BOURA Vs. STATE OF M P

JUDGEMENT

(1.) THE case, though registered on 24. 1. 2002 is, in essence, a reference under Section 318 of the Code of Criminal Procedure (for short 'the code'), made by First Additional Sessions Judge, Raisen, by way of an observation made by him in paragraph 59 of a common Judgment passed as early as on 27. 9. 1989 in ST. No. 131/84 and 95/86.

(2.) INDISPUTABLY, the accused Baura (hereinafter referred to as 'the accused')is a congenitally deaf and dumb person. He was one amongst the eight persons who were jointly tried upon the charges of the offences punishable under Sections 148 and 302 and in the alternative 302 read with 149 of the IPC. On an appraisal of the evidence on record, the learned trial Judge came to the conclusion that only two of them viz. co-accused Prahlad Singh and the accused were involved in the joint assault resulting into death of Halkori but, according to him, they only shared a common intention to cause grievous hurt by means of lathies. He, accordingly, convicted Prahlad Singh of the offence punishable under Section 325 read with 34 of the IPC and sentenced him to undergo R. I. for 3 years and forwarded the case of the accused to this Court with the observation that, in his opinion, no separate report (presumably formal reference) was necessary. The unfortunate consequence was that, in absence of a formal order of reference, it remained unnoticed for a considerable period and cognizance of it could be taken by a coordinate Bench of this Court while deciding Prahlad's appeal, registered as Cri. Appeal no. 959/89 vide judgment dated 23/10/01. However, in accordance with the direction contained therein when the record of the appeal was placed before another Bench for consideration on reference, it took the view that no further proceeding was permissible in the appeal and directed to place record of the appeal along with the record of reference (that was yet to be registered) before the appropriate Bench.

(3.) IT is true that the procedural error of technical nature was not fatal yet, the non-observance of the prescribed procedure for making a reference under Section 318 of the Code had resulted into an inordinate delay in the hearing of this reference. All that can be said is that it is a sad reflection of the system of administration of justice that the reference is being heard after a period of more than 19 years.