State of H.P. Vs. Sukhdev Singh - Court Judgment

Excerpt:
- code of civil procedure, 1908.[c.a. no. 5/1908]. order 14, rule 2 [as amended by amending act of 1976]: [v.k. gupta, cj, deepak gupta & surjit singh, jj] preliminary issue of law and fact court framing all issues both of law and facts together and also tried all the issues together, including the issue relating to jurisdiction of court held, except in situations perceived or warranted under sub-rule (2) of rule 2 of order 14 where a court in fact frames only issues of law in the first instance and postpones settlement of other issues, clearly and explicitly in situations where the court has framed all issues together, both of law as well as facts and has also tried all these issues together, it is not open to the court to adopt the principle of severability and proceed to decide issues of law first, without taking up simultaneously other issues for decision. this course of action is not available to a court because sub-rule (1) does not permit the court to adopt any such principle of severability and to dispose of a suit only on preliminary issues, or what can be termed as issues of law. sub-rule (1) clearly mandates that in a situation contemplated under it, where all the issues have been together and have also been taken up for adjudication during the course of the trial, these must be decided together and the judgment in the suit as a whole must be pronounced by the court covering all the issues framed in the suit.surinder singh, j.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. s/shri j.s. bhogal, senior advocate, sh. ramakant sharma, chairman bar council of himachal pradesh and sh. sandeep sharma, learned assistant solicitor general of india duly assisted by sh. j.s. guleria, learned assistant advocate general were requested to assist the court in the matter. incidentally, shri m.s. chandel, former advocate general of the state was also present and ail of them made their earnest efforts by making their submissions and rendering valuable assistance to the court which are appreciated. they submitted that in the case of the like nature it was for the trial court to decide the case on its merits on the evidence available before it and there was no point to make the reference. shri j.s. bhogal, learned senior advocate brought to my notice judgments of the high court of allahabad in sita ram and ors. v. state : 1981 cr.l.j. 65, prabhat narain mehrotra v. state of u.p. : 1985 cr.l.j. 63, state of u.p. v. vinai kumar srivastava : 1992 cr.l.j. 3558, hira lal and ors. v. state of u.p. : 1999 cr.l.j. 4097 and dukhi and ors. v. state of u.p. : 2000 cr.l.j. 519, where either the appellate/revisional or the trial court record went missing and retrial was not possible, the hon'ble court disposed of the matter on the basis of available record.4. 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.