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2018 Supreme(J&K) 9
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Sanjay Kumar Gupta, J.
Hans Raj Parihar – Petitioner
Versus
State of J&K – Respondent
CRTA No.28, 29, 30 of 2016 & MP Nos.01, 02, 03 of 2016 c/w BA No. 21, 20, 19 of 2017 & MP No.01 of 2017
Decided On : 29-01-2018
For the Petitioner:Mr. B.S. Salathia, Sr. Advocate with Ms. Meenakshi Salathia, Advocate, Mr. Daljeet Singh Manhas, Advocate.
For the Respondent:Mr. Raman Sharma, Dy.A.G, Mr. Vipin Gandotra, Advocate
The main legal point established in the judgment is the Constitutional guarantee of a fair and speedy trial under Article 21, and the court's authority to transfer criminal cases under Section 526 of Cr.P.C.
Headnote:
Transfer of Criminal Cases - Fair and Speedy Trial - Section 526 of Cr.P.C - [FAIR AND SPEEDY TRIAL] - [CRIMINAL CASE TRANSFER] - [Section 526 of Cr.P.C] - The court considered the continuous turmoil of protests, curfew, shut-down, and Hartals in Kashmir, and ruled that fair and speedy trial was not possible. It emphasized that speedy trial is a part of reasonable, fair, and just procedure guaranteed under Article 21, and that this Constitutional right cannot be denied in any eventuality. The court also highlighted the withdrawal and transfer of two challans arising from FIR nos. 4/2007 and 6/2007 pending before Sessions Judge, Srinagar to Pr. Session Judge, Jammu for further proceedings, and the dismissal of the transfer application for the case in FIR no. 52/2006 pending before Sessions Judge Bandipore due to the inconvenience it may cause to local witnesses.
Fact of the Case:
The applicants filed criminal transfer applications seeking transfer of criminal cases from Sessions Courts in Kashmir to Courts of competent jurisdiction at Jammu, citing the inability to have a fair, expeditious, and speedy trial due to continuous turmoil, protests, and other factors affecting the progress and speed of the trial. The applicants had been in judicial lockup for over ten years, and the prosecution was still in the process of leading evidence after a significant period.
Finding of the Court:
The court found that fair and speedy trial was not possible in the current circumstances in Kashmir, emphasizing the Constitutional guarantee of a fair and speedy trial under Article 21. It ruled to withdraw and transfer two challans to Pr. Session Judge, Jammu for further proceedings, while dismissing the transfer application for the case in FIR no. 52/2006 due to potential inconvenience to local witnesses.
Issues: The main issue was the inability to have a fair, expeditious, and speedy trial due to continuous turmoil, protests, and other factors affecting the progress and speed of the trial in Kashmir.
Ratio Decidendi: The court emphasized the Constitutional guarantee of a fair and speedy trial under Article 21 and ruled to withdraw and transfer two challans to Pr. Session Judge, Jammu for further proceedings, while dismissing the transfer application for the case in FIR no. 52/2006 due to potential inconvenience to local witnesses.
Final Decision: The court disposed of the three transfer applications accordingly, withdrawing and transferring two challans to Pr. Session Judge, Jammu for further proceedings, and dismissing the transfer application for the case in FIR no. 52/2006. It also transferred three regular bail petitions to respective courts for decision and extended the interim bail for the petitioner.
1. The applicants-Hans Raj Parihar and others have filed three criminal transfer applications under Section 526 of the Code of Criminal Procedure, Svt. 1989, for seeking transfer of the criminal challan/cases titled State V/S Hans Raj Parihar and others from the Sessions Courts situated at Kashmir province to any Courts of competent jurisdiction at Jammu.
2. In these petitions, it has been stated that they are facing trial along with other accused for offences under section 364, 302 and 120-B RPC, in two cases before Sessions Judge, Srinagar and one before Sessions Court at Bandipur, Kashmir.
3. It is stated in Cr.T.A No.30/2016 that the applicants herein along with the proforma-Non-applicants who belong to the J&K Police Department, are facing criminal trial for the charge under Sections 302, 364 and 120-B, RPC in the case titled State V/S Hans Raj Parihar & Ors., being File No. 67/B and 53/B/Sessions, in the Court of learned Sessions Judge, Bandipur. The aforesaid Criminal Challan owes its genesis to the FIR No. 52/2006 of P/S Sumbal registered on 14.3.2006, investigation whereof culminated into the filing of the charge sheet by the Police in the Court of learned CJM Sopoor, who committed them to the Court of Sessions Bandipur, where the learned Sessions Judge, framed charge against them and directed the prosecution to lead evidence. The prosecution is leading evidence and is still in the process of leading the evidence for last ten years and the applicants continue to be in the judicial lock up for last more than ten years now and they are languishing in the jail. It is further stated that after the last date of hearing held in the month of June, 2016, the next date of hearing was fixed on 9th July, 2016 by the trial Court for recording the statements of prosecution witnesses, but in view of the present continuous turmoil of protests, curfew, shut-down and Hartals for last four months, following the killing of the militant commander Burhan Wani, in Kashmir, no next date has been fixed nor conveyed in as much as the applicants/under trials have not been taken to the trial court in the said criminal case. That there are seven accused persons, including the applicants herein are facing the trial in the aforesaid case, however, the remaining two accused persons namely Farooq Ahmad Gudoo and Farooq Ahmad Padder (Accused no. 3 and 4) have not been able to join as Applicants-parties to the present Transfer Application, owing to the present turmoil going on in Kashmir, as such, they have been accordingly impleaded/arrayed as Proforma Non-Applicants 2 and 3, to the present Transfer Application. It is further stated that the present Criminal Transfer Application is being filed by the petitioners herein through their next friends (excepting the petitioner no. 4, who belongs to Ganderbal), as all the petitioners are interested parties and are presently lodged in Judicial Custody at Central Jail, Srinagar, as accused, in connection with the trial of the aforesaid criminal case. Applicant had got their Vakalatnama attested from the Jail Authorities but the present Transfer Application prepared thereafter could not be got attested because of the present situation, hence the same is signed and affidavits filed in support thereof by their next friends/wives, excepting the Non-Applicant No. 4, as no family member from his family has been in a position to travel to Jammu from Ganderbal, because of the present protests prevailing in Kashmir. That though the Applicant has been guaranteed a fair, expeditious and speedy trial under Article 21 of the Constitution of India but in the case of the Applicant the said Constitutional Guarantee has remained a dream only which is self-evident from the fact that it is almost ten years since the charge was framed by the trial court and the prosecution is yet to lead and complete its evidence. It is further stated that the frequent and long spells of protests, Bandhs and Hartals in Kashmir in the yea
