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2017 DIGILAW 2242 (RAJ)

State of Rajasthan v. Mohd Sultan

2017-10-25

G.R.MOOLCHANDANI, KANWALJIT SINGH AHLUWALIA

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JUDGMENT : Kanwaljit Singh Ahluwalia, J. The court of District and Sessions Judge, Bundi, in Sessions Case No.31/1980 on 28.7.1980 formulated charges under Sections 304 and 330 IPC against four persons namely, Mohd. Sultan, Khalil Mohd., Bhura Lal and Abhaykishore. These four persons were tried by the court of District and Sessions Judge, Bundi and the said court vide impugned judgment dated 13.4.1981 recorded acquittal of all the four accused persons. 2. Aggrieved against the same, the State of Rajasthan filed an application for leave to appeal. The said leave to appeal was granted and the present appeal against acquittal bearing No.D.B. Cr. Appeal No.410/1981 was registered. 3. During the pendency of the appeal, Mohd. Sultan accused respondent no.1 and Bhura Lal accused respondent no.3 have expired. 4. Mr. S.K. Jain earlier had caused appearance on behalf of Khalil Mohd and Abhay kishore, accused respondents nos. 2 and 4. Today, Mr. Rinesh Gupta on behalf of Mr. S.K. Jain appearing for the accused respondents no. 2 and 4 has raised a question of law, questioning the jurisdiction of this Bench to decide the present appeal. Counsel for the accused respondents stated that on 28.7.1980, District and Sessions Judge, Bundi formulated charges against accused respondents for the offences under Sections 304 and 330 IPC. It is contended that Section 304 IPC prescribes imprisonment for life or imprisonment of either description for a terms, which may extend to ten years. The learned counsel for the accused respondents has submitted that as per Rule 55 Clause (viii) of High Court Rules and Orders only mattes where punishment prescribed is death or imprisonment for life, can be heard by a Division Bench. 5. To fortify the contention raised, the learned counsel for the accused respondents has relied upon State of Rajasthan v. Chhotu Ram, 2010 (2) WLC (Raj.) 642, wherein a Division Bench of this Court relying upon Rule 55 Clause (viii) of High Court Rules and Orders held that criminal appeal against acquittal only qua offences punishable with death or imprisonment for life can be decided by a Division Bench. 6. 6. Rule 55 clause (viii) of High Court Rules and Orders reads as under:- "(VIII) a criminal appeal, application or reference under the Code of Criminal Procedure, 1973 or any other law except an appeal, application or reference in a case in which a sentence of death or imprisonment for life has been passed and in criminal matters against acquittal arising out of offences punishable only with death or imprisonment for life." 7. In the judgment relied State of Rajasthan v. Chhotu Ram (supra) a Division Bench of this Court held as under:- "4. Since criminal matters against acquittal arising out of the offences punishable only with death or imprisonment for life are to be listed before the Division Bench, whereas the offence under Section 376 IPC is punishable with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to 10 years, if the accused is to be punished under sub-Section (2) of Section 376 IPC, then the punishment is rigorous imprisonment for term which shall not be less than 10 years but which may be for life and shall also be liable to fine. 5. Since offence under Section 376 IPC is not punishable only with death or imprisonment for life, therefore, it is directed that this appeal be placed for hearing before appropriate Single Bench." 8. The learned Public Prosecutor stated that we should amend the charge. 9. Considering that the charge was framed on 28.7.1980, we are reluctant to amend the charge after thirty-seven years of the framing of charge and thirty-eight years after the occurrence, as we are of the view that same will cause grave prejudice to the accused persons. 10. Bound by the interpretation of Rule 55 clause (viii) of High Court Rules and Orders, given by earlier Division Bench, in case of State of Rajasthan v. Chhotu Ram (supra), we direct the Registry to treat the present appeal as Single Bench appeal by assigning number of Single Bench Appeal. 11. Registry is directed to list the present appeal on 31.10.2017 before the learned Single Bench as per Roster. We also request the learned Single Bench that considering that the appeal pertains to year 1980, the same be decided at the earliest, preferably within one month.