IN REFERENCE Vs. STATE OF C G

JUDGEMENT

(1.) THIS is a reference made by Learned 8th Additional Sessions Judge, (Fast Track Court), Durg under Section 395(2) of the Code of Criminal Procedure, 1973 (for short 'Code').

(2.) FROM perusal of the record of the court below it appears that a miscellaneous case was registered on the basis of memo dated 9.1.2004 of the District & Sessions Judge, Durg in compliance of memo dated 4.12.2003 of this Court, as certain complaints were received in the High Court that conviction of convict Nand Kishore Khandelwal under Sections 450, 366, 376, 324 and 342 of the Indian Penal Code (for short "IPC") and sentence of R.I. for 1 year, R.I. for 3 years, R.I. for 3 years, R.I. for 6 months and fine of Rs. 500/- recorded by the Additional Sessions Judge, Durg in S.T. No. 35/76 was confirmed by the High Court in Criminal Appeal No. 804/76 and subsequently, S.L.P. (Criminal) No. 631/ 1979 was further dismissed by the Hon'ble Supreme Court on 9.2.1994. However, convict Nand Kishore has not surrendered for undergoing the substantive sentence imposed upon him. The original record of Sessions Trial No. 35/76 was received in the Sessions Court, however, the same is not traceable in the record room of the District Court and the same is not likely to be traced. Notice was issued to convict Nand Kishore on 24.12.2005 whereupon he appeared before the trial court on 4.3.2006 through his advocate and his advocate was directed to keep the convict present on each date. However, on the prayer of Nand Kishore that he is not getting justice and he intends to file transfer petition, the proceeding was adjourned for 19.12.2006. On 19.12.2006 no stay order was produced by convict Nand Kishore and an application for exemption from personal appearance on that date was filed, which was rejected by Learned Additional Sessions Judge and warrant of arrest was directed to be issued. The trial court has also observed that original record of Sessions Trial No. 35/76 is not available and there is no likelihood of tracing the above record and in this circumstance the preparation of execution warrant in the absence of original record would be contrary to the Rule 384 of the Chhattisgarh Rules and Orders (Criminal) (for short "Rules") and as such illegal. It has been further observed that Rule 389 provides that warrant and its endorsement must be signed in full by the presiding officer of the court, as the presiding officer is responsible for the correctness of the warrant and he is bound to satisfy himself that it is correct before signing it. Further referring Rule 575 it has been observed that in the register of miscellaneous proceeding only the cases enumerated under Rule 575 are to be entered and without the order of High Court no addition shall be made thereof and therefore, this case cannot be registered without permission of the High Court in the register of miscellaneous proceeding. With these observations following questions have been raised by way of reference under Section 395 (2) of the Code;

(3.) LEARNED Additional Sessions Judge after referring Rule 384 of the Rules has observed that preparation of warrant of execution against the convict in the absence of original record would be contrary to the Rule 384 and as such illegal. Rule 384 only mentions that warrant of execution is to be prepared invariably from the original record and never under directions orally given by the presiding officer. Original record mentioned in this rule necessarily implies only the judgment delivered by the trial court by which the accused has been sentenced and it only mandates that the warrant is to be prepared only on the basis of final judgment passed by the trial court and never under directions orally given by the presiding officer. Where any party to the proceedings prefers an appeal and the same is finally adjudicated by the superior court, the original judgment merges in the judgment of the superior court. After any accused is finally convicted and sentenced by the Supreme Court, the only duty to be discharged by the trial court is to ensure that convict undergoes the sentence finally imposed upon him.