JANKI NATH KAUL Vs. STATE

JUDGEMENT

(1.) This is an application by one Janki Nath Kaul minor under Sec. 561-A, Criminal Procedure Code, and arises out of the following facts :

(2.) Janki Nath Koul was prosecuted along with some other accused in the Court of Pandit Lassa Kak Special Magistrate Srinagar for offences under Sections 3 and 4 of Ordinance No. VIII of 2006 and Section 409, R. P. C. The prosecution was launched on 30th Sawan 2007. On 8th Bhadon 2007 an application was made to the Special Magistrate by the Prosecuting A. S. P. (Mr. J.N. Zutshi) whereby he sought permission to withdraw the case against Janki Nath Kaul. The Magistrate by an order of the same day accepted the request of the prosecuting Sub-Inspector, and an order or discharge was passed in favour of Janki Nath Koul. The case proceeded on against the other accused and Janki Nath Koul, was examined as a witness for the prosecution. On 29th Bhadoon 2007 the learned Magistrate framed charges against two of the accused by name Niranjan Nath and Akbar Shah under Sec. 4 of Ordinance No. VIII of 2006 and discharged accused Nos. 4 to 7. In the meanwhile the Court of the Special Magistrate Srinagar was abolished and the case was transferred to the Court of the Sub-Divisional Magistrate Anantnag who was invested with powers to try the cases under the aforesaid ordinance. The prosecution moved the Special Magistrate Anantnag to take proceedings against Janki Nath also. The special Magistrate by his order dated 9th Magh 2007 ordered that Janki Nath be arraigned along with the other accused to stand his trial in the case. It may be stated here that the case was withdrawn by the prosecuting A. S. P. after he had been allowed by the District Magistrate Kashmir to do so. The learned Sub-Divisional Magistrate held that the District Magistrate was not empowered to withdraw the case unless he was specially authorised by the Government to do so. Against this order Janki Nath went in revision to the District Magistrate Kashmir who by his order dated 20th Baisakh 2008 rejected the same. Janki Nath has now submitted this application to this Court under Sec. 561-A, Criminal Procedure Code, with the prayer that the order by which he has been impleaded as an accused, be set aside. It may be stated here that the Court of the Sub-divisional Magistrate held a de novo trial and framed charges against Janki Nath under Sections 3 and 4 of the Ordinance No. VIII of 2006.

(3.) A preliminary objection has been taken by the learned Assistant Advocate General against the maintainability of the present petition. He bases his argument on Sec. 11 of the aforesaid Ordinance which runs as follows :