STATE OF J&K Vs. GHULAM QADIR SOFI

JUDGEMENT

(1.) Order of discharge passed by learned Additional Sessions Judge, Pulwama on 04.09.2010 passed in FIR No. 11/Sessions of 2010 arising out of FIR No. 121 of 2010 P/S, Pulwama, is called in question, in this criminal revision petition.

(2.) Heard learned counsel for the parties. Considered the matter.

(3.) Learned counsel for the petitioner submitted that order of discharge has been passed by the learned trial Judge as if he was considering the matter at the conclusion of the trial and was required to record a finding about the guilt or innocence of the accused. Learned counsel submitted that the evidence which was available on the record of the trial Court and also other material would prima facie show commission of offence under Section 376(2) (d) RPC. Learned counsel submitted that learned trial Judge had travel beyond his jurisdiction in delving deep into the material and evaluating the evidence as if the respondent was to be either convicted or acquitted. Learned counsel submitted that in terms of Section 268 Cr.P.C. accused could be discharged, when Judge would find that there is no sufficient ground for proceedings against him. Learned counsel submitted that in the facts and circumstances of this case, there was ground for presuming that the accused has committed the offence and was required to be put on trial by framing the charge against him. Learned counsel, accordingly, prayed for setting aside of the order impugned in this petition.