence adduced clearly or manifestly fails to prove the charge.

From the plain reading of the aforesaid observations, it appears that though allegations made in the complaint against the accused constitute an

offence but the evidence produced by the prosecution does not support the charge or link the accused with the commission of the crime in any

manner. It is sufficient to conclude at that stage that continuation of prosecution will be an abuse of the process of the court.

Taking global view of the matter based on the aforesaid discussion, continuation of further trial, in my opinion, would be an abuse of process of

the court and to secure the ends of justice, its quashment is necessary.

Consequently, I allow the petition and quash the proceedings pending before the trial court of Sessions Judge, Poonch, in case entitled 'State v.

Abdul Rehman and Anr.' for offences under Sections 302/34 RPC, against both the accused notwithstanding the fact that Mr. Abdul Qayoom-

accused did not file the petition u/s 561-A Cr.P.C. but still can be given the relief. The accused shall be released from the custody provided their

detention is not required in any other case. Record shall be, remitted back to the trial-court forthwith.