Avinash Chand vs State And Another
2022 Latest Caselaw 4192 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 71
 

 
Case :- CRIMINAL APPEAL No. - 359 of 1981
 

 
Appellant :- Avinash Chand
 
Respondent :- State And Another
 
Counsel for Appellant :- D. Swaroop, Devendra
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Samit Gopal,J.

1. Matter taken up in the revised list.

2. No one appears on behalf of the appellant to press this appeal. Sri S.B. Maurya, learned Additional Government Advocate is present for the State.

3. Learned counsel for the opposite party no. 2/Brij Mohan Gupta is also not present even when the matter has been taken up in the revised list.

4. This criminal appeal is of year 1981. This Court, therefore, deems it fit to proceed in the matter on the basis of the record with the assistance of the learned State counsel.

5. Heard Sri S.B. Maurya, learned Additional Government Advocate for the State and perused the record including the impugned judgment and order of conviction.

6. This criminal appeal has been filed by the appellant Avinash Chand against the judgement and order dated 07.11.1979 passed by III Additional Sessions Judge, Aligarh, in Criminal Appeal No. 20 of 1979, by which the opposite party no. 2 has been acquitted of charges levelled against him under Section 420 I.P.C.

7. As per office report dated 22.11.2018, notice upon the appellant/Avinash Chand has been served as reported by C.J.M., Aligarh vide its letter dated 24.7.2018. Further as per office report dated 29.11.2018 and 16.11.2019, lower court records have not been received.

8. On 18.11.2019 the following order was passed :

"Case called in the revised list.

None has appeared from the side of appellant.

Sri G. P. Singh, learned A.G.A. for the State is present.

This appeal has been preferred against the judgment and order dated 07.11.1979, acquitting the respondent no. 2 of charge under Section 420 I.P.C. Copy of the judgment is not on record.

Office shall show the reasons why the copy of the impugned judgment has not been annexed and the same shall be annexed by the next date or cause shall be shown.

Lower court record is reported to be awaited.

Office is directed to issue a fresh letter to the District Judge concerned to ensure that the lower court record is sent to this court positively by next date.

Learned A.G.A. has prayed that he may be provided a photo copy of the memorandum of appeal, accordingly, office is directed to provide a copy of the memo of appeal to the learned A.G.A.

It is apprised that probably Sri D. Swaroop, learned counsel for the applicant, is no more, hence, notice shall be issued to the appellant to engage an new counsel returnable by the date fixed.

List this case on 07.01.2020.

Copy of this order be sent to the District Judge concerned by FAX for compliance."

9. Perusal of office report dated 06.1.2020 and 14.1.2020, a report from C.J.M., Aligarh dated 30.11.2019 has been received in which it is reported that Office Incharge, Record Room, Aligarh Judgeship, Aligarh has informed vide letter dated 23.12.2019 that the file of Criminal Appeal No. 20 of 1979, decided on 07.11.1979 has been weeded out.

10. On 28.2.2020 the following order was passed :

"None for the appellant.

Learned AGA for the State.

Notice upon appellant has already been served.

In office report dated 06.01.2020, it has been stated that as per report of in-charge, Record Room, Aligarh, record of Criminal appeal no. 20 of 1979 has been weeded out.

Let report be called from the District Judge concerned whether reconstruction of record is possible or not.

List on 03.04.2020."

11. As per office report dated 3.3.2021, a report from District Judge, Aligarh dated 30.9.2020 has been received wherein it has been reported that re-construction of lower court records is not possible. In this regard a report from Additional District and Sessions Judge/FTC, Court No. 1, Aligarh was sought by then District Judge vide order dated 12.8.2020. In response thereto Additional District and Sessions Judge/FTC, Court No. 1, Aligarh has submitted a detailed report stating therein that in order to reconstruct the lower court records, he has issued notice to complainant/appellant- Avinash Chand who appeared and filed a written reply he has provided all documents relating to this case to learned counsel who had filed this appeal before this Court and as such he has no documents relating to this case. Thereafter, a notice was issued to accused/Brijmohan Gupta but it has been reported that his whereabouts is not known, in support of which a certificate of local councilor has been annexed stating therein that there is no person namely Brijmohan Gupta living at the given address and area. Then, a report from Police Station Sasnigate was called for but whereabouts of accused/Brijmohan Gupta could not be traced out. In this regard, a letter had been sent to Record Room/Additional District and Sessions Judge, Court No. 3, Aligarh. According to report of Record Keeper of Record Room, the file relating to said case had been weeded out 09.1.1985 and stated that record is available in Collectorate Record Room. A report from Collectorate Record Room was sought. In response, Incharge Officer, Judicial Record Room vide letter dated 19.9.2020 reported that according to record maintained at Police Station-Civil Lines, the record of the said file had been weeded out. As such in spite of several efforts, reconstruction of file is not possible.

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

13. In the instant case, the appeal was filed in the year 1981 and was duly admitted with a direction to the court below to remit the record. A report of Additional District and Sessions Judge/FTC, Court No. 1, Aligarh, dated 21.9.2020 has been sent stating therein that the record has been weeded out. The said report has been forwarded by District Judge, Judge, vide letter dated 30.9.2020.

14. 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.

15. 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.

16. The instant appeal has been preferred by the appellant Avinash Chand against the judgement and order dated 07.11.1979 passed by III Additional Sessions Judge, Aligarh, in Criminal Appeal No. 20 of 1979, by which the opposite party no. 2 has been acquitted of charges levelled against him under Section 420 I.P.C. The appeal is pending since 1981. The appeal is pending for the last 39 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.

17. 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.

18. The appeal is accordingly dismissed.

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

(Samit Gopal,J.)

Order Date :- 24.5.2022

Naresh/Arif.