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| HC directs SSP Poonch to further investigate alleged gang rape | | 'Place matter before CJ for appropriate action against then CJM Poonch' | | Et Report
Jammu, Aug 9: In a criminal reference in which Justice Mohammad Yaqoob Mir, in his capacity as the Administrative Judge of District Poonch called the record of three bail applications titled Maqsood Hussain, Shahid Iqbal and Shahnaz Akhter all versus State of J&K from the Court of Chief Judicial Magistrate (CJM) Poonch. These relate to a case registered under FIR No. 138/2010 for offences punishable under Sections 363/109 of RPC in which the accused had been admitted to bail. On perusal of record the court was of the opinion that exercise of powers under Section 561-A and 498(2) of CrPC may be required to be invoked so as to secure ends of justice. The record of these three files was accordingly placed before Chief Justice who directed listing of the same on judicial side. Justice Bansi Lal Bhat of J&K High Court Jammu Wing after hearing SS Ahmed for the petitioners and senior Adv PN Raina with Advs JA Hamal and K M Bhatti for the respondents observed that "Injustice anywhere is a threat to justice everywhere." Said Martin Luther King Jr. Injustice in the very "cathedral" of justice is still worst. It may amount to judicial complicity. The damage suffered may be incalculable in terms of erosion of confidence in the institution of judiciary and the rule of law." The Court further observed that in the instant case, it is noticed with concern that CJM Poonch has acted in the most arbitrary fashion by granting interim bail to the accused when the investigation was at the nascent stage. "It appears that the Court below laid undue stress on variation in age of prosecutrix and the medical report. It engaged in a discussion which was uncalled for. It was none of its business to express opinion on merits of the case in regard to the charge of rape. Sifting of material at the stage of investigation was unwarranted. CJM failed to notice that even if there was variation in date of birth of prosecutrix, conclusions deducible from the record and the complaint prima facie established that the prosecutrix, alleging gang-rape, was below sixteen years of age on the date of alleged occurrence," the court observed. "Since she had not attained the age of discretion relevant for offences punishable under Sections 363/366/376 of RPC, her being a consenting party was out of consideration. The medical report did not totally rule out sexual intercourse and the statement of prosecutrix recorded under Section 164-A of CrPC implicated accused Maqsood Hussain and Mohammad Maqsood in the charge of gang-rape. The urgency exhibited by CJM in allowing bail cannot be lightly ignored," it said. Accused Maqsood Hussain was granted interim bail on 26.10.2010. "It is shocking to note that the CJM retained the record of bail applications with him and on 21.12.2010 he made the interim bail orders absolute in all the three bail applications. This despite the fact that the case had been committed to the Court of Sessions with bail applications attached thereto and on 21.12.2010 the case was supposed to come up for hearing before Sessions Judge Poonch. Undoubtedly CJM Poonch had been divested of jurisdiction after committal of case to the Court of Sessions in terms of his order formulated on 22.11.2010." "Viewed thus, making of interim bail orders as absolute after the Magistrate was divested of jurisdiction and usurping of jurisdiction of Sessions Judge in a brazen-faced manner is an abuse of exercise of judicial powers calling for disciplinary action against the delinquent officer besides warranting quashing of the impugned orders. Viewed in the light of aforesaid discussion it can be stated without any fear of contradiction that the impugned orders are an affront to law and the same cannot be overlooked as the same have resulted in miscarriage of justice. Under Section 561-A of CrPC inherent jurisdiction of High Court can be exercised for advancement of justice and to prevent the abuse of the process of Court provided the High Court considers its interference necessary. Section 561-B of CrPC enjoins upon the High Court to exercise its continuous superintendence and control over magistracy so as to ensure that there is proper and expeditious disposal of case by the Judicial Magistrates subordinate to it," it added. The Court observed that the impugned orders cannot be supported and are accordingly quashed. "Bail granted to the three accused stands withdrawn. Senior Superintendent of Police Poonch is directed to conduct further investigation into the charge of gang-rape. Such further investigation shall be conducted through a senior Police Officer of the rank of Deputy Superintendent of Police who will convey the result of such investigation to the Trial Court within one month of passing of this order," the Court ordered. It also orderd that further investigation shall also be conducted on the aspect of alleged juvenile status of accused Shahnaz Akhter and in the event of her being found a juvenile, charge-sheet shall be laid before the competent forum for determination of juvenile delinquency. Justice BL Bhat also directed Registry that Copy of this order shall also be placed before the Chief Justice for appropriate orders in regard to the then CJM Poonch Sh. R K Abrol for abuse of judicial powers. (JNF) |
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