Yeshjeet Singh vs State of J&K

Mr. Tashi Rabstan, J. - Petitioner seeks quashment of order dated 12.02.2015, passed by learned 2nd Additional Sessions Judge, Jammu (for

brevity ""Trial Court"") in exercise of inherent powers under Section 561-A Cr.P.C. In terms of said order, petitioner (accused No.3 before the

Trial Court) has been charged along with two other accused persons for commission of offences punishable under Sections 302 RPC and 8(c) of

the NDPS Act.

Before going to grounds of challenge urged in petition, assailing impugned order, it would be advantageous to notice succinct facts stated by the

Police in the challan presented before the Trial Court.

As disclosed by Police in the challan, on 10.10.2014, Police Station, Channi Himmat, Jammu, received telephonic information from Police

Control Room, Jammu, that one girl, namely, Divya Manhas daughter of Shri Krishan Lal resident of Marble Market, Channi Himmat, Jammu,

was found in unconscious condition in front of gate of her house. Since the girl did not regain her consciousness, she was taken to GMC, Hospital,

Jammu, by her parents for treatment, but the doctors declared her as brought dead. As the matter was pertaining to death of a young girl in

suspicious circumstances and in order to verify cause of death of the girl, proceedings under Section 174 Cr.P.C., were initiated by Police Station,

Channi Himmat, Jammu.

In the first instance, Medical Board, comprising of four doctors, constituted by Principal, Government Medical College, Jammu, conducted the

postmortem. Photography and videography of dead body was also conducted at GMC Jammu by officials of photography section of Crime

Branch, Jammu. After postmortem, dead body was handed over to her parents for last rites. Wearing apparels of deceased were also seized.

After postmortem, Viscera and other slides were sent to FSL Jammu and Department of Pathology, GMC, Jammu, for chemical examination and

report. Statements of witnesses were recorded under Section 174 Cr.P.C. and suspects interrogated.

The parents of deceased, during enquiry, stated that deceased was addicted of alcohol, charas, smack, heroin et cetera, for last 2/3 years. They

also stated that about six months ago they noticed deceased roaming in intoxicated condition with Vikram Singh alias Vicku and Robail Sharma

alias Chimpu, both of whom used to sell heroin to deceased. The mother of deceased is said to have many a times requested both accused not to

give heroin to deceased. Realizing no way to save their daughter from the ruin that deceased was facing, they admitted her in Rehabilitation Centre

for 1= months. When deceased recovered, her parents thought it would be better for their daughter, to send her to Chappial, Kangra (Himachal

Pradesh) to undergo BBA Course as her maternal grandparents reside there. Accordingly, she was sent to Himachal Pradesh. To celebrate

Dusshera festival, deceased, on 02.10.2014, came to Jammu. On 09.10.2014, she left her home on pretext to meet her friend and told her mother

that she would return within half an hour. However, when deceased did not come back after an hour, her mother started searching for her.

Meanwhile, mother of deceased came to know that her daughter was using a cellphone for which a simcard was provided to her by one Manav

resident of Ramban. The mother of deceased contacted said Manav, who informed that deceased was going to meet Vikram alias Vicku, and

Rubail Sharma alias Chimpu of Talab Tillo, for taking heroin from them. Thereafter, mother of deceased, in search of deceased, went to Talab

Tillo, but could not trace deceased or Vicku and Chimpu there. Mother and other relatives of deceased tried to contact her telephonically, but her

mobile phone was found switched off. At about 2030 hrs, parents found deceased lying in front of gate of their house in unconscious state, and

took her inside their house and served water and milk to her. The deceased regained consciousness for some time and informed her parents that

Vikram Singh alias Vicku and Robail Sharma both residents of Talab Tillo, Jammu, had given her heavy doses of heroin as both of them were

unhappy over her quitting the drugs and feared that she might disclose their identity and get them arrested by Police. When her health condition

deteriorated, she was taken to GMC, Hospital, Jammu, where doctors declared her as brought dead.

It was found during inquest proceedings that despite many requests by mother of deceased to Vikram Singh alias Vicku and Robail Sharma

alias CHimpu, not to give heroin to deceased, they gave heavy dose of heroin to deceased, which resulted in her death. Based on above

conclusion of inquest proceedings, on 21.10.2014 the case under Section 302, 120-B RPC, was registered in Police Station, Channi Himmat,

Jammu. The investigation of the case was conducted by Inspector, Aejaz Ahmed Wani, SHO Police Station, Channi Himmat. Later on Senior

Superintendent of Police, Jammu, vide Order No. CRB/14/43315-19/DPO, dated 27.10.2014 constituted a Special Investigation Team (SIT),

headed by SP, City South, Jammu, for investigation of the case. SDPO, City East, Jammu, and SHO, Police Station Channi Himmat, ASI Amar

Chand of Police Station, Channi Himmat, were nominated as members of SIT.

The I.O. seized the inquest file, recorded statements of some witnesses u/s 161 Cr.P.C. and on 22.10.2014 arrested accused (1) Vikram Singh

S/O Uttam Singh and (2) Robail Sharma S/O Sh. Mansa Ram both residents of Talab Tillo, Jammu. Both arrested persons were interrogated/

questioned. Some friends/known persons of deceased were also questioned, who deposed that one Yashjeet alias Kalia alias Chachu R/O Damtal

was selling drugs to both Vikram Singh and Robail Sharma (drug peddlers of Jammu). Even some drug addicts purchased heroin from said

Yashjeet. On 24.10.2014 accused - Yashjeet alias Kalia alias Chachu S/O Chaman Lal R/O Searat, Damtal, Tehsil Indora, District Kangra

(Himachal Pradesh) - was also arrested.

The treatment-file of deceased maintained by Help Rehabilitation Centre, Roop Nagar, Jammu, where deceased remained under treatment for

de-addiction, was seized during investigation. Call detail records of deceased and one accused were also obtained. Crime Branch, Jammu, vide

Police Headquarters, J&K, Jammu Order No. 2911 of 2014, dated 15.11.2014, was assigned the case for investigation and it was entrusted to

Dy. S.P. Jeetan Ji Mattoo.

At the time investigation was assigned to Crime Branch, Jammu, all three accused were under judicial remand. Two days Police remand qua

accused namely Yashjeet alias Kalia alias Chachu S/O Chaman Lal R/O Serat, Damtal, Tehsil Indora, District Kangra (Himachal Pradesh) was

granted. The Cell Phone and Spectacles of deceased were seized. Statements of six witnesses were recorded under Section 164-A Cr.P.C.

whereas statements of other witnesses, acquainted with the facts of the case, were recorded under Section 161 Cr.P.C. Statement of doctor, who

treated deceased during her de-addiction treatment, was also recorded. The viscera and other reports including postmortem report were obtained,

which reveal that deceased had died due to Diacetyl Morphine (heroin) poisoning. During investigation, some quantity of intoxicating substances

along with syringe were also recovered from possession of two accused persons and in order to clarify substance, so recovered, seized material

along with syringe were sent to FSL, Jammu, for scientific examination and report.

The investigation revealed that deceased Divya Manhas daughter , of Krishan Singh Manhas, resident of House No. 323/1-D, Trikuta Nagar,

Extension (Marble Market), Jammu, was addicted of Cannabis, Alcohol, and heroin et cetera for 2/3 years. However, for de-addiction treatment,

she remained admitted at Help De-addiction Centre Roop Nagar, Jammu, from 19.07.2014 to 04.08.2014. For another three weeks of her

treatment, she used to come twice to the de-addiction Centre for re-checkup and the doctor after re-checkups found that deceased had not

consumed drugs after treatment in de-addiction centre and was all well. The deceased was student of BBA 1st year course at Kangra, Himachal

Pradesh, where she was living with her maternal grandparents. On 02.10.2014, in view of Dussehra Holidays, the deceased had come to Jammu.

On 07.10.2014, she was provided a simcard bearing Phone No. 9086296626 by her friend Manav Bhasin S/O Joginder Paul Bhasin R/O Court

Road Ramban A/P Trikuta Nagar, Jammu. The investigation further reveals that on 09.10.2014 at about 0810 hrs, deceased sent a short text

message (SMS) to Phone No. 9086356007, used by one of her friends, namely Sawant Singh Pathania S/O Yudhvir Singh Pathania R/O House

No. 4/1, Green Avenue, Digiana, Jammu, asking him to meet her. The said Sawant Singh - a student of 11th Class in JP World School, Jammu -

on that day, with his three schoolmates, namely (1) Abhiny Raina son of Krishan Lal Raina resident of Surkasha Vihar, Phase II, Paloura Top

Jammu (2) Vishal Sharma Son of Nardeep Sharma resident of House No. 366, New Shashtri Nagar, near General Bus Stand, Pathankote, A/P

tenant in the house of Omkar Singh Charak, Sector 1, near Ritz Manor, Channi Himmat, Jammu and (3) Jeshu Angural S/O Prem Lal Angural

R/O House No. 634, Ashok Nagar, Satwari, Jammu, had bunked from the School.

All these four boys, except Abhiny Raina, are the students of class 11th, whereas Abhiny Raina is a student of 12th class in JP World School.

After receipt of text message from deceased, Sawant Singh Pathania telephoned deceased and all four boys, in Maruti Car No. JK02K-6010 of

Abhiny Raina, went to Marble Market, Jammu, where deceased was waiting for them on roadside. The deceased came inside Maruti Car, which

was driven by Abhiny Raina. Thereafter, all the four boys along with deceased went to Talab Tillo, where the deceased phoned accused Vikram

Singh alias Vikku on his Phone No. 9419909450, who told deceased to come after sometime and subsequently deceased along with others

returned back, but after some time they came back to Talab Tilloo, where deceased again telephoned the accused. All the four boys parked the

car at Gole Pulley, Talab Tillo, and got off the vehicle, whereas deceased remained seated in the car. Thereafter, two accused persons (who are

also drug peddlers) namely (1) Vikram Singh Son of Uttam Singh and (2) Robail Sharma Son of Sh. Mansa Ram both residents of Talab Tillo,

Jammu, appeared on spot and parked their Motorcycle behind the Maruti Car. Both accused were found telling each other that Kalia had directed

them to give overdose to the girl. Both accused went inside Maruti Car and injected heroin in the arm of deceased. After injecting heroin to

deceased, accused persons told the boys to leave the spot. All four boys along with deceased in Maruti car proceeded towards Asia Hotel via

Bhagwati Nagar Bridge. When they reached near Asia Hotel, condition of deceased started deteriorating and she turned unconscious. Thereafter,

all four boys along with deceased, who was in unconscious state, went towards Nagrota and kept roaming in the vehicle waiting for the deceased

to regain her consciousness. Sawant Singh Pathania telephoned his another friend, namely, Sudhir Singh Charak and after an hour Sudhir Singh

Charak Son of Sham Singh Charak resident of Sarore (Bishnah) A/P Qtr. No. 38/2 Army Cantonment Satwari Jammu, along with his another

friend Mandeep Singh Charak S/o Puran Singh Charak reached NHW Sidhra (near Batra Hospital) came in a Santro Car No. JK02AV-0964 of

Mandeep Singh, where all four boys were waiting for them. All the six boys shifted deceased (who was unconscious) from Maruti Car to Santro

Car. Three boys, namely, Sawant Singh, Jeshu Angural and Abhiny Raina, left the spot in their Maruti car and went towards their school

wherefrom they went to their respective homes whereas other three boys, Mandeep Singh Charak, Sudhir Singh Charak and Vishal Sharma, took

deceased to near Sarore Bishnah, where house of parents of Sudhir Singh Charak was under-construction. The three boys kept deceased in a

room of the said under-construction house, where an aged couple was residing for last 4/5 years as tenants, were also present.

The investigation makes known that after keeping deceased in under-construction house, Mandeep Singh Charak and Sandeep Singh Charak

came back to Jammu, whereas Vishal Sharma along with aged couple remained at Sarore with deceased. Both Mandeep Singh Charak and

Sudhir Singh Charak were secretly provided Rs. 500/- by Sawant Singh Pathania, for fuel of vehicle and after about an hour or two, both of them

went back to Sarore and brought deceased along with Vishal Sharma back to Jammu in their Santro Car. Thereafter, Sawant Singh Pathania along

with his elder brother Yashwant Singh Pathania came to Digiana in his car, where they met Mandeep Singh Charak and two others. All five

remained roaming in Jammu city and were waiting for darkness and when it was deep dark, all five boys kept deceased in front of gate of her

house and fled from the spot. At about 2000/2100 hours when parents of deceased came to know that deceased was lying in front of gate of their

house, they took deceased inside and tried to serve water to the deceased. In her statement recorded u/s 164-A Cr.P.C., mother of deceased

stated that deceased regained conscious for some time and disclosed names of two accused persons, namely Vicku and Chimpu. However, she

again lost her consciousness and ultimately in the wee hours of 10.10.2014, she was taken to GMC, Hospital, Jammu, for treatment where the

doctors declared her brought dead.

It was found during course of investigation, that accused persons in order to make school going children drug addicts, initially provide

intoxicative drugs to them free of costs and once these children become addicted, accused used to charge hefty amount from them. It has been

found that accused Vikram Singh and Robail Sharma used to purchase heroin from accused Yashjit from Damtal, Himachal Pradesh and sell the

same among the youth of Jammu city especially the school going children. As accused persons have committed the acts of sale, purchase, transport

and even had kept the heroin in their possession, as such, offences under Section 8(c), 21, 29 NDPS were also established against them and the

same were added in the case. It was also found that accused Vikram Singh was using Phone No. 94199909450, which was in the name of his

brother Ranjit Singh and accused Yashjit using Phone No. 750871747, which was in the name of his Son of Shivajeet.

Evidence, that came forth during investigation, divulges that deceased had got rid of her addiction to drugs, which factor was not acceptable to

accused persons as they had lost her as a customer and were living under constant fear of their apprehension and revelation of their inhuman acts

of drug peddling. In order to make her addict again, accused persons, in furtherance of criminal conspiracy hatched by them, injected heavy dose

of heroin in the body of deceased, as a consequence thereof, deceased died due to dactyl morphine (heroin) poisoning.

On completion of investigation, Investigating Officer came to conclusion that commission of the offence punishable under Section 302 RPC

could not be made, as evidence collected during investigation did not show the intention of accused persons to kill deceased while injecting heavy

dose of heroin into her body. Accordingly, a challan against all accused including present petitioner, for commission of offences punishable under

Section 304, 120-B RPC read with Section 8(c), 27-A, 28, 29 NDPS Act, was presented before the Trial Court.

On presentation of challan, all three accused including petitioner herein, appeared before learned Trial Court and the matter was argued for

framing of charges. Learned Trial Court, after hearing APP for the State and learned counsel appearing for accused including petitioner herein,

came to conclusion that prima facie offences punishable under Section 302 and 120-B RPC and 8/22 NDPS Act, were disclosed against all

accused and, accordingly, the case was fixed for 14.02.2015 for framing of charge against all accused including petitioner for aforesaid offences.

On 14.02.2015, amongst others, petitioner was charge-sheeted for aforesaid offences.

Petitioner, who is accused No. 3 in the challan, aggrieved of order dated 12.02.2015, has come up with present petition under Section 561-A

Cr.P.C. on the ground that allegations in FIR and entire evidence collected by Investigating Agency, do not constitute any offence or make out a

case against petitioner and that impugned order has been passed without any due application of mind, under arbitrary and capricious exercise of

authority and against the settled position of law. It is urged that Trial Judge has failed to substantiate connection between petitioner/accused and

commission of alleged offences and that impugned order falls outside the ambit of the 'alteration of charge' power granted to the learned trial Court

under Section 227 Cr.P.C. It is next urged that impugned order is not strong enough to prosecute petitioner under law for commission of alleged

offences as learned trial judge has ignored the settled position of law while passing impugned order. It is insisted that before any innocent person

comes into the clutches of law, the concerned authority has to evaluate his relation to commission of alleged offences and only thereafter, when

grave suspicion exists that he or she can be held for commission of any crime but in case of the petitioner all the golden rules of criminal law have

been thrown into dustbin and he has been charged with commission of alleged offences notwithstanding the fact that neither the petitioner in

remotest of the remote circumstances is connected to the commission of the alleged offences nor there exists anything in law to connect him to the

same. The judicial discretion, according to petitioner, vested in Trial Court must be exercised with circumspection. The approach of the Trial

Judge, as contended by petitioner, must be of administering benevolent justice and judiciary should not be an institution of depravation of justice to

people like the petitioner. Petitioner maintains that impugned order is mala fide, arbitrary and capricious exercise of authority as Trial court has

miserably failed to substantiate passing of impugned order. It is stated that impugned order is an improvised plan to trap petitioner in a false,

frivolous and baseless case harming his reputation and his family in the society.

Heard learned counsel for parties and perused the record. I have also gone through the order impugned passed by the learned Trial Court.

Learned counsel for petitioner, while opening his first limb of arguments to reinforce petitioner's case, states that powers of the Court, while

exercising inherent jurisdiction under Section 561-A Cr.P.C., are required to be exercised only on extrajudicial circumstances and while dealing

with framing of charges, powers of the Court are limited only to find out as to whether there was sufficient ground for proceeding against the

accused. The Court, as averred by counsel for petitioner, at the time of framing of charges, is not only required to evaluate the merit of evidence,

but also to evaluate material documents on record, only with a view to find out if the facts emerging therefrom taken at their face value, disclose

existence of all ingredients constituting alleged offence(s). The Court may for this limited purpose sift the evidence as it cannot be expected even at

initial stage to accept all what prosecution states is Gospel truth, even if its probative value, admissibility, et cetera, are subject matter of

determination during trial. Learned counsel contends that apart from framing of charge, the Court is required to evaluate the evidence, though for

limited purpose of finding out as to whether prima facie all ingredients constituting alleged offence, are made out or not. In furtherance of his

aforesaid submission, learned counsel also states as regards evidentiary value of the testimony of an approver.

Suffice it to say, in this regard, that in view of the legal position, the probative value of the material on record cannot be gone into at the time of

framing of the charge and the material brought on record by the prosecution has to be accepted as true at that stage. The Court is not required to

appreciate the evidence for arriving at a conclusion that the material(s) produced are sufficient or not, for convicting the accused. If Court is

satisfied that a case is made out for proceeding further, then the charge has to be framed. In the present case, Trial Court prima facie appears to be

correct that what was stated by accused 1 and 2 in the presence of independent witness, could not be recorded as hearsay evidence but was in the

shape of extrajudicial confession, admissibility or otherwise of which would be subject matter of trial.

Per contra learned counsel for the State to bring home his point contends that this Court while exercising jurisdiction under Section 561-A

Cr.P.C. would be very circumspect and it is only in the rarest of rare cases, where this Court would be inclined to interfere in the order framing

charges. He further contends that there is neither any rule of law nor of prudence that evidence furnished by extrajudicial confession can be relied

upon unless corroborated by some other credible evidence. The Courts have considered the evidence of extrajudicial confession a weak piece of

evidence, but in case where evidence of extrajudicial confession on scrutiny is found to be free from legal infirmity and the Court believes

witnesses, before whom confession is made and is satisfied that confession was voluntarily, then in such a case conviction can be based on such

evidence. Law does not require that evidence of extrajudicial confession should in all cases be corroborated. In support of his arguments, he relied

upon judgment passed by the Delhi High Court in case Santoshan and Avdoot @ Ghanshyam Prashad and another v. State wherein it is

held as under:-

In the instant case, the extra judicial confessions made by A- 1 are free from any suspicion as to their voluntary character and have also a ring

of truth in it. There is nothing improbable in A-1""s making extra judicial confessions to these independent witnesses. The witnesses have

reproduced the exact words used by A-1 as nearly as possible to convey that A-1 and his companions were the perpetrators of the crime. These

extrajudicial confessions can be relied upon along with other evidence for conviction and are incriminating circumstances against A-1.

The Court is not oblivious of the fact that evidence about extra judicial confession in the very nature of things is a weak piece of evidence. But in a

case where the evidence of extrajudicial confession on scrutiny is found to be free from legal infirmity and the Court believes the witnesses before

whom the confession is made and is satisfied that the Crl.A.Nos.443/1976 and 436/1976 Page 65 of 201 confession was voluntarily, then in such

a case conviction can be based on such evidence. The law does not require that the evidence of extra confession should in all cases be

corroborated. In""State of U.P. v. M.K. Anthony"", AIR 1985 SC 48 the Supreme Court observed:

There is neither any rule of law nor of prudence that evidence furnished by extra-judicial confession cannot be relied upon unless corroborated

by some other credible evidence. The courts have considered the evidence of extra-judicial confession a weak piece of evidence. See Jagta v.

State of Haryana : 1974 Cri.L.J. 1010 and State of Punjab v. Bhajan Singh and Ors.: 1975 Cri. L. J. 282 In Sahoo v. State of U.P.:

1966 Cri.L.J. 68 it was held that 'an extra-judicial confession may be an expression of conflict of emotion, a conscious effort to stifle the pricked

conscience; an argument to find excuse or justification for his act; or a penitent or remorseful act of exaggeration of his part in the crime.' Before

evidence in this behalf is accepted, it must be established by cogent evidence what were the exact words used by the accused. The Court

proceeded to state that even if so much was established, prudence and justice demand that such evidence cannot be made the sole ground of

conviction. It may be used only as a corroborative piece of evidence. In that case, the evidence was that after the commission of murder the

accused was heard muttering to himself that he has finished the deceased. The High Court did not interfere with the conviction observing that the

evidence of extra-judicial confession is corroborated by circumstantial evidence. However, in Pyara Singh v. State of Punjab (1978) 1 SCR

661 this Court observed that the law does not require that evidence of an extra-judicial confession should in all cases be corroborated. It thus

appears that extra-judicial confession appears to have been treated as a Crl. A. Nos. 443/1976 and 436/1976 Page 66 of 201 weak piece of

evidence but there is no rule of law nor rule of prudence that it cannot be acted upon unless corroborated.

If the evidence about extra-judicial confession comes from the mouth of witness/ witnesses who appear to be unbiased, not even remotely inimical

to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive for attributing an untruthful

statement to the accused; the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator

of the crime and nothing is omitted by the witness which may militate against it, then after subjecting the evidence of the witness to a rigorous test

on the touchstone of credibility, if it passes the test, the extra-judicial confession can be accepted and can be the basis of a conviction. In such a

situation to go in search of corroboration itself tends to cast a shadow of doubt over the evidence. If the evidence of extra-judicial confession is

reliable, trust-worthy and beyond reproach the same can be relied upon and a conviction can be founded thereon.

What emerges from above quoted settled position is that law does not prevent the Courts to consider extrajudicial confessions unless

corroborated. It goes further a step ahead by making it a settled law that even extrajudicial confession can be accepted and made basis for

conviction. Not only this, extrajudicial confession can very well be relied upon and made basis for conviction in the event evidence of extrajudicial

confession is trustworthy, reliable and beyond reproach. In such circumstances, it would not go without saying that in the event extrajudicial

confession can be relied upon and made basis for conviction, it can very well be made use of framing charge, more particularly having regard to

provisions of Section 227 Cr.P.C.

It is pertinent to point out here that Section 227 Cr.P.C. gives considerable powers to Trial Court to alter or add to any charge at any time.

Even Trial Court is empowered to alter or add to any charge, after completion of evidence, arguments heard and judgment reserved. The words

at any time"" and before ""judgment is pronounced"" in Section 227 Cr.P.C. would indicate that the power is very wide and can be exercised. It is

trite law that the court's power to alter or add to any charge is unrestrained provided such addition and/or alteration is made before the judgment is

pronounced. It is all the same trite that the question of any such addition or alternation would generally arise either because the Court finds the

charge already framed to be defective for any reason or because such addition is considered necessary after the commencement of the trial having

regard to the evidence that may come before the court. While saying so, reference may be made to law laid down in Jasvinder Saini and others

v. State (Government of NCT of Delhi) (2013) 7 SCC 256;C.B.I v. Karimuliah Osan Khan (2014) 11 SCC 538;Amit Kapoor v.

Ramesh Chander and Anr. (2012 (9) SCC 460) and Soma Chakravarty v. State through CBI (2007 (5) SCC 403).

Before proceeding further, it needs to be made clear that power vested in this Court under Section 561-A Cr.P.C. is inherent power and is

required to be exercised sparingly and in the rarest of rare cases. The parameters for exercise of power have been laid down by the Hon'ble Apex

Court in State of Haryana v. Bhajan Lal reported in 1992 Suppl. (1) SCC 335 Unless petitioner's case falls within the parameters laid down

in Bhajan Lal's case (supra), this Court would be reluctant to interfere with the discretion exercised by learned Trial Court at the time of framing of

charge. It also needs to be emphasized that at the stage of framing charge, the Court has only to see whether prima facie there is sufficient ground

against accused without appreciating evidence. If there is even a suspicion about commission of offence and involvement of accused, it would be

sufficient for Trial Court to frame a charge. At the stage of framing of charge, opinion about prospect of conviction is not required to be formulated

necessarily. However, the court, framing charge, is duty bound to look to the material collected by Investigating Officer to see as to whether prima

facie case for proceeding against accused for offence(s) alleged, is made out or not. It is for this limited purpose, this Court went through Evidence

collected by Investigating Officer and the manner in which the same has been considered by learned Trial Court to form a prima facie opinion for

proceeding against accused for offence(s) charged.

As has been rightly observed by learned Trial Court in the order impugned that vital evidence that has come on record during investigation

against petitioner is disclosure of the prosecution witnesses, namely, Vishal Sharma, Sawant Singh, Jeshu Angral and Abhinay Raina, who claim to

have heard accused 1 and 2 saying that petitioner (accused No. 3) had directed them to give overdose to the girl. Learned Trial Court proceeded

to see as to whether on the basis of aforesaid important evidence, petitioner could be charged for offence punishable under Section 302 RPC et

cetera and learned Trial Court thereafter rejected the argument of petitioner (accused No. 3) that the evidence in the form of statements of

prosecution witnesses, namely, Vishal Sharma, Sawant Singh, Jeshu Angral and Abhinay Raina, are hearsay evidence and has taken view that

what was stated by accused 1 and 2 with regard to accused No. 3 was a extrajudicial confession made by accused 1 and 2 in presence of

independent witnesses. Regarding probative value, admissibility and reliability, learned Trial Court has rightly held that the same is matter of

evaluation during trial. After referring to provisions of Sections 299 and 300 RPC, learned Trial Court observed that there was sufficient material

on record to prima facie show that by giving overdose of heroin to deceased, accused 1 and 2, who were acting at the instance of the petitioner,

had no other intention except intention of causing death. Learned Trial Court, therefore, concluded that offence punishable under Section 302 RPC

was made out for the purpose of framing of charge against all accused including petitioner. With regard to the charges under NDPS Act, learned

Trial Court, after going through challan, came to conclusion that offences punishable under Section 8(c) and 22 of the NDPS Act alone had been

made out.

So far as the charges framed against petitioner for offence punishable under Sections 8(c) and 22 NDPS Act are concerned, learned Trial

Court has rightly concluded that evidence collected during investigation was prima facie sufficient to proceed against accused for offence

punishable under Sections 8/22 NDPS Act. This Court does not find any material on record to take view contrary to the one taken by the learned

Trial Court.

So far as charges framed against petitioner under Section 302 RPC are concerned, learned Trial Court, after going through evidence collected

during investigation, has concluded that statements made by accused 1 and 2 in presence of prosecution witnesses that they had been directed by

petitioner to administer overdose to deceased is not a hearsay evidence but would be extrajudicial confession in terms of Section 30 of the

Evidence Act. Whether such extrajudicial confession without further corroboration should be made basis for conviction and whether such

extrajudicial confession is admissible, are questions that cannot be determined at the stage of framing of charge and would rather be a question to

be determined on the basis of evidence that would be led during trial. The Court, framing charge, has only to formulate prima facie opinion as to

whether accused are required to be put on trial and for what offences. Learned counsel for petitioner, however, has vehemently urged that as per

evidence collected during investigation, the only evidence, whereby petitioner has been connected with the crime, is statement made by prosecution

witnesses, who had heard accused 1 and 2 saying that they had been instructed by petitioner to give overdose to deceased. It is not in dispute that

while administering overdose to deceased, accused 1 and 2 knew very well that overdose was likely to cause death of the deceased.

Viewed from all angles, role of petitioner in ultimate commission of crime by accused 1 and 2 is not less culpable. The learned Trial Court has

rightly appreciated the evidence collected during investigation to formulate requisite opinion with regard to existence of prima facie for putting

petitioner on trial for commission of offences charged.

So far as the law cited by the counsel for both parties is concerned, there is no exception, and as noted above parameters for exercise of

powers under Section 561-A Cr.P.C. in a petition for quashing charges, are well defined and the matter was, therefore, considered in light of said

parameters laid down by the Hon'ble Supreme Court for exercising inherent jurisdiction under Section 561-A Cr.P.C. after evaluating material on

record for the limited purposes of finding out as to which offence petitioner is liable to be charged with.

It is a well settled law that the defences whatsoever of the accused are a matter of trial and cannot be looked into in a petition for quashing the

proceedings under Section 561-A Cr.P.C. The petitioner herein can agitate his grievances or put forth his defences before the Trial Court and the

Trial Court is free to decide the same at appropriate stage.

It would be relevant to reproduce paragraph 109 of the judgment of Apex Court in Ch. Bhajan Lal's case (supra) hereunder:-

We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with

circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or

genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an

arbitrary jurisdiction on the Court to act according to its whim or caprice.

It is needless to mention that the case set up by the petitioner relates to disputed facts, truthfulness whereof cannot be determined at this stage

and it is for him to establish such case by leading evidence at the time of trial. It is settled law that the factual controversy need not be gone in to by

this Court in exercise of its inherent jurisdiction under 561-A Cr.P.C. Inherent jurisdiction under Section 561-A Cr.P.C. has to be exercised

sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself.

For all what has been discussed above, this Court does not find any substance in the submissions made by petitioner nor does find any infirmity

with the order passed by the learned Trial Court. The accused petitioner has rightly been charged for commission of offences. However, it is made

clear that above observations have only been made for the purpose of appreciating the order passed by the learned trial Court which should not be

taken as expression of any opinion by this Court and therefore, shall have no bearing on the merits of the case pending before the Trial Court.

Viewed thus, this petition is devoid of any merit. Accordingly, the petition is dismissed as above along with connected MP(s).

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