MOHD. AKBAR NAJAR Vs. STATE OF J&K

JUDGEMENT

(1.) Petitioner, Mohammad Akbar Najar, through the medium of instant petition filed in terms of the provisions of Sec. 561-A of the Code of Criminal Procedure, (for brevity 'Cr.P.C.') seeks quashment of the impugned order dated 30.08.1999 passed by 4th Additional Sessions Judge, Srinagar, in a criminal challan titled State Vs. Mushtaq Ahmad Ganie and others, on the ground that on the basis of FIR No. 11/1996 registered at Police Station, Pulwama, the afore titled challan alleging commission of offence under Sections 302, 307, 120-B Ranbir Penal Code and 7/27 of Indian Arms Act, came to be filed and was pending trial before the Sessions Judge, Pulwama, from where it was transferred to the Court of 4th Additional Sessions Judge, Srinagar, wherein the petitioner despite being a stranger to the case was arrayed as an accused by virtue of order dated 30.08.1999 and he came to be arrested on 07.11.2009. It is contended that in terms of the impugned order, the trial court has arrayed one Mohammad Akram Najar S/O Ghulam Rasool Najar alias Akil Najar R/O Gundibagh, Kakapora, as accused, whereas petitioner named Mohammad Akbar Najar S/O Ghulam Rasool Najar R/O Gundibagh, Kakapora, Tehsil and District Pulwama, has been arrested and is presently lodged in judicial lock-up against whom charges are yet to be framed. Petitioner claims to be innocent having no knowledge about the alleged occurrence. It is contended that the petitioner had no knowledge of being arrayed as an accused in the aforesaid case. It is further contended that no witness has implicated the petitioner or assigned any role to him in the alleged occurrence before the investigating agency and the petitioner did not figure as accused in the challan. It is further contended that prosecution had actually filed a motion before the trial court seeking direction for further investigation of the case in terms of the provisions of section 173(8) Crimial P.C. but the same came to be treated as application under section 351 Crimial P.C. It is further contended that in the aforesaid application the prosecution had sought further investigation only in regard to role of accused-Mushtaq Ahmad R/O Gundibagh Kakapora and Bashir Ahmad R/O Alochi Bagh Pulwama, in the alleged occurrence and no prayer was made in regard to petitioner. Quashing of the impugned order is also sought on the ground that there is no sufficient evidence against the petitioner and no role has been assigned to him in the alleged occurrence. The impugned order is further assailed on the ground that the same has been passed without providing opportunity of being heard to the petitioner against whom non-bailable warrants were issued to secure his presence to face trial along with other accused.

(2.) Heard learned counsel for the parties, perused the record and considered the matter.

(3.) Sec. 351 Crimial P.C. is reproduced hereunder: