1. First Information Report No.158 of 2018 has been lodged with Police Station, Magam, wherein allegation levelled is that on 05.12.2018, SHO, P/S Magam along with his escort was on Naka duty and during Naka, a vehicle (Santro) bearing registration No.JK04C-5787 was coming from General Road Mazhama. The vehicle was stopped for checking which was objected to by driver and another person travelling in the said vehicle. On enquiry, the driver divulged his named as Arif Ahmad Mir S/o Ghulam Mohammad Mir R/o Mazhama while as other person divulged his name as Mudasir Ahmad Shah S/o Abdul Gaffar Shah R/o Humhama Budgam. On search of dicky of vehicle, one bag was found which was allegedly containing 60 bottles of psychotropic drugs. During the course of search, the accused Arif Ahmad Mir raised a hue and cry and made a murderous attack on Constable Shakoor Ahmad with the intention to kill him by throwing a stone on his head who got severely injured. During the hue and cry, a mob of 50 persons including father and brother of the accused, namely, Ghulam Mohammad Mir and Hilal Ahmad Mir, and other relatives of the accused, armed with lathies and stones, also attacked the police party. On receiving this information, case was registered and investigation commenced.

2. In terms of the instant petition, quashment of the FIR as against the petitioners to the extent of registration of same for the offence under Section 307 RPC is sought on the ground that:

(I) The whole story narrated in the FIR is fallacious, fictitious and designed to harass the petitioners family as it is not understandable as to how more than fifty members of the family of the petitioner would have gathered on spot on a road within no time. The story is highly improbable.

(II) It is well settled law that each and every member of an unlawful assembly is bound and is liable for the act of each and every other member of the assembly when the act is done in furtherance of common object and is likely to be done by the members while carrying on their unlawful common object. In the instant case, admittedly the act of causing serious injury on head of a policeman was done by Arif Ahmad before the allegedly formed unlawful assembly arrived on the spot and admittedly he was not part of the unlawful assembly but the unlawful assembly was formed to prevent his arrest and thus he was the common object of the assembly and not a member of same. Thus any of his acts cannot be attributed to the so called unlawful assembly and thus booking of the petitioners under Section 307 is highly unwarranted and illegal on the fact of it.

(III) Even otherwise, admittedly, the act of causing grievous injury on the head was committed before even the unlawful assembly arrived on spot. Thus there arises no question of booking the members of the unlawful assembly under Section 307. Section 307 provides for punishment for attempt to commit murder and as is clearly discernible from the allegations in FIR, no such act was committed by any of the members of the unlawful assembly.

(IV) In terms of law laid down by the Honble Apex Court in the case of C. K. Jaffer Sharief and countless other cases, if the allegations in an FIR do not make out an offence, the FIR is liable to be quashed and the trial does not deserve to be conducted in such cases. The allegations in the instant case, if taken to be true and correct, do not disclose that an offence of attempt to murder has been committed by the petitioner. Even if all the allegations are proved exactly in the same manner as stated in FIR, even then the offence under Section 307 is not made out as against the petitioners.

(V) The police officials being biased in the instant case are looking for means to harass the petitioners. The said charge has been deliberately and due to mala fide reason been entered in the FIR so as to get the petitioners booked for serious offence as all other offences as against the petitioners are not grave offence.

3. Learned counsel for the petitioners, while being heard, submitted that in the light of judgment of Andhra High Court in "Girish Sarwate vs. State of A. P" reported in 2004 (6) ALD 855, and the judgment of Honble Supreme Court in "R. P. Kapur vs. The State of Punjab" reported in 1960 AIR 862, the power under Section 561- A Cr. P. C can be exercised by this Court to stop prosecution of the petitioners in terms of Section 307 RPC.

4. Considered the submissions made at bar by the learned counsel for the petitioners in the light of material available before me. The judgment of Honble Apex Court in "R. P. Kapur vs. The State of Punjab" reported in 1960 AIR 862, relied on by the learned counsel for the petitioners candidly reveals that the proceedings, if any contemplated to be proceeded ahead in terms of any police report, cannot be quashed when the Magistrate had no occasion to apply his mind to the facts and evidence. It would be pertinent to have in view the observations of the Honble Apex Court in "State of Orissa v. Suraj Kumar Sahoo", (2005) 13 SCC 540 [LQ/SC/2005/1228] . Their Lordships, in the said judgment, have sounded a note of caution regarding power of the High Court to be exercised in terms of Section 561- A Cr. P. C, corresponding to Section 482 of the Central Code. Their Lordships enunciated that the High Court, being the highest court of a State, should normally refrain from giving a prima facie decision in a case where entire facts are incomplete and hazy, more so, when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, being of magnitude, cannot be seen in their true perspective without sufficient material placed before the Court. While exercising inherent jurisdiction, as observed by their Lordships, it is not permissible for the High Court to act as a trial court. It would be none of the duties of the High Court to appreciate the evidence to conclude whether the material produced is sufficient or not for holding the accused guilty.

5. It may also be proper herein to state that the Honble Apex Court has also enunciated that the investigation being the statutory domain of the police cannot be scuttled by having resort to the provision of inherent power under Section 561- A Cr. P. C. For this, support can be had from the judgment of Honble Apex Court in "State of Karnatka & Another v. Paster P. Raju" (AIR 2006 SC 2825 [LQ/SC/2006/687] ).

6. Having regard to what has been stated above, I am of the opinion that no scope at this stage is found for intervention. The petition, as such, is held liable for dismissal in limini and is, accordingly, dismissed along with connected interim application(s). The petitioners are left at liberty to apprise the investigating agency about their stand in the matter and if same is not accepted, thereafter the petitioners can approach the Court before which final report, if any, is submitted, with the request to examine the same on the touchstone of the applicable provisions.