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2022 DIGILAW 159 (JK)

Mir Mohammad Munaff v. State of J&K

2022-04-12

SANJEEV KUMAR

body2022
JUDGEMENT/ORDER : 1. The petitioners – father son duo, have invoked the extra ordinary writ jurisdiction of this Court, vested by article 226 of the Constitution of India, for quashing order dated 26.12.2018, passed by the learned Judicial Magistrate, Chadoora (Badgam), in Challan produced by police station, Nowgam, Kashmir, in F.I.R. No. 76/2018 u/s 279 & 337 RPC. The petitioners also seek a direction for calling upon the respondents to take strict action against the Investigation Officer, who has conducted the investigation in the said FIR. The petitioners further seek compensation from the respondents for loss of life and property caused to them due to motor vehicle accident, which was the subject matter of investigation in the FIR 76/2018. 2. Briefly stated, the facts leading to the filing of this petition, as narrated by the petitioners in the petition, are that in the year 2018, a motor vehicle accident took place at the traffic signal near Nowgan, Pehru Chowk, in which the stationary vehicle of the petitioner No. 2 was hit by the vehicle of respondent No. 10 [“the accused”]. In the accident, the vehicle of petitioner No. 2 was extensively damaged and his family members, sitting therein, got injured. In this regard F.I.R. No. 76/2018 u/s 279 & 337 RPC came to be registered in Police Station, Nowgam. Investigation was taken up by the Investigation Officer, which ultimately culminated in presentation of Challan against the accused u/s 279 & 337 RPC before the learned Judicial Magistrate, 1st Class, Chadoora, Badgam. 3. On the matter coming up for consideration before the learned Magistrate, the accused pleaded guilty to the charge and confessed to the crime. The learned Judicial Magistrate, 1st Class, Chadoora, recorded the confession of the accused and vide order impugned, convicted him for the commission of offences punishable u/s 279 & 337 RPC and sentenced him to a fine of Rs. 600/-. It is this order which the petitioners are aggrieved of. They have filed the petition, primarily on the ground that the petitioner No. 2, whose vehicle was seriously damaged in the accident and who lost his grandmother on 31.10.2018, has not been heard in the matter and the accused has been let off with a meager fine of Rs. 600/-. It is this order which the petitioners are aggrieved of. They have filed the petition, primarily on the ground that the petitioner No. 2, whose vehicle was seriously damaged in the accident and who lost his grandmother on 31.10.2018, has not been heard in the matter and the accused has been let off with a meager fine of Rs. 600/-. The petitioners claim that the mother of petitioner No. 1, who had received injuries in the said accident, died on 31.10.2018 because of shock and, therefore, the Investigation Officer ought to have included the charge of 304-A also, while investigating the matter. 4. M/s. Asifa Padroo - AAG & M.A. Thakur, learned counsel, appearing for the respondents, have raised a preliminary objection with regard to the maintainability of this writ petition. It is contended that the order impugned is appealable u/s 412 Cr.P.C. and, therefore, in the face of availability of statutory alternate remedy, this petition is not maintainable. It is submitted that since the FIR in the instant case was registered in the police station, which upon investigation, was challaned in the competent Court of jurisdiction, as such, the case was to be prosecuted by the State. As is evident from the impugned order, the accused confessed to the charge and, therefore, there was no option left for the trial Court but to convict him and sentence him appropriately. The trial Court, having regard to the facts and circumstances of the case and the nature of offence committed, sentenced the accused to a fine of Rs. 600/-, which punishment is also a prescribed punishment u/s 279 & 337 RPC. 5. Having heard learned counsel for the parties and perused the order impugned, it is necessary to set out Section 412 Cr.P.C., which reads thus : “412. No appeal in certain cases when accused pleads guilty. - Notwithstanding anything hereinbefore contained, where an accused person has pleaded guilty and has been convicted by the High Court, a Court of Sessions or Judicial Magistrate of the first class on such plea, there shall be no appeal except as to the extent or legality of the sentence.” 6. Section 412 Cr.P.C. supra, is contained in Chapter XXXI of Part VII of the Code. Section 412 Cr.P.C. supra, is contained in Chapter XXXI of Part VII of the Code. Section 404 Cr.P.C. provides that no appeal shall lie from any judgement or order of criminal Court except as provided for by the Code or by any other law for the time being in force. As is clear from the reading and scheme of sections 408, 409, 410, 411, 411-A Cr.P.C., the right to file appeal against conviction and sentence has been given to the convict. Section 412 Cr.P.C. is only by way of an exception to Sections 408 to 411-A Cr.P.C. and provides that there shall be no right of appeal where an accused person has pleaded guilty and has been convicted by the High Court, a Court of Sessions or Judicial Magistrate 1st Class on such plea, except to the extent or illegality of sentence. When Section 412 Cr.P.C. is read in the context of earlier sections of Chapter XXXI, it becomes abundantly clear that it only speaks of the right of the accused to file appeal to the extent or illegality of the sentence imposed by the competent Court of jurisdiction upon the accused pleading guilty to the charge. 7. In view of the clear language of Section 412 Cr.P.C., there is no scope for entertaining the submission of the learned counsel for the respondents that a victim or a person aggrieved other than the convict has a right to file the appeal assailing the extent or illegality of the sentence imposed on the accused who has pleaded guilty to the charge. The preliminary objection raised by the learned counsel for the respondents is, therefore, overruled and rejected. 8. Now coming to the merits of the case; from the sequence of events narrated by the petitioners in the petition, I am of the view that the petitioners have failed to make out a case for this Court to exercise its extraordinary writ jurisdiction. Indisputably, in the accident, which took place between the vehicle driven by the petitioner No. 2 and the vehicle of the accused, the passengers in the vehicle of the petitioner No. 2 suffered injuries. It is because of this reason that F.I.R. No. 76/2018 was registered against the accused. The matter was investigated and Challan was presented before the Judicial Magistrate 1st Class, Chadoora. It is because of this reason that F.I.R. No. 76/2018 was registered against the accused. The matter was investigated and Challan was presented before the Judicial Magistrate 1st Class, Chadoora. The accused chose not to contest the Challan and instead pleaded guilty to the charges leveled against him by the police. Since offences u/s 279 & 337 RPC were found established by the police, as such, the Judicial Magistrate, 1st class, convicted the accused and exercised its jurisdiction in awarding the sentence. Both the Sections i.e., 279 & 337 RPC provide for sentence of imprisonment or fine or both, as such, the learned Magistrate, exercising its jurisdiction in the facts and circumstances of the case, sentenced the accused to a fine of Rs. 600/-. Such discretionary order passed by a Judicial Officer, having jurisdiction, cannot be interfered with by this Court. It is not even a case of imposing a shockingly disproportionate sentence, which may have, under the certain set of circumstances, persuaded this Court to invoke its extra ordinary writ jurisdiction to undo injustice. The allegation of petitioner No. 1 that he lost his mother to this accident is too far-fetched and cannot be accepted. As per the medical evidence placed on record by the petitioner No. 1 himself , his mother died on 31.10.2018 due to cardio pulmonary arrest, which on the face of it cannot be attributed to the accident. That apart, the petitioners, if aggrieved by the manner in which the investigation was conducted by the Investigation Officer, could have approached the Judicial Magistrate, 1st Class, for his intervention. Section 156(3) Cr.P.C. and Section 173(8) Cr.P.C. are the other provisions available under the Code of Criminal Procedure for redressal of grievances of the nature projected by the petitioners before this Court. The petitioners, without having availed of the remedies available to them under the Code of Criminal Procedure, have rushed to this Court for seeking intervention in exercise of its extra ordinary writ jurisdiction to investigate the conduct of the Investigation Officer, who, as contended, has not conducted the investigation fairly. 9. Grievances of the petitioners are apparently imaginary, in that, the police has not only investigated the case but has also found the same established against the accused. The police presented the Challan within time before the concerned Magistrate having jurisdiction. 9. Grievances of the petitioners are apparently imaginary, in that, the police has not only investigated the case but has also found the same established against the accused. The police presented the Challan within time before the concerned Magistrate having jurisdiction. The law gives right to the accused to confess to the charge and the accused – respondent No. 10 herein, exercised this right voluntarily before the learned Magistrate concerned, who, in his discretion and having regard to the facts and circumstances of the case, imposed an appropriate punishment as envisaged under law. 10. For the foregoing reasons, I find no merit in this petition, same is, accordingly, dismissed along with connected CMs.