Dismissed

Mohd.Rafiq v. State Th.S.S.P.Poonch and Ors.

J&K HC3 Sept 2021APPCR/17/2012

Case brief

AI extract

What is this about?

This judgment allows the High Court bench to consider the appeal filed under Section 561-A Cr.P.C regarding the recall of notice and warrants. The court holds that while the trial court lacks power to recall judgments under Section 369, issuing notices and warrants against non-accused without jurisdiction was illegal, justifying the recall. The appeal is dismissed without prejudice to the pending

What did the court decide?

The present petition and connected applications are dismissed; the impugned order of recall is upheld.

Mohd.Rafiq Vs State Th.S.S.P.Poonch and Ors. — Criminal Trial and Appeal | J&K HC (2021)

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S. No. 27

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HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU

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APPCR No. 42/2017 c/w APPCR No. 17/2012 CRMC No. 180/2012 IA No. 202/2012 CRMC No. 617/2016 IA No. 1/2016 CRMC No. 521/2017

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Mohd. Rafiq

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...Appellant/Petitioner(s)

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Through :- Mr. R. P. Sharma, Advocate Mr. R. K. Kotwal, Advocate in CRMC No. 617/2016

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v/s

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Sarfraz Ahmed and others

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.....Respondent (s)

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Through :- Mr. Jamrodh Singh, GA for R-18 Mr. R. K. Kotwal, Advocate

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Coram: HON’BLE MR. JUSTICE RAJNESH OSWAL, JUDGE

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ORDER

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CRMC No. 180/2012

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Learned counsel for the petitioner seeks leave of this Court to withdraw the present petition.

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In view of this, the present petition along with connected IA is dismissed as withdrawn.

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CRMC No. 521/2017

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The present petition has been filed by the petitioner under section 561-A Cr.P.C (now 482 Cr.P.C) for assailing the order dated 30.11.2016 passed by the court of learned Sessions Judge, Poonch (hereinafter to be referred as trial court) by virtue

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NEHA KUMARI 2021.09.06 14:36 I attest to the accuracy and integrity of this document

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2 APPCR No. 42/2017

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c/w connected matters

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of which the learned trial court has recalled the warrants dated 25.10.2016 as well as notice issued to the non-applicant Nos. 1 to 17 dated 11.06.2015.

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The present petition has been filed by the petitioner primarily on the ground that once the learned trial court had issued notice as well as warrants, the same could not have been recalled, as the learned trial court has no power to review its own order.

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Mr. R. P. Sharma, learned counsel for the petitioner has reiterated the grounds taken in the petition.

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Mr. R. K. Kotwal, Advocate submits that the learned trial court has no jurisdiction either to issue notice or warrants against the proposed accused till they are formally arrayed as accused. Mr. Kotwal though supported the order impugned but has argued that the private respondents cannot be arrayed as an accused until or unless evidence has been recorded in their presence during trial. Mr. R. K. Kotwal, Advocate further submits that evidence must be legal.

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5. Heard and perused the record.

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From the record, it is evident that the learned trial court on the motion

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of the petitioner had issued a notice to the private respondents vide order dated 11.06.2015 and thereafter, vide order dated 25.10.2016 had issued warrants against the private respondents. After the private respondents laid a motion before the learned trial court, the learned trial court has recalled the said orders. The sole contention raised by the petitioner is that the learned trial court could not have recalled its order is misconceived.

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So far as section 369 Cr.P.C is concerned, the trial court cannot alter or recall the judgment once it has been announced except for the purpose of correcting

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NEHA KUMARI 2021.09.06 14:36 I attest to the accuracy and integrity of this document

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3 APPCR No. 42/2017 c/w connected matters

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the clerical errors. So far as issuance of notice and warrants is concerned, they both

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were without jurisdiction. Rightly so, the learned trial court has recalled both the orders. There is no illegality in the order impugned and the same is upheld. The application filed by the petitioner is still pending before the trial court and it is for the trial court to examine the material on record so as to find out as to whether there is any incriminating evidence against the private respondents that necessitate their arraying of accused during the pendency of challan.

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In view of this, the present petition is dismissed along with connected applications. Nothing stated herein above shall be considered as an expression of opinion on the merits of the case.

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CRMC No. 617/2016

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The present petition has been rendered infructuous in view of the order passed by the learned trial court. As such, the same is dismissed.

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(RAJNESH OSWAL) JUDGE

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JAMMU 03.09.2021 Neha

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Whether the order is speaking: Yes Whether the order is reportable: No

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NEHA KUMARI 2021.09.06 14:36 I attest to the accuracy and integrity of this document

Mohd.Rafiq v. State Th.S.S.P.Poonch and Ors.

Case brief

What is this about?

What did the court decide?

Mohd.Rafiq v. State Th.S.S.P.Poonch and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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Parties & counsel

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