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2010 DIGILAW 367 (JK)

Mohd. Iqbal Bhat v. Aziz Bhat

2010-06-24

MUZAFFAR HUSSAIN ATTAR

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1. Complainant in case FIR No. 76/2007 registered with Police station Shopian U/Ss 302, 148, 149, 447, 325, and 323 RPC has filed petition U/s 561-A Cr.P.C, seeking modification of order dated 31st of May 2010 passed by this court in criminal transfer application No. 32/2010 titled Ab. Aziz Bhat and ors v. State and ors, inter alia on the grounds that the aforementioned order is nullity in as much as it has fixed the period for completion of trial by four months, which the Hon’ble Supreme Court has held not within the province of the courts. The petitioner also invoked the powers of this court u/s 94 and 104 Constitution of J&K to modify the order as the consequence thereof would result in unfair treatment being meted out to the complainant. 2. Heard ld. counsel for the petitioner. Considered the matter. 3. Ld counsel for the petitioner submitted that this court in terms of order dated 31st of May 2010 while disposing of criminal transfer application No.32 of 2010 provided for completion of trial within four months which according to Ld counsel for the petitioner in view of the law laid down by the Hon’ble Supreme Court is not within the competence of this court. Ld counsel further submitted that the order being nullity can be recalled/modified by invoking the powers u/s 561-A Cr.P.C. The Id counsel in this behalf referred to and relied upon the full court judgment of this court reported in 1982 Cr.L.J 297. Ld counsel also referred to and relied upon judgment titled M.M. Thomas v. State of Kerala and another reported in (2000) 1 SCC 666 , and submitted that this court in view of section 94 of Constitution of J&K has power to review its own order, when it is shown that there is error apparent on the face of the record. 4. When a case is finally decided by the court on criminal side then in terms of section 369 Cr.P.C, the court which has signed its judgment can not alter or review the same except to correct the clerical error. 4. When a case is finally decided by the court on criminal side then in terms of section 369 Cr.P.C, the court which has signed its judgment can not alter or review the same except to correct the clerical error. Section 369 Cr.P.C provides that save as otherwise provided by this Code or by any other law for the time being in force or, in case of the of the High Court, by the constitution of High Court, no Court, when it has signed its judgment, shall alter or review the same, except to correct clerical error. 5. In this case the order has been passed and signed by this court and in view of the bar contained in section 369 Cr.P.C the court cannot by invoking Section 561-A Cr.P.C modify the order passed by this court. 6. The Hon’ble Supreme Court in case titled State Rep. by DSP, S.P. C.I.D, Channi v. K.V. Rajendran and ors reported in AIR 2009 SC 46 has held that section 362 Cr.P.C of the Central Act corresponding to section 369 Cr.P.C State Act prohibits re-opening of the final order except in the case of correcting clerical or arithmetical error. It is held that power cannot be exercised under section 482 (Central Act) corresponding to section 561-A Cr.P.C of the (State Act) for re-opening of the petition decided on merits. 7. The argument of the Id counsel for the petitioner is that order is nullity in view of the law laid down by the Hon’ble Supreme Court in case titled Abdul Rehman Antulay v. R.S. Nayak and anr reported in (1992) 1 SCC 225 , for the reason that time frame for conclusion of the case is fixed, which power is not conferred on the court. Thus, the court has power to re-call/modify the order dated 31st of May 2010. The argument of the Id counsel for the petitioner requesting the court to invoke the power u/s 94 Constitution of J&K also requires to be tested on the text and tenor of order dated 31st of May 2010. The order dated 31sl of May 2010 is reproduced as under :- "Issue notice. Mr. A.M. Magray, AAG, waived notice. With the consent of Id counsel for the parties, this petition is taken up for final disposal and Id principal Sessions Judge, Shopain, is requested to complete the trial of the case within four months. The order dated 31sl of May 2010 is reproduced as under :- "Issue notice. Mr. A.M. Magray, AAG, waived notice. With the consent of Id counsel for the parties, this petition is taken up for final disposal and Id principal Sessions Judge, Shopain, is requested to complete the trial of the case within four months. It is also provided that Id trial court to fix schedule and to take this case twice in a week in accordance with the procedure contained in Chapter XXIII Section 266 to 277 of Cr.P.C. Registry to send copy of this order to the trial court for information and compliance." 8. Perusal of the order reveals that the Id trial judge has been requested by this court to complete the trial of the case within four months. There is no direction as such to complete the trial within four months, so no time frame has been fixed by this court for concluding the trial. This court being alive and conscious of the rights available to the accused person under Article 21 of the Constitution of India requested the trial court for conclusion of trial within four months. 9. Right to expeditious trial has been held to be part and parcel of right to life and personal liberty as guaranteed under Article 21 of the constitution of India. This right is also statutorily recognized in as much as when a witness is produced before the court in terms of Section 344 of Cr.P.C his statement is to be recorded by conducting trial on day to day basis. The section is reproduced as under:- "344. Power to postpone or adjourn proceedings. In every inquiry or trial, the proceedings shall be held as expeditiously as possible and in particular, when the examination of witnesses has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined, unless the court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded..." 10. It is the duty of the trial court to proceed with the trial of the case when the examination of the witnesses has begun on day to day basis until the court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded. It is the duty of the trial court to proceed with the trial of the case when the examination of the witnesses has begun on day to day basis until the court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded. Expeditious trial of the case more particularly in criminal case is in the interest of complainant, accused, and also society at large. The trial court is duty bound to conclude the trial within reasonable dispatch. The power u/s 561-A Cr.P.C cannot be exercised in the facts and circumstances of this case and the decided case cannot be re-opened. There using no error apparent on the face of the record even powers u/s 94 Constitution of J&K cannot be invoked. For the above stated reasons, this petition being meritless is dismissed.