LAILA RAM Vs. STATE OF J&K

JUDGEMENT

(1.) Petitioner invokes inherent jurisdiction of this Court under Section 561-A Cr.P.C. for quashing of order dated 18.05.2016 passed by the learned Sessions Judge Kishtwar in case FIR No.196/2015, whereby charge under Section 302 RPC is framed against petitioner.

(2.) In the petition, it is stated that as per the prosecution story deceased and accused had gone together to forest area Shadah Dhar Gota Cherji of Tehsil and District Kishtwar for hunting, where while hunting a wild goat, the deceased accidently suffered a gunshot at the hand of the accused. As per the challan presented by the prosecution under Section 173 Cr.P.C., 1973 the deceased had died due to the accident caused by the negligence of the accused. As such, offence under Section 304-II RPC was established against the accused. On 31.12.2015 challan under Section 304-II RPC was presented by the police in the Court of learned Chief Judicial Magistrate, Kishtwar, who committed the case to the Court of learned Sessions Judge, Kishtwar in a routine manner, though the case was tryable exclusively by the Court of Judicial Magistrate Ist Class. As per the mandate of Section 268/269 Cr.PC, the learned Sessions Judge Kistwar was required to either discharge the accused from the offence charges or charge the accused under Section 304-II RPC and send the case back to the Magistrate for trial. Instead, the learned Sessions Judge Kishtwar in total disregard to the prosecution case, evidence on file, legal and factual matrix of the case converted the charge of 304-II RPC in to 302 RPC. By virtue of the impugned order, oblivious of the fact those ingredients of Sections 302 and 304-II RPC cannot be inferred from same set of evidence at different times. It is further contended that the impugned order of converting of charge against the petitioner by the learned Sessions Judge by shear non-application of judicial mind is palpably erroneous, legally perverse, factually incorrect and is abuse of the process of the Court, even the prosecution has prayed for the framing of charge under Section 304-II RPC before the learned Sessions Judge, Kishtwar. The prosecution has even submitted that material on file is sufficient to presume that the accused has committed the offence under Section 304-II RPC. It is also contended that in order to frame the charge under Section 302 RPC, the learned Sessions Judge, Kishtwar has based his finding solely on the postmortem report to infer the intention for the commission of offence. Strange enough the learned Sessions Judge has not given any plausible reasons for rejecting the version of the prosecution and how such a long ldistance of case being that of an accident for charging the petitioner/accused for commission of murder, which was to be covered. The only reasoning given by the learned Sessions Judge, Kishtwar for converting the charge from 304-II to 302 RPC is that "perusal of evidence on record especially postmortem report and statement of father of the deceased under section 164-A shows that prima facie offence under Section 302 RPC made out against the accused". But how is mystery shrouded in doubt. It is further stated that on the basis of this perverse and illegal order charge under Section 302 RPC read with Section 3/25 IAA was framed against the petitioner. It is, therefore, prayed that the order of charge dated 18.05.2016 and the proceedings whereby the charge under Section 302 RPC has been framed against the petitioner being illegal, ultra-virus of the law and against all cannons of criminal jurisprudence, which amounts to abuse of the process of court, may be quashed and the petitioner may be discharged of the charges framed.

(3.) This Court vide order dated 26.04.2017, issued notice to respondent and also called for the trial Court record. Mr. R.S.Jamwal, learned Dy AG waived notice on behalf of the respondent and sought time to file objections. But despite granted several opportunities for filing objections, same has not been filed.