FATIMA Vs. STATE OF J&K

JUDGEMENT

(1.) THE investigation in FIR No. 185/01 registered at P/S Budgam culminated in sending up accused for trial Under Sections 336, 427 and 506 RPC, after police filed its final report U/s 173 Cr. P.C. (challan) in the court of CJM Budgam on 23.11.2001. Respondents 2 to 4 are named and shown as accused in the case. While the case was pending for initial proceedings, Sr. Prosecutor Officer (SPO) moved an application on 21.5.2002, for arrangment of the other three respondents 5 to 7, as accused in the case. After objections were filed the matter was heard by the CJM Budgam who passed order on 31.8.02, allowing the application and arraigned respondents 5 to 7 as accused in the case and issued bailable warrants against each to appear and face the trial. This order is under challenge in this petition under 561 -A Cr.P.C.

(2.) THE order is challenged on the ground that the impleaded accused respondents 5 to 7 were not heard before the order was passed. There is no provision in the Cr.P.C. to arraign a person as accused, once the police has filed challan in court. Though there is specific provision (Section 319) in the Central Criminal Procedure Code but a like provision is missing in the J&K Cr.P.C. The order is mechanical. Once cognizance is taken by the court no person can be arraigned as accused unless evidence is recorded by the court and on such evidence such person was sought to be arrayed or implicated. No evidence has been at all recorded in the case.

(3.) THE counsel Mr. M.A. Rathore, AAG, has contested all the submissions impinging upon powers of the court below to arraigne the respondents 5 to 7 as accused in this case after cognizance is taken by the court. Once the investigation is complete the officer Incharge of the concerned P/S is to forward the police report to empowered Magistrate for taking cognizance of the offence. Once the report is so filed in court, empowered Magistrate can take cognizance of any offence upon such written report of the police officer. The Magistrate has power to arraigne any person as accused in the case at any time during the proceedings irrespective of the stage of proceedings. It is not a requirement of law that a person arrayed as accused has to be given pre -hearing or that it is only after the statement(s) of witnesses is/are recorded by the court that the person(s) against whom incriminating evidence so surface in the case can be arrayed as accused. The State Prosecuting Officer has filed the application before the court of law on the ground that named accused respondents 5 to 7 have not been send for the trial by the investigating agency before the court of law though they have actually participated in the commission of offence and that investigating officer has no powers to discharge an accused against whom prima -facie evidence and material has forth -come during investigation. The application of SPO also refers to the statements recorded U/s 161 Cr. P.C. and other documents and material on record to prima -facie support the incriminating allegations of commission of offence by above the named accused (respondents 5 to 7), besides the accused against whom challan has been produced. The order passed by the Magistrate may be brief but is as reasoned order sustainable under law.