Chandrama Prasad & Others vs State Of U.P.
2012 Latest Caselaw 5159 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 42
 
Case :- CRIMINAL APPEAL U/S 374 CR.P.C. No. - 6151 of 2007
 
Petitioner :- Chandrama Prasad & Others
 
Respondent :- State Of U.P.
 
Petitioner Counsel :- Apul Misra,A.K.Shukla,P.N. Misra,U.K.Saxena
 
Respondent Counsel :- Govt. Advocate,Kamlesh Shukla
 

 
Hon'ble Dharnidhar Jha,J.

Hon'ble Ashok Pal Singh,J.

We have perused the explanation submitted by the Registrar General of the Court dated 15.10.2012 who has, interalia, submitted that "reconstruction has been carried out and the reconstructed copy has been placed on the record of the case."

However, we find a copy of the note submitted by the Registrar (Criminal) which is dated 15.10.2012 as also the Section Officer of Criminal Appeal 'Group-'A' submitting that there was no provisions in the Allahabad High Court Rules, 1952 regarding the construction of misplaced/lost records.

We want to examine this issue also, but first the prayer for bail has to be considered.

We have heard Sri U.K. Saxena, learned counsel appearing on the second prayer for bail of appellant, Chandrama Prasad whose first prayer for bail was rejected by the Court by an order passed on 04th January, 2008. We have also heard learned AGA appearing on behalf of the State.

The submission is that all accused persons are said to have chased the injured and the victim from a polling station and are said to have fired at them in which course, deceased Yashwant Singh also received injury and while he was being treated in hospital, succumbed to them. Submission is that inspite of the general allegation reiterated by other witnesses, P.W. 2 was specifying that it was this appellant whose shot hit the deceased. But it appears that the claim of the witnesses could be doubtful as there were at least 8 to 9 other injuries on the dead body about which there was no explanation coming from the prosecution.

Considering the initial prosecution story of imputing general and omnibus allegation against all the accused persons equally that they were armed with firearms and further considering the submission regarding the presence of injuries on the dead body which could be caused by weapons other than firearms, we direct the release of the present appellant- Chandrama Prasad on bail, during pendency of appeal, on furnishing a bond of Rs. 20,000/- with two sureties of the like amount each to the satisfaction of the learned Additional Sessions Judge, Fast Track Court No. 22, Allahabad in connection with Sessions Trials No. 92 of 2006.

As regards sentence of fine imposed upon the above noted appellant, realization thereof shall remain stayed till further orders.

Now, we want to consider the note submitted by the Registrar (Criminal) regarding the absence of specific provision in the Allahabad High Court Rules, 1952 regarding reconstruction of misplaced/ lost records. The Registrar Criminal by his note dated 15.10.2012 reported, interalia, as under:

"By means of the above office note, it has been submitted that there is no specific provision in the Allahabad High Court Rules, 1952 regarding reconstruction of misplaced/lost records, and in absence thereof, the prevalent practice is that the office prepares photocopy of the misplaced records from the copy of counsel for appellant and thereafter, the matter is listed before the Hon'ble Court for allowing the said photocopy of the record to be treated as original (reconstructed) copy of the appeal. The office has submitted that it was in this background that it had listed the said case before the Hon'ble Court"

As per above report, the above officer of the registry has attempted to impress upon us, as may be apparent from his note, that there was no specific provision regarding re-construction. It is true that there is no procedure set down by any provision as to how a lost or misplaced record has to be reconstructed but as may appear from the above part of the note by the officer, reconstructing a record has a prevailing practise in this Court also. We are of the view that officer was not fully aware with the Rules of the Court referred to by him. In our opinion there are sufficient rules indicating that it has to be officers of the registry who could be taking due steps with appropriate diligence for reconstructing the record if it be lost or misplaced entirely or if any part of it appears damage or missing. We want to refer to Rule 34 appearing in chapter VIII Section-P, headed as "Miscellaneous" The Rule is quoted as under:

"34 Examination of records- Immediately on the receipt of a record, the office shall examine its condition and note on the form for transmission of record received along with the record the date of its receipt and its condition. The record shall thereafter be examined and if on such examination it is found that any paper is missing from the record or is mutilated or that the record is in any other respect defective, a note thereof shall be made forthwith on the back of the aforesaid form and it shall be laid before the Registrar for such orders as he may deem fit to pass."

As may appear from the above noted Rule, as soon as any record is received by the office, which is in our opinion includes not only the record of memo of appeal with annexed copy of the judgement passed by any trial judge and which may also include relevant lower court records which might have been called for by the court in connection with the appeal, either of criminal or civil nature or any other proceedings, the office is required to examine the condition of the same and to make a note regarding the state/condition of the record along with the date of the same being received by the office. After the office had completed the above formality it had to examine the same and verify during such examination always to ascertain or to find out as to whether any part of the record was missing from the record or was mutilated or any part of it was defective in any respect. The result of above exercise directed to be carried out by the office has always to be incorporated on a particular form forthwith meaning thereby that in case there is any destruction or loss of the record, the office is responsible for making the report about the same by putting up a note thereof immediately and it shall be laid before the Registrar of the Court for necessary orders as may be deemed fit and proper by the Registrar of the Court to be passed. Thus, what logically follows from Rule 34 quoted above is that in any of the events as indicated by the Rule which may include the loss of the record or the same being traceless, it is always the duty of the office to carry out the exercise of putting up a note before the Registrar of the court without loss of time as followed from the word "forthwith" and necessary orders shall have to be obtained from the Registrar.

We may note as such that it is always the duty of the Section/Office of the Court which has received the record of any case or which has been ordained to maintain the records of cases of whatever class or nature to act as per the direction contained in Rule 34.

Now the question could be as to whether the Registrar (Criminal) or the Criminal Section of the Court could avoid carrying out the provisions of Rule 34 noted above in letter and spirit. There could not be any doubt that it is out and out the duty of the section which has received the record in any eventuality to act as per the direction of the Rule noted above and whoever is ordained to translate into action the provision of that particular Rule has to act else he can be held responsible for dereliction to duty which may invite any serious consequences. This is what logically follows from the provision.

Now the functions/powers and duties of the Registrar of the Court have been enumerated under Rule 1 in chapter II of the Rules of the Court and if the same are considered in the light of Rule 34 we have just notified it can not be said that the Registrar could ever escape performing the duties or acting as per the spirit of the Rule. As per Rule-5 of the same chapter II, the Chief Justice may authorise the Registrar or Joint Registrar or any other officer to exercise such functions/ powers and duties of the Registrar General under these Rules as he may by order assign to him. It is hardly required to note that there are several posts of Registrars in the registry of the Court and they enjoy the delegated powers of the Registrar General after being authorized by Hon'ble the Chief Justice in the light of Rule 5 just noticed by us. This is the reason that the Registrar (Criminal) also enjoys the powers and functions of the Registrar General as enumerated under the Rules of the Court to be discharged by the Registrar General and it is his duty to comply with the Rule 34 regarding the maintenance of the record or the exercise of finding out the position of the record and, thereafter, he has further to take steps for reconstruction of the record by putting a note before Registrar General of the Court as per the provisions of the said Rule 34 if there is need to do so.

In view of the discussion which we have just made in reference to the Rules referred in the present order, we do not have any hesitation in pointing out that note given by the Registrar (Criminal) dated 15.10.2012 on the basis of the note of the Section Officer (Criminal) on 15.10.2012 was indicative of the fact that the officer was either complacent or derelict in performing his duty and was probably taking resort to imaginary absence of Rules regarding reconstruction of the records. Moreover the Registrar (Criminal) has himself admitted that there was a practise prevailing in the Court regarding the reconstruction of the lost or misplaced records. It is not only in this Court that the records could be directed to be reconstructed; it has to be done by all Courts either under stricter provision in that behalf or as a matter of practise so as to treating it as a traditional part of practise adopted by the Courts. It was the reason that the Supreme Court could also highlighted the same to be done apparent as is fully from the judgement of the Supreme Court in the Case of State of U.P. Vs. Abhay Raj Singh reported in 2004 (50) ACC 691. Moreover, one more aspect in connection with the issue needs to be noted that a High Court is a Court of record as per Article 215 of the Constitution of India which has to preserve its records. For the sake of convenience and to same space the High Court may not preserve the entire record of a case, but it has to do so in respect of the order/ judgements passed as also in respect of some important parts of the case record for which it might have framed rules. It has also to preserve its records of other proceedings on the administrative side too. All this has to be done only by the Registry of the Court and not be the Judges. As such, the note of the Registrar (Criminal) again appears a futile attempt on his behalf to evade lawful performance of his duties. We are astonished as to how such an officer could ascend the promotional ladders without being aware of the Rules of the Court.

Now coming to the case, we find that a note was put up by the office on 11.09.2012 informing us about the record of the present Criminal Appeal going missing and as such, we had passed an order on 25.09.2012 directing the office to trace out the record and list this appeal in the next cause list. We, thereafter, directed by order dated 03.10.2012 that the Registrar General should retrieve the order dated 04.01.2008 from the website of the Court and reconstruct the record by the end of week. The Registrar General had informed us through a proper note that the order of the Court had been complied with, but one Sri Ramesh Chand, an employee of the Court, appears to putting up a note that the order for reconstructing the record was always to be passed by the Court. We had already passed the order of reconstruction of the record as back as on 03.10.2012. It is amply clear that the Court had directed the record to be reconstructed and as such, there was no reason either for the Section of the Court or the Registrar (Criminal) to misinterpret it as not an order or direction issued by the Court to reconstruct the record. It was simply an exercise in futility that the Registrar (Criminal) was asking us that the Court should pass another order as appears from his note dated 15.10.2012 submitted to us.

It was not only useless, and depicting the insufficiency of the officer but it also showed his lack of knowledge and lack of will to perform his duties as per Rules.

We were not required to dwell so elaborately upon the issue, but for the reason that it was raked up unnecessarily by the Registrar (Criminal) by his note dated 15.10.2012 and in order to clarifying the position with reference to the Rules of the Court, we proceeded to pass the present order.

Let note of the Registrar Criminal dated 15.10.2012 and the explanation submitted by the Registrar General dated 15.10.2012 be treated as a part of record.

Order Date:16.10.2012

Sanjeev