SADIQ KHANDAY & ORS. Vs. STATE & ORS.

JUDGEMENT

(1.) Bashir Ahmad Khanday son of Ali Mohammad Khanday resident of Nasarpora, Khag, on 07.01.2009 lodged a written complaint with Police Station Khag, alleging therein that on the said date at 4:30 PM, S/Shri Sadiq Khanday, Farooq Ahmad Khanday, Mushtaq Ahmad Khanday, Reyaz Ahmad Khanday - petitioners herein and Mst. Mugli and Mst.Fata alias Naza, caught hold of his daughter -Kulsuma Bano, near local mosque and subjected her to beating; that Kulsuma Bano was so severely thrashed that the complainant lost hope of her life. The report prompted P/S Khag to register FIR No.01 of 2009 under section 307, 341, 34 RPC. The victim succumbed to injuries and offence under section 307 was changed to 302 RPC. After usual investigation the case was closed as proved against the petitioners and charge-sheet, alleging commission of offence under section 302, 341, 34 RPC, presented against the petitioners. The Trial Court upon perusal of the charge sheet and on hearing the public prosecutor and defence counsel as also petitioners held that the material prima facie disclosed commission of offence punishable under section 302, 341, 34 RPC, by the petitioners. The petitioners were, accordingly, charged of said offences. The petitioners denied the charge and asked for early trial.

(2.) Before the trial would commence and the prosecution asked to adduce evidence in support of the charge, the petitioners filed instant petition under section 561-A Cr.P.C, seeking quashment of the charge.

(3.) The case set up by the petitioners is that having regard to the age of victim, the weapon of offence, part of body of the victim, where blows were allegedly given and the injuries found on the person of victim, a case under section 302 RPC was not made out and the Trial Court thus erroneously charged the accused - petitioners with the offence punishable under section 302 RPC. The order dated 28th of August 2009 is assailed as one amounting to abuse of process of court. It is pleaded that in order to prevent miscarriage of justice, the Court in exercise of its inherent jurisdiction, must quash order in question and ask Trial Court to charge the petitioners of the offence(s) made out on objective perusal of the charge sheet and material appended thereto. Order dated 28th August 2009. according the petitioners, denies benefit available under J&K Juvenile Justice Act 1997 to the petitioner - Mushtaq Ahmad Khanday and on that count also the order is assailed as amounting to abuse of process of the court, warranting interference under section 561-A Cr.P.C.