Jammu & Kashmir High Court - Srinagar Bench
Abdul Majeed Sheikh vs Abdul Rashid Banday on 14 November, 2017
Author: Ali Mohammad Magrey
Bench: Ali Mohammad Magrey
HIGH COURT OF JAMMU AND KASHMIR
AT SRIMAGAR
561-A Cr. PC no.186/2016 Date of decision: 14.11.2017
Cr. MP no.01/2016
Abdul Majeed Sheikh v. Abdul Rashid Banday
Coram:
Hon'ble Mr. Justice Ali Mohammad Magrey, Judge
Appearing counsel:
For Petitioner: Mr. A. H. Naik, Sr. Advocate, with
Mr. Zia Ahmad Shah, Advocate;
For Respondent: Mr. M. A. Chashoo, Advocate.
Whether approved for reporting: Yes
1. This petition under Section 561-A Cr. P. C. seeks setting aside of order dated 23.06.2016 passed by the learned Principal Sessions Judge, Budgam, in an appeal arising out of the proceedings under Section 138 of Negotiable Instruments Act, whereby the order of conviction and sentencing dated 23.11.2016 passed by the learned Judicial Magistrate, 1st Class, Budgam, has been set aside and the complaint ordered back to the trial court for recording of the statement of the appellant therein under Section 242 Cr. P. C. and conducting the proceedings afresh in accordance with law.
2. Heard learned counsel for the parties and considered the matter.
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3. The petitioner-complainant had earlier come to this Court in an identical petition, being 561-A Cr. P. C. petition no.122/2016, against order dated 18.03.2016 passed by the learned Principal Sessions Judge, Budgam, condoning the delay in filing the aforesaid appeal and treating the revision that had been earlier filed by the respondent-accused before that court against the very same order under appeal as not pressed. The grounds of challenge to the order dated 18.03.2016 taken in that earlier petition, as reflected in the disposal order dated 18.05.2016 passed by the Court therein, were that the appeal before the learned Sessions Judge was not maintainable because the conviction of the respondent was based on his confession and that the same was barred by Section 412 Cr. P. C. A coordinate Bench of this Court, holding that so far as the orders condoning delay and treating the revision as not pressed do not require any interference, directed as under:
"Learned appellate court shall have to hear the petitioner vis-a-vis maintainability of the appeal and in case appeal is held maintainable then in that eventuality the appeal itself shall be heard and finally disposed of preferably within a period of one month."
4. The learned Sessions Judge by order dated 23.06.2016, which is impugned herein, has held that it was of the considered opinion that the statement of the convict recorded by the learned trial Magistrate under Section 242 Cr. P. C. did not amount to confession in the eyes of law and that conviction on such statement was not warranted in terms of the provisions of law, especially as contained in Sections 242 and 243 Cr. P. C. The aforesaid conclusion was recorded by the learned Sessions Judge on finding that the answers given by the respondent / convict in reply to question nos. 2 and 3 in the statement recorded under Section 242 Cr. P. C. revealed that there was a land transaction between the parties and that the payment of the money by the convict to the petitioner through the cheques in question was dependent on performance of some acts 561-A Cr.P.C 186/16 2|Page on the part of the petitioner. The learned appellate court has further recorded that from the memorandum of appeal and the statement of the respondent it was found that the cheques had not been issued by the respondent in discharge of a debt or an unconditional liability, but had been issued in connection with the transaction of the land which the petitioner herein had to sell to him, but such land was not taken by him. The learned appellate court also found that the statement had not been recorded in the manner provided by law. Finding and recording so, the learned appellate court came to the conclusion that the appeal was not hit by the provision of Section 412 Cr. P. C., i.e., it was not barred. The learned Sessions Judge, accordingly, while setting aside the order of conviction and sentencing, remanded the complaint to the learned trial court for recoding the statement of the respondent under Section 242 Cr. P. C. afresh in accordance with the relevant provisions of law and for consequent proceedings warranted by law.
5. The petitioner has challenged the aforesaid order dated 23.6.2016 of the learned appellate court on the grounds that it had heard the arguments on the issue of maintainability of the appeal, but proceeded to decide the appeal itself without recording a finding on the maintainability of the appeal. It was reiterated that since the respondent had admitted the facts constituting the ingredients of the offence under Section 138 NIA, he had confessed to the guilt and that the appeal before the learned Sessions Judge, therefore, would not lie. It is argued that the learned Sessions Judge has thus misdirected itself in allowing the appeal and in remanding the complaint to the trial court.
6. Before coming to the case of the petitioner and points raised on his behalf in this petition, it may be mentioned here that the learned counsel for the respondent took an objection to the maintainability of this petition under Section 561-A Cr. P. C. Inviting the attention of the Court to the provision of 561-A Cr.P.C 186/16 3|Page Section 430 Cr. P.C., the learned counsel argued that since there is a finality attached to the judgment and orders passed by an appellate court upon appeal and since the order impugned herein has been passed by the learned Sessions Judge as an appellate court upon the appeal preferred before it by the respondent, no further proceedings can lie in any court against the said order which would include this petition under Section 561-A Cr. P. C. The learned counsel sought to draw analogy and support from the judgment of the Supreme Court in Amar Nath v State of Haryuana, AIR 1977 SC 2185.
7. In this regard, I think, it would suffice to say that the provision of Section 561-A Cr. P. C. begins with the words "nothing in this Code shall be deemed to limit or affect the inherent power of the High Court...". Nothing means nothing
- not anything, no single thing - in the Code, which includes Section 430 of the Code. The inherent power of the High Court in relation to the three fields specified in the Section itself is not controlled by any of the other provisions of the Code. In fact, Section 561-A Cr. P. C. itself also does not confer such power on the High Court; this power is inhered by the High Court and the Section only saves it and, therefore, it cannot be controlled by, or be subject to, any other provision of the Code. That being so, the argument put forth that a petition under Section 561-A Cr. P. C against the judgment or orders passed by an appellate court upon an appeal would not be maintainable is wholly untenable and not sustainable. It is a different thing, that the Courts have evolved a mechanism of self restraint in invoking the inherent powers. The judgment in Amar Nath v State of Haryuana (supra), cited and relied upon by the learned counsel for the respondent basically deals with interlocutory orders and in that context it is held therein that where there is an express provision barring a particular remedy, the Court cannot resort to the exercise of inherent powers. That is not the case herein. Of course, the Court would invoke and exercise the 561-A Cr.P.C 186/16 4|Page inherent power under Section 561-A Cr. P. C. sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is trite law that this power is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. If the Court is satisfied that it is necessary to give effect to any order under the Code; or to prevent abuse of the process of the Court or otherwise to secure the ends of justice, it will invoke the inherent power. These are the only three circumstances in which such power can be invoked. The question is which of the circumstance does the petitioner herein claim to be existing in the instant matter?
8. Apparently, the petitioner does not seek to invoke the jurisdiction of the Court to give effect to any order under the Code. The matter also does not relate to the process of the Court; therefore, the question of its abuse would not arise. The only test that remains is to see whether the order passed by the appellate court is such as can be said to be not meeting the ends of justice?
9. Coming to the case of the petitioner and the points raised by him presently, having regard to the facts and circumstances of the case, the question of maintainability of the appeal, in view of the direction of the Coordinate Bench of this Court, could not be decided by the appellate court in abstract, but had to be determined in light of the specific argument and point raised on behalf of the petitioner in his earlier 561-A petition before the Court as reflected in the order dated 18.05.2016, which was that the appeal was not maintainable because the conviction of the respondent was based on his confession and that the same was barred by Section 412 Cr. P. C. As a matter of fact, this is still the star argument raised on behalf of the petitioner in the present petition as well. Naturally, therefore, the appellate court was required to ascertain whether the respondent had really made a confessional statement admitting to the guilt 561-A Cr.P.C 186/16 5|Page within the meaning of law and whether such statement was sufficient to convict him for the alleged offence.
10. As mentioned earlier, the learned appellate court in its impugned order has recorded a clear finding that the statement of the convict recorded by the learned trial Magistrate under Section 242 Cr. P. C. did not amount to confession and admission of the guilt in the eyes of law, and that conviction on such statement was not warranted in terms of the provisions of law, especially as contained in Sections 242 and 243 Cr. P.C. In that that view of the matter, no exception can be taken to such a finding recorded by the learned appellate court.
11. Section 243 Cr. P C. says that if the accused admits that he has committed the offence of which he is accused, his admission shall be recorded as nearly as possible in the words used by him and if he shows no sufficient cause why he should not be convicted, the Magistrate may convict him accordingly. The language of the provision of the law makes it manifestly clear that it is not only the admission of the facts by the accused that has to be taken into account, but also whether he shows any cause why he should not be convicted. If such admission contains a component and element of cause, defence, explanation or justification, then the admission would not amount to admission of the commission of the offence, i.e., admission of the guilt. It has to be borne in mind that it is an essential ingredient of the offence under Section 138 of the Negotiable Instruments Act that the cheque(s) must have been issued for the discharge, in whole or in part, of any debt or other liability. Once the learned appellate court found that the respondent in his answers to question nos. 2 and 3 in the statement recorded under Section 242 Cr. P. C. had said that there was a land transaction between the parties and that the payment of the money by him to the petitioner through the cheques in question was dependent on 561-A Cr.P.C 186/16 6|Page performance of some acts on the part of the petitioner, and that the cheques had not been issued by the respondent in discharge of any debt or unconditional liability but had been issued in connection with the transaction of the land which the petitioner had to sell to him, but such land transaction had not ultimately taken place, the learned appellate court was right in holding that such a statement did not amount to admission of the guilt on the part of the respondent. In view of such a clear finding recorded by the appellate court, the specific objection or plea of the petitioner as to the maintainability of the appeal would not, and did not survive; consequently, the appellate court was right in proceeding ahead with decision of the appeal itself, in terms of the direction of the coordinate Bench of this Court contained in order dated 18.05.2016. It was not necessary for the appellate court to first record the aforesaid finding and say in express words that the appeal was maintainable, and then to post the matter for any further argument, and curiously, on the same issue. As a matter of fact, since the respondent was convicted only on the alleged admission of guilt and the objection raised was also only regarding the maintainability of the appeal on the ground of alleged admission of the guilt, there was no legal necessity for the appellate court to post the matter for any further hearing or proceedings.
12. In view of the above, I do not find anything unjust done by the learned appellate court or contained in the impugned order as would warrant exercise of the inherent power by this Court under Section 561-A Cr. P. C. On the contrary, I am convinced that the impugned order wholly meets the ends of justice and it does not require any interference by this Court.
13. This petition is, accordingly, dismissed.
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14. Registry is directed to send down the original records forthwith, with direction to the trial court to proceed ahead with the trial of the case as directed by the learned appellate court.
15. The learned counsel for the parties / the parties are directed to appear before the trial court on 18.11.2017 for further proceedings.
(Ali Mohammad Magrey) Judge Srinagar, 14.11.2017 Syed Ayaz, Secretary.
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