Research › Search › Judgment

J&K High Court · body

2009 DIGILAW 618 (JK)

Mohd. Khaliq v. State

2009-12-07

SUNIL HALI

body2009
1. Petitioner, who is an Army Personnel, was put to trial for his involvement in a case under Section 320/120-B, 121/122/123 RPC and Section 26/27 of the Arms Act. The challan was presented by the police on 16.4.2002 in the court of Munsiff Judicial Magistrate 1st Class, Mendhar. On presentation of challan, the same was committed to the Court of Principal Sessions Judge, Poonch, which was competent court to try the case. The trial seems to have remained pending for a period of five years and during the course of trial, statements of 13 witnesses have been recorded. 2. By order dated 13.09.2007, the learned Sessions Judge, Poonch set aside the committal order dated 16.4.2002 by holding that it was contrary to the provisions of Section 549 of the Code of Criminal Procedure and Rules 3 & 4 of the J&K Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1983. After setting aside the said-order, the Magistrate was directed to proceed under Section 549 Cr. P.C and rules made thereunder. 3. On receipt of the file, learned Judicial Magistrate, vide his order dated 21.09.2007, directed the Commanding Officer of 7th JAK RIF, Mirah Sahib, to exercise the option in terms of Section 549 Cr. P.C by or before 4.10.2007. It seems that no response was given by the Commanding Officer. The proceedings, as such are struck before the Magistrate. 4. The petitioner has applied for bail under Section 498 Cr. P.C. before this court. He claims that due to the failure on the part of Magistrate to take note of the provisions of Section 549 Cr. P.C. and Rules 3 & 4 of the J&K Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1983, the proceedings are continued in violation of aforementioned statute. Resultant effect of the same was that trial conducted by the Principal Sessions Judge Poonch was nullity. In nutshell, contention of the petitioner is that he cannot be made to suffer for the wrong committed by the Judicial Magistrate and his prolonged incarceration, without any trial being conducted, entitles him to grant of bail. 5. The petitioner has also contended that he is not involved in the aforementioned case. The FIR did not mention his name. He was introduced only after two days of the registration of FIR. 5. The petitioner has also contended that he is not involved in the aforementioned case. The FIR did not mention his name. He was introduced only after two days of the registration of FIR. His specific case is that on 10th of May, 2001, he was in Jabalpur and had taken over the charge of the Provision shop of Jai Jawan Institute from L/Nk Madan Lal on 10th of May 2001. He could not have reached Mendhar on 12th May, 2001, which is said to be the date of occurrence. His further contention is that reliance has been placed on the statements of four children of the deceased, which have been recorded one month after the occurrence. It is also stated that none of the prosecution witnesses, who were examined between 12th and 14th of May, 2001, have mentioned the name of the petitioner. 6. I have heard learned counsel for the petitioner and perused the record. 7. Failure of the Magistrate to take notice of the rules (supra) has resulted in the delay of the proceedings. Even though, act of the court prejudiced none, but at the same time, the prolonged detention of the petitioner without concluding the trial is a ground which would weigh in the mind of the court in rejecting or granting the bail. 8. There is no dispute that trial has to be commenced afresh in respect of the FIR registered in May, 2001 and petitioner continues to remain in detention. The direction of the Principal Sessions Judge, Poonch to Judicial Magistrate, Mendhar to proceed in accordance with rules mentioned herein above has been set in motion by the said Magistrate. He has to issue notice to the Commanding Officer interms of aforementioned Rules. 9. The Magistrate has again committed an error in sending the notice to the Commanding Officer of unit. In terms of Section 125 of the Army Act read with Rules 3 & 4 of the Jammu and Kashmir Criminal Courts Martial (Adjustment of Jurisdiction Rules) 1983 the Commanding Officer would mean an officer commanding an independent Brigade where the accused is serving. Under Section 197-A of the Army Rules, a prescribed officer under Section 125 would be the officer commanding the brigade or station in which the accused person is serving. Under Section 197-A of the Army Rules, a prescribed officer under Section 125 would be the officer commanding the brigade or station in which the accused person is serving. The notice was required to be sent to the Commanding Officer of brigade where the petitioner was serving at that point of time. This view has been held by me in Criminal Revision No. 5/2005 decided on 02.4.2009, in case titled, Capt. Vinod Kumar and another v. State. The Magistrate was required to issue notice to the Commanding Officer of the Brigade and not to the Commanding Officer of the Unit. 10. From the discussion made herein above, it clearly reveals that the trial is at its inception and is likely to continue for sometime. The resultant effect is that the petitioner will continue to remain in custody. 11. Right to speedy trial is a fundamental right under Article 21 of the Constitution of India. It clearly envisages that no person shall be deprived of his life or personal liberty except according to procedure established by law. Undoubtedly, the petitioners liberty has been taken away according to the procedure established by law. He is facing trial under Section 302 and other allied Sections of RPC. Assurance of a fair trial is the first imperative of the dispensation of justice. Fair trial would include speedy trial also. 12. The question that arises for consideration is that whether the petitioner is given fair trial and the delay in concluding the trial is not being attributed to him. If on facts it is shown that there is delay not on account of accused, but due to the act of the court, can his liberty be denied to him on that account. As already discussed above, the failure is on the part of the Magistrate. I am of the considered view that the petitioner is entitled to interim bail at this stage. 13. The power of the court to grant bail to a person, who is involved in a heinous offence, where punishment is for life imprisonment or death, while exercising the power under Section 497(1), unless the reasons are shown that the accused is not involved in the case, the Magistrate does not have the power to do the same. This impediment cannot be read while the court exercises its powers under Section 498 Cr. P.C. 14. This impediment cannot be read while the court exercises its powers under Section 498 Cr. P.C. 14. I, therefore, direct that the petitioner/accused shall be released on interim bail for a period of four months, subject to his furnishing of bail bond to the tune of Rs. 25,000/- (twenty five thousands) with one surety of the like amount to the satisfaction of the Judicial Magistrate, Mendhar. During this period, the Judicial Magistrate, Mendhar will complete the proceedings required under Section 125, of the Army Act read with Rules 3 & 4 of the Jammu and Kashmir Criminal Courts Martial (Adjustment of Jurisdiction Rules) 1983 and refer the matter to the Principal Sessions Judge, Poonch for trial. In case, needful is not done, the petitioner will move an application before the said Magistrate for extension of his bail, who will thereafter consider the said bail application and pass appropriate orders. It be noted that in case petitioner is instrumental in delaying the proceedings, unless sufficient cause is shown by him, the Magistrate will be well within its rights to consider such application after taking into consideration the reasons of sufficient cause shown by the petitioner while extending his bail. The accused/petitioner is granted bail on the following conditions: i) That the accused will not leave the territorial jurisdiction of Principal Sessions Judge, Poonch without his prior permission. ii) He will not influence the witnesses, who are to be examined. iii) In case complaint is received against the petitioner during this period, the court where the proceedings are pending will be well within its rights to pass appropriate orders relating to the cancellation of bail after hearing the petitioner, un-influenced by the order passed by this court. 15. This application is, accordingly, disposed of.