Jammu & Kashmir High Court - Srinagar Bench
State Of Jammu And Kashmir vs Mohammad Ramzan & Ors on 7 March, 2023
Bench: Rajnesh Oswal, Mohan Lal
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CRREF No. 08/2014
Reserved On: 27th of February, 2023
Pronounced On: 7th of March, 2023
State of Jammu and Kashmir
... Appellant(s)
Through: -
Mr Alla-ud-Din Ganai, AAG.
V/s
Mohammad Ramzan & Ors.
... Respondent(s)
Through: -
Mr G. A. Lone, Advocate.
CORAM:
Hon'ble Mr Justice Rajnesh Oswal, Judge
Hon'ble Mr Justice Mohan Lal, Judge
(ORDER)
(Oswal-J):
01. The learned Principal Sessions Judge, Baramulla (for short
"the Referral Court") has made this Reference under Section 432 of the
Code of Criminal Procedure and has sought further directions as deemed
appropriate in the matter.
02. The Respondents were convicted and sentenced by the Court
of learned Additional Sessions Judge, Baramulla vide Judgment dated 13th
of December, 2007 in FIR No. 80/1988 for the commission of offences
punishable under Sections 302, 452, 149, 336, 354 and 148 of the Ranbir
Penal Code (RPC). The Respondents preferred an appeal before this Court
which came to be registered as Cr. Appeal No. 11/2007, wherein, this
Court, vide Order dated 27th of February, 2009, allowed the appeal on a
technical ground that the trial Court viz. Additional Sessions Judge,
Baramulla was, in fact, a civil Court and not established as a Court of
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Sessions under Section 9 of the Code of Criminal Procedure.
Simultaneously, the Referral Court was directed to hear the case and pass a
Judgment in accordance with the provisions of law governing the subject.
03. Thereafter, during the course of proceedings before the
Referral Court, the learned Counsel appearing for the Respondents placed
on record a copy of the notification dated 30th of October, 2008 (SRO 350)
and, as per the said SRO, the Additional Sessions Judge, Baramulla was
conferred with the powers of a Sessions Judge within the territorial
jurisdiction of Sessions Court, Baramulla w.e.f. 30th of August, 2005. After
perusing the contents of the aforesaid SRO, the Referral Court, accordingly,
on 8th of August, 2014, while making the present Reference, noted that the
said SRO 350 was not brought to the notice of this Court when the appeal
was taken up and heard, resulting in the passing of Order dated 27th of
February, 2009 by this Court. It is under these circumstances that the
Referral Court has made the instant Reference before this Court for the
issuance of appropriate directions.
04. Mr Alla-ud-Din Ganai, the learned Additional Advocate
General, appearing on behalf of the Government of Union Territory of
Jammu and Kashmir, submitted that the Order dated 27th of February, 2009
passed by this Court is required to be recalled in view of the fact that the
learned trial Court was vested with the powers of Sessions Judge within the
territorial jurisdiction of Sessions Court, Baramulla and, therefore, an error
has crept in the records of this Court because the said SRO 350 was not
placed before this Court when the matter was finally considered.
05. Mr G. A. Lone, learned Counsel appearing for the
Respondents, on one hand, argued that the Reference made by the Referral
Court is beyond the scope of the mandate of Section 432 of the Code of
Criminal Procedure, but, on the other hand, he very fairly submitted that in
view of the aforesaid SRO relied upon by the Referral Court while making
Reference to this Court, the trial Court, i.e., the Additional Sessions Judge,
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Baramulla, was vested with the powers of Sessions Court at the time of
passing of Judgment dated 13th of December, 2007.
06. Heard learned Counsel for the parties and perused the record.
07. Mr Lone has raised a preliminary objection with regard to the
maintainability of this Reference under Section 432 of the Code of Criminal
Procedure and we would have considered the same had there been divergent
opinions/ claims of the contesting parties before us with regard to the fact
that the Additional Sessions Judge, Baramulla was not vested with the
powers of a Sessions Judge within the territorial jurisdiction of Sessions
Court, Baramulla in terms of SRO 50 aforementioned, but since both the
learned Counsel are unanimous in their submissions that the learned
Additional Sessions Judge, Baramulla was, in fact, vested with the powers
of a Sessions Judge within the territorial jurisdiction of Sessions Court,
Baramulla in terms of SRO aforesaid, we do not deem it proper to go into
the details as to whether the Reference made by the Referral Court is within
or beyond the scope of Section 432 of the Code of Criminal Procedure. The
fact remains that the above-mentioned SRO was not brought to the notice of
this Court when the matter was finally heard and decided by virtue of Order
dated 27th of February, 2009.
08. At this stage, it would be advantageous to reproduce the
aforesaid Notification dated 30th of October, 2008 (SRO 350) which reads,
thus:
"In exercise of powers conferred by Sub-Section (3)
of Section 9 of the Code of Criminal Procedure, Samvat
1989, the Government in consultation with the High Court,
hereby appoint the Additional Sessions Judge, Baramulla and
Additional Sessions Judge, Kathua, to exercise the powers of
a Sessions Judge within the territorial jurisdiction of Sessions
Court, Baramulla and Sessions Court, Kathua respectively.
The appointments made hereinabove shall and shall
always be deemed to have come into effect from 30.08.2005
and 08.05.2006 respectively."
CRREF No. 08/2014
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09. The Order dated 27th of February, 2009 has been passed by this
Court on a wrong assumption that the Court of Additional Sessions Judge,
Baramulla was not vested with the powers of a Sessions Judge when the
Judgment of conviction and order of sentence was passed by the learned
trial Court. The learned Counsel appearing for the then State of Jammu and
Kashmir, now Union Territory of Jammu and Kashmir, ought to have
brought the said SRO 350 to the notice of this Court and, even before the
Referral Court, it was the learned Counsel for the Respondents who
eventually brought to the notice of the Court about the said SRO 350. The
High Court is a Court of record as provided by Article 215 of the
Constitution of India and, being a Court of record, it is the constitutional
duty of the High Court to ensure that its records are maintained correctly
and in accordance with law. Having said so, we are also conscious of the
fact that under the Code of Criminal Procedure, no power of review has
been vested even with the High Court with regard to reviewing its earlier
order that is erroneous in nature, but the fact remains that the jurisdiction to
set aside the Judgment of the learned trial Court was wrongly exercised by
this Court on the premise that the trial Court was not vested with the powers
of a Sessions Judge when, as a matter of fact, SRO 350 dated 30th of
October, 2008 was already in existence conferring powers upon the learned
Additional Sessions Court, Baramulla as a Court of Sessions Judge within
the territorial jurisdiction of Sessions Court, Baramulla and proceeded
ahead for setting aside the Judgment passed by the trial Court, in ignorance
of the fact that the said SRO 350 dated 30th of October, 2008 was in
existence at the time when the said Judgment was passed by the trial Court.
The existence of the said SRO at the relevant point of time strikes at the
very root of the jurisdiction exercised by this Court while setting aside the
Judgment passed by the trial Court. In the event, the Order dated 27 th of
February, 2009 passed by this Court is allowed to remain on the records of
this Court as it is, it will be against the mandate of law. As mentioned
hereinabove, this Court, being a Court of record, is under constitutional
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obligation to ensure that all its records are maintained correctly and not
against the original records.
10. In 'M. M. Thomas v. State of Kerela & Another; (2000) 1
Supreme Court Cases 666', the Hon'ble Supreme Court, has observed as
under:
"14. The High Court as a court of record, as
envisaged in Article 215 of the Constitution, must have
inherent powers to correct the records. A court of
record envelops all such powers whose acts and
proceedings are to be enrolled in a perpetual memorial
and testimony. A court of record is undoubtedly a
superior court which is itself competent to determine
the scope of its jurisdiction. The High Court, as a court
of record, has a duty to itself to plenary jurisdiction
being a court of record.
...
17. If such power of correcting its own record is denied to the High Court, when it notices the apparent errors its consequences is that the superior status of the High Court will dwindle down. Therefore, it is only proper to think that the plenary powers of the High Court would include the power of review relating to errors apparent on the face of the record."
11. Further, in 'State of Punjab v. Davinder Pal Singh Bhullar; (2011) 14 SCC 770', the Hon'ble Supreme Court has held as under:
"27. If a judgment has been pronounced without jurisdiction or in violation of principles of natural justice or where the order has been pronounced without giving an opportunity of being heard to a party affected by it or where an order was obtained by abuse of the process of Court which would really amount to its being without jurisdiction, inherent powers can be exercised to recall such order for the reason that in such an eventuality the order becomes a nullity and the provisions of Section 362 Cr. P. C. would not operate. In such an eventuality, the judgment is manifestly contrary to the audi alteram partem rule of natural justice. The power of recall is different from the power of altering/ reviewing the judgment. However, the party seeking recall/ alteration has to establish that it was not at fault."CRREF No. 08/2014 Page 6 of 7
12. Also, in 'New India Assurance Co. Limited v. Krishna Kumar Pandey', bearing Criminal Appeal No. 1852 of 2019 decided on 6th of November, 2019, the Hon'ble Apex Court has held that the inherent powers of the Court under Section 482 of the Code of Criminal Procedure are saved where an order has been passed by the Criminal Court which is required to be set aside to secure the ends of justice or where the proceedings amount to abuse of the process of Court.
13. In 'Ganesh Patel v. Umakant Rajoria', passed in SLP (CRL) No. 9313 of 2021 decided on 7th of March, 2022, the Hon'ble Supreme Court upheld the Order of the High Court recalling its earlier Order that was passed in ex-parte and on the basis of false information provided to the Court.
14. It needs to be noted here that we are conscious of the fact that the Order dated 27th of February, 2009, that is being recalled by us, was passed by the Court almost 13 years ago, but we are of the considered opinion that the delay, howsoever long may be, cannot come in the way of the Court to correct its records in accordance with law, lest it would lead to an anomalous situation and would mean that for some cases, the trial Court was having the power to conduct the trial as a Sessions Court, while, for other cases, it was lacking the power to do so.
15. In view of above, we are of the considered view that in order to correct its records, it is obligatory on the part of this Court to recall the Order dated 27th of February, 2009 and, as such, the same is recalled. Consequently, the appeal bearing Cr. Appeal No. 11/2007 titled 'Ramzan Dar & Ors. v. State of Jammu and Kashmir & Anr.' is restored to the position as existed therein prior to passing of Order dated 27 th of February, 2009. Registry is directed to list the aforesaid Cr. Appeal No. 11/2007 after two weeks.
16. Disposed of.
CRREF No. 08/2014 Page 7 of 717. Registry to send a copy of this Order to the Referral Court for information.
(Mohan Lal) (Rajnesh Oswal)
Judge Judge
SRINAGAR
March 7th, 2023
"TAHIR"
i. Whether the Order is reportable? Yes/ No.