Vinod Kumar and ors. Vs. State and ors. - Court Judgment

Excerpt:
a) the case focused on the dying declaration made by the deceased that was without any certificate of doctor and without calling of the magistrate - in the first dying declaration there was no name of any witness - the second dying declaration was recorded about seven days prior to the death of the injured by the investigating officer - but the same was not attested by any nurse or doctor in the hospital though they were available - the investigating officer was also not able to explain the reason why any magistrate was not called for during these seven days when the injured was in a fit position to make statement - hence the court ruled that both the dying declaration could not be relied upon.b) the case questioned that who should record the dying declaration under section 32 of the evidence act, 1872 - it was held that though dying declaration recorded by the police officer during investigation was admissible in the evidence, it was better to leave such dying declaration out of consideration until and unless the prosecution satisfies the court as to why it was not recorded by the magistrate or by the doctor - also the practice of investigating officer himself recording dying declaration ought not to be encouraged.c) the case dealt with recording of dying declaration without magistrate under sections 302/34 of the penal code, 1860 - the trial court convicted and sentenced the accused - the two eye witnesses made major improvement in their evidence in the court and their conduct appeared to be unnatural as they did not try to bring the injured to the hospital though they were friends of the deceased - also, in daily dairy of police there was no name of witness mentioned - the court considered the facts and held that both the declarations were found to be doubtful and could not be relied upon since no magistrate was called upon to record dying declaration - thereforee, the conviction could not be sustained on such doubtful evidence. - - this reason does not appear to be well founded in view of the law laid down by hon'ble supreme court in the case of amuanullah quareshi v.j.k. mehra, j.(1) i have heard the parties. in the present case, the challenge to the impugned order is only that having once dismissed the application for cancellation of bail, the trial court was not left with the jurisdiction, review its order and to restore the said application. the counsel submits, that the reasons for restoration are also erroneous. the reason given in the order mainly is that in order to adjudicate upon the application under section 340, criminal procedure code, the application for cancellation of bail should be kept alive. this reason does not appear to be well founded in view of the law laid down by hon'ble supreme court in the case of amuanullah quareshi v. union of india, : 1992crilj2781 , wherein the hon'ble supreme court with approval has quoted its observations in the case of k. karunakaran v. t.v. eachara worrier, reported as (1978) 2 scc 18, which read as under: 'at an enquiry held by the court under section 304(1), criminal procedure code irrespective of the result of the main case, the only question is whether a prima facie case is made out which, if unrebutted, may have a reasonable likelihood to establish the specified offence and whether it is also expedient in the interest of justice to take such action. ..... the two pre-conditions are that the materials produced before the high court make out a prima facie case for a complaint and secondly that it is expedient in the interest of justice to permit the prosecution under section 193,ipc.'(2) nothing has been pointed out to me from the code of criminal procedure which shows that the criminal court after having disposed of any particular application is still left with power to revive the petition by reviewing its earlier order of dismissal. criminal court unlike the civil court has no power of review. in the circumstances, i am of the view that the impugned order was without jurisdiction and cannot be sustained. the right of party to move a fresh application for cancellation of bail is not disputed by counsel for petitioner. for the aforesaid reasons, the impugned order is set aside. this is without prejudice to the proceedings under section 340, criminal procedure code which can go on.