*Directs SSP Poonch for further investigation
Excelsior Correspondent
JAMMU, Aug 9: Giving a strong message that abuse of judicial powers would not be tolerated at any cost, High Court has quashed the bail granted to three gang-rape accused by the then Chief Judicial Magistrate (CJM) Poonch, R K Abrol and directed the Registry to place the matter before the Chief Justice for appropriate orders with regard to the conduct of the Judicial Officer. The High Court has also directed the SSP Poonch for further investigation in the case.
In the gang-rape case wherein a school going girl was the victim, the then CJM Poonch granted interim bail to the accused namely Maqsood Hussain, Mohd Maqsood and Shahid Iqbal and later made the interim bail orders absolute in all the three applications.
Aggrieved over this, mother of the victim filed an application before the Chief Justice explaining the grave injustice meted to her daughter at the hands of the then CJM Poonch. Taking cognizance of the application, the Chief Justice asked Justice Mohd Yaqoob Mir to look into the issue. Justice Mir, in his capacity as the Administrative Judge of district Poonch, called the record of three bail applications from the Court of Chief Judicial Magistrate (CJM) Poonch relating to a case registered under FIR No. 138/2010 for offences punishable under Sections 363/109 of RPC.
On perusal of record, Justice Mohd Yaqoob Mir observed 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.
After hearing Advocate Sheikh Shakeel Ahmed for the petitioners where as Senior Advocate P N Raina with Advocates J A Hamal and K M Bhatti for the respondents, Justice Bansi Lal Bhat observed, “in-justice anywhere is a threat to justice everywhere. 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.”
“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 Trial Court 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”, Justice Bhat said, adding “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 16 years of age on the date of alleged occurrence”.
“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 Mohd Maqsood in the charge of gang-rape. The urgency exhibited by CJM in allowing bail cannot be lightly ignored”, the High Court said.
“It has to be seen in the context of subsequent events. Accused Maqsood Hussain was granted interim bail on October 26, 2010. It is shocking to note that the CJM retained the record of bail applications with him and on December 21, 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 December 21, 2010 the case was supposed to come up for hearing before Sessions Judge Poonch”, Justice Bhat said, adding “undoubtedly CJM Poonch had been divested of jurisdiction after committal of case to the Court of Sessions in terms of his order formulated on November 22, 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”.
Justice Bhat further observed, “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”, adding “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”.
“The supervisory/visitorial jurisdiction of High Court is of paramount importance to examine correctness, legality or propriety of any finding, sentence or order recorded or passed as also regularity of the proceedings of all sub-ordinate Criminal Courts. If the glaring illegality or injustice stares the Court in the face, the Court must exercise its inherent and visitorial powers to annul that illegality or injustice”, Justice Bhat said, adding “the instant case is the appropriate one for invoking of such powers”.
With these observations, the High Court quashed the impugned orders and withdrew the bail granted to the three accused namely Maqsood Hussain, Mohd Maqsood and Shahid Iqbal. Senior Superintendent of Police Poonch was directed to conduct further investigation into the charge of gang-rape through an 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.
“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, chargesheet shall be laid before the competent forum for determination of juvenile delinquency”, the High Court said.
Justice B L Bhat also directed Registry that copy of this order shall also be placed before the Chief Justice for appropriate orders with regard to the then CJM Poonch, R K Abrol for abuse of judicial powers.
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