Jammu & Kashmir High Court
Mohd. Naseer vs Ut Of J&K And Ors on 2 March, 2021
Author: Sindhu Sharma
Bench: Sindhu Sharma
Sr. No. 120
Admission causelist
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
CRM(M) No.125 of 2021
CrlM No. 370/2021
Mohd. Naseer .... Petitioner/Appellant(s)
Through:- Mr. Ajaz Choudhary, Adv.
V/s
UT of J&K and ors. .....Respondent(s)
Through:- None.
CORAM : HON'BLE MRS. JUSTICE SINDHU SHARMA, JUDGE
ORDER
1. Heard learned counsel for the petitioner at length.
2. This petition under section 482 Cr.P.C has been preferred by the petitioner invoking inherent jurisdiction of this Court for quashing order dated 11.12.2012 passed by the learned Additional District Judge, Jammu in case titled "State vs. Bashir Ahmed", challan No.10010/2009 under sections 302/307/452/323/147/148/149/201 RPC. The respondent No.2 had given up to record the statement of material witnesses in this case on 11.12.2012, the complainant Sheeda Bibi moved an application under Section 540 Cr.P.C and the trial court dismissed the same vide its order dated 24.02.2021. Further through this petition quashing of this order dated 2 CRM(M) No.125 of 2021 24.02.2021 is also sought by the petitioner. Para-8 of this order being relevant and the same is extracted below;
"8.The case has a peculiar history. Firstly, the witnesses sought to be summoned were given up by the prosecution and, thereafter, defence sought to produce these witnesses in defence, which prayer was disallowed by the Court on 31.05.2013 and now this court cannot exercise power under section 540 Cr.P.C to summon the given up witnesses because this would tantamount to review of order dated 31.05.2013 passed by the court of Learned Additional Sessions Judge, Jammu and in the scheme of Criminal Procedure Code review is not permissible. Further this court cannot usurp the power of prosecutor in production and examination of prosecution witnesses as prosecutor is master of his case".
3. The fact that the witnesses were earlier given up by the Additional Public Prosecutor vide order dated 11.02.2012 is not disputed. However, the defence moved an application under section 540 Cr.P.C for summoning the prosecution witnesses namely Shaheeda Bibi, Shameem Akhter and Abdul Majid alongwith re-examination of Bag Ali, Barkat Bibi and Mohd. Salim. It appears that prosecution witnesses were over before the defence wanted to examine eye witnesses but the said application was dismissed on 31.05.2013. Why so much time was taken by the court to conclude the trial is not discernable from the perusal of the file. This application was dismissed by the trial court on 31.5.2013. In this case the FIR was registered in the year 2009 but it is unfortunate 3 CRM(M) No.125 of 2021 that the trial in this case has taken more than a decade and at the fag end when this petition under section 482 Cr.P.C has been filed.
4. Be that as it may, while referring to the scope of section 482 Cr.P.C the Hon'ble Supreme Court in case Hamida vs Rashid @ Rasheed & Ors, AIR 2008(1) SCC 474 has held as under;
"6. We are in agreement with the contention advanced on behalf of the complainant appellant. Section 482 Cr.P.C. saves the inherent powers of the High Court and its language is quite explicit Hamida vs Rashid @ Rasheed & Ors on 27 April, 2007 when it says that nothing in the Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under the Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. A procedural Code, however exhaustive, cannot expressly provide for all time to come against all the cases or points that may possibly arise, and in order that justice may not suffer, it is necessary that every court must in proper cases exercise its inherent power for the ends of justice or for the purpose of carrying out the other provisions of the Code. It is well established principle that every Court has inherent power to act ex debito justitiae to do that real and substantial justice for the administration of which alone it exists or to prevent abuse of the process of the Court. As held by the Privy Council in Emperor v. Khwaja Nazir Ahmad AIR 1945 PC 18 with regard to Section 561-A of the Code of Criminal Procedure, 1898 (Section 482 Cr.P.C. is a verbatim copy of the said provision) gives no new powers. It only provides that those which the Court already inherently possesses shall be preserved and is inserted, lest it should be considered that the only powers possessed by the Court are those expressly conferred by the Code and that no inherent power had survived the passing of the Act".
5. In case the petitioner was so keen in his case he should have followed the progress of the trial and approached the court well in time without waiting for nearly 08 years. The argument that the petitioner came to know of the order dated 31.05.2013 only now after which he moved an application under Section 540 Cr.P.C is an 4 CRM(M) No.125 of 2021 afterthought and an attempt to delay the proceeding further in finalizing the case, and the same cannot be accepted.
6. I have given my thoughtful consideration to the matter and in my considered opinion, there is no infirmity in the orders impugned of the trial court because subordinate court has no inherent jurisdiction to review its own order, that too almost after a decade.
7. For the aforesaid reasons, I do not find any merit in this case which is pending for more than a decade and the same is dismissed in limine.
(Sindhu Sharma) Judge JAMMU 02.03.2021 Ved-Secretary VED PARKASH 2021.03.16 13:29 I attest to the accuracy and integrity of this document