Jammu & Kashmir High Court
State Of J&K vs Unknown Deaf And Dumb on 24 May, 2023
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
CRREF No.1/2016
Reserved on: 17.05.2023
Pronounced on: 24.05.2023
State of J&K ... Petitioner(s)
Through:- Mr. P.D.Singh, Dy. AG
V/s
Unknown Deaf and Dumb ...Respondent(s)
Through:- None
Coram: HON'BLE MR. JUSTICE M A CHOWDHARY, JUDGE
JUDGMENT
1. By this order, it is proposed to dispose of a Reference received from the Court of learned Judicial Magistrate (Munsiff), Akhnoor ('Trial Court' for short) made through judgment dated 07.05.2016 passed in case No.175-B/Challan titled 'State of J&K v. Unknown (Deaf and Dumb)', whereby it has been reported to this Court in terms of Section 341 of J&K CrPC after recording conviction of the respondent-accused, for the commission of offence punishable under Section 2/3 of Egress and Internal Movement Control Ordinance, 1948 A.D. ["EIMCO"], for the reason that the respondent being deaf and dumb, did not understand the proceedings, with a request to pass appropriate orders.
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2. Factual matrix of the case is that on 02.10.2014, Adjutant 11 JAKLI C/O 56 APO forwarded an application to Police Station Khour, stating therein that on 01.20.2014, Sentary at Shakti Post Pallanwala observed some activity ahead of the post at around 2130 hrs; that upon being challenged by the Sentary, an individual tried to escape. The Sentary fired at him and he was injured with superficial gunshot wounds on right upper thigh.
3. On this information, an FIR was registered at Police Station, Khour and investigation was entrusted to ASI Kuldeep Singh. During investigation, some material was seized from the possession of the accused and a conclusion was drawn that the accused was a Pak national, who had entered into the territory of India, without any passport or any permission and, thus, committed the offence punishable under Section 2/3 EIMCO and the charge-sheet was laid against that individual whose identity could not be ascertained.
4. As per the charge-sheet, accused was found as deaf and dumb.
There being no communication by the prosecution with him a certificate was issued by the Principal, Hearing Handicapped School (Deaf & Dumb), according to which, the accused was uneducated and even did not know the sign language. His ENT examination also reported that the accused was 100 percent deaf. The accused was provided with a counsel from the Panel of 3 CRREF No.1/2016 Tehsil Legal Services Committee to defend him during trial. The trial Court came to the conclusion that the accused being deaf and dumb could not communicate, as such, proceedings in terms of Section 341 of J&K CrPC were initiated and examination of the accused firstly under Section 242 CrPC was dispensed with. During trial, the prosecution examined Baljeet Singh, L/NK Parmod Kumar, NK Ravinder Singh, Rfn. Vishal, Kuldeep Singh, I.O. as prosecution witnesses. The trial Court again for his disability to understand the proceedings, dispensed with the examination of the accused in terms of Section 342 CrPC.
5. The trial Court, after appreciating the evidence led by the prosecution, came to the conclusion that the accused was a Pak national from whom certain articles and currency were recovered, which belonged to Pakistan and that he had entered into Indian territory by crossing border from Pakistan without any permission for the same, as such, he was held guilty and convicted for commission of offence punishable under Section 2/3 Egress and Internal Movement Control Ordinance, 1948 A.D. and due to the fact that the accused being a deaf and dumb does not understand the proceedings, this reference was made by the trial Court after recording conviction for orders in the matter.
6. Section 341 of the J&K Code of Criminal Procedure since repealed but applicable in the case provides as under:- 4 CRREF No.1/2016
"341. Procedure where accused does not understand proceedings.--If the accused, though not insane, cannot be made to understand the proceedings, the Court may proceed with the inquiry or trial, and, in the case of a Court other than a High Court, if such inquiry results in a commitment, or if such trial results in a conviction, the proceedings shall be forwarded to the High Court with a report of the circumstances of the case, and the High Court shall pass thereon such order as it thinks fit."
7. The learned Magistrate has found that the accused is a deaf and dumb and unable to follow proceedings against him and held him guilty for commission of offence punishable under Section 2/3 of EIMCO. On the basis of the prosecution evidence the accused was rightly convicted for the commission of aforementioned offence and in view of the provisions of Section 341 of J&K CrPC, which has been extracted above, the proceedings were forwarded to this Court for passing further orders with regard to sentencing of the accused.
8. The accused was apprehended on 01.10.2014 and was convicted on 07.05.2016. Section 3 of EIMCO provides for a maximum punishment of two years imprisonment and minimum of one year. The accused having been arrested in the month of October, 2014 is stated to have been in jail till date. It is the travesty of justice that this Reference is being decided after seven years and the accused/convict has overstayed even much beyond to his maximum imprisonment of two years.
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9. Having regard to the conviction of respondent/accused recorded by the Trial Court, he is sentenced to the maximum punishment of two years, which he has, for the aforesaid reasons, can be said to have already undergone.
10. The accused, who is stated to be a Pak national, is directed to be deported by any of the available channels diplomatic or through local level of the Border Security Force/Army, so as to ensure that the accused/convict is released and goes back to his native place. The matter should not be delayed as personal liberty of a person, who is suffering from disability of hearing as well as speaking, being deaf and dumb, is involved. It is expected that the authorities dealing with such matters shall keep that sensitivity of human aspect/angle in mind while deciding the matter expeditiously.
11. Reference is, thus, accepted and decided in the aforesaid terms.
The trial Court record along with copy of this judgment be sent down.
(M A Chowdhary) Judge JAMMU 24.05.2023 Vinod,PS Whether the order is reportable: Yes/No