Jammu & Kashmir High Court
Gurpartap Singh vs National Investigation Agency on 25 September, 2024
Author: Wasim Sadiq Nargal
Bench: Wasim Sadiq Nargal
Sr. No. 381
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Case No. :CRM(M) No. 729/2024
Gurpartap Singh, Aged 60 years, ....Petitioner(s)
S/o Late Satara Singh, R/o Village Sarai
Amanat Khan, District Taran, Punjab
At present lodged in District Jail, Rajouri.
Through :- Mr.Akeel Wani, Advocate vice
Mr. I.H. Bhat,Advocate.
V/s
National Investigation Agency ....Respondent(s)
Through :-
Coram: HON'BLE MR. JUSTICE WASIM SADIQ NARGAL, JUDGE
ORDER
25.09.2024
1. In the instant petition filed under Section 528 of the BNSS, the
petitioner seeks quashment of the charge order dated 23.08.2022 (in
short,”impugned order”) passed by the Court of learned 3rd Additional Sessions
Judge, NIA Court, Jammu (hereinafter referred to as the, “trial Court”),
whereby the petitioner has been charge-sheeted for commission of offences
punishable under Section 120-B of the IPC read with Sections 8, 29, 21, 23 and
27-A of the Narcotic Drugs and Psychotropic Substances Act (hereinafter
referred to as the,” NDPS Act”)and Sections 13, 17 & 18 of the Unlawful
Activities Prevention Act, 1967 (in short, “Act of 1967”).
FACTUAL MATRIX
2. That an FIR bearing No. 65/2020 dated 20.09.2020 (in short,
“impugned FIR”) was registered at Police Station, Arnia under Sections
307,120-B and 121 of the IPC and Section 7/25 of the Arms Act relating to
unprovoked firing from Pakistan side of the border near Bulleychak at a local
police party led by SHO Police Station Arnia, District Jammu. In the said FIR, it
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has been mentioned that unknown persons fired upon the police patrolling party
of Arnia Police Station with an intention
on to kill the police personnel and during
search in the intervening night of 19th&20th September, 2021
2021, conducted by BSF
deployed there, heroin weighing 61 kg 420 gram and opium weighing 1.245 Kg
g
alongwith
with two pistols, three magazines and 100 llive
ive cartridges were recovered
from the spot.
3. During
uring the investigation in the said FIR
FIR, the police arrested 07 persons
and 500 gram of heroin was recovered and seized from thee possession of arrested
person (Ajeet Kumar) (A-3)
(A and subsequent to the disclosure statement of
accused Sham Lal (A-2)
(A one pistol, one live cartridge was recovered and during
the investigation,
investigation the investigating officer added Section
Sections 8, 21, 29 ofthe NDPS
Act and Sections
Section 13, 17& 18 of the Act of 1967. That keeping in view the
gravity of offences,
offences the investigation of the impugned FIR was, accordingly,
accordingly
handed over to the respondent (National investigating Agency) aand
nd the case was
re-registered as RC No. 05/2020/NlA/
5/2020/NlA/ Jammu dated 26.11.2020
2020 under Sections
307, 120-B
B and 121 of IPC, Sections
Section 7/25 of the Arms Act, Sections 8, 21 and 29
of the NDPS Act and Sections 13, 17 & 18 of the Act of 1967.
4. That during the course of investigation
investigation, 9 mm pistol and 7 liverounds
were recovered and seized from the residential house of one accused, namely,
namely
Sham Lal and on the disclosure statement made by anoth
another
er accused Ajeet Kumar
(A-3),
3), 500 gram of heroin was recovered from the house of Ajeet Kumar and
cash amounting to Rs. 9,06,300/- (Rupees Nine Lac, Six Thousand and Three
Hundred) was recovered. The allegation against the petitioner herein is that on
the disclosure
sure of accused-Sham
accused Lal, one black colour bag having text adidas on
the front and Kalsi sports and trophies Gharyala beside
besides the image of tiger was
recovered from the bedroom of accused Sham Lal.
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5. That
hat the said Sham Lal has stated
ated in his disclosure statement that this
bag was purchased by accused-Gurpartap
Gurpartap Singh (petitioner herein) and was
given to him containing Rs. 20 lakh (Rupees Twenty Lacs), which were
distributed by the said Sham Lal to the other members of Jammu modules. That
a final charge-sheet
sheet was produced before the trial Court and vide order dated
23.08.2022, charges were framed against the petitioner under Section 120-B
B of
the IPC
PC read with Sections
Section 8, 29, 21, 23& 27-A
A of the NDPS Act and Sections
17, 18, 38, 39 & 40 of the Act of 1967.
ARGUMENTS ON BEHALF ON THE PETITONER
6. Learned counsel for the petitioner has vehemently argued that on
perusal of the charge-sheet,
charge , it is apparent that there is no direct evidence or
circumstantial evidence against the petitioner exce
except
pt the disclosure statement of
the said Sham Lal and it is well settled law that the disclosure statement can even
not be placed in the charge-sheet.
charge sheet. The disclosure statement is only for the
purpose of the Investigating Officer to lead the investigation an
and
d collect the
evidence against the petitioner. However, no evidence, no recovery and no cash
has been recovered from the petitioner and only on the basis of the disclosure
statement of the co-accused,
co accused, charges under Section 120
120-B
B of the IPC read with
Sections
ns 8, 29, 21, 23 & 27-A
27 of the NDPS Actt and Sections 17, 18, 38, 39 & 40
of the Act of 1967 has been framed against the petitioner.
7. Learned counsel for the petitioner has further argued that the charge-
charge
sheet also transpires that there is no evidence or any witnesses against the
petitioner, which proves involvement of the petitioner in the said charge
charge-sheet.
sheet.
He further submits that there
t e are witnesses against the other accused
accused, however,
owever,
none of the witnesses have stated anything against the petitioner and since
ince the
charges framed against the petitioner are against law and evidence and the trial
Court has not taken into account the evidence
evidence produced by the prosecution,
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therefore, the same are required to be quashed and the petitioner may be
discharged from the aforesaid offences.
LEGAL ANALYSIS
8. Heard learned counsel for the petitioner at length
length.
9. The law has been settled that parameters for invoking the inherent
jurisdiction of the Court to quash the criminal proceedings under Section 528 of
the BNSS (corresponding
corresponding to Section 482 CrPC) are limited and the same has to
be exercised in rarest of rare cases and not in casual manner. The aforesaid
proposition of law is well settled by Apex Court in “”State
State of Haryana vs Bhajan
Lal” reported in AIR 1992 SC 604, wherein a caution has been given to the
constitutional courts exercising the powers given under Section 482 of Criminal
riminal
Procedure Code.
Code The relevant para is reproduced as follows:
“103. We also give a note of caution to the effect that the power of
quashing a criminal proceeding should be exercised very
sparingly and with circumspection and that too in the rarest of
rare cases; that the court will not be justified in embarking upon
an enquiry as to the reliability or genuineness or otherwise of the
allegations made in the FIR or the complaint and that the
extraordinary or inherent powers do not confer an arbitrary
jurisdiction on the court to act according to its whim or caprice.”
jurisdiction
10. This Court
C also takes note of the judgment of Hon’ble Apex Court in
Prashant Bharti vs State (NCT of Delhi) reported in 2013 9 SCC 293, wherein
following has been held:
22. The proposition of law, pertaining to quashing of criminal
proceedings, initiated against an accused by a High Court under
Section 482 of the Code of Criminal Procedure (hereinafter
referred to as “CrPC”) has been dealt with by this Court in Rajiv
Thapar v. Madan Lal Kapoor [Rajiv Rajiv Thapar v. Madan Lal
Kapoor, (2013) 3 SCC 330 : (2013) 3 SCC (Cri) 158] wherein this
Kapoor,
Court inter alia held as under: (SCC pp. 347
347-49, paras 29-30)“29.
29. The issue being examined in the instant case is the
jurisdiction of the High Court under Section 482 CrPC, if
it chooses to quash the initiation of the prosecution against
an accused at the stage of issuing process, or at the stage of
committal, or even at at the stage of framing of charges.
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These are all stages before the commencement of the
actual trial. The same parameters would naturally be
available for later stages as well. The power vested in the
High Court under Section 482 CrPC, at the stages referre
referred
to hereinabove, would have far-reaching
far reaching consequences,
inasmuch as it would negate the
prosecution’s/complainant’s case without allowing the
prosecution/complainant to lead evidence. Such a
determination must always be rendered with caution, care
and circumspection.
circumspection. To invoke its inherent jurisdiction
under Section 482 CrPC the High Court has to be fully
satisfied that the material produced by the accused is such
that would lead to the conclusion that his/their defence is
based on sound, reasonable, and in indubitable facts; the
material produced is such as would rule out and displace
the assertions contained in the charges levelled against the
accused; and the material produced is such as would
clearly reject and overrule the veracity of the allegations
contained in the accusations levelled by the
contained
prosecution/complainant. It should be sufficient to rule
out, reject and discard the accusations levelled by the
prosecution/complainant, without the necessity of
recording any evidence. For this the material relied upon
by the defence should not have been refuted, or
alternatively, cannot be justifiably refuted, being material
of sterling and impeccable quality. The material relied
upon by the accused should be such as would persuade a
reasonable person to dismiss and
and condemn the actual basis
of the accusations as false. In such a situation, the judicial
conscience of the High Court would persuade it to exercise
its power under Section 482 CrPC to quash such criminal
proceedings, for that would prevent abuse of proces
process of the
court, and secure the ends of justice.
30. Based on the factors canvassed in the foregoing
paragraphs, we would delineate the following steps to
determine the veracity of a prayer for quashing raised by
an accused by invoking the power vested in the High Court
under Section 482 CrPC:
30.1. Step one:
one: whether the material relied upon by the
accused is sound, reasonable, and indubitable i.e. the
material is of sterling and impeccable quality?
30.2. Step two:
two: whether the material relied upon by the
accused would rule out the assertions contained in the
charges levelled against the accused i.e. the material is
sufficient to reject and overrule the factual assertions
contained in the complaint i.e. the material is such as
would persuade a reasonable personperson to dismiss and
condemn the factual basis of the accusations as false?
30.3. Step three:
three: whether the material relied upon by the
accused has not been refuted by the
prosecution/complainant; and/or the material is such that
it cannot be justifiably ref
refuted by the
prosecution/complainant?
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four: whether proceeding with the trial would
result in an abuse of process of the court, and would not
serve the ends of justice?
30.5. If the answer to all the steps is in the affirmative,
judicial conscience
conscience of the High Court should persuade it
to quash such criminal proceedings in exercise of power
vested in it under Section 482 CrPC. Such exercise of
power, besides doing justice to the accused, would save
precious court time, which would otherwise be waswasted in
holding such a trial (as well as proceedings arising
therefrom) specially when it is clear that the same would
not conclude in the conviction of the accused.”
11. However, the instant petition does not fall within the aforesaid
parameters laid down by the Apex Court, as there was sufficient material on
record to frame charges against the petitioner as has been discussed by the trial
court in the order impugned,
impugned wherein the trial court was to consider the broadprobabilities of the case and the total effect of the evidence produced by the
prosecution at the stage of framing of charges. Even otherwise, tthis
his Court whileexercising the powers under Section 528 of the BNSS also cannot go into the
question or issue whether recovery,, evidence and cash has be
been recovered fromthe petitioner or not. All these issues/questions
issues/questions are to be dealt with by the trialCourt, where the trial is pending adjudication. On this count also, the instant
petition deserves dismissal.
12. Another aspect of the matter which is paramo
paramount that the impugnedorder of framing of charges was passed by the trial Court on 23.08.2022
2022 and thepetitioner has approached this Court by way of instant petition filed under
Section 528 of the BNSS in the year 2024, i.e., after a delay of two years
years, thus,
thusthe instant petition suffers from delay and laches and is required to be dismissed
on this ground alone,
alone, when the said order was gladly and voluntarily accepted bythe petitioner for almost two years.
years
13. The petition under 528 of the BNSS ((earlier Section 482 CrPC) shall
not to be entertained where there is inordinate delay and laches. This court places
reliance on the judgement of Hon’ble Delhi High Court in Vipin Kr. Gupta vs
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Sarvesh Mahajan reported in 2019 SCC OnLine Del 12349
12349, wherein following
has been held:
11. Now, this Court would like to deal with firstly, the order
dated 17.11.2014. The order dated 17.11.2014 has been
assailed now, after more than four years of the passing of the
said impugned order. There is neither any plausible
explanation nor any sufficient cause in the petition to
approach this Court after such an inordinate delay. I have no
hesitation to hold that if the Court fails to take into
consideration delay and laches, while invoking the powers of
the High Court under Section 482 of the Cr. P.C.
P.C., without any
reasonable ground, there would be no end to the litigation, as a
consequence whereof, neither any trial would be proceeded nor
any trial would be concluded before the Trial Court. The
impugned order dated 17.11.2014 is barred by the principle of
delay and laches, to invoke the powers of the High Court under
Section 482 of the Cr. P.C.,, hence, challenge to the impugned
order dated 17.11.2014 cannot be entertained at this stage after
such a long, inordinate delay and laches,
laches, hence is not liable to
be set aside on this ground alone. In this regard, see Rajesh
Chetwal v. State,, in Crl.M.C.1656/2011, decided by this Court
on 24.8.2011, Inder Mohan v. The State State, 1972 Cri LJ
1569, Gopal Chauhan v. Smt. Satya
Satya, 1979 Cri LJ
446 and Bata v. Anama Behera, 1990 Cri LJ 11101110.
14. The law is well settled that
t at the stage of framing of charge, the trial
court is not to examine and determine in detail the material placed on record by
the prosecution, nor it is for the court to consider the sufficiency of the material
to establish the offence alleged against the petitioner
petitioner. At the stage of charge, the
trial court is to examine the material only with the view to satisfy itself that a
prima facie case for commission
commission of offence alleged has been made against the
accused persons. The trial court should not make a roving enquiry into pros and
cons of the matter and weigh the evidence as if the trial court is conducting a
trial. The trial judge at that stage may sift
sift the evidence for limited purpose but
he is not required to marshal the evidence with a view to separate the grain from
the chaff. It is a settled position of law that admissibility or inadmissibility of
the disclosure statement cannot be taken into con
consideration
sideration at the stage of
framing of charge. Thus, if the allegation leveled in the police report under
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Section 173(2) Cr.PC, the statement of witnesses of the prosecution, the
disclosure statement of accused person and seizure cum recovery memo are to
be taken on consideration, prima facie there was sufficient material as per the
order passed by the trail court to charge-sheet
sheet the petitioner for commission of
offences.. Accordingly, the reasoned order passed by the trial court, whereby the
charges have been framed against the petitioner and other accused persons
cannot be interfered with by this Court.
15. Keeping in view the aforesaid enunciation of law and after perusing
the order impugned, this Court is of the considered opinion that the instant
petition
ition is not maintainable and deserves dismissal
dismissal.
CONCLUSION
16. In view of aforesaid observations, this court is not inclined to invoke
the inherent jurisdiction under Section 528 BNSS in the instant case with a view
to quash the impugned order dated 13.08.2022 passed by the learned 3rd
Additional Sessions Judge, NIA Court, Jammu and accordingly, the instant
petition is dismissed in limine along with all connected application
application(s).
(Wasim Sadiq Nargal)
Judge
JAMMU
25.09.2024
Ram Krishan
Ram Krishan
2024.10.03 13:11
I attest to the accuracy and
integrity of this document