Jammu & Kashmir High Court
State vs Yousif And Others on 14 September, 2022
Author: Sanjay Dhar
Bench: Sanjay Dhar
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
d
CRREF No. 2/2022
State
..... petitioner (s)
Through :- None
V/s
Yousif and others .....Respondent(s)
Through :-
Coram: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
ORDER (ORAL)
1 Instant reference has been made by the learned Additional Sessions Judge, Kathua in a case arising out of FIR No.51/2016 for offences under Sections 188/295-A RPC & Section 3 of Prevention of Cruelty to Animals Act (for short 'PCA Act') registered with Police Station, Hiranagar. 2 In the order of reference, the learned Additional Sessions Judge has observed that the cognizance taken by the said Court for the offences under Sections 188/295-A RPC & 3 of PCA Act in the said case appears to be in violation of provisions contained in Sections 195 and 196 Cr.P.C as, according to the learned Judge, no complaint has been made by the District Magistrate, Kathua, whose order is alleged to have been violated by the accused persons. The learned Sessions Judge has, after relying upon numerous judgments of the Supreme Court and of this Court, opined that the order of cognizance passed by the said Court deserves to be set aside and, accordingly, the file has been submitted to this Court for passing of necessary orders. 3 I have gone through the trial Court record and the order of reference.
24 A perusal of the trial Court record reveals that the accused persons in this case have not only been charged for the offences under Sections 188, 295-A RPC, but they have also been charged for the offence under Section 3 of PCA Act. While the complaint on behalf of the District Magistrate for launching prosecution for offences under Sections 188/295-A RPC may be necessary in view of the provisions contained in Section 195 & 196 of the Cr.P.C, but there is no such requirement in case of taking of cognizance of offence under Section 3 of PCA Act. Thus, even if, it is assumed that the order of taking cognizance in respect of offences under Sections 188/295-A RPC is not in accordance with law, still then, the trial has to proceed against the accused in respect of offence under Section 3 of PCA Act.
5 A perusal of the trial Court record reveals that most of the material prosecution witnesses have been examined. Therefore, at this stage, when the accused persons have not raised any objection to the taking of cognizance of offences before the Court below, it may not be appropriate for this Court to interfere with the order of taking cognizance. This question can be considered by the learned trial Court at the time of final disposal of the challan. 6 Apart from the above, a perusal of the trial Court record reveals that the District Magistrate has annexed with the challan a complaint dated 03.01.2017 in which a prayer has been made to the Court that the complaint is being made by the said officer with a prayer that report of investigation may be treated as complaint. The question whether such a complaint satisfies the requirement of provisions contained in Section 195 & 196 of the Cr.P.C has to be determined before coming to a conclusion as to whether the cognizance of the offences taken by the Court below is in accordance with law. The answer to this question can be found only at the time of final disposal of the case after 3 affording an opportunity of hearing to the prosecution to address arguments on this issue.
7 Even otherwise, the reference made by the learned Additional Sessions Judge is not competent, inasmuch, as the same does not conform to the provisions contained in Section 432 of J&K Cr.P.C which provides for making of a reference in a case which involves a question as to the validity of any Act or Ordinance or of any provision contained in an Act or Ordinance, the determination of which is necessary for the disposal of the case. A Reference cannot be made by a Subordinate Court to seek correction of its orders or for setting right the irregularities committed by it. In the instant case, the learned Additional Sessions Judge has not stated any question of the nature contemplated in Section 432 of the Cr.P.C. Therefore, the reference is not competent.
8 For all the foregoing reasons, the reference made by the learned Additional Sessions Judge, Kathua is declined. The Registry is directed to send back the trial Court record along with a copy of this order with a direction to the trial Court to proceed further in the matter in accordance with law.
(SANJAY DHAR)
JUDGE
JAMMU
14 .09.2022
Sanjeev Whether order is speaking:Yes