Excelsior Correspondent
JAMMU, Mar 24: Division Bench of the High Court comprising Justice Dhiraj Singh Thakur and Justice Rajnesh Oswal has set-aside the order of NIA Court to the extent of discharging the accused in the Jhajjar Kotli militant attack case of the offences punishable under Section 120-B and 121-A of RPC.
In the case, the Trial Court had discharged the accused from some charges and NIA filed appeal against this order.
After hearing ASGI Vishal Sharma for the National Investigating Agency, the DB set-aside the order of NIA Court with the direction to frame charges for commission of offences under Section 121-A and 120-B RPC.
The NIA had filed charge sheet against three Kashmiris for their alleged involvement in the attack in which three militants were killed in September 2018. During investigation larger conspiracy of proscribed militant organization Jaish-e-Mohammad (JeM) was unearthed wherein Pakistan based leadership of JeM illegally infiltrated armed and trained militants in India using the services of an organized network of Over Ground Workers.
The charge sheet has been filed against three accused persons namely Muhammad Iqbal Rather of Futlipora, Budgam, who was a BSc Nursing student at SKIMS, Ashaq Ahmed Nengroo of Rajpora, Pulwama, who was a trucker by profession and Riyaz Ahmed Nengroo of Hanjin Bala, Pulwama, who was also a trucker and brother of accused Ashaq Ahmed Nengroo.
Upon completion of the investigation, a report was sent to the District Magistrate Reasi and the District Magistrate Jammu. On the basis of this report a complaint under Section 196 and 196-A of the Code of Criminal Procedure for prosecution of the accused for the offences under Section 120-B read with Section 121-A of the RPC was forwarded by the competent authority— District Magistrate Reasi and District Magistrate Jammu to the NIA Court at Jammu.
Not only this, before filing the charge sheet in the instant case, sanction for prosecution under Section 45(1) of Unlawful Activities (Prevention) Act, 1967, had been obtained from the Ministry of Home Affairs, Government of India. Apart from this, sanction for prosecution under Section 7 of the Explosive Substance Act and under Section 39 of the Arms Act from the District Magistrate Reasi and District Magistrate Jammu, which were enclosed with the charge sheet, had been obtained.
The Special Judge NIA Jammu by virtue of the impugned order dated 25.02.2020 framed charges against the respondents under Section 307 RPC, Sections 7/25, 35 of the Arms Act, Section 4/5 of Explosive Substance Act, Sections 13, 18, 19, 20, 21, 38 and 39 of the Unlawful Activities (Prevention) Act, Section 6(1A) Indian Wireless and Telegraph Act and Section 14(c) Foreigners Act read with Section 120-B RPC but at the same time ordered their discharge under Section 121-A of RPC.
“We have no hesitation in holding that the investigating agency could have investigated not only the offences which were cognizable but even those which were non-cognizable in terms of the ratio laid down in Ram Krishna Dalmia case”, the DB said, adding “it was not mandatory for the District Magistrate to first order a preliminary investigation before filing a complaint in terms of Section 196-A of the Code of Criminal Procedure and that the communication dated 2nd March, 2019 can be said to be a complaint in terms of Section 196-A of the Code of Criminal Procedure”.
“We cannot persuade ourselves to accept the view expressed by the NIA Court to the extent of discharging the respondents for the offences punishable under Section 120-B and 121-A of the RPC. The impugned judgment and order to that extent is, therefore, set aside. Trial Court is directed to frame the charges for commission of offence under Section 121-A and 120-B RPC”, the DB said.
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