S. No v. Union Territory of J & K & Anr.

Judgment

1. This appeal has been directed against Judgment dated 15.05.2019, propounded by learned Principle Sessions Judge Shopian (for short 'the trial Court) in case titled „State through Police Station Shopian vs Imtiyaz Ahmad Haji @ Mehraj-ud-Din‟, vide which, challan filed by the Respondent no. 1-State, came to be dismissed for want of evidence and accused-respondent no. 2 came to be acquitted. Before a closer look at the grounds urged in the memo of appeal, it shall be expedient to have an overview of the background facts leading to the present appeal. On 25.07.2015, the appellant lodged a written report with Police Station Shopian, alleging inter alia that he was mercilessly beaten by the accused-respondent no. 2, with a lethal object, in furtherance of an intention to kill him, as a result whereof, he sustained grievous injuries over his body. On the receipt of this report, FIR No. 145 of

3. 2015, came to be registered and investigation culminated into final report, under Section 173 of the Code of Criminal Procedure, 1989 (Cr.P.C. for short), for offences under Sections 307,341,323,506,201 RPC

4. Respondent no.2, accused came to be charged by the trial Court for the aforesaid offences on 22.04.2016, whereby, he pleaded innocence

and claimed trial, prompting the trial Court to ask for the prosecution evidence. However, since prosecution failed to produce any witness in the case, in a trial that lasted for about three years, respondent no.2, came to be acquitted.

5. The appellant, who happens to be the complainant and victim, has assailed the impugned Judgment primarily on the ground that since he was neither summoned by the prosecution nor by the trial Court, as a prosecution witness during the trial, therefore, impugned acquittal of respondent no. 2, has resulted in a serious miscarriage of justice. According to the appellant learned trial Court has acted as a passive spectator to the proceedings and failed to follow the procedure prescribed under section 87 Cr.P.C, for summoning of the witnesses.

6. It is case of the appellant that after conclusion of the investigation, he was told by the Investigating Officer that he will be summoned by the trial Court after presentation of the challan, however, he was neither informed about the presentation of challan nor summoned as a prosecution witness by the trial Court. According to the appellant, he came to know about the status of the challan filed in the trial Court, in the month of December-2021, when in the counter challan, titled „State vs Abdul Hamid Sheikh‟, where he was an accused and

8. respondent no. 2 was the complainant, he was sarcastically told by respondent no. 2, about his acquittal by the trial Court. Having heard rival contentions of learned counsels for the parties, I have gone through the trial Court record. Learned counsel for respondent no. 2, accused, at the outset has questioned maintainability of the present appeal on the ground that incident in the present case took place prior to coming into effect of the Jammu & Kashmir Reorganization Act 2019, (Reorganisation Act, for short), when the Jammu & Kashmir Code of Criminal Procedure (J & K Cr.P.C, for short) was in operation and there is no provision in J & K Cr.P.C. which enables the victim or a complainant to prefer an appeal against the judgment of acquittal.

9. Countervailing the maintainability issue raised by learned counsel for the appellant, respondent no. 2/accused has argued that present appeal came to be filed in this Court, on 03.03.2022, and since J & K Cr.P.C., had already been repealed, with the operation of the Reorganization Act, and Central Cr.P.C., was made applicable to the Union Territory of J & K, therefore, appeal in the present form is maintainable.

10. On merits, learned counsel for the appellant has relied upon, The State of Karnataka v. Nallayappa; 1996 CRI. L. J. 3539, K Ramesh Babu v State of Karnataka; 1994 CRL. J. 358, Mangal Vithal Koyale v. Gopalrao Bhimrao Koyale & others; 1986 3 Crimes(HC) 220, Mohammad Altaf Shah v. Mst. Mehmooda 1995; S.L.J 26, and Mehafuja Banu v. Md. Asadul Islam & State 2012; Spereme(Cal) 808, to reiterate the grounds urged in memo of appeal.

11. The occurrence in the present case took place on 25.07.2015, final report, in terms of Section 173 Cr.P.C, was filed by the prosecution on 16.10.2015, all the proceedings in the trial Court took place in accordance with the provisions of J & K Cr.P.C., and impugned Judgment dated 15.05.2019 came to be delivered by the trial Court when J & K Cr.P.C. was in operation. Since, it is trite that appellate or Revisional proceedings are continuation of the proceedings of the trial Court, therefore, I find legal force in the arguments of learned counsel for the accused/respondent no. 2, that present appeal is not maintainable.

12. J & K Cr.P.C, came to be repealed by virtue of Reorganization Act, and Central Cr.P.C, was made applicable to the Union Territories of Jammu & Kashmir & Ladakh. Section 6 of the General Clauses Act, 1897 (General Clauses Act, for short), which deals with the „Effect of Repeal‟, inter alia provides that where any Central Act or regulation made after the commencement of the said act, repeals any enactment hitherto made are hereafter to be made, then, unless a different intention appears, the said repeal shall not affect the previous operation of any enactment so repealed or anything duly done or suffered therein or affect any legal investigation, legal proceedings etc, and any such legal proceedings etc, may be instituted continued or enforced, as if the repealing act or regulation had not been passed. Section 6 of the General Clauses Act reads as: Effect of repeal--- Where this Act, or any [Central Act] or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not -- - (a) revive anything not in force or existing at the time at which the repeal takes effect, or (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder, or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed, or (d) affect penalty, forfeiture punishment incurred in respect of any offence committed against any enactment so repealed, (e) affect any investigation, legal proceedings or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceedings or remedy etc, may be instituted, continued or enforced, and such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed.

13. It is pertinent to mention that when difficulties arose in giving effect to various provisions of the Reorganization Act, the President of India, in exercise of powers conferred under Section 103 of the Reorganization Act, promulgated Jammu & Kashmir Reorganization (Removal of Difficulties) order 2019, (hereinafter, Removal of Difficulties Order) with a view to remove difficulties arising in giving effect to various provisions of the Reorganization Act. Clause 13 of the said order was enacted in tune with Section 6 of the General Clauses Act, which reads as under; “(13) The Acts repealed in the manner provided in Table-3 of the Fifth Schedule, shall not affect— (a) the previous operation of any law so repealed or anything duly done or suffered there under; liability (b) any right, privilege, obligation or acquired, accrued or incurred under any law so repealed; (c) any penalty, forfeiture or punishment incurred in respect of any offence committed against any law so repealed; or (d) any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if this Act had not been passed.”

14. If Section 6 of the General Clauses Act and Clause 13 of the Removal of Difficulties Order are read in conjunction, it is manifest that, in view of the date of crime in the present case, it is J & K Cr.P.C., which is applicable to the present case and there is no provision in J & K Cr.P.C., which enables a victim or a complainant to prefer an appeal against an order of acquittal.

15. As a matter of fact, a Co-ordinate Bench of this Court in “Pawan Kumar Vs. Dharam Chand and Others” Crl (R) No. 16/2020 on

19.10.2020, having noticed fundamental differences between the provisions of J and K Cr.P.C, and Central Cr.P.C, has already set the controversy at rest, by holding that while Central Cr.P.C, provides right of appeal to a victim against the judgement of acquittal or conviction for a lesser offence or in a case where the inadequate compensation has been imposed, there is no such provision in J and K Cr.P.C., which enables the victim or a complainant to prefer an appeal in such cases. Since proceedings in the said case, as in the present case, were conducted as per the provisions of J and K Cr.PC, it was held that remedy of appeal was not available to the complainant. Relevant excerpt of the judgement, for the facility of the reference, reads as below:- “10) A perusal of the afore-quoted provisions of the two Codes clearly shows that while the Jammu and Kashmir Code of Criminal Procedure does not give a right of appeal to a victim or a complainant, the Central Code of Criminal Procedure gives a right of appeal to a victim against a judgment of acquittal or conviction for a lesser offence or in a case where inadequate compensation has been imposed. Since the proceedings of the instant case are governed by the J & K Code of Criminal Procedure, as such, the petitioner could not have availed the remedy of appeal as no such remedy is available to him under the repealed Code. The order of acquittal being a final order, as such, petitioner is well within his rights to prefer a revision petition against the said order in the absence of remedy of appeal. Accordingly, the revision petition is held to be maintainable.”

16. A similar view has been expressed by a Division Bench of this Court in „Sanjay Kumar Rai v. Union Territory of JK & Anr’ in CrlA(D) No. 12/2020, on 21.08.2020, and it is pertinent to mention that aforesaid observation came to be passed by learned Division Bench on the basis of law laid down by Hon‟ble Supreme Court of India in a case reported as „2012 8 SCC 669.

17. The present case is squarely covered by the aforesaid principle of law enunciated by the Apex Court and reiterated by this Court from time to time. Since the crime in the present case took place prior to coming into force of the Central Cr.P.C., therefore, with the application of Section 6 of the General Clauses Act, read with Clause 13 of the Removal of Difficulties Order, it is J & K Cr.P.C, which is applicable to the facts and circumstances of the present case. Hence, the appeal preferred by the complainant/victim, in the present form is not maintainable and is liable to be dismissed.

18. Learned counsel for the appellant, however, would submit that since learned trial court acted as a mute spectator to the proceedings and appellant was never summoned by the trial court as a prosecution witness, which resulted in a serious mis-carriage of justice, the impugned judgement calls for an interference of this Court and, therefore, to secure the ends of justice, the present appeal may be treated as a Revision petition. I am not impressed with the argument of learned counsel for the appellant because I do not find any illegality or impropriety in the impugned judgement and consequent acquittal of the accused for the following reasons.

19. As already mentioned, the occurrence in the present case took place on 25.07.2015. Final report, contemplated in terms of Section 173 Cr.P.C., came to be filed on 16.10.2015. The accused, respondent no. 2, was charge-sheeted by the trial Court on 22.04.2016, whereby accused pleaded not guilty and claimed trial, and, prosecution was directed to lead evidence. A perusal of the challan reveals that prosecution was granted as many as 14 opportunities to produce the evidence, but it failed to produce even a single witness resulting into the closure of prosecution evidence on 10.05.2019. It also reveals from the trial Court record that prosecution was given last opportunity to produce evidence on 26.12.2018, followed by final opportunity in the interest of justice on 25.02.2019. Since prosecution failed to produce any witness, the trial Court was left with no option but to close the prosecution witness. It also appears that after the prosecution evidence came to be closed, prosecution filed an application in terms of section 540 Cr.P.C for summoning of material prosecution witness, however, learned trial Court vide composite order, impugned in the present appeal, rejected the said application as unfounded and dismissed the challan for want of evidence.

20. The appellant/complainant has assailed the impugned judgment of acquittal primarily on the ground that he was neither informed about the presentation of the challan by the Investigating Agency nor summoned by learned trial Court, for appearance as a prosecution witness. However, a perusal of the trial Court record reveals that prosecution issued a notice upon the appellant/complainant and PW‟s Mushtaq Ahmad and Mohammad Altaf, for appearance as prosecution witness on 10.05.2019. This notice was successfully delivered to the appellant/complainant and his signatures were obtained on the docket on 26.04.2019. Rest of the PW‟s, though were not available in their houses, but were informed about the court appearance through their telephone numbers, which is mentioned in the report. A perusal of the order sheet of the trial Court annexed with the present appeal, reveals that neither appellant nor PWs Mushtaq Ahmad and Mohammad Altaf appeared on 10.05.2019, despite due service on 26.04.2019, therefore, prosecution evidence came to be closed. In this view of the matter, the claim of the appellant that he was never summoned by the prosecution or the trial Court to appear as a prosecution witness is unfounded and liable to be turned down.

21. The case law relied by learned counsel for the appellant is distinguishable on facts and circumstances of the present case. Karnataka High Court in „K. Ramesh Babu‟ (supra), while dealing with Section 66 of Chapter VI Cr.P.C., observed that where the person summoned is in the active service of the Government, the Court issuing the summons shall ordinarily send a duplicate copy of the same to the Head of the Office in which, said person is employed, and Head of the Office shall thereupon cause the summons to be served in the manner provided by Section 62, and return it to the court under his signature with the endorsement required by that Section. It is pertinent to mention that in the said case, the petitioner on the relevant date was in the active service of the Police Department and therefore aforesaid observation was made by the Karnataka High Court in the said background. Similar view has been expressed by the same Court in „State of Karnataka v. Nallayappa‟(supra) in which, while remanding the matter to the trial Court, formal witnesses‟, viz I.M.V. Inspector, the Investigating Officer, the author of the sketch of the scene and the Doctor were directed to be summoned by the trial Court.

22. This Court in „Mohammad Altaf Shah‟ (supra) has discussed in detail the procedure envisaged for service of summons provided under Chapter VI Cr.P.C. There is no dispute to the statutory requirements, envisaged in chapter VI Cr.P.C, regarding service of summons on material prosecution witnesses, and trial courts are obliged to adhere to the provision contained therein. However, in the present case, as already discussed, since the complainant/appellant and prosecution witnesses failed to appear on the scheduled date of hearing, prosecution evidence came to be closed by the trial Court. The summons in the present case were personally served upon the appellant as also two prosecution witnesses, therefore, „Mohammad Altaf Shah, has no application to the facts of the present case.

23. A complainant after lodgement of FIR, on the basis of which, the police agency swings into action, cannot afford to sleep over his right. After an FIR is lodged. The complainant owes a duty to be vigilant not only of his rights but to assist the prosecution as also the court in arriving at just conclusion of the case. The complainant is expected to be vigilant about the judicial proceedings initiated at his instance.

24. I am fortified in my opinion by „Nain Singh v. Nain Singh & Ors; 1991 KLJ 266, in which, a coordinate Bench of this Court has made it clear that there is no rule laying down the preposition that it is obligatory on the part of the trial court to compel the attendance of witnesses in all events and circumstances. It was also observed in the said case that whatever the status of the witnesses, official or non- official, it is the prosecution who is obliged to ensure the attendance of its witnesses, on its own by invoking the assistance of the Court. Relevant excerpt of judgment reads as below; “I find no force in the contentions raised by learned counsel for the petitioner for a variety of reasons. Suffice it to say that there is nothing in any Rule or law which caste any obligation on the trial court to procure the attendance of the witnesses in the absence of the party concerned seeking assistance of the court in this regard. The provisions of Section 271 of the Code of Criminal Procedure are manifestly clear on the point. The relevant section reads as under: ”If the accused refuses to plead, or does not plead or claims to be tried or is not convicted under section 270, the Judge shall fix a date for the examination of the witnesses and may on the application of the prosecution issue any process for compelling the attendance of any witness or the production of any document or other thing.” By any norms of interpretation, the provisions extracted herein above, do require an application to be made by the prosecution in the event of compelling the attendance of any witness. As already pointed out herein-above, there is nothing on record to show that any such application was made by the prosecution, least of all by the complainant/petitioner. As regards the Rules for guidance of Subordinate Court, I do not find any Rule laying down the preposition that it is obligatory on the part of the trial court to compel the attendance of the witnesses in all events and circumstances. Even if there were any such provision in these Rules, the same could not have any overriding effect on the provisions of Section 271 of the Code of Criminal Procedure. Therefore, this contention appears to be fallacious on the face of it.……….. Whatever the status of the witnesses, official or unofficial, it is for the prosecution to ensure that the attendance is procured either on its own or by invoking the assistance of the court. Any contrary view would be casting an undue obligation on the trial courts, un-supported by any law or Rules, even in cases where the assistance of the court is not sought or required by the interested party.” (underlining by me)

25. It appears from the perusal of the present case that cross FIRs came to be registered by the appellant and respondent no. 2, with respect to the same occurrence. The appellant pursued the proceedings as an accused, which were launched by respondent no. 2 against him in the court of CJM Shopian, but he never enquired about the proceedings launched by him against respondent no. 2, with respect to the same occurrence.

26. It is case of the appellant that he came to know about the status of the challan filed in the trial Court only in the month of December-2021, when he appeared in the counter case titled „State Vs Abdul Hameed Sheikh‟, where he is an accused and respondent no. 2 happened to be the complainant. It is surprising that appellant was pursuing the proceedings of the counter case against him, filed at the instance of respondent no. 2, but he never enquired about the status of the proceedings, launched at his instance in the same complex.

27. The facts of the present case reminds me of an old age maxim “Vigilantibus non-dormientibus jura subveniunt” means “the law aids the vigilant, not those who sleep over their rights”. In other words, law confers rights on those who are vigilant about their rights and nobody can take his own sweet time to seek reliefs, as only „creaking wheels get oil or crying babies‟ milk‟. It is only those who are vigilant about their rights are entitled to the benefit of law. Since appellant in the present case was not vigilant about pendency of proceedings launched at his behest and did not choose to appear as prosecution witness in the trial court despite due service of summons upon him, therefore, he cannot be heard to say at this length of time that learned trial Court failed to follow the procedure for service of summons upon the prosecution witnesses under Chapter VI Cr.P.C.

28. For what has been observed and discussed above, I do not find any illegality or impropriety in the impugned judgement of acquittal passed by the trial court. Hence, the present appeal being bereft of merit is dismissed and impugned judgement is upheld. ; SRINAGAR 01.04.2024 Hilal Ahmad (RAJESH SEKHRI) JUDGE Whether the judgment is speaking: Whether the judgment is reportable: Yes Yes