MOHAMMAD MAQBOOL WANI Vs. STATE OF J&K

JUDGEMENT

(1.) This is an application filed by the petitioner seeking recalling of the order and judgment dated 27th September 2018 passed by this Court in petition under Section 561-A Cr.PC No. 295/2017. The order dated 27th September 2018 has been sought to be recalled primarily on the ground that this Court has not appreciated that the evidence collected by the prosecution which culminated in the presentation of the chargesheet before the trial court, even if taken to be correct on the face of it, did not constitute ingredients of the offence alleged and that this Court did not consider the chargesheet filed by the police before the trial court but instead relied heavily on the status report filed by the respondents in the matter and therefore a serious miscarriage of justice was done to the petitioner.

(2.) The application is opposed by Mr. B. A. Dar, learned Sr. AAG vehemently. He submits that recall application moved by the petitioner is under no provision of law and this Court while hearing recall application cannot sit in an appeal over its own judgment.

(3.) Having heard learned counsel for the parties and perused the record, I am of the view that the apprehension voiced by the learned senior counsel appearing for the petitioner can be allayed by disposing of this application without formally pronouncing on its maintainability. Learned counsel for both the sides are ad idem that the observations made by this Court in the order dated 27th September 2018 which is sought to be recalled through these proceedings are restricted to the disposal of 561-A petition No. 295/2017 earlier filed by the petitioner and cannot be in any manner prejudice the rights of either side to be determined in the trial before the trial court. The final report/chargesheet has already been presented before the trial court and the matter shall now come up before the trial court for framing of charge and it is at this stage, the petitioner would be at liberty to raise all the pleas available to him that may justify his discharge in a case.