STATE OF H.P. Vs. SUKHDEV SINGH

JUDGEMENT

(1.) THE present reference has been made by the Judicial Magistrate, 1st Class, Court No. 1, Hamirpur to this Court on the following question of law arising in the case pending before him in Cases No. 92 -II/97, 93 -II/97 and 94 -II/97 titled as State of H.P. v. Sukh Dev Singh. What procedure is to be adopted by the Court, when the original record has been destroyed or is not capable of being reconstructed?

(2.) THE accused is facing trial under Section 408 of the Indian Penal Code in three cases. Precisely the facts are that the accused was as Secretary of "Chauri, Co -operative Agricultural Service Society Limited", Tehsil Sujanpur District Hamirpur, H.P. During the audit inspection it was detected by Shri Balam Singh and Sh. Kali Ram that the accused had misappropriated the funds of the society to the tune of Rs. 1,04,099.93. The investigation was conducted and sufficient material was found for filing the charge -sheet against him for the commission of the said offence. The challan was presented in the Court but the record was stated to have not been produced by the prosecution but after showing it to the witnesses it was taken back by the Police. It is mentioned that when the matter was fixed for the statement of the accused under Section 313 Cr.P.C., the trial Magistrate called for the record from the police. When it was produced, it was found that the record was totally eaten up by termites. The High Court allowed the reconstruction of the record on the request made by the Magistrate but in the meantime the original record lying with the police was destroyed. Therefore while making the reference, the trial Magistrate reported that in these circumstances it was not possible to reconstruct the record and proceed against the accused. Thus, the above point of reference was made. The record of the learned trial Court was requisitioned and perused.

(3.) IN fact, the present reference is not of the nature as envisaged and falling under any of the limbs of Section 395 of the Code of Criminal Procedure. Thus, the Magistrate should have decided the matter on the basis of evidence on record without having made the reference to this Court as it is a question of fact not of law. There was no occasion to make the reference. It is misconceived and is accordingly dismissed. Let the record be returned to the learned trial Court to decide the matter in accordance with law within three months on the basis of the evidence available on record before him, as the cases are pending there for more than a decade. Send down the record.