Mohammad Maqbool Wani vs State Of J&K And Ors
2021 Latest Caselaw 469 j&K/2

S No. 201
After   Notice
                     IN THE HIGH COURT OF JAMMU AND KASHMIR
                                  AT SRINAGAR
                                     (THROUGH VIRTUAL MODE)

                                                                     CrlM No. 210/2019
                                                                 In CRMC No. 295/2017

           Mohammad Maqbool Wani                                             Petitioner(s)

                                            Through:-      Mr. R. A. Jan, Sr. Adv.
                                                           with Mr. Taha Khaleel, Adv.

                                                     Vs.
           State of J&K and Ors.                                             Respondent(s)

                                            Through:-      Mr. B. A. Dar, Sr. AAG.
           CORAM:-

Hon'ble Mr. Justice Sanjeev Kumar, Judge.

(O R D E R) 22-04-2021

CrlM No. 210/2019

This is an application filed by the petitioner seeking recalling of

the order and judgment dated 27th September 2018 passed by this Court

in petition under Section 561-A Cr.PC No. 295/2017. The order dated

27th September 2018 has been sought to be recalled primarily on the

ground that this Court has not appreciated that the evidence collected by

the prosecution which culminated in the presentation of the chargesheet

before the trial court, even if taken to be correct on the face of it, did not

constitute ingredients of the offence alleged and that this Court did not

consider the chargesheet filed by the police before the trial court but

instead relied heavily on the status report filed by the respondents in the

AASIF GUL 2021.04.23 00:16 I attest to the accuracy and integrity of this document

CrlM No. 210/2019 Iin CRMC No. 295/2017

matter and therefore a serious miscarriage of justice was done to the

petitioner.

The application is opposed by Mr. B. A. Dar, learned Sr. AAG

vehemently. He submits that recall application moved by the petitioner

is under no provision of law and this Court while hearing recall

application cannot sit in an appeal over its own judgment.

Having heard learned counsel for the parties and perused the

record, I am of the view that the apprehension voiced by the learned

senior counsel appearing for the petitioner can be allayed by disposing

of this application without formally pronouncing on its maintainability.

Learned counsel for both the sides are ad idem that the observations

made by this Court in the order dated 27th September 2018 which is

sought to be recalled through these proceedings are restricted to the

disposal of 561-A petition No. 295/2017 earlier filed by the petitioner

and cannot be in any manner prejudice the rights of either side to be

determined in the trial before the trial court. The final report/chargesheet

has already been presented before the trial court and the matter shall now

come up before the trial court for framing of charge and it is at this stage,

the petitioner would be at liberty to raise all the pleas available to him

that may justify his discharge in a case.

In view of the above and without going into its maintainability, this

application is disposed of with an observation that nothing contained in

the judgment dated 27th September 2018 shall be construed as an

expression of opinion on the merits of the challan pending disposal

AASIF GUL 2021.04.23 00:16 I attest to the accuracy and integrity of this document

CrlM No. 210/2019 Iin CRMC No. 295/2017

before the trial court. It is made clear that the petitioner shall be free to

raise all available pleas before the trial court at the time of charge and

discharge and the same shall be considered by the trial court purely on

merits without being influenced in any manner by any of the observation

made in the order dated 27th September 2018 passed in 561-A Cr.PC No.

295/2017

CrlM disposed of.

(Sanjeev Kumar) Judge SRINAGAR 22.04.2021 "Aasif"

AASIF GUL 2021.04.23 00:16 I attest to the accuracy and integrity of this document