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Himachal Pradesh High Court · body

2016 DIGILAW 2493 (HP)

RAJESH THAKUR v. CENTRAL BUREAU OF INVESTIGATION

2016-11-25

AJAY MOHAN GOEL

body2016
JUDGMENT : Ajay Mohan Goel, J. 1. By way of this revision petition, the petitioner has challenged order dated 17.12.2015, passed in Cr.M.A No. 13-4 of 2015, vide which, learned court below dismissed the application filed by the present petitioner objecting to the trial being conducted by the learned Court below in view of the provisions contained in sub Section 5 of Section 306 of the Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C.' for short). The objection raised by way of application by the present petitioner before the learned trial Court was that it should not conduct the trial in view of the statutory provisions contained in sub Section (5) of Section 306 of the Cr.P.C as the said Court had tendered pardon to Mohd. Majhar, one of the accomplice/co-accused. 2. The application so filed by the present petitioner was dismissed by the learned trial Court vide order under challenge, relevant part of which is quoted herein-below: "In the present application, the applicant/accused Rajesh Thakur has raised objection that trial in the present case by this Court is nullity. Because, this court has granted pardon to the co-accused Mohd-Mazhar vide order dated 24.10.2013 itself. But, it is not be noted that this court cannot go into this fact itself, when pardon has been granted by this Court. Thus, the submissions so raised by the ld. Counsel for the applicant/accused have no substance and do not hold good and are liable to be rejected and accordingly stand rejected. Hence, in the facts and circumstances of the present case and in view of the aforesaid reasons and discussion, the present application cannot be said to be maintainable and the same merits dismissal and is as such dismissed with no order as to costs. The application stands disposed off and the same after doing needful be tagged with the main case file." 3. I have heard the learned counsel for the parties and also gone through the records of the case. In my considered view, the impugned order passed by learned trial Court is not sustainable in the eyes of law. The application stands disposed off and the same after doing needful be tagged with the main case file." 3. I have heard the learned counsel for the parties and also gone through the records of the case. In my considered view, the impugned order passed by learned trial Court is not sustainable in the eyes of law. A perusal of the impugned order demonstrates that learned trial Court has held that since it was the Court which had granted pardon to co-accused, therefore, the application was not maintainable as that very Court which had granted pardon could not go into this issue itself whether it should conduct the trial or not. 4. In my considered view, learned trial Court erred in dismissing the application as not maintainable by holding that since it had granted pardon to a co-accused, therefore, an application objecting to its conducting trial was not maintainable before it. Learned trial Court erred in not appreciating that under procedural laws a Court whose jurisdiction is challenged has to adjudicate as to whether the objection being raised to its jurisdiction is on merit sustainable or not. In this case, learned trial Court erred in not doing so. When an objection had been raised with regard to its jurisdiction to conduct the trial, it was incumbent upon the Court to have had decided as to whether it was having jurisdiction to conduct the trial or not to conduct the trial. It could not have simply dismissed the application as not maintainable on account of reasons already quoted above. Learned trial Court has not returned the finding that either there was any statutory bar for it to hear the application objecting to its conducting trial or there was some other Forum available for the petitioner to have had filed the application and instead of filing the application before the said Forum, the petitioner has erroneously filed the application before the learned trial Court. Even otherwise, there is no bar contained in Section 306 of Cr.P.C that a Court which has granted pardon cannot go into the question whether trial should be conducted by it or the same has to be conducted by some other Court in case an issue of jurisdiction is raised before it by way of objection. 5. Even otherwise, there is no bar contained in Section 306 of Cr.P.C that a Court which has granted pardon cannot go into the question whether trial should be conducted by it or the same has to be conducted by some other Court in case an issue of jurisdiction is raised before it by way of objection. 5. Accordingly, in view of my findings returned above, this petition is allowed and impugned order dated 17.12.2005 passed by the learned trial Court in Cr.M.A. No. 13-4 of 2015 is set aside. The case is remanded back to the learned trial Court with a direction to hear and decide the application filed by the petitioner objecting to its conducting trial within a period of six weeks from today on merit. Parties through their counsel are directed to put in appearance before the learned trial Court on 05.12.2016. Registry is directed to return the record of the case to the learned trial Court forthwith.