Accused Not Getting Proper Legal Assistance, His Counsel Being Threatened Not Grounds To Make Reference To High Court U/S 395 CrPC: Jammu & Kashmir HC
The Jammu and Kashmir and Ladakh High Court has recently observed that provision of Section 395 CrPC for making a reference to the High Court cannot be invoked merely because the accused is not getting any proper legal assistance or that his counsel has been threatened.Justice Pankaj Mithal observed:"Reference can be made to the High Court by the Session Judge only in the following...
The Jammu and Kashmir and Ladakh High Court has recently observed that provision of Section 395 CrPC for making a reference to the High Court cannot be invoked merely because the accused is not getting any proper legal assistance or that his counsel has been threatened.
Justice Pankaj Mithal observed:
"Reference can be made to the High Court by the Session Judge only in the following two contingencies: (a) Where in a pending case before the Session Court a question as to the validity of any provision of any Act, Ordinance or Regulation is involved or if any such provision in the opinion of the court is invalid or inoperative but has not been so declared by the High Court and the Supreme Court; and (b) Where any question of law arises for consideration."
The Court was hearing a criminal complaint pertaining to the incident of death dated 31.01.2010 of one Wamiq Farooq that was first pending consideration before the Second Additional Sessions Judge, Srinagar. On account of the threat perception, the 2nd Additional Sessions Judge, Srinagar, referred the matter to the Principal District & Sessions Judge, Srinagar, with the request that the case may be transferred to some other court.
The Principal Sessions Judge, vide order dated 31.12.2015 had referred the matter to High Court as a reference in exercise of powers under Section 395 CrPC. In the reference order, it was mentioned that the accused orally submitted that the counsel engaged by him has been threatened and he is not having any legal assistance.
The Court noted that a reading of sub-section (1) of Section 395 Cr. P. C. would reveal that the court can make a reference to the High Court on being satisfied that the matter pending before it involves a question as to the validity of any Act, Ordinance or Regulation or of any provision thereof which may be necessary for disposal of the case before it or any provision of such Act, Ordinance or Regulation is invalid or inoperative but has not been so declared by the High Court to which the said court is subordinate or by the Supreme Court, provided reasons are recorded for making such a reference to the High Court.
Further the Court said Sub-section (2) of Section 395 Cr. P. C. provides that the court of Session's may also make a reference to the High Court if it thinks fit that in any case pending before it question of law arises for consideration. In other words, under the aforesaid provision, only on a question of law arising that the matter may be referred to the High Court.
Court said that the reference order nowhere stated that the present case involves any question as to the validity of any Act, Ordinance or Regulation or any provision thereof or that in the opinion of the court any such Act, Ordinance, Regulation or any provision thereof is invalid or inoperative or that the matter pending before it involves a question of law which requires a decision by the High Court. In the absence of any such statement, there cannot be a reference to the High Court by the Session's Court, Court said.
In view of the above circumstances, the court was of the view that the reference in question is clearly outside the purview of Section 395 Cr. P. C (new) or Section 432 Cr. P.C. (old) and is not maintainable. Accordingly, the plea was disposed of and the record was directed to e returned to the Principal Sessions Judge, Srinagar, to proceed further in the matter in accordance with law.
Case Title: Farooq Ahmad Wani v. Abdul Khaliq
Citation: 2022 LiveLaw (JKL) 44