Jammu, June 14: In Crl. R. No.12/2022 titled BASIT BASHIR Vs. UT OF J&K after hearing bench of HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE Ordered as under:-
1) Through the medium of present petition, the petitioner has challenged order dated 09.03.2022 passed by learned Special Judge (POCSO Cases), Srinagar, whereby charges for offences under Section 363, 376 IPC and Section 4 of POCSO Act, have been framed against him.
2) As per the charge sheet which has emanated from FIR No.83/2021 for offences under Section 363, 376 IPC and Section 4 of POCSO Act registered with Police Station, Batamaloo, on 10.06.2021, complainant Zaffar Ahmad Sheikh lodged a report with the police alleging therein that his minor daughter, Ms. X, had left her home on 9th June, 2021 at 9th June, 2021, at about 3.00 p.m. and at that time, she was accompanied by her friend, Ms. Y. It was submitted in the report that whereabouts of the two girls, both of whom are aged between 14 and 15 years, are not known.
3) On the basis of aforesaid report, the police registered FIR No.83/2021 for offence under Section 363 IPC and started investigation of the case. During investigation of the case, it was found that on 10.06.2021, the two girls returned to their home and they were produced by their family members before the police. The victim girls were subjected to medical examination and it was found that they had been subjected to sexual intercourse. The investigation further revealed that the petitioner had enticed the victim girls to board his vehicle bearing No.HR72D-9395, whereafter he kidnapped them with a view to commit sexual assault upon them. Thus, offences under Section 363, 376 IPC and Section 4 of POCSO Act were found established against the petitioner.
4) During investigation of the case, statements of two girls under Section 164 of Cr. P. C were recorded and besides this, the statements of other witnesses under Section 161/164 of Cr. P. C were also recorded. The challan was laid before the learned Special court on Crl. R. No.12/2022 Page 3 of 15 09.03.2022.
The learned Special court, after hearing the parties and after analysing the material on record, framed charges for offences under Section 363, 376 of IPC and Section 4 of the POCSO Act against the petitioner.
5) The petitioner has challenged the impugned order on the grounds that the material on record before the learned trial Magistrate does not contain any evidence against the petitioner and on the basis of said material, it cannot be stated that the petitioner has committed any offence as against Ms. X or against Ms. Y. It has been further contended that even the statements of the father and brother of the victim girls have not supported the prosecution case. According to the petitioner, the impugned order has been passed by the learned trial court without application of mind. It is being contended that merely because the medical report of the victim girls is suggestive of sexual assault upon them, without there being anything to connect the petitioner with the said act, the charge could not have been framed against him
6) I have heard learned counsel for the parties and perused record of the case, the grounds of challenge as well as the trial court record.
7) Before dealing with the contentions raised by the petitioner in the present case, it would be necessary to understand the legal position as regards the scope of power of a Court while considering discharge of an accused.
Thereafter by quoting a catena of judgements & observing the full story of the case Court ordered that
24) In the above circumstances, there is absolutely no evidence on record to show that the petitioner has either kidnapped the two victim girls or he has committed sexual assault upon them.
Therefore, even if the material collected by the Investigating Agency during the investigation of the case remains unrebutted, the same is not sufficient to presume that the petitioner/accused has committed any offence nor does it raise any grave suspicion about the involvement of the petitioner in the alleged occurrence.
The allegations made in the charge sheet against the petitioner in the instant case are not supported by the material collected by the Investigating Agency during investigation of the case. Thus, it was not open to the learned Special Judge to frame charges against the petitioner/accused.
The learned Special Judge, without sifting the material collected by the Investigating Agency for the limited purpose of framing opinion as to whether prima facie offence is committed by the petitioner/accused, has proceeded to frame charges against the petitioner. The impugned order of learned Special Judge is, therefore, unsustainable in law.
25) For the foregoing reasons, the instant petition is allowed and the impugned order dated 09.03.2022 passed by the learned Special Judge (POCSO Cases) (Principal Sessions Judge) Srinagar, whereby charges have been framed against the petitioner/accused, is set aside.
The petitioner is discharged and the challan against him shall stand dismissed.
26) A copy of this order be sent to the learned Special court for information.
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