HIGH COURT SOF JAMMU AND KASHMIR AND LADAKH

AT JAMMU

Reserved on 22.10.2021

Pronounced on 29.10.2021

CRM(M) No. 465/2019

CrlM No. 1123/2019

CrlM No. 1346/2019

Mohkam Din and others

.....Appellant/Petitioner(s)

Through :- Mr. M. A. Bhat, Advocate

v/s

State of J&K

.....Respondent(s)

Through :- Mr. Aseem Sawhney, AAG

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

JUDGMENT

1.

The petitioners are facing trial in the charge sheet, titled, State vs.

Mohkam Din and others, pending before the Court of Special Excise

Moble Magistrate, Jammu (hereinafter to be referred as the trial

court) for commission of offences under sections 452, 323, 325, 427,

336 and 149 RPC.

2.

The brief facts as narrated in the petition are that the prosecution

evidence was closed and after recording the statements of the

petitioners under section 342 Cr.P.C, the case was fixed for

arguments as the petitioners did not examine any witness in their

defence. It is further stated that when the counsel for the petitioners

was preparing the case, it came to his notice that complainant-Qasim

Din in his statement has stated that he had lodged an oral complaint

in the Police Station, Bahu Fort, Jammu with respect to the alleged

incident, however, according to the complainant, no action was taken

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by the Police on the said complaint. The counsel for the petitioners

asked the petitioners to verify from the said Police Station as to what

happened to the said complaint lodged by the petitioners on

03.03.2007 and the petitioners got the knowledge that oral complaint

was registered and the investigation was entrusted to the Incharge

Police Post, Narwal Jammu and thereafter, complaint under section

107/117 Cr.P.C. was filed before Executive Magistrate on

16.03.2007. It was also revealed that the said complaint was

dismissed and consigned to the records.

3.

Thereafter, the petitioners approached this Court under section 561-

A Cr.P.C. for directing the trial court to allow them to place on

record certain documents and summoning the witnesses like

complainant, the then SHO Police Station, Bahu Fort and

Investigating Officer in FIR No. 69/2007. However, the said petition

was dismissed by this Court with a liberty to the petitioners to lay a

motion before the trial court. Thereafter, the petitioners filed an

application under section 540 Cr.P.C. before the learned trial court

for permission to place on record copy of the complaint presented

before the Executive Magistrate, Jammu with regard to the alleged

incident stated to have occurred on 02.03.2007 and for calling SHO

Police Station, Bahu Fort, Investigating Officer of FIR No. 69/2007

dated 03.04.2007 lodged with the Police Station, Bahu Fort and the

complainant-Qasim Din.

4.

The said application of the petitioners was objected by the

respondents therein and ultimately the same was dismissed vide

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order dated 08.08.2018. The petitioners have impugned the order

dated 08.08.2018 in this petition on the following grounds:

(i)

That the trial court has dismissed the application on the ground

that the application was filed only to delay and prolong the

matter, whereas the fact remains that the trial court has spent

eleven years to record the prosecution evidence and the

prosecution evidence was closed on 02.08.2018. Thereafter,

the statements of the petitioners were recorded on 18.09.2018

and defence evidence was closed on 04.10.2018 because the

counsel for the defence stated that he did not want to produce

any evidence and the arguments were also heard in part by the

trial court.

(ii)

That since the complainant, Investigating Officer and SHO

concerned have not been cross-examined, questioned on the

above aspect and effect of the lodging or