Judgment

Sanjeev Kumar, J.—This petition under Section 561-A Cr.P.C. is directed against order dated 30.08.1999 passed by the learned 4th Additional Sessions Judge, Srinagar [“the Trial Court”] in criminal challan titled State v. Mushtaq Ahmad Ganie and others, arising out of FIR No.11/1996 of Police Station, Pulwama.

2. In terms of the order impugned, the Trial Court has arraigned the petitioner along with seven other persons as accused in the challan, on the basis of statements of the prosecution witnesses recorded during trial. The case set up by the petitioner is that the petitioner is not named by the police in the FIR nor was his involvement found during the course of investigation. It is submitted that in the challan presented before the Trial Court, the police did not arraign the petitioner as accused and rightly so, as neither the petitioner was named in the FIR nor he was named by any of the prosecution witnesses, whose statements were recorded by the police during investigation. It is, thus, argued that in the absence of specific role ascribed to the petitioner in the commission of the offence alleged in the challan, the petitioner could not have been arraigned as an accused with the aid of Section 351 Cr.P.C.

3. Heard learned counsel for the parties and perused the record.

4. At the outset, it may be noted that the impugned order dated 30.08.1999 passed by the Trial Court was also subject matter of challenge in 561-ANo.97/2011 filed by one Mohamma Akbar Najar, who like the petitioner was subsequently arraign as accused in the challan.

5. The aforesaid 561-A petition was allowed by this Court vide judgment dated 25.08.2015 and the order impugned to the extent of accused Mohammad Akbar Najar was set aside. What was held by this Court in its judgment dated 25.08.2015 in paragraph No.6 is reproduced herein below:-

“6. Apart from the aforesaid, the witness stated that he had disclosed the names of all other persons involved in the case before police which comprised of 8 persons including the petitioner, specified in the impugned order. A bare look at the testimony of PW Ghulam Mohammad Sheikh reveals that though this witness has implicated the aforesaid eight persons including the petitioner, however, no role has been ascribed to them. In absence of corroboration of testimony of this witness in regard to presence of the accused at the venue of crime by other witnesses referred to in the impugned order and keeping in view the bald assertion of this witness regarding participation of the petitioner in the alleged crime without ascribing any role to the petitioner in the alleged occurrence, invoking of jurisdiction under section 351 Cr.P.C. is neither warranted nor can the same be said to be judicious exercise of power by trial court. There are no justifiable grounds, muchless a compelling reason to invoke jurisdiction under the aforesaid provision. It cannot be overlooked that the name of the petitioner does not figure in FIR lodged on 13.01.1996 and it is for the first time that he has been implicated by PW Ghulam Mohammad Sheikh in his deposition on 08.06.1998 without ascribing a definite role to him. In absence of any definite/distinct role attributed to the petitioner, the solitary deposition of PW Ghulam Mohammad Sheikh, who admittedly, did not notice the presence of petitioner at the venue of crime, cannot be made the basis for recording satisfaction in regard to his complicity in the alleged crime. The impugned order is an abuse of process of court and same cannot sustain.”

6. The petitioner is similarly situated with the accused-Mohammad Akbar Najar, as both were named by PW-Ghulam Mohammad Sheikh without ascribing any role played by them in the commission of crime. This Court in its judgment dated 25.08.2015 rightly found that exercise of jurisdiction by the Trial Court under Section 351 Cr.P.C. was not warranted.

7. Borrowing the reasoning given by this Court in the aforesaid judgment, I am of the considered vie