Jagdish vs State
2022 Latest Caselaw 4183 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

								 Reserved on 19.5.2022
 
								 Delivered on 26.5.2022
 
Court No. - 71
 

 
Case :- CRIMINAL APPEAL No. - 303 of 1983
 

 
Appellant :- Jagdish
 
Respondent :- State
 
Counsel for Appellant :- V.S. Singh,Aarushi Khare
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Samit Gopal,J.

1. Heard Ms. Aarushi Khare, learned amicus curaie for the appellant and Sri Kuldeep Kumar, learned counsel for the State and perused the record including the impugned judgment and order of conviction.

2. This criminal appeal has been filed by the appellant Jagdish against the judgement and order dated 05.2.1983 passed by V Additional Sessions Judge, Jhansi, in Sessions Trial No. 90 of 1980, by which the appellant has been convicted and sentenced to undergo seven years rigorous imprisonment under Section 392/397 I.P.C. Benefit of Section 428 Cr.P.C. has also been extended to him.

3. Perusal of the office report dated 05.10.2021 shows that in compliance of Court's order dated 13.9.2021, paper book could not be prepared as the lower court records have been weeded out and only judgment is available.

4. On 21.10.2021 the following order was passed :

"Learned Amicus Curiae for appellant is not present. Learned A.G.A. for the State-respondent is present.

I have perused the office report dated 05.10.2021 wherein it is stated that paper-book could not be prepared as the lower court record has been weeded out and only judgment is available.

Issue letter to the District & Sessions Judge, Jhansi to get reconstructed the lower court record within eight weeks and send the compliance report by the date fixed.

List this case in the week commencing 03.01.2022."

5. As per office report dated 02.01.2022, a report from Incharge Officer, R.R., District Court, Jhansi, dated 27.9.2021 has been received stating therein that lower court judgement has been sent to the office of this Court whereas rest of the papers have been weeded out. Further as per office report dated 18.5.2022, a report of District Judge, Jhansi dated 23.12.2021 has been received stating therein that despite several efforts reconstruction of lower court records is not possible. In support of which a detailed inquiry report of Inquiry Officer/Additional District and Session Judge, Jhansi, Court No. 2, dated 21.12.2021 regarding reconstruction of lower court records of S.T. No. 90 of 1980 has been annexed wherein it has been reported that in spite of several efforts, reconstruction of lower court records is not possible.

In this regard Inquiry Officer/Additional District and Session Judge, Jhansi, Court No. 2 sought details of the informant and accused-appellant Jagdish including address from Sessions Clerk, District Court, Jhansi and Additional Sessions Clerk, Court No. 5, Jhansi. Sessions Clerk has reported that records of sessions 1980 are not available in the record room. Sessions Clerk of Additional Sessions Judge, Court No. 5, Jhansi has also reported that there is no record of Sessions Trial No. 90 of 1980 available. Therefore, notice to the informant of the case has not been issued. However, notice was issued to accused-appellant through S.H.O., P.S.- Katera, District Jhansi on the basis of address mentioned in the letter dated 24.2.2015 sent by the office of this Court whereupon S.H.O., P.S.- Katera has reported that at present village of accused-appellant Jagdish falls within the area of Police Station Sakrar, District Jhansi. Thereafter a request has been sent to Police Station Sakrar for the same. In response, S.H.O. of Police Station Sakrar submitted its report stating therein that the accused-appellant is not residing in the village since last 5-6 years, in support of which a report lodged by Gram Pradhan and copy of G.D. have been annexed. Smt. Ramrasiya wife of the appellant and Pramod, son of the appellant have also stated that they have no knowledge about the whereabouts of appellant and they do not have any knowledge about the said case and they showed inability to provide the records of the aforesaid sessions trial. In these circumstances records of the said sessions trial could not be made available from the accused-appellant. In this regard Inquiry Officer has also written a letter to S.H.O, P.S.- Katera, District Jhansi to provide records of the said case but the concerned S.H.O. has reported that since there was an incident of fire in the police station in the year 2013, the file relating to said case is not available in the police station.

6. Despite efforts made by the District Judge, Jhansi, there is no possibility of reconstruction of the record.

7. In the instant case, the appeal was filed in the year 1983 and was duly admitted with a direction to the court below to remit the record and the accused appellant was enlarged on bail. A report of Incharge Officer, Record Section/Additional District and Sessions Judge/F.T.C. (O.A.W.), Jhansi, dated 27.9.2021 has been sent stating therein that the record has been weeded out. The said report has been forwarded under the seal of District & Sessions Judge, Jhansi dated 28.9.2021.

8. It is not out of place to mention that there are certain Rules enacted for the preservation and upkeep of the record, which are duly inserted in the General Rules Criminal, 1977 applicable to all the criminal courts subordinate to High Court of Judicature at Allahabad as such it cannot be said that the same has not been circulated or communicated to all the District Courts existing within the periphery of Uttar Pradesh. The cases have been classified according to the nature of offences not only under the Indian Penal Code but also other various offences amendable to Criminal Courts whether it is being tried by the Court of Sessions or by the Court of Magistrate. According to Rule 118 cases which are triable by Court of Sessions, the record of same shall be retained and preserved for 50 years irrespective of nature of conviction or quantum of punishment. The records are to be weeded out in accordance with the norms and procedures framed for weeding out the same. While weeding out the file, the records are to be weeded out under certain orders preserving the stamp, court fees, original documents, papers forming part of the record, certified copy of each documents and papers with regard to list of notes of fact.

9. From the Rules framed under the General Rules Criminal, it is evident that any record which is purported to be weeded out, responsibility lies upon the District Judge to enquire the pendency of the proceedings before this Court before directing the office concerned to weed out the record.

10. Looking to the horrific and horrendous situation on account of weeding of the records during the pendency of appeal before this court, it is apposite to communicate to all the District Judges of State of Uttar Pradesh to ensure that records are not weeded out of cases in which appeal has been filed before this Court. If the records have been weeded out as per General Rules, responsibility be fastened upon the concerned officers who have got the record weeded out putting the General Rules Criminal at shelf.

11. It will however be compatible that as a matter of caution, no record should be weeded out without enquiring with regard to pendency of appeal so that the grounds of the appeal may be scrutinized and assayed at the time of final hearing/disposal.

12. The instant appeal has been preferred by the appellant Jagdish against the judgement and order dated 05.2.1983 passed by V Additional Sessions Judge, Jhansi, in Sessions Trial No. 90 of 1980, by which the appellant has been convicted and sentenced to undergo seven years rigorous imprisonment. The incident is of the year 1979 and the appeal is pending since 1983. More than 43 years have elapsed since the date of incident and the appeal is pending for the last 38 years before this Court. Since the reconstruction of the record is not possible as per the report of the District Judge and dummy trial is not possible on account of non-availability of the witnesses who were examined in the case and even if they are alive, they would have lost their memory.

13. Considering the law on the point that where lower court record is not traceable, reconstruction is not possible and even retrial is not possible as laid down by the Apex Court in the case of State of U.P. Vs. Abhay Raj Singh: 2004 (4) SCC 6 and Division Bench of this Court in the case of Bramananad Shukla Vs. State of U.P. : 2010 (5) ADJ, 1508 (DB), this Court is left with no option but to decide the appeal as the per the settled law.

14. The appeal is accordingly allowed.

15. The judgment and order of the trial court dated 05.02.1983 convicting and sentencing the appellant is hereby set aside and the appellant is acquitted of the charges levelled against him.

16. The accused-appellant is on bail. His bail bonds are cancelled. The sureties are discharged from their liabilities. In case the accused-appellant is not wanted in any case, he need not surrender.

17. Office to communicate this order forthwith to the District and Sessions Judge, Jhansi for necessary action and compliance.

18. Ms. Aarushi Khare, learned "Amicus Curiae" who represented the appellant shall be paid Rs.12,000/- as remuneration for assisting the Court, within a period of two months from today as per Rules.

(Samit Gopal,J.)

Order Date :- 26.5.2022.

Naresh