Jammu & Kashmir High Court - Srinagar Bench
Dr. Fayaz Ahmad Banday & Ors vs State Through P/S Vok (Now Acb) on 16 July, 2022
Author: Sanjay Dhar
Bench: Sanjay Dhar
Sr. No.66
Suppl. List-1
IN THE HIGH COURT OF JAMMU & KASHMIR AND
LADAKHAT SRINAGAR
CrlM No.801/2022
in
RP No.45/2022
DR. FAYAZ AHMAD BANDAY & ORS ...PETITIONER(S)
Through: - Mr. Saleem Gupkari, Advocate.
Vs.
STATE THROUGH P/S VOK (NOW ACB) ...RESPONDENT(S)
Through: - None.
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT(ORAL)
16.07.2022 By the instant application, the petitioners have sought condonation of 12 days delay in filing the review petition against order dated 15.04.2022 passed by this Court.
The application, in view of the grounds enumerated therein, is allowed. The delay of 12 days in filing the review petition is condoned and the review petition is taken on board. RP No.45/2022
1. The petitioners have filed the instant petition seeking review of order dated 15.04.2022 passed by this Court on a reference made by learned Special Judge, Anticorruption, Kashmir Srinagar. Page 1 of 8
2. It appears that the learned Special Judge, Anticorruption, Kashmir, Srinagar, had made a reference in terms of Section 341 of the Jammu and Kashmir Code of Civil Procedure, which corresponds to Section 318 of the Code of Criminal Procedure, 1973. In the order of reference, the learned Special Judge has observed that one of the accused, namely, Ghulam Rasool Joo, who is facing trial before the said Court 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 to be suffering from Vascular Dementia and that he is not in a position to understand the legal proceedings. It was further observed that as per the opinion of the Medical Board, the said accused is not fit to stand the trial
3. Vide order dated 15.04.2022, the reference made by the learned Special Judge, was declined by observing that reference under Section 341 of J&K Cr. P. C can be made only if the trial of an accused, who is unable to understand the proceedings, results in a conviction whereafter the proceedings have to be forwarded to the High Court with the report of the circumstances of the case.
4. The petitioners have sought review of the aforesaid order on the grounds that if trial of the case is allowed to proceed in view of the impugned order passed by this Court, there would be no one to defend accused Ghulam Rasool Joo who is stated to be not in a position to Page 2 of 8 understand the legal proceedings and that the same would deprive him of his right to defend the case. It is further contended that since the aforementioned accused is unable to understand the court proceedings as per the opinion of the Medical Board, he would not be in a position to either plead guilty or deny the charges nor would he be in a position to record his statement before the learned Special Judge and this would vitiate the trial of the case. In support of their contentions, the petitioners have relied upon the judgment of the Rajasthan High Court in the case State of Rajasthan vs. Gani Mohd. 2009 SCC Online Raj 872 and the judgment of the Supreme Court in the case of Union of India & Ors. Vs. Ram Lakhan Sharma (Civil Appeal No.2608 of 2012 decided 2nd July, 2018).
5. I have heard learned counsel for the petitioners and perused the material on record.
6. The reference in the instant case was made by the learned Special Judge, Anticorruption, by taking resort to the provisions contained in Section 341 of the J&K Cr. P. C at the stage when charges were framed against the accused. Plain language of the aforesaid provision, which is in pari materia with Section 318 of the Central Code of Criminal Procedure, suggests that it applies to the persons who are unable to understand the proceedings and it further provides that reference to the High Court under this provision would Page 3 of 8 arise if, on the basis of necessary enquiries and endeavour to find out if the accused can be made to understand the proceedings, the Court concerned comes to a definite conclusion that the accused does not understand the proceedings. The stage of the reference would come only after the trial is over and it culminates in conviction of an accused. Prior to culmination of the trial and recording of finding of conviction, reference under Section 341 of the J&K Cr. P. C is not permissible. This is clear from the plain language of the aforesaid provision.
7. In State vs. Genda, AIR 1954 MB 34, it was observed that the Court cannot refer a case in the midst of a trial before any conviction or committal takes place. It was further observed that the Court is required to proceed to the end of the trial and it is only if the trial results in a conviction, then the question of forwarding the proceedings to the High Court under Section 341 of the Cr. P. C would arise.
8. Again, in the case of Padmnabhan Nair Narayanan Nair, AIR 1957 Kerala 9, it was held that If the Court finds that the accused cannot be made to understand the proceedings, the Court can convict him if the evidence warrants it, but it cannot pass sentence against him. It was further observed that in such a case, the Court must forward the proceedings to the High Court to pass such orders as the High Court thinks fit. Page 4 of 8
9. In State Vs. Mogamma, AIR 1964 Mysore 182, it was observed that the Court must find that the accused cannot be made to understand the proceedings and that the enquiry or trial must result in commitment or conviction. If these requirements are not fulfilled, the proceedings cannot be forwarded to the High Court.
10. Similar view was taken by Orissa High Court in the case In Re:
Beda AIR 1970 Orissa 3.
11. Again, the High Court of Karnataka in the case of The State vs. Kampu Shetty, AIR 1965 Kant. 95, has held that if accused cannot be made to understand the proceedings, the trial court can convict him if the evidence warrants it but cannot pass sentence against him. It was further observed that the trial court will have to forward the proceedings to the High Court to pass such orders as it thinks fit.
12. From the foregoing analysis of the case law on the subject, it is clear that there has been a consistent view of the different High Courts of the Country that reference under Section 341 of the Cr. P. C can be made to the High Court either at the stage of committal or after recording the order of conviction.
13. It is true that learned Single Judge of the Rajasthan High Court in the case of Gani Mohd. (supra) has taken a contrary view by observing that if accused is unable to understand the proceedings and Page 5 of 8 the trial is allowed to proceed, it would amount to violation of requirement of Chapter XVII to XXI of the Code of Criminal Procedure, 1973, and the judgment based upon the trial conducted in the said manner would be void ab initio.
14. I would respectfully beg to disagree with the aforesaid view taken by the learned Single Judge of the Rajasthan High Court because the language of the provision contained in Section 341 of the J&K Cr. P. C 318 of the Central Cr. P. C is clear and unambiguous, inasmuch as it provides for making of a reference only at the conclusion of the trial and not before that. The purpose of making a reference to the High Court at the conclusion of the trial in a case where accused is unable to understand the proceeding is to provide an opportunity to the superior court to go through the records of the trial court so as to ascertain as to whether or not a fair trial has taken place in the matter. If no trial has taken place and the reference is made to the High Court at the initial stage itself, there would be no material before the High Court to ascertain as to whether or not fair trial has taken place. This aspect of the matter has been clearly overlooked by the learned Single Judge of the Rajasthan High Court while passing the aforesaid judgment. Even otherwise, the Courts are not vested with power to legislate so as to add or subtract anything from unambiguous provisions of a Statute. Therefore, this Court cannot Page 6 of 8 read something which is not there into the provisions contained in Section 341 or Section 318 of the Cr. P. C. So far as the judgment of the Supreme Court in Ram Lakhan Sharma's case (supra) is concerned, the same is not applicable to this case as the said judgment related to proceedings arising out of Department Enquiry.
15. The High Court of State vs. Radhamal Sangatmal Sindhi, AIR 1960 Bom 526 has observed that the Court trying an accused who is unable to understand the proceedings has to ensure that necessary legal assistances is provided to him and it has to proceed on the basis that the accused has pleaded not guilty to the charge. The Court further observed that all possible defences in such circumstances are required to be considered.
A Similar view has been taken by the High Court of Karnataka in Kampu Shetty's case (supra).
16. Thus, it is clear that once trial of the case will proceed further before the Special Judge and the evidence is recorded by the said Court after providing necessary legal assistance to the accused Ghulam Rasool Joo and after presuming that he has pleaded not guilty, if the Special Judge finds that the charge against the said accused is established, it is open to the said court to make a reference to this Court and send the record of the proceedings so as to enable this Court to ascertain as to whether a fair trial has been conducted in Page 7 of 8 the case so far as the same pertains to the aforesaid accused but at this stage the order of reference made by the learned Special Judge is definitely not permissible.
17. Apart from the above, the instant petition has been filed not by the prosecuting agency or by anyone on behalf of the accused Ghulam Rasool Joo but it has been filed by the co-accused who have no locus standi to file the instant petition. The co-accused, in any case, have to stand the trial before the Special Judge and the fate of reference has no bearing upon their case. On this ground also, the instant petition deserves to be rejected.
18. For the foregoing reasons, I do not find any merit in this review petition. The same is dismissed accordingly. The learned Special Judge is directed to proceed further in the matter in accordance with the law.
19. A copy of this order be sent to the learned Special Judge for information and compliance.
(Sanjay Dhar) Judge Srinagar 16 .07.2022 "Bhat Altaf, PS"
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
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