Jammu & Kashmir High Court - Srinagar Bench
Fayaz Ahmad Banday & Ors vs State Of J&K Through on 19 December, 2022
Bench: Sanjeev Kumar, Moksha Khajuria Kazmi
S.No. 40
Supp.List
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CM No. 7289/2022 in
LPA No. 257/2022
Fayaz Ahmad Banday & Ors. ...Petitioner/ Appellant(s)
Through: Mr. Salim Gupkari, Advocate
V/s
State of J&K through
P/S VOK ...Respondent(s)
Through: Mr. Ab. Rashid Malik, Sr AAG vice
Ms. Asifa Padroo, AAG
CORAM: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE.
HON'BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI,JUDGE.
JUDGMENT
19 .12.2022 CM No. 7289/2022.
This is an application seeking condonation of delay of 90 days in filing the appeal against the judgement dated 16th July 2022 passed by learned Single Bench in review petition No. 45/2022.
The application for the reasons stated therein is allowed and the delay in filing the appeal is condoned.
Application stands disposed of.
LPA No. 257/2022
1. This intra court appeal by the appellants is directed against the judgement of learned Single Judge of this Court(The writ Court for short) dated 16th July 2022 passed in RP No. 45/2022 titled Dr. Fayaz Ahmad Banday and Ors. V.s State of J&K.
2. Before we advert to the grounds of challenge urged by the appellants to assail the impugned judgement of the writ court, it is necessary to take note of few relevant facts.
3. Learned Special Judge Anti-Corruption, Kashmir, Srinagar, made a reference in terms of section 341 of the J&K Code of Criminal Procedure , which corresponds to section 318 of the Code of Criminal Procedure, 1973. In the order of reference it was observed by the learned Special Judge that one of the accused, namely, Ghulam Rasool Joo, who is facing trial along with others for offences under section 5 (1) (c) (d), 5(2) of Prevention of Corruption Act read with section 120-B, 467, 468, 409 RPC, has been found suffering from Vascular Dementia and is not in a position to understand the legal proceedings during the trial. The order of reference also made mention of the opinion of the Medical Board as per which the said accused had been declared unfit to stand the trial. When the matter came up for consideration before the Single Bench, the Single Bench, after alluding to the provisions of Section 341 of the J&K Code of Criminal Procedure, came to the conclusion that reference in terms of section 341 of the J&K Code of Criminal Procedure was not maintainable during the pendency of trial. The learned Single Bench, therefore, held that reference under section 341 of the J&K Code of Criminal Procedure could be made only if the trial of the accused who is unable to understand the proceedings results in a conviction. The Single Bench, thus, declined the reference vide its order dated 15.04.2022 but directed the Special Judge to proceed in accordance with section 341 of the J&K Code of Criminal Procedure and make the reference only in the event of conviction of the accused or proceed in accordance with provisions contained with chapter XXXIV of J&K Criminal Procedure Code, provided the accused is a person of un-sound mind. This judgment was not accepted by the appellants herein who by way of RP No. 45 of 2022, sought review of the judgment dated 15.04.2022. The matter was again considered by single bench.
4. The Single bench, after considering the case law on the subject and the interpretation put by various High courts of the Country, again concluded that the stage of reference under section 341 of the J&K Code of Criminal Procedure/ 318 of Cr PC of 1973, would come after the trial is over and it culminates in conviction of the accused under disability. The only contrary judgment of the High court of Karnataka in the case of State V.s Kampu Shetty, AIR 1965 Knt. 95 relied upon by the appellants herein was not agreed to by the Single Bench on the ground that same was not in consonance with the plain language of Section 341/318 of the Code of Criminal Procedure.
5. Consequently, the review petition filed by the appellants herein was dismissed by the Single Bench vide judgement dated 16.07.2022. It is this judgment of learned Single Judge which is called in question before us in this appeal.
6. Having heard learned counsel for the appellant and perused the material on record, we are entirely in agreement with the learned single judge. Section 341 of the J&K Cr PC which is pari materia with section 318 of the Central Procedure Code of Criminal Procedure reads as under:-
341. Procedure where accused does not understand proceedings.
If the accused, through not insance, 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 language of section 341 reproduced above is clear and unambiguous. It clearly provides for making of a reference only at the conclusion of the trial and that too when the trial ends in conviction of the person who is found to be suffering from a disability and is not in a position to understand the proceedings in the trial.
8. The object of ingrafting section 341 in the Code of Criminal Procedure is to provide an opportunity to the High Court to go through the record of the trial court so as to ascertain as to whether the accused under disability of not understanding the proceedings has been given fair trial. However, if such accused is a person of unsound mind or lunatic, a different procedure to be followed by the trial court has been laid down in the Criminal Procedure Code. However, in no case the trial can be quashed.
9. The single bench has taken into consideration all aspects of the matter and relying upon the decision rendered in the matter by the various High Courts has concluded that the reference under section 341 of the J&K Code of Criminal Procedure is not maintainable unless the trial is concluded and ends in conviction of a person who is found unable to understand the proceedings in the trial.
10. We see no reason or justification to take a view different from the one taken by the single bench. We find this appeal totally misconceived deserving dismissal at the threshold.
11. Ordered, accordingly.
(MOKSHA KHAJURIA KAZMI) (SANJEEV KUMAR)
JUDGE JUDGE
SRINAGAR
19 .12.2022
"Nuzhat"