HIGH COURT OF JAMMU AND KASHMIR
Ab Majid Dar
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(1.) THIS revision petition is directed against the order dated 15 -06 -1998 passed by the learned Sessions Judge, Badgam whereby he discharged the
respondents herein for the commission of offences falling under sections
121 -A, 120 -B and 212 RPC. The factual matrix of the case as projected by the prosecution is that in the Police Station, Saddar Srinagar FIR No 304
of 1997 was registered for the Commission of offences falling under
section 10/11 of the Criminal Law Amendment Act and investigation
thereunder was started. Bank account No.191/2 in the Jammu and Kashmir
Bank Branch, Rawalpora, Srinagar was found in the name of respondent No.1
who is a vegetable vendor and runs his shop in Sant Nagar area of
Srinagar City. Respondent No.1 is an immediate neighbour of respondent No
(2.) WHO is a senior leader of secessionist political organisation known as J&K Hurriat Conference. Respondent No. 2 has close relations with
unlawful organisation known as ËœAlbarqâ„¢ and in order to execute the
secession acts used to get secret monetary help from internal and
external agencies who are hostile to the Union of India. In the year
1995, respondent No. 2 with an objective of carrying on these unlawful activities in a clandestine manner developed thick friendly relations
with respondent No, 1 who became a frequent visitor to his house. For the
safe custody of the money (which was so being received through
ËœHawalaâ„¢ and other means) said account No.191/2 in the J&K Bank Ltd.
was opened. At the dictates of respondent No.2, respondent No.1 used to
frequently deposit and withdraw the money. The withdrawn money was being
spent for the procurement of illegal arms, ammunition and explosive
materials which were being distributed to concerned groups of militants
for the purpose of committing the acts of violence and sabotage in the
State and thus threatening the integrity and security of the country. At
the time of seizure of the said accounts, an amount of rupees one Crore
was found in it.
2. The learned Sessions Judge before discharging the respondents had made the following observations in the impugned orders:
I am aware that at this stage the prosecution evidence has not to be scrutinized to ascertain the veracity of the witnesses or to look for contradictions, variations or commission in their deposition u/s 161 Cr. P.C. Even the probability of existence of allegations prima facie justified by the material on record is sufficient to charge accused. The measure which is to be applied to test the prosecution case at the conclusion of the trial has not to be applied with the same severity at the stage of ascertaining the grounds for involvement of the accused for purpose of charge but at the same time the courts have also a duty to prevent abuse of process of law and to safe -guard the fairness of justice and pass appropriate orders when circumstances, facts and material on record demand.
(3.) WHILE discussing the prosecution evidence, the learned Sessions Judge has held that there is no evidence to show that at any point of
time any witness of the prosecution actually saw the accused Abdul Majid
passing any money by cash or by cheque to the accused Abdul Gani Lone.
There is not even a single cheque or counter -foil of the cheque on the
file to suggest that the accused Abdul Majid has ever paid any money to
the accuse Abdul Gani Lone from account No. 191/2 in the Jammu and
Kashmir Bank. He had also found that there existed no conspiracy to
purchase arms and ammunition including explosives as no recovery could be
made of any such objectionable items. Equally, there was no evidence to
suggest that any weapon or explosive material was ever purchased,
procured or possessed by any of the accused. No prosecution witness even
faintly had deposed that criminal force was applied in order to wage war
with the aim of over -throwing the State. There was not even an iota of
evidence to show that a particular militant was given shelter by
respondent No.2 in order to screen him from the legal consequences of the
acts committed by them. The prosecution had even failed to trace the
source of the money from where the deposits were made in the said account.
After making the discussion in the manner stated above, the learned Judge held that there was no prima facie evidence against the
respondent so he discharged them.;
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