State vs Shah Nawaz
2022 Latest Caselaw 1237 j&K

          HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                          AT JAMMU

d
                                             CRREF No. 5/2022

State

                                                                ..... petitioner (s)

                               Through :- None

                         V/s
Shah Nawaz                                                    .....Respondent(s)

                             Through :-

Coram: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE

                               ORDER (ORAL)

1 Instant reference has been made by the learned Additional

Sessions Judge, Kathua in a case arising out of FIR No.48/2016 for offence

under Section 153-A RPC registered with Police Station, Bani.

2 In the order of reference, the learned Additional Sessions Judge

has observed that the cognizance taken by the said Court for the offence under

Section 153-A RPC in the said case, appears to be in violation of provisions

contained in Section 196 Cr.P.C as, according to the learned Sessions Judge, no

complaint has been made by the District Magistrate, Kathua or by the

Government which is the requirement of the law. The learned Sessions Judge

has, after relying upon numerous judgments of this Court, opined that the order

of cognizance passed by the said Court deserves to be set aside and,

accordingly, the file has been submitted to this Court for passing of necessary

orders.

3 I have gone through the trial Court record and the order of

reference.

4 A perusal of the trial Court record reveals that the accused person

in this case has been charged for the offence under Section 153-A RPC and that

most of the material prosecution witnesses have been examined and at this

stage, when the accused person has not raised any objection to the taking of

cognizance of offence before the Court below, it may not be appropriate to

interfere with the order of taking cognizance. This question can be considered

at the time of final disposal of the challan by the learned Additional Sessions

Judge.

5 Apart from the above, the reference made by the learned

Additional Sessions Judge is not competent, inasmuch, the same does not

conform to the provisions contained in Section 432 of J&K Cr.P.C which

provides for making of a reference in a case which involves a question as to the

validity of any Act or Ordinance or of any provision contained in an Act or

Ordinance, the determination of which is necessary for the disposal of the case.

A reference cannot be made by a Subordinate Court to seek correction of its

orders or for setting right the irregularities committed by it. In the instant case,

the learned Additional Sessions Judge has not stated any question of the nature

contemplated in Section 432 of the Cr.PC. Therefore, the reference is not

competent.

6 For all the foregoing reasons, the reference made by the learned

Additional Sessions Judge, Kathua is declined. The Registry is directed to send

back the trial Court record with a direction to the trial Court to proceed further

in the matter in accordance with law.

A copy of this order be sent to the learned trial Court for

information.

                                                             (SANJAY DHAR)
                                                                 JUDGE
JAMMU
14 .09.2022
Sanjeev                                 Whether order is speaking:Yes