Jammu & Kashmir High Court - Srinagar Bench
Sanjay Kumar Rai vs Union Territory Of Jk & Anr on 21 August, 2020
Bench: Ali Mohammad Magrey, Sanjay Dhar
Serial No. 101
Supplementary-1 Cause List
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
(Through Virtual Mode)
CrlM No. 459/2020
CrlA(D) No. 12/2020
CrlM No. 460/2020
Sanjay Kumar Rai
..... Appellant(s)
Through: -
Mr Sunil Sethi, Senior Advocate with Mr Parimoksh Seth, Advocate.
V/s
Union Territory of JK & Anr.
..... Respondent(s)
CORAM:
Hon'ble Mr Justice Ali Mohammad Magrey, Judge
Hon'ble Mr Justice Sanjay Dhar, Judge
ORDER
21.08.2020 CrlM No. 459/2020:
This application is filed on behalf of the applicant/ appellant with a prayer that he may be allowed to file the accompanying appeal without enclosing therewith the requisite Stamp Paper, Court fee, etc., as well as without submitting the hard copy of the paper book.
For the reasons mentioned in the application, coupled with submissions made at the Bar, the instant application is allowed and the applicant/ appellant is permitted to file the accompanying appeal, being CrlA(D) No.12/2020; CrlM No.460/2020, without enclosing therewith the requisite Stamp Paper, Court fee, etc., as well as the hard copy of the paper book. It is, however, directed that the said deficiency shall be immediately made good by the applicant/ appellant, as and when the prevailing lockdown period, announced by the Government on account of outbreak of COVID-19 ...2...
Pandemic, comes to an end and the Courts start functioning in the normal manner.
CrlM disposed of as above.
CrlA(D) No. 12/2020; CrlM No. 460/2020:
This appeal is filed against the judgment of conviction dated 13th of June, 2020 and the order of sentence dated 30th of June, 2020, passed by the Court of learned Principal Sessions Judge, Kulgam, in Criminal Challan No. 10/Sessions titled State of J&K through SHO, Police Station, Kulgam v. Sanjay Kumar Rai, whereby the appellant has been held guilty for the commission of offences punishable under Sections 302 and 307 of the RPC and has been sentenced to undergo life imprisonment for the offence under Section 302 RPC and rigorous imprisonment of 07 years and fine of Rs.30,000/- for offence under Section 307 RPC and, in default of payment of fine, the appellant has been directed to undergo simple imprisonment for further period of one year.
Notice in the main appeal as well as in the connected CrlM, returnable by or before the next date of hearing.
Call for the records of the Court below.
List on 21st of September, 2020.
At this stage, Mr Sunil Sethi, learned senior counsel, appearing on behalf of the appellant, submits that the sentence awarded by the Court below cannot be executed in view of the fact that no reference order has been made by the Court below in view of the mandate of the erstwhile State Criminal Procedure Code. It is submitted that since the date of occurrence of the proceedings in question happens to be prior to the passing of the Jammu ...3...
& Kashmir Reorganization Act, 2019, therefore, the trial Court was obliged under law to deal with the case after taking recourse to the erstwhile State Criminal Procedure Code, but the learned trial Court, instead of doing so, has wrongly applied the Central Criminal Procedure Code to the facts and circumstances of the case on hand.
The submission of the learned senior counsel has all the substance as the right which has accrued to the Prosecution to investigate the crime which took place prior to the coming into force of the Central Criminal Procedure Code and which was covered by the erstwhile Act remained unaffected by reason of Clause (C) of Section 6 of the General Clauses Act, 1897 and the application of Clauses 13 and 14 of the Jammu and Kashmir Reorganization (Removal of Difficulties) Order, 2019. This view is fortified by the law rendered by Hon'ble the Supreme Court in case reported as '2012 8 SCC 669'.
In the above background, we are of the view that the trial Court has erred in law by applying the provisions of the Central Criminal Procedure Code to the facts and circumstances of the present case, when, in view of the date of occurrence of the crime, and with the application of Clause (C) of Section 6 of the General Clauses Act, 1897 and Clauses 13 and 14 of the Jammu and Kashmir Reorganization (Removal of Difficulties), Order, 2019, it was the erstwhile State Criminal Procedure Code which was to be made applicable to this case. In that context, we feel it necessary to clarify the position regarding this case, as well as all other cases/ proceedings where the date of occurrence/ institution is prior to the coming into force of the Jammu and Kashmir Reorganization Act, 2019, by observing that it is the repealed ...4...
Act(s)/ Code(s) that shall be applied to all such cases, instead of the Act(s)/ Code(s) provided by the Jammu and Kashmir Reorganization Act, 2019.
As a sequel to the above declaration and in view of the mandate of the erstwhile State Criminal Procedure Code, the trial Court shall send the order of reference to this Court by the next date of hearing. Further, the sentence awarded to the appellant cannot be executed, unless confirmed by this Court, as such, we, accordingly, direct that unless confirmed by this Court, the sentence awarded to the appellant shall not be executed.
Copy of this order, in Virtual mode, be forthwith send to the trial Court for compliance, copy whereof shall also be furnished to the learned senior counsel for the appellant.
Registrar (Judicial) to communicate this order, in Virtual mode, to all the Principal District & Sessions Judges of the Union Territory of Jammu and Kashmir and Union Territory of Ladakh, who, in turn, shall inform the trial Judges/ Magistrates of the same expeditiously.
(Sanjay Dhar) (Ali Mohammad Magrey)
Judge Judge
SRINAGAR
August 21st, 2020
"TAHIR"
i. Whether the Order is reportable? Yes/ No
ii. Whether the Order is speaking? Yes/ No.
TAHIR MANZOOR BHAT
2020.08.21 17:12
I attest to the accuracy and
integrity of this document