State of Jammu & Kashmir vs Farooq Ahmed Sheikh and Others

Mansoor Ahmad Mir, J.—By the medium of this petition the State has questioned the order dated 7.2.2002 passed by the Principal

Sessions Judge (Special Judge), Jammu, whereby Respondent No. 2 came to be discharged of all the offences, charge was framed against

Respondent No. 1 for the commission of offence punishable u/s 474 of Ranbir Penal Code (hereinafter, for short RPC), 8/56 F.E.R.A,

Respondent No. 3 for the commission of offence punishable u/s 466,473 and 201 RPC and Respondent No. 4 for the commission of offence

punishable under Sections 419 and 420 RPC.

The question is whether this petition is maintainable.

Enemy Agents Ordinance (hereafter, for short, EAO) contains special procedure and provides mechanism as to how final report is to be

presented, charge is to be framed, trial is to be conducted and what is the remedy for conviction and acquittal. It also provides the method and

manner of recording evidence. All the provisions contained in Code of Criminal Procedure are not applicable. It is apt to reproduce Section 9 of

EAO:

Review of convictions

(1) If, in any proceeding before a Special Judge,-

(a) A person convicted is sentenced to death or to imprisonment for life, or

(b) Though no person is so sentenced, the Special Judge certifies that in his opinion the case has involved questions of special difficulty, whether of

law or fact or is one which for any other reason ought properly to be reviewed, the proceedings shall be submitted for review by a person chosen

by the Government from the Judges of the High Court and the decision of that person shall be final.

(2) Where any proceedings are so submitted for review, the judge reviewing the proceedings may exercise in his discretion any of the powers

exercisable u/s 439 of the Code of Criminal Procedure, 1989, by the High Court in the case of any proceedings which the said Section 439 refers:

Provided that where in the exercise of these powers of the judge reviewing the proceedings directs a retrial of the accused, or directs further

evidence to be taken, the reviewing Judge may direct the retrial to be held or the further evidence to be taken by the Special Judge by whom the

case was tried in the first instance or by any other Special Judge, or by a Special Judge to be appointed for the purpose by the Government.

(3) The person appointed under Sub-section (1) to review the proceedings of a Special Judge call for and examine the record of any proceedings

before the Special Judge for the purpose of satisfying himself as to the correctness, legality or propriety of any finding, sentence or order recorded

or passed and as to the regularity of any proceedings of the Special Judge, and may exercise in the case of proceedings the record of which has

been so called for any of the powers which would have been exercisable by him in the case of such proceedings had they been submitted to him

for review under Sub-section (1).

While going through this provision of law, it is crystal clear that when High Court Judge-reviewing Judge can review the orders passed by the

Special Judge. It appears that the reviewing judge has the power to exercise revisional jurisdiction and can entertain any revision filed by the State

or by the complainant including the accused. The powers are to be exercised in terms of Section 439 of Code of Criminal Procedure (hereinafter,

for short, Code of Criminal Procedure ). My this view is fortified by the judgment of this Court reported in State v. Dr. Abdul Majid AIR 1952 JK

It is apt to reproduce para 3 of the said judgment herein:

Mr. Hafiz has raised a preliminary objection that no revision is permitted by the provisions of the Enemy Agents Ordinance. But this objection of

the learned Counsel is untenable, inasmuch as Sub-section (3) of Section 9 of this Ordinance empowers the reviewing judge to call for and

examine the record of any proceeding before the Special Judge for the purpose of satisfying himself as to the correctness, legality, or propriety of

any finding, sentence or order recorded or passed. The wording used in this section is almost the same as used in Section 435, Criminal P. C, and

if the word ""revision"" is not used in this section, it makes no difference, as the word ""revision"" is not used in S. 435, Criminal P. C, even. Therefore

I am of opinion that a revision application of the kind submitted by the learned Assistant Advocate General is competent and this Court has got

ample powers to call for and examine the record of any proceeding before the Special Judge for the purpose of satisfying as to the correctness,

legality or propriety of any sentence awarded or order passed.

While keeping in view the provisions contained in EAO, only revisional powers can be exercised by the reviewing Judge. The remedy u/s 561-

A Code of Criminal Procedure cannot be availed by any of the parties. Even otherwise the matter is before the court and it has been brought to the

notice of the Court that the Respondents have been discharged from some of the offences, as discussed hereinabove. If it appears that the order is

not legally correct, thus it can be treated as revision. I have gone through the judgment and I am of the considered view that the trial court has

rightly held that there was not an iota of evidence collected by the investigating agency during investigation which can be made basis for holding that

there are grounds for framing charge for the commission of offence punishable u/s 3 of Enemy Agents Ordinance or other offences. It is apt to

reproduce relevant portion of the judgment:

So far offence u/s 3 E.A.O. is concerned, there is absolutely no evidence whatsoever on the file to show that any accused was found involved in

subverting the government established by law by dumping any arms, ammunition, explosive or literature of any kind was received at any time or

distributed or carried any ammunition or explosive or inflammatory literature against the government in any manner or involved in waging war

against the government of India or the State of J&K. In the absence of any evidence of any kind stated hereinabove, I absolutely find no material

on record to connect the accused Farooq Ahmed Sheikh, Mohd. Ayoob and Gh. Ahmed Mir except the offences stated hereinabove and are

discharged from all other charges.

I deem it proper to record herein that the learned Counsel for State only argued that there was a ground for holding that the accused were

involved in the commission of offence punishable u/s 3 of EAO. He has not questioned the judgment so far as it relates to discharging the accused

for the commission of other offences. It is apt to record herein that the trial court has proceeded ahead and has recorded so far 12 witnesses,

whereas witnesses 9,11 & 14 have been given up by the prosecution. Thus there remain only few witnesses to be examined.

In the given circumstances it is held that the trial court has not committed any illegality which would warrant treating this petition as revision petition.

The petition in hand is not maintainable, accordingly, merits to be dismissed. Ordered accordingly. The trial court is directed to conclude the trial

within a period of six months with effect from 1st June 2011. Parties are directed to cause their appearance before the trial court on 1.6.2011.

Registry to send down the record along with a copy of this order.