Mansoor Ahmad Mir, Judge
1. Petitioners have invoked the jurisdiction of this court in terms of Section 561-A of the Code of Criminal Procedure, hereinafter for short as
Cr.P.C. for quashment of the order dated 27th of December, 2010 passed by 3rd Additional Sessions Judge, Jammu titled State v. Ajeet Singh
and others, whereby the accused Ajit Singh, Paramjeet Singh and Jatinder Singh have been charge-sheeted for the commission of offences
punishable under Sections 148, 149, 302, 201, 120-B of the Ranbir Penal Code, for short as RPC and 4/25 Arms Act. While as accused
Ranjodh Singh, Narinder Singh and Azmer Singh have been charge-sheeted under Sections 302/120-B of the RPC.
2. Precisely the grounds taken by the writ petitioners are that there is no admissible evidence which can be made basis for forming an opinion to
presume that accused are involved in the commission of offences u/s 302 and 120-B of RPC and there is not even an iota of evidence which can
be made basis for holding that accused have hatched a conspiracy as is alleged in the instant case and for which the accused have been charge-
sheeted.
3. Learned counsel for the petitioner-Ranjodh Singh, in support of his case, made a reference to the statements made by PWs Manmohan Singh
and Satinder Paul Singh recorded before the Judicial Magistrate 1st Class u/s 164-A of the Cr.P.C, the Photostat copy whereof is annexed with
the writ petitions.
4. Mr. B. S. Salathia, also argued that ingredients which constitute conspiracy in terms of Section 120-B of RPC are missing.
5. Learned counsel for petitioner-Narinder Singh also made reference in support of his arguments to the document-phone calls which is part of the
material collected by the Investigating Officer during investigation and which is made part of the final report in terms of Section 173 of the Cr.P.C,
the Photostat copy whereof is also annexed with his writ petition.
6. Learned counsel for respondents have resisted the petitions on the ground that there are reasonable grounds to presume that accused have
hatched conspiracy and are involved in the commission of offences punishable u/s 302 and 120-B of the RPC. In this connection the counsels
made reference to the statements recorded by the Investigating Officer during investigation, particularly of Balwinder Singh and Paramjeet Singh
read with statements of Manmohan Singh and Satinderpaul Singh, u/s 164-A of the Cr.P.C.
7. Meeting the other contention of the counsel for the petitioner that essential ingredients constituting conspiracy are not made out in terms of
Section 120-B RPC, the senior counsel Mr. Sethi argued that as far as direct evidence vis-a-vis conspiracy is concerned there rarely can be a
case where evidence is available to that extent, because the conspiracy is actually the meeting of minds and when, where & how such meeting
takes place is difficult to be ascertained, however, this is one such rare case where direct evidence is also available and the same is to be
determined during trial. He further submitted that for prima-facie purpose there is not only statement of two witnesses whose statements were
recorded u/s 164-A of the Cr.P.C, but of other two witnesses also which do disclose the ingredients of conspiracy.
8. It appears that the case came up for consideration before the trial court and learned counsel for the accused Ranjodh Singh and Narinder Singh
resisted the framing of charge.
9. In order to keep the record straight, it would be apt to state herein that one of the accused namely Jeet Singh S/o Swarn Singh is absconding
and proceedings u/s 512 of the Cr.P.C. have been initiated against him.
10. The trial court after considering the material available before it, came to the prima-facie conclusion, in terms of the mandate of Chapter XXIII,
of the Cr.P.C, that there are reasonable grounds to presume that the accused are involved in the commission of offences punishable u/s 302, 120-
B of the RPC read with 4/25 of Arms Act and accordingly accused were charge-sheeted for the said offences. Accused Ranjodh Singh and
Narinder Singh have been charged for the commission of offences u/s 302 and 120-B of RPC.
11. Accused Ranjodh Singh and Narinder Singh have questioned the same and have sought its quashment so far it relates to them.
12. I have gone through the statements of Manmohan Singh, and Satinder Singh whose statements were recorded u/s 164-A of the Cr.P.C, the
Photostat copy whereof is annexed with the petition, have specifically stated how a meeting was arranged, what was the purpose of such meeting
and how a conspiracy was hatched for committing offence. Their statements are also supported by Paramjeet Singh and Balwinder Singh whose
statement has been recorded u/s 161 Cr.P.C. The question is whether the petitioners can avail the remedy in terms of Section 561-A Cr.P.C for
quashment of charge. It is apt to reproduce Section 561-A Cr.P.C herein:
561-A Saving of inherent power of High Court Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to
make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise
to secure the ends of justice.
13. This remedy can be invoked/pressed into service or may be exercised in the following circumstances:-
(i) To pass orders in order to give effect to an order passed under Cr.P.C;
(ii) To prevent abuse of process of Court;
(iii) To otherwise secure the ends of justice; and
(iii) To prevent mis-carriage of justice.
14. FIR, Police Final Report made in terms of Section 173 of the Cr.P.C. read with the statements made by the witnesses aforementioned in terms
of section 164-A Cr.P.C and 161 Cr.P.C and the opinion framed by the court do formulate sufficient ground for presuming that there are grounds
to frame a charge.
15. The inadmissibility of evidence, if at all there is any, and the defence which is yet to be determined, cannot be looked into at this stage. Thus by
no stretch of imagination it can be said and held that petitioners have carved out a case which falls within the contours of Section 561-A Cr.P.C.
16. Apex Court in the cases reported in R.P. Kapur Vs. The State of Punjab, , AIR 1964 SC 01; Hazari Lal Gupta Vs. Rameshwar Prasad and
Another, etc., ; Jehan Singh Vs. Delhi Administration, ; State of Karnataka Vs. L. Muniswamy and Others, ; Kurukshetra University and Another
Vs. State of Haryana and Another, ; State of Bihar and Another Vs. J.A.C. Saldanha and Others, ; AIR 1989 SC 01; Dhanalakshmi Vs. R.
Prasanna Kumar and Others, ; State of Bihar and Another Vs. P.P. Sharma, IAS and Another, ; State of Haryana and others Vs. Ch. Bhajan Lal
and others, ; Mrs. Rupan Deol Bajaj and another Vs. Kanwar Pal Singh Gill and another, ; State of U.P. Vs. O.P. Sharma, ; Satvinder Kaur Vs.
State (Govt. of N.C.T. of Delhi) and Another, ; State of Kerala and Others Vs. O.C. Kuttan and Others, ; Rajesh Bajaj Vs. State NCT of Delhi
and Others, ; State of Karnataka Vs. M. Devendrappa and Another, ; State of Andhra Pradesh Vs. Golconda Linga Swamy and Another, ; State
of U.P. and Others Vs. Ram Bachan Tripathi, ; AIR 2008 SCW 1003; AIR 2008 SCW 1993; 2008 AIR SCW 1998; 2008 AIR SCW 4614;
2008 AIR SCW 7680; 2008 AIR SCW 2778; M.N. Ojha and Others Vs. Alok Kumar Srivastav and Another, has discussed the scope of
Section 561-A Cr.P.C. corresponding to Section 482 Cr.P.C. of Central Code.
17. Apex Court has also held that power is to be exercised cautiously, carefully and sparingly and Court has not to function as a Court of Appeal
or revision. It has also laid down the parameters and guidelines in cases titled as K.L.E Society & Ors. v. Siddalingesh reported in 2008 AIR
SCW 1993; A.P. v. Bajjoori Kanthaiah reported as 2008 AIR SCW 7860 and Reshma Bano v. State of Uttar Pradesh reported in 2008 AIR
SCW 1998.
18. Apex Court in State of Andhra Pradesh Vs. Golconda Linga Swamy and Another, , Hazari Lal Gupta Vs. Rameshwar Prasad and Another,
etc., , AIR 1974 SC 1446, Kurukshetra University and Another Vs. State of Haryana and Another, , AIR 1989 SC 01, has laid down the same
principle. It is apt to reproduce para 10, 13, 14, 15, 17 & 19 out of the judgment titled as Som Mittal v. Govt. of Karnataka, reported in 2008
AIR SCW 1003 herein.
10 In a catena of decisions this Court has deprecated the interference by the High Court in exercise of its inherent powers u/s 482 of the Code in a
routine manner. It has been consistently held that the power u/s 482 must be exercised sparingly, with circumspection and in rarest of rare cases.
Exercise of inherent power u/s 482 of the Code of Criminal Procedure is not the rule but it is an exception. The exception is applied only when it is
brought to the notice of the Court that grave miscarriage of justice would be committed if the trial is allowed to proceed where the accused would
be haraassed unnecessarily if the trial is allowed to linger when prima facie it appears to Court that the trial would likely to be ended in acquittal. In
other words, the inherent power of the Court u/s 482 of the Code of Criminal Procedure can be invoked by the High Court either to prevent
abuse of process of any Court or otherwise to secure the ends of justice,
13. In State of Bihar and Another Vs. J.A.C. Saldanha and Others, this Court pointed out at SCC p. 574: ""The High Court in exercise of the
extraordinary jurisdiction committed a grave error by making observations on seriously disputed questions of facts taking its cue from affidavits
which in such a situation would hardly provide any reliable material. In our opinion the High Court was clearly in error in giving the direction
virtually amounting to a mandamus to close the case before the investigation is complete. We say no more.
19. In Hazari Lal Gupta Vs. Rameshwar Prasad and Another, etc., this Court at SCC p. 455 pointed out:
In exercising jurisdiction u/s 561-A of the Criminal Procedure Code, the High Court can quash proceedings if there is no legal evidence or if there
is any impediment to the institution or continuance of proceedings but the High Court does not ordinarily inquire as to whether the evidence is
reliable or not. Where again, investigation into the circumstances of an alleged cognizable offence is carried on under the provisions of the Criminal
Procedure Code, the High Court does not interfere with such investigation because it would then be the impeding investigation and jurisdiction of
statutory authorities to exercise power in accordance with the provisions of the Criminal Procedure Code.
20. In Jehan Singh Vs. Delhi Administration, the application filed by the accused u/s 561-A of the old Code for quashing the investigation was
dismissed as being premature and incompetent on the finding that prima facie, the allegations in the FIR, if assumed to be correct, constitute a
cognizable offence.
21. In State of Bihar Vs. Murad Ali Khan and Others, this Court held that the jurisdiction u/s 482 of the Code has to be exercised sparingly and
with circumspection and has given the working that in exercising that jurisdiction, the High Court should not embark upon an enquiry whether the
allegations in the complaint are likely to be established by evidence or not.
22. We may observe here that despite this Court consistently held in catena of decisions that inherent power of the High Court should not be
exercised according to whims and caprice and it has to be exercised sparingly, with circumspection and in the rarest of rare cases, we often come
across the High Court exercising the inherent power u/s 482 of the Code of Criminal Procedure in a routine manner at its whims and caprice
setting at naught the cognizance taken and the FIR lodged at the threshold Committing grave miscarriage of justice. While it is true that so long as
the inherent power of Section 482 is in the Statute Book, exercise of such power is not impermissible but it must be noted that such power has to
be exercised sparingly with circumspection and in the rarest of rare cases, the sole aim of which is to secure the ends of justice. The power u/s 482
is not intended to scuttle justice at the threshold.
23. This court only has to, ascertain whether the allegation made in the FIR read with the final report in terms of Section 173 of the Cr.P.C do or
do not disclose the commission of offence?
24. As discussed hereinabove, I am of the considered view that there are grounds to presume that this is a case for trial and if any defence is
projected that has to be determined during trial and would be subject to proof, therefore, this cannot be a ground for quashing the proceedings.
25. This court in a case titled Mian Abdul Qayoom Vs. State of Jammu & Kashmir and Others, has made detailed discussion when and how
remedy u/s 561-A Cr.P.C. can be availed.
26. In Cr. Appeal No. 1660-1662 of 2011 titled Santosh Kumari v. State and others and the Apex Court quashed the order passed by this court
in terms of Section 561-A of the Cr.P.C and upheld that order passed by Additional Sessions Judge, Kathua.
27. Having glance of the above discussion, I am of the considered view that petitioners have failed to carve out a case which warrant interference
in terms of mandate of Section 561-A Cr.P.C, therefore, both the petitions warrant to be dismissed and are dismissed as such.
28. Now coming to bail petitions, admittedly as discussed hereinabove, both the accused are involved in heinous and serious offence and the
punishment prescribed is death and life, are not entitled to bail as a matter of right and have not carved out a case for grant of bail on merits.
29. It needs to be emphasized herein that Apex court in a latest judgment which too relates to J&K State has held that no bail can be granted in
heinous offence more so when the accused are allegedly involved in commission of offences punishable u/s 302 of the RPC. it is apt to reproduce
Para 13 herein:
13 ...The fact that accused are involved in commission of a heinous crime like murder which entails death or life imprisonment as punishment should
have been taken into consideration before releasing the accused on interim bail. The trial court after having considered the gravity of the offence
and the apprehension on the part of the prosecution that the accused would tamper with the evidence in the event of their release on bail had rightly
refused to enlarge the accused on bail. The High Court while granting the relief of bail to the accused has completely ignored and over looked the
aforementioned relevant factors which weigh heavily against the accused. Moreover, the complaint filed by Vijinder Singh that he and Kuljit Singh,
who is one of the witnesses in the present case, were physically assaulted and threatened in the Court premises will have to be given its due weight.
The FIR registered on August 13, 2010 is pending necessary investigation wherein the statement of Vijinder Singh who is son of the appellant was
recorded on August 20, 2010 u/s 164 Criminal Procedure Code. The contents of the FIR would indicate that the accused eight themselves or
through their relatives would try to tamper the evidence which is going to be led by the prosecution in the case.
30. Trial court had passed a detailed order whereby bail petition of Ranjodh Singh was rejected, the order is reasoned one and no interference is
warranted.
31. The ground projected by the accused Ranjodh Singh for seeking bail is based on his health condition. The health ground is available to the
accused only when the State under whose custody the accused is, fails to provide the necessary facilities to the accused. But in the instant case, the
accused-Ranjodh Singh was taken to Sheri Kashmir Institute of Medical Sciences Srinagar, for short as SKIMS, at the expense of the State and
even the post operative management was also borne by the State. He has been taken by air to Srinagar for obtaining the medical advise/opinion
and on this count the State has not only paid the Air Fare of the accused but of those officials also under whose custody and security he was.
Therefore, the question of State being negligent in taking care of the health of the accused during custody does not arise.
32. Apex Court in case reported as 2002 (1) ACR 395 (SC) has held it improper to release the accused on bail on medical grounds ignoring the
fact that State Govt. had made arrangements for his treatment in Medical College Hospital.
33. In this regard report submitted by Dr. Altaf Umer Ramzan, Additional Professor & head Deptt. of Neurosurgery, SKIMS needs a look:-
In compliance with the Court order dated 28th Oct, 2011 in case of Ranjodh Singh State BA No. 92/2011. I have examined the patient Ranjodh
Singh who presently has backache and spasm of back muscles. His Post Operative recovery has not been up to expectation as the Post Operative
rest and back care which was needed, he could not receive and even had a fall around 12 days back. Patient needs to be in hospital (Police
Hospital) bed and needs to avoid bending, lifting, weight, twisting his back. He further needs physical therapy to relieve his back spasm avoid
unhygienic/crowded area.
34. The medical advice tendered by the doctor makes it imperative to keep the accused- Ranjodh Singh hospitalized for the time being.
35. In the given circumstances respondents are commanded to shift the accused Ranjodh Singh in the Police Hospital at Jammu for the period as
would suffice the medical advice and thereafter be shifted back to Central Jail in terms of the orders of trial court.
36. Both the petitions u/s 561-A Cr.P.C and bail application of Narinder Singh are dismissed while as the bail petition of Ranjodh Singh is
disposed of as indicated above.
37. Judgment announced today the 2nd day December, 2011 in terms of Rule 138(3) of Jammu and Kashmir High Court Rules, 1999.
