Sr. No.

129
Supp. List
IN THE HIGH C0URT 0F JAMMU & KASHMIR AND LADAKH
AT SRINAGAR

Crl R 10/2024

Mohammad Sultan Najar …Appellant(s)/Petitioner(s)

Through: Mr. Ruaani Ahmad Baba, Advocate

Vs.
Union Territory through Police Station ...Respondent(s)
Parimpora
Through: Mr. Mohsin Qadri, Sr. AAG with
Ms. Nadiya, Advocate
CORAM:
HON’BLE MR. JUSTICEJAVED IQBAL WANI, JUDGE

ORDER
29.04.2024

1. The instant revision petition order dated 28th February, 2024 (for

short the impugned order) is under challenge passed by the FastTrack

Court for POCSO Cases Srinagar (for short trial court) in a case titled

“U/T through Police Station Parimpora Vs. Mohammad Sultan

Najar”.

2. Facts giving rise to the filing of the instant petition reveal that the

accused petitioner herein is facing trial in case titled as“U/T through

Police Station Parimpora Vs. Mohammad Sultan Najar”for

commission of offences under Section 363, 376 of IPC read with

sections 3/5(l) of the POCSO Act 2012, before the trial court, wherein

the prosecution led its evidence in support of the case set up by it

against the accused petitioner herein, whereafter an application came

to be filed by the accused petitioner herein on 22nd February, 2024

seeking leave of the court to enter upon defense in terms of Section

233 of the Code of Criminal Procedure, in that, the accused was not

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Criminal Procedure. The said application, however, came to be

rejected by the trial court in terms of order dated 28th February, 2024

holding that the application does not mention purpose for which the

witnesses are required to be summoned by the Court, however,

permitted the counsel for the accused petitioner herein to produce all

defense witnesses he wishes to produce on his own.

Heard learned counsel for the parties and perused on record.

3. Learned counsel for the petitioner while making his submissions

would contend that the trial court passed the impugned order in breach

and violation of Section 233 of Cr.P.C and in the process denied an

opportunity of the fair trial to the accused petitioner, whereas o the

contrary counsel for the respondents would submit that the impugned

order has been passed rightly and legally by the trial court.

4. Before proceeding to dealwith the rival submissions of the appearing

counsel for the parties, a reference to Section 233 Cr.P.C becomes

necessary hereunder:

Section 233
“(1) Where the accused is not acquitted under Section 232, he
shall be called upon to enter on his defense and adduce any
evidence he may have in support thereof.
(2)If the accused puts in any written statement, the Judge shall
file it with the record.
(3)If the accused applies for the issue of any process for
compelling the attendance of any witness or the production of
any document or thing, the Judge shall issue such process
unless he considers, for reasons to be recorded, that such
application should be refused on the ground that it is made for
the purpose of vexation or delay or for defeating the ends of
justice.”

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Apex Court in a series of judgments including in case titled as “Satbir

Singh & Anr. Vs State of Haryana & Ors” reported in AIR 2021 SC

2627 as also in case titled as “Natasha Singh Vs. CBI (State)”

reported in 2013 (5) SCC 741, wherein it has been held that once the

trial court decides that the accused is not eligible to be acquitted as per

the provisions of Section 232 Cr.P.C, it must move on and fix hearing

specifically for the defense evidence calling upon the accused to

present his defense as per the procedure provided under Section 233

Cr.P.C, which is an in valuable right provided to the accused and that

existence of such procedural right cohesively sits with rebuttable

presumption as provided under Section 113-B of the Evidence Act. It

has been further held by the Apex Court in the judgment supra that

fair trial is the main object of criminal procedure and that it is the duty

of the court to ensure that such fairness is not hampered or threatened

in any manner and that fair trail entails the interest of the accused,

victim and of the society and, therefore, fair trial includes the grant of

fair and proper opportunities to the person concerned, and the same

must be ensured as this is a constitutional as well as a human right and

thus under no circumstances, can a person’s right to fair trial be

jeopardized and that adducing evidence in support of the defense is

valuable right and denial of such right would amount to the

denial of a fair trial and thus it is essential that the rules of

procedure that have been designed to ensure justice must be

scrupulously followed, and that the court must be zealous in

ensuring that there is no breach of the same.

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in the judgments supra and reverting back to the case in hand, the

perusal of the application filed by the accused/petitioner herein,

whereunder impugned order has been passed by the trial court

manifestly tends to show that the accused has spelt out the details of

the witnesses he intended to enter upon by way of defense against the

case set up by the prosecution and had in that regard sought

assistance of the Court for summoning of the said witnesses. The trial

court, however, seemingly has not considered the said application of

the accused-petitioner is correct perspective inasmuch as has

overlooked the provisions of law referred in the preceding paras.

6. The impugned order in view of above, thus is found to be legally not

sustainable. Accordingly, petition is allowed and impugned order is

set aside, as a consequence whereof the application filed by the

accused petitioner herein is allowed with a direction to the trial court

to proceed further in the matter in accordance with law.

7. Disposed of.

(JAVED IQBAL WANI)

SRINAGAR
29.04.2024
ARIF

Whether the order is reportable? Yes/No

Whether the order is speaking? Yes/No

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