Mohd. Rafiq vs Sarfraz Ahmed And Others
2021 Latest Caselaw 1032 j&K

                                                                                     S. No. 27
                               HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                                              AT JAMMU

                                                               APPCR No. 42/2017
                                                               c/w
                                                               APPCR No. 17/2012
                                                               CRMC No. 180/2012
                                                               IA No. 202/2012
                                                               CRMC No. 617/2016
                                                               IA No. 1/2016
                                                               CRMC No. 521/2017

        Mohd. Rafiq                                                   ...Appellant/Petitioner(s)


                                   Through :- Mr. R. P. Sharma, Advocate
                                              Mr. R. K. Kotwal, Advocate in
                                              CRMC No. 617/2016
                                  v/s
                                   <




        Sarfraz Ahmed and others                                             .....Respondent (s)
        't




                                   Through :- Mr. Jamrodh Singh, GA for R-18
                                              Mr. R. K. Kotwal, Advocate


        Coram:                 HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE

                                                        ORDER

CRMC No. 180/2012

Learned counsel for the petitioner seeks leave of this Court to withdraw

the present petition.

In view of this, the present petition along with connected IA is

dismissed as withdrawn.

CRMC No. 521/2017

1. The present petition has been filed by the petitioner under section 561-A

Cr.P.C (now 482 Cr.P.C) for assailing the order dated 30.11.2016 passed by the court

of learned Sessions Judge, Poonch (hereinafter to be referred as trial court) by virtue

NEHA KUMARI 2021.09.06 14:36 I attest to the accuracy and integrity of this document

c/w connected matters

of which the learned trial court has recalled the warrants dated 25.10.2016 as well as

notice issued to the non-applicant Nos. 1 to 17 dated 11.06.2015.

2. The present petition has been filed by the petitioner primarily on the

ground that once the learned trial court had issued notice as well as warrants, the

same could not have been recalled, as the learned trial court has no power to review

its own order.

3. Mr. R. P. Sharma, learned counsel for the petitioner has reiterated the

grounds taken in the petition.

4. Mr. R. K. Kotwal, Advocate submits that the learned trial court has no

jurisdiction either to issue notice or warrants against the proposed accused till they

are formally arrayed as accused. Mr. Kotwal though supported the order impugned

but has argued that the private respondents cannot be arrayed as an accused until or

unless evidence has been recorded in their presence during trial. Mr. R. K. Kotwal,

Advocate further submits that evidence must be legal.

5. Heard and perused the record.

6. From the record, it is evident that the learned trial court on the motion

of the petitioner had issued a notice to the private respondents vide order dated

11.06.2015 and thereafter, vide order dated 25.10.2016 had issued warrants against

the private respondents. After the private respondents laid a motion before the

learned trial court, the learned trial court has recalled the said orders. The sole

contention raised by the petitioner is that the learned trial court could not have

recalled its order is misconceived.

7. So far as section 369 Cr.P.C is concerned, the trial court cannot alter or

recall the judgment once it has been announced except for the purpose of correcting

NEHA KUMARI 2021.09.06 14:36 I attest to the accuracy and integrity of this document

c/w connected matters

the clerical errors. So far as issuance of notice and warrants is concerned, they both

were without jurisdiction. Rightly so, the learned trial court has recalled both the

orders. There is no illegality in the order impugned and the same is upheld. The

application filed by the petitioner is still pending before the trial court and it is for

the trial court to examine the material on record so as to find out as to whether there

is any incriminating evidence against the private respondents that necessitate their

arraying of accused during the pendency of challan.

8. In view of this, the present petition is dismissed along with connected

applications. Nothing stated herein above shall be considered as an expression of

opinion on the merits of the case.

CRMC No. 617/2016

The present petition has been rendered infructuous in view of the order

passed by the learned trial court. As such, the same is dismissed.

(RAJNESH OSWAL) JUDGE JAMMU 03.09.2021 Neha Whether the order is speaking: Yes Whether the order is reportable: No

NEHA KUMARI 2021.09.06 14:36 I attest to the accuracy and integrity of this document