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2013 DIGILAW 45 (JK)

Mohammad Shafi Banday v. Hon'ble High Court of J&K

2013-01-31

MOHAMMAD YAQOOB MIR

body2013
JUDGMENT Petitioner has sought dispensa­tion of production of certified copy of the order impugned and consideration of the writ petition in absence thereof. 2. Basically petitioner on adminis­trative side had sought permission to file criminal revision petition in Srinagar wing of the High Court which has been declined by the Hon'ble Chief Justice, hence the instant writ peti­tion. 3. In the year 1996, order No. 1 /HCJ/ 96 dated August 22, 1996 has been is­sued by Hon'ble the Chief Justice, which reads as under:- "HIGH COURT OF JAMMU & KASHMIR AT SRINAGAR, ORDER No. 1/HCJ/96 Dated: 22.08.1996. It is hereby ordered that hence­forth all the petitions/appeals pertaining to the province of Jammu shall be filed in the Jammu wing. Petitions pertain­ing to the province of Kashmir, including Ladakh/Kargil shall be filed in the Srinagar wing of the High court. Provided that if it is not practi­cable to file a petition pertaining to the particular wing at that wing, it may be filed at the other wing with the leave of the Chief Justice or in his absence, of the Senior Judge available at the Head-quarter Srinagar. Sd/ Aug. 22, 1996 (H. Ramakrishna)-Chief Justice" 4. Plain reading would suggest that all the petitions/appeals pertaining to the province Jammu shall be filed in Jammu wing and pertaining to the province Kashmir including Ladakh/Kargil shall be filed in Srinagar wing of the High Court. The proviso would provide that in case it shall impracti­cable to file petition pertaining to a par­ticular wing, it may be filed at other wing with the leave of the Chief Jus­tice or in his absence of the Senior Judge available at the headquarter. The word "not practicable" as embod­ied in the order, so as to permit filing of the petition/appeal in another wing of the High Court must appear from the records. 5. Learned counsel for the petitioner was pointedly asked as to how it is not practicable for the petitioner to file pe­tition at Jammu wing of the High Court, he would contend that nephew of the petitioner resident of Poonch, is presently residing at Baskuchan Imam-sahib Shopian, therefore, it shall be convenient for him to file and pur­sue the petition at Srinagar wing of the High Court. 6. The ground projected appears to be maneuvering. 6. The ground projected appears to be maneuvering. The accused (peti­tioner herein) is facing trial in connec­tion with case registered as FIR No. 52/ 2008 P/S Mandi Poonch for the com­mission of offence punishable under Section 376 RPC before the Court of Principal Sessions Judge, Poonch. Dur­ing the trial two applications filed un­der Section 539-B and 540 Cr. P. C have been dismissed on 21st July, 2012. The accused is properly represented before the Court of Sessions Judge, Poonch. 7. Learned counsel would project that the whole atmosphere has turned hos­tile to the accused (petitioner) and none of the members from his family and friends met him from the date of his arrest and attempts were made to kill him in the prison. Initially none of the advocates were ready to represent his case, subsequently one of the ad­vocates appeared but he did not take case seriously. The prosecution has completed all its evidence. 8. In the application seeking per­mission to file criminal revision peti­tion in Srinagar wing of the High Court, copy of which is placed on record, it is pleaded that:- "The allegations against the accused are very serious and heinous, the ac­cused is not having good terms with his wife, the daughter of the accused has joined hands with her mother and lodged FIR before Police Station, Poonch alleging that the accused has raped her; The allegations levelled raised alarm amongst the public and all the public including lawyers turned hostile to the accused/petitioner; Initially none of the lawyers was ready to accept the brief of the ac­cused, all the relations, nears and dears turned hostile to him and sev­ered all the relations with the accused and none of the relations visited him in the jail; Wife of the accused had conspired to kill him in the judicial custody. One of the relations serving in the jail se­curity had employed a detained criminal in the jail to torture and kill the accused and the accused was tortured in the jail. One of the relations serving in the jail se­curity had employed a detained criminal in the jail to torture and kill the accused and the accused was tortured in the jail. Only one of the relations i.e. Mohammad Younis Lone, nephew of the accused, working as a private driver, plying a truck of one of the re­spectable persons in Baskuchan Imam-sahib Shopian, has taken pity on the accused; Only one advocate in Poonch and Rajouri is defending case of the ac­cused but he is working under pres­sure and on most of the occasions would not appear personally; The prosecution did not investigate the case fairly due to pressure of public and media hype; The prosecutrix (daughter of the ac­cused) has delivered a female baby after seven months and some days who died and was buried but no DNA test was conducted; Nephew of the accused approached Advocate Mr. Moulvi Aijaz for guid­ance and it is at his advice an appli­cation was tendered for exhumation of the grave of the baby and get the DNA test of the baby conducted; Two applications were filed under Section 539-B and 540 Cr. P. C which after long delay were dismissed. The two applications were argued before the trial court initially by Mr. Moulvi Aijaz Ahmad and subsequently by Mr. Mohinder Payasa but with no success and it is against the order passed thereon, revision petition is to be filed; The prosecution has adduced all its evidence, now it is the accused who has to produce the witnesses in de­fence. The accused is ailing and by now suffering from heart ailment, piles, high blood pressure for which he has not been provided proper treatment; and The accused is innocent.” 9. The question for consideration is as to whether it is, in any manner, impracticable for the petitioner to file the revision petition before Jammu wing of the High Court so as to give permission for its filing in Srinagar wing of the High Court. The grounds as projected in the application seeking permission would clearly indicate that there is no case which would suggest that it is impracticable for the accused to file revision petition in the Jammu wing of the High Court as the matter pertains to Jammu province. When Mr. The grounds as projected in the application seeking permission would clearly indicate that there is no case which would suggest that it is impracticable for the accused to file revision petition in the Jammu wing of the High Court as the matter pertains to Jammu province. When Mr. Aijaz Ahmad Advocate had gone all along from Srinagar to Poonch in Jammu province and argued applica­tions before the trial court, same way he can file petition in the Jammu wing of the High Court. To project that the atmosphere is hostile in Poonch and relations are also hostile, has nothing to do with the filing of petition in Jammu wing of the High court. On the own showing of the petitioner, prosecu­tion has completed its evidence, now defence evidence is to be led. When the trial is going on, witnesses have been examined, the grounds, as precisely noticed hereinabove, would not suggest that it is impracticable, in any man­ner, for the petitioner to file the revi­sion petition in Jammu wing of the High court. Order declining grant of permission is not placed on record but reading the grounds projected in the application seeking permission, no grounds is made out so as to hold that it shall be impracticable for the peti­tioner to file the petition in the Jammu wing of the High Court, therefore, no interference is warranted. 10. The petition being without merit is dismissed along with connected CMPs. _________