Jammu & Kashmir High Court - Srinagar Bench
State Of J&K vs Alam Din Dana & Others on 22 October, 2024
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
Sr. No.04
Regular List
IN THE HIGH COURT OF JAMMU & KASHMIR AND
LADAKH AT SRINAGAR
Cr. Ref. No.-7/2014
STATE OF J&K ...APPELLANT(S)
Through: - Mr. Ab. Rashid Malik, Sr. AAG, with
Mr. Mohammad Younis Hafiz, Assisting Counsel.
Vs.
ALAM DIN DANA & OTHERS ...RESPONDENT(S)
Through:- Mr. I. Sofi, Advocate.
Mr. T. H. Khawaja, Advocate.
CORAM: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
HON'BLE MR. JUSTICE RAJESH SEKHRI, JUDGE
JUDGMENT(ORAL)
22.10.2024
Per Sanjeev Kumar 'J'
1) The accused, namely, Alam Din Dana and Mangta
Chechi, were arrested in case FIR No.29/1992 of Police
Station, Kupwara, under Section 302/201 r/w Section 34
RPC. Upon investigation, the police challan was originally
filed before the Court of Judicial Magistrate 1st Class,
Kupwara, vide order dated 18th July, 1992. The Court of
Sessions Judge, Kupwara, framed the charges in the year
1993 and directed the prosecution to lead evidence.
2) In the year 2003, this Court vide order dated 3rd
November, 2003, withdrew the challan from the files of
Sessions Judge, Kupwara, and transferred it to the Court
of learned Sessions Judge, Baramulla, for disposal under
law. The matter remained pending for some time before the
Court of Sessions Judge, Baramulla, which was later on
transferred to the Court of Additional District Judge,
Baramulla ["trial court"] on 18th November, 2005. The trial
court vide its judgment dated 26th December, 2006,
convicted both the accused for commission of offences
punishable under Section 302 r/w 34 RPC. They were
sentenced to undergo simple imprisonment for life and
imposed a fine of Rs.2000/ each. On appeal, a Division
Bench of this Court vide order dated 27th February, 2009,
set aside the judgment of the trial court impugned in the
appeal and sent the case to the Principal Sessions Judge,
Baramulla, to pass judgment afresh after hearing the
parties in accordance with the provisions of law. This is
how the matter went back to the learned Sessions Judge,
Baramulla, for re-hearing.
3) While hearing the parties and going through record,
the learned Sessions Judge, Baramulla, observed that
SRO 350 dated 30.10.2008, whereby the Additional
District Judge (Bank Cases), Baramulla, was conferred the
powers of Sessions Judge, had not been brought to the
notice of the High Court and because of withholding of this
requisite information, the High Court had fallen in error in
holding that the Additional District Judge (Bank Cases),
Baramulla, was not a Sessions Court appointed under
Section 9 of the Code of Criminal Procedure. Accordingly,
vide order dated 8th August, 2014, the Principal Sessions
Judge, Baramulla, made a reference to the High Court in
terms of Section 432 of the Criminal Procedure Code for
issuance of further directions in the matter as are deemed
appropriate by the High Court. It is on the basis of this
order of learned Principal Sessions Judge, Baramulla,
dated 08.08.2014, the Registry has prepared a note and
registered it as Criminal Reference No.07.2014.
4) We have heard learned counsel for the parties and
perused the material on record.
5) The reference is made by the Principal Sessions
Judge, Baramulla, purportedly, under Section 432 of
Criminal Procedure Code, which for facility of reference is
reproduced as under:
"432. Reference to High Court. (1) Where any Court is satisfied
that a case pending before it 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, and is of opinion that
such Act or Ordinance or provision is invalid or inoperative,
but has not been so declared by the High Court to which that
Court is subordinate or by the Supreme Court, the Court shall
state a case setting out its opinion and the reasons therefor,
and refer the same for the decision of the High Court.
(2) Any Court making a reference to the High Court under
sub- section (1) may, pending the decision of the High Court
thereon, either commit the accused to jail or release him on
bail to appear when called upon."
6) From reading of Section 432, it is crystal clear that a
Criminal Court other than the High Court shall make a
reference for the decision of the High Court provided it is
satisfied that the case pending before it involves a question
as to the validity of any Act or Ordinance or of any
provision contained in an Act or Ordinance, the
determination whereof is necessary for disposal of the
case. The recording of opinion by the Court that such Act
or Ordinance or provision thereof is invalid or inoperative
but has not been so declared by the jurisdictional High
Court or by the Supreme Court, is sine qua non for making
such reference. The other requirement of such reference is
that the Court making the reference must set out its
opinion and reason therefor before making the reference.
7) From reading of the order of reference dated 8 th
August, 2014, it clearly transpires that the issue raised by
the learned Principal Sessions Judge, Baramulla, is not
with respect to validity or otherwise of any Act or
Ordinance or any provision thereof nor does it satisfy other
requirements of Section 432 of Cr. P. C, as quoted above.
On the face of it, the reference under Section 432 of the
Code is not maintainable.
8) Having said that, we cannot lose sight of the fact that
order dated 8th August, 2014, passed by learned Sessions
Judge, Baramulla, purportedly, under Section 432 of
Cr.P.C, is nonetheless an information to this Court that
while deciding the criminal appeal, this Court had
committed an error by holding the proceedings before the
Additional Sessions Judge, Baramulla, as without
jurisdiction and this error came to be committed due to
failure of the parties to bring SRO 350 to the notice of the
Court. In this situation, a question arises as to whether
this Court, on the basis of information given by the
Principal Sessions Judge, Baramulla, can invoke its
inherent powers vested by Section 482 of Cr. P. C and
correct a purported error apparent on the face of record.
Another question that arises is as to whether this Court,
being a Court of Record as envisaged in Article 215 of the
Constitution of India, can correct the final orders passed
by it in the exercise of criminal appellate jurisdiction.
Some of these questions have been considered by a
Coordinate Bench in Cr. Ref. No.08/2014. We could have
gone little further and adjudicate these questions by
having some more debate from the Bar. We have, however,
decided not to do so as we feel that ends of justice would
be served by finding out a via media. The course suggested
by this Court was not even opposed by learned counsel
9) For the foregoing reasons and without going into the
legal questions that have arisen in this reference, we
propose to decide this reference by providing as under:
(I) That judgment dated 27th February, 2009, passed
by a Division Bench of this Court in Cr. Ref.
No.02/2007, is kept in-tact.
(II) The file is sent back to the Principal Sessions
Judge, Baramulla, for passing a fresh judgment
after hearing both the parties.
(III) Since it is not in dispute that other than final
judgment of conviction and order of sentence, all
proceedings in the challan have been conducted
by the courts of competent jurisdiction, as such,
it needs no clarification that Principal Sessions
Judge, Baramulla, shall only hear the matter
finally and pass appropriate judgment on merits.
10) We make it further clear that since we have not
adjudicated upon the validity of SRO 350 dated 30 th
October, 2008, in particular with regard to its
retrospective operation with effect from 30th August, 2005,
as such, we leave it open to the accused to work out their
remedy, if they are aggrieved, and the order passed by us
today shall not come in their way to avail such remedy.
11) The file along with a copy of this judgment be sent
back to the Principal Sessions Judge, Baramulla, for
information and compliance.
12) The parties shall appear before the Court of Principal
Sessions Judge, Baramulla, on 4th of November, 2024.
(RAJESH SEKHRI) (SANJEEV KUMAR)
JUDGE JUDGE
Srinagar,
22.10.2024
"Bhat Altaf-Secy"
Whether the order is reportable: Yes/No
