(1.) Learned Counsel for the petitioner, learned Government Advocate for the State and learned Counsel appearing for son of the deceased informant have been heard on several dates.
(2.) This is an application under section 482 of the Code of Criminal Procedure (hereinafter referred to as "the Code") seeking quashing of order dated 8.7.2004 passed by Fast Track Court-I, Siwan in Sessions Trial No. 33 of 1979 whereby the Trial Court has ordered for reconstruction of records of the Court relating to the aforesaid sessions trial because the original records are misplaced/lost.
(3.) Before considering the submissions on behalf the petitioner who is one of the accused in the pending sessions trial of the year 1979, it is necessary to keep in sight certain relevant material facts. These relevant facts have been gathered from the attached records of two criminal writ petition bearing Cr. W.J.C. No. 486 of 1986 disposed of on 23.6.1993 and Cr. W.J.C. No. 283 of 2003 disposed of on 15.4.2005. The facts furnished by the accused petitioner in this quashing application are clearly inadequate and hence the records of the connected matters earlier disposed of by this Court had to be perused to find out whether, in the facts of the case, it would be appropriate to exercise extraordinary inherent powers of this Court under section 482 of the Code.
(4.) Criminal Writ Petition bearing No. 486 of 1986 was filed on behalf of seven accused persons including this petitioner seeking quashing of their prosecution in this case arising out of Basantpur P.S. Case No. 1 (6) 74 (Sessions Trial No. 33 of 1979) under sections 147, 148, 149 and 302 of the I.P.C. and under sections 25-A and 26 of the Arms Act on the ground of ino
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rdinate delay in concluding the trial resulting in violation of right to speedy trial guaranteed under Article 21 of the Constitution of India. The records disclose that the writ petition has probably been destroyed due to passage of time but order-sheet and memo No. 2148 dated 13.3.1987 and the final judgment dated 23rd June, 1993 are still available. The judgment discloses that the Division Bench hearing the writ petition came to a finding that three murders were allegedly committed by the accused persons and the delay was attributable also to the petitioner of that case. The Court further found that after the last prosecution witness No. 14 had been examined and the prosecution evidence was closed on 19.11.1986 a criminal revision petition filed by one co-accused Bachha Singh bearing Cr. Revision No. 1433/ 1986 was disposed of on 9.12.1986 with a direction to the Trial Court to recall the Investigating Officer for further cross-examination, if petition is filed for the same but apparently no such petition was subsequently filed. The Division Bench further noticed that when the pros-ecution evidence was closed on 19.11.1986 the seven accused persons as petitioners filed the criminal writ petition on 4.12.1986 on the ground that trial was being delayed and obtained stay which continued for more than 6-1/2 years. The Division Bench did not find any merit in the submission that the trial be quashed on the ground of inordinate delay and hence instead of quashing the prosecution, relying upon judgment of the Supreme Court in Abdul Rahman Antulay's case, a direction was given to the Trial Court to conclude the trial within four months from the date of receipt of the concerned records. In that judgment this Court noticed that the entire records of Sessions Trial No. 33 of 1979 has been sent to this Court with letter No. 75 dated 8.5.1987 by the then 2nd Additional Sessions Judge, Siwan hence a direction was given by the Court to send back the entire records of the Trial Court forthwith.
(5.) From the records of Cr. W. J.C. No. 283/03 it appears that the said writ petition was filed on 22nd September, 2003 by son of the deceased informant for a direction to the Trial Court to expedite and conclude the Trial No. 33/79/172/1987 arising out of Basantpur P.S. Case No. 1 (6) 74 (at places wrongly typed as Basantpur P.S. Case No. 16/74). From the materials on record of that case this Court noticed that the trial had been delayed because the original records of the Trial Court had been missing and had apparently not been received back by the Trial Court after disposal of Cr. W. J.C. No. 486/1986 vide judgment and order dated 20.7.1992. This Court got an enquiry made by the Registrar General of this Court and simultaneously an enquiry was held at Siwan. It transpired from the report of the Registrar General dated 4.10.2005 (sic) and the registers that the entire original records of the Trial Court had been sent back vide letter No. 1744 (R) dated 14.5.1990 but this fact was not intimated to the Trial Court through a separate letter. The supplementary record containing further order sheets of the Trial Court were returned after disposal of Cr. W.J.C. No. 486 of 1986 vide letter No. 335 BR dated 23.7/1993. The enquiry- at Siwan was kept open by the District: and Sessions Judge in the hope that: the records may be found but the reports disclosed that there was no possibility of the records being located either in this Court or in the lower Court in near future. Hence by an order dated 6.4.2005 the Trial Court was directed to proceed with the trial on the presumption that records have been misplaced and cannot be located. The Trial Court was directed to take the required steps for reconstruction of the relevant records so that trial may begin without any delay, preferably within two months from the date of production/communication of a copy of that order.
(6.) The order dated 6.4.2005 passed in Cr. W.J.C. No. 283 of 2003 discloses that this Court found certain facts to be intriguing. It was noticed that in Cr. W.J.C. No. 486 of 1986 the Court ordered for calling the entire order sheet only on 18.12.1992 and hence it was not clear how the original records came from Trial Court at Siwan to this Court in the year 1987 and how they were returned in 1990 when the writ petition was still pending. Hence, the matter was ordered to be listed again on 15th April, 2005 and the Registrar General was directed to depute a responsible person along with registers and records. The order dated 15.4.2005 discloses that the Deputy Registrar (Criminal) explained the relevant facts with reference to the concerned registers. It transpired that on 12.3.1987 an interim order was passed in Cr. W.J.C. No. 486 of 1986 staying further proceedings in Sessions Trial -No. 33/79. The format whereby the interim order was communicated contained a request for sending the lower Court records. Subsequently, the office allegedly realised the mistake and sent back the lower Court records vide memo No. 1744 (R) dated 14.5.1990. Since the records had not reached the Trial Court hence the writ petition was disposed of finally on 15.4.2005 directing the Court below to take the required steps, as per earlier order, for reconstruction of the relevant records so that trial may begin without any delay, preferably within two months as mentioned in order dated 6.4.2005. The District and Sessions Judge was directed to hold an enquiry to fix responsibility for loss of records at Siwan and for proper action.
(7.) Corning to the submissions advanced on behalf of the petitioner in this case, the impugned order of the Trial Court dated 8.7.2004 was assailed on the ground that the Trial Court has wrongly held that missing original records of the Trial Court should be treated to have been lost and further in any case it has no power to order for reconstruction of the records. In particular it was submitted that the accused cannot be forced to help in reconstruction of records, charges cannot be re-framed even for the purpose of reconstruction and the accused persons who are already on bail cannot be asked to furnish fresh bail bonds on the ground that bail bonds available in the original records are lost. Although there is no prayer in this application for quashing the prosecution of the petitioner but learned Counsel for the petitioner made a submission to that effect also on the ground of delay in disposal of the trial.
(8.) Learned Government Advocate appearing on behalf of the State submitted that no doubt the inherent power under section 482, Cr. P.C. explicitly saves the inherent powers only of the High Court and not of the subordinate Court to make such orders as may be necessary to give effect to any order under the Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice, it cannot be inferred on the basis of section 482 of the Code that Subordinate Criminal Courts, when confronted with a situation where the original records are lost in transit or cannot be traced otherwise, ate totally helpless and cannot resort to permissible ways and means to reconstruct its own records.
(9.) According to learned Government Advocate the Sessions Court has statutory power as well as duty to try all sessions trials in accordance with provisions under the Code particularly sections 225 to 235 contained in Chapter XVIII which emphasise that the Sessions Court after framing charges and recording evidence has to hear arguments and pass a judgment of acquittal or conviction. This power or duty is explicitly provided under various provisions of the Code of Criminal Procedure. Once the substance is provided by law, the ancillary or incidental powers cannot be denied to the Court such as requirement to record the deposition eligibly, to preserve the records properly and in case the records are lost or misplaced to take all possible steps within the bounds of law to reconstruct the records so that the statutory duty cast upon the Criminal Courts may be carried out without hindrance by accidental or deliberate misplacement or loss of records. He stressed that such duty of the Criminal Court is in fact an administrative duty and no judicial order in any formal sense of the term "order" need be passed.
(10.) Learned Government Advocate placed reliance upon section 65 (C) of the Indian Evidence Act to point out that Courts are permitted to take secondary evidence when the original document has been destroyed or lost. He referred to commentary in the celebrated book "Sarkar on Evidence" under the heading section 65 (C).- Lost records and its reconstructions. The commentary refers to several judgments of different Courts in which a consistent view has been taken that a Court has inher-ent power to reconstruct its records when they have been lost or destroyed. Reference may be made to cases of Rajgir v. Iswardharik Saraswatibai v. Md. Idrakuddin: Gooroo Dyal v. Durbaree and Marakarutti v. Veeran Kutti.
(11.) The consistent and considered view appears to be that if original records are lost from the custody of Court to formal proof of loss is necessary. As held in the case of Harijiwan Sahu v. Jairam Sahu, when a Court looses its record for any reason such as on account of accident, rebellion etc. it has inherent power to reconstruct them. The method of reconstruction being by means of affidavits, counter-affidavits, hearing of witnesses, admission of copies and so on.
(12.) This Court is conscious of the submission advanced on behalf of the petitioner that as held by the Supreme Court in the case of Bindeshwari Prasad v. Kali Singh, there is no provision in the Code empowering Subordinate Courts with inherent power as saved for the High Court under section 482 of the Code. But the word "order" contemplated under section 482 of the Code must be construed as an order on the judicial side deciding issues between the parties or disposing of the Court proceeding one way or the other so as to consciously affect the rights of the parties. The ancillary and incidental powers of the Court to take necessary steps to maintain its records or to reconstruct the same may require passing of some orders but such orders cannot be treated to stand on the same footing as judicial orders discussed above. Though a party may feel aggrieved on account of reconstruction of records but strictly in law an order of reconstructing the record cannot be treated to be a judicial order covered by provisions of section 482 of the Code. Such ancillary and incidental power is essentially administrative in nature and must flow out of the statutory powers explicitly provided under the Code for disposing of a criminal trial in the prescribed manner. To do the same and discharge its statutory obligations, the Subordinate Criminal Courts must, out of necessity have such ancillary and incidental powers so that they can reconstruct their lost or destroyed records in accordance with law. Thus, in a limited sense, as explained above, the Subordinate Criminal Courts like any other Court must have inherent power to take required steps for reconstruction of its lost or misplaced records. To this extent the submissions of learned Government Advocate are found fit to be accepted.
(13.) Once it has been found and held that the Court below has the necessary power to order for reconstruction of its lost records, nothing much remains to be decided in this case. So far as specific objections of learned Counsel for the petitioner are concerned, it is sufficient to point out that charges can be framed, re-framed at any stage of the trial asking for fresh bail bonds for the purpose of reconstruction of records does not affect the rights of the petitioner or any accused and there is no violation of any right of the accused or of Article 21 of the Constitution of India, if the Trial Court makes a request to the parties to co-operate in reconstruction of lost records. While considering such submissions, it is useful to keep in mind the provisions of sections 461, 462, 464 and 465 of the Code which show that only irregularities by a Magistrate as specified in section 461 of the Code which show that only irregularities by a Magistrate as specified in section 461 of the Code can vitiate the judicial proceeding. There is no list of any such irregularities by a Court of Sessions which may vitiate the entire proceeding. Thus, this Court is of considered view that this application under section 482 of the Code is without any merit and deserves to be dismissed as such. Apparently, it has been filed only to delay the trial which even according to the Division Bench Judgment given in this case in 1993, has been delayed, systematically. The present application is found to be another attempt to use the system as a means of creating further delay in the trial.
(14.) Another important aspect in this particular case must be indicated. Even if for the sake of arguments it be presumed that the Subordinate Criminal Court could not have passed the impugned order on account of lack of power, it may not be appropriate and proper to interfere with such order in exercise of extraordinary inherent jurisdiction when in exercise of writ jurisdiction this Court has already issued a direction for reconstruction of the lost records vide order dated 6.4.2005 in Cr. W.J.C. No. 283 of 2003. The criticism on behalf of the petitioner that the said order was passed behind the back of the petitioner or other accused is without any substance because nothing was prayed against the accused persons so as to warrant their being made parties to that writ petition and even after coming to know of that order in April/May, 2005 the accused persons have not even attempted to seek any review or modification.
(15.) It may be useful to refer to judgment of the Supreme Court in the case of Ramankutty v. Avara in which it has been observed that procedure unless it touches upon jurisdictional issue should be moulded to sub-serve substantial justice and in another recent judgment in the case of Zahira Habibullah Sheikh v. State of Gujarat, the Apex Court has again observed:- "trial should be a search for truth and not a bout over technicalities."
(16.) In view of aforesaid discussions this application is found to be without any merit. It is dismissed accordingly.
(17.) Before parting with the judgment this Court has come to a tentative opinion that some disturbing aspect relating to sending of Trial Court records from the office of this Court were not properly appreciated by me while looking into the register etc. and disposing of Cr. W.J.C. No. 283 of 2003. By order dated 15.4.2005 a direction was given to the District and Sessions Judge to hold an enquiry and fix responsibility for loss of records at Siwan and take proper action. This Court is now of the view that the records might have been misplaced even in the office of this Court and it may be the result of conspiracy to delay the trial to benefit the accused persons. Hence, this record along with records of Cr. W.J.C. No. 283 of 2003 be placed under the heading to be mentioned after 8 weeks at 2.15 p.m. in Chambers. In the meantime a further report should be obtained by the Registrar General of this Court from the District and Sessions Judge, Siwan whether the records have been traced out or not or whether responsibility for loss could be fixed on the basis of receipt registers of the relevant year. On the next date the Deputy Registrar (Criminal) should be present with all the relevant registers and records from the office of this Court which were produced before me on 15.4.2005 at the time of final disposal of Cr.W.J.C. No. 283 of 2003 so that this Court may decide whether it is necessary and desirable to initiate a criminal investigation in respect of loss of the Trial Court's records. Application dismissed