Research › Browse › Judgment

Gauhati High Court · body

1995 DIGILAW 31 (GAU)

State of Assam v. Samsul Haque

1995-02-03

B.N.SINGH NEELAM

body1995
This case is initiated suo motu in this Court as to examine whether the Assistant Sessions Judge Mr. JC Kalita, Barpeta sitting as Sessions Judge In-charge under the provisions of section 9 (5) of the Code of Criminal Procedure, 1973 had the powers as to transfer Sessions Trial No. 43 (B)/l 988 (State of Assam vs. Samsul Haque to the file of Assistant Sessions Judge, i.e., to his own file in the present case for disposal and then passing order under section 228 (1) (a) of the Code of Criminal Procedure on 31.10.88 sending the record to the Chief Judicial Magistrate, Barpeta for trial holding that no material was available as to proceed against the accused person of the said Sessions Trial under section 397 IPC an offence exclusively triable by the Court of Sessions rather directing framing of charge under section 324 IPC. 2. After initiation of the suo-motu revision under the provision of section 397/401 CrPC read with Article 227 of the Constitution of India, this Court issued notice on the accused opposite party Samsul Haque to show cause and a report was also so called for from the Sessions Judge In-charge, on that date Mr. JC Kalita. It further transpires that this Court had also appointed Mr. J. Singh, learned counsel as to assist the Court. 3. Mr. MA Sheikh, learned counsel appears on behalf of the accused-opposite party Samsul Haque. The report so called for from Mr. JC Kalita is also received which is dated 7.7.90. Mr. Sheikh, learned counsel for the opposite party along with Mr. J Singh are heard today. The record of Sessions Trial Case 43 (B)/88 with that of the record of GR Case 677/83 are available for perusal which were so called for. The abovementioned Sessions case has cropped up out of GR Case 677/83. By the perusal of the lower Court's record it also transpires that when under the provisions of section 228 (1) (a) CrPC, the record was transferred to the file of Chief Judicial Magistrate, the Chief Judicial Magistrate by order dated 1.12.88 in GR 677/83 also transferred the case to the Judicial Magistrate, 1st Class (Mr. NC Dutta) for disposal and the transferee Court, i.e., the Judicial Magistrate, First Class fixed a date for evidence, though the witnesses have not, however, yet been examined on behalf of the prosecution. NC Dutta) for disposal and the transferee Court, i.e., the Judicial Magistrate, First Class fixed a date for evidence, though the witnesses have not, however, yet been examined on behalf of the prosecution. This is an admitted fact that on the particular day when Mr. JC Kalita transferred the case to the Assistant Sessions Judge, by the notification of the High Court, he was conferred with the powers under section 9 (5) CrPC as to dispose of criminal urgent matters in absence of the Sessions Judge, Barpeta. The said notification of the High Court bears No. HC VII-28/88/8128/A dated 2.6.88. By this notification Mr. JC Kalita, Assistant Sessions Judge, Barpeta was empowered under sub-section (5) of sections 9 of the CrPC, 1973 as to deal with urgent applications that may come up before the Court of Sessions during the period of absence of the District and Sessions Judge at Barpeta. 4. The points for decision mainly are as to whether the Sessions Judge In-charge Mr. JC Kalita under the powers so conferred upon him by the said notification was justified in transferring the Session Trial case to his own file and then sitting as Assistant Sessions Judge again transferring the same to the file of Chief Judicial Magistrate under the provisions of section 228 (1) (a) CrPC and after such transfer also another point comes for judicial consideration as to whether under such situation the Chief Judicial Magistrate was justified in transferring the case to be tried and disposed of by another Court i.e. Judicial Magistrate 1st Class which is so done by the Chief Judicial Magistrate vide his order dated 1.12.88 detailed above. 5. On all these points detailed above, Mr. J Singh, learned counsel who was appointed as Amicus Curiae to assist the Court has submitted that initial order so passed by the Sessions Judge In-charge Mr. JC Kalita cannot be said to be justified. It is submitted with the said order dated nil by which after disposing of the bail matter of the accused of this case the Sessions Judge In-charge has at his own instance transferred the case to the file of Assistant Sessions Judge (that too to his own file) is bad in law. By referring to the provisions of section 9(5) CrPC, it is submitted that the powers so vested upon the Assistant Sessions Judge Mr. By referring to the provisions of section 9(5) CrPC, it is submitted that the powers so vested upon the Assistant Sessions Judge Mr. JC Kalita by the notification was as to dispose of urgent criminal applications and that too which may be filed before him or which may be pending before the Court of Sessions. In the instant case thus the learned Sessions Judge In-charge was only justified to the extent of disposing of the bail application of the accused because that can well be said to be urgent applications so filed for disposal by the Sessions Judge In-charge in absence of the Sessions Judge. There was no application made by any of the parties showing any urgency as to take up the Sessions Trial or to transfer the same to any other Court and that being the position the action of the Sessions Judge In-charge in transferring the case to this own file and passing certain order subsequently on 31.10.8 8 under provisions of section 228 (1) (a) CrPC on the face of it bad in law which requires interference. As regards the report so submitted by Mr. JC Kalita as called for by the Court, Mr. Singh has submitted that in«the report explanation given by him also cannot be said to be satisfactory. Hence the prayer is that as to meet the ends of justice, the order so passed by the Sessions Judge In-charge transferring the case to the Court of Assistant Sessions Judge and subsequent orders to passed by the Assistant Sessions Judge dated 31.10.88 sending back the record to be tried by the Chief Judicial Magistrate under the provisions of section 228 (1) (a) CrPC and also the subsequent order so passed by the Chief Judicial Magistrate transferring the GR case for trial and disposal by Judicial Magistrate, 1st Class on 1.12.88 in GR Case 677/83- be thus set aside and the record rather be ordered to be placed before the Sessions Judge to be looked into under the provisions of Chapter XVIII of the Code of Criminal Procedure from the beginning and at that moment i.e. at the time of hearing on the point of charge when the prosecution case is opened in usual course the Sessions Judge will be in a position as to pass necessary orders if necessary as per provisions contained under section 227/228 CrPC. 6. Mr. 6. Mr. Sheikh, learned counsel for the accused Samsul Haque, in all fairness has submitted that the order so passed by the Sessions Judge In-charge by transferring the Session Case in question to the file of Assistant Sessions Judge, that too surprisingly to himself was not justified. He in all fairness concedes that this is a fit case in which the orders mentioned above be set aside and the record be made available to the Sessions Judge, Barpeta as to dispose of the matter in accordance with law as detailed in Chapter XVIII, CrPC, 1973. 7. After hearing both the sides lawyers, I have carefully gone through the orders so passed by the Sessions Judge In-charge, subsequent orders so passed by him as Assistant Sessions Judge on 31.10.88, the report so submitted by Mr. JC Kalita, Sessions Judge In-charge, the order dated 1.12.88 of the CJM and the notification so issued by the High Court under section 9 (5) CrPC. Section 9 (5) CrPC runs as under : “9. (5) Where the office of the Sessions Judge is vacant, the High Court may make arrangements for the disposal of any urgent application which is, or may be, made or pending before such Court of Session by an Additional or Assistant Sessions Judge, or, if there be no Additional or Assistant Sessions Judge by a Chief Judicial Magistrate, in the Sessions division; and every such Judge or Magistrate shall have jurisdiction to deal with any such application.” The language of the notification so issued by this High Court in this context on 2.6.88 also reveals that under section 9 (5) CrPC Assistant Sessions Judge, Barpeta Mr.JC Kalita was only given the powers as to deal with urgent applications that may come up before the Court of Sessions during the absence of Sessions Judge. In the background of the provisions of section 9 (5) CrPC quoted above with that of the language of the notification of this Court dated 2.6.881 find that Mr. JC Kalita, Session Judge In-charge had no powers as to go on transferring the Sessions Trial cases pending in the Court of Sessions Judge because his said order dated nil by passing such transfer order at his own instance, can on no account be said to be an urged matter to be dealt by him in absence of the Sessions Judge at Barpeta. As regard passing orders under section 227/228 (1) (a) CrPC a Judge can pass such orders if he is satisfied that there is no material to show that an offence is committed by the accused exclusively triable by the Court of Sessions but in such circumstances if under section 228 (1) (a) CrPC the case is transferred to the Chief Judicial Magistrate as per the wording of section 228 (1) (a) CrPC such case, in my considered opinion, has only to be tried by the Chief Judicial Magistrate because of the fact that section 228 (1) (a) CrPC speaks that after the transfer of the case the Chief Judicial Magistrate shall try the offence in accordance with the procedure for the trial of warrant cases instituted on a police report. In the instant case another impropriety is also committed by the Chief Judicial Magistrate by transferring the said case to another Magistrate. I also do not feel satisfied with the explanation given in his report by the Sessions Judge In-charge Mr. JC Kalita as referred to above. There would have been a good number of session cases pending in the file of Sessions Judge, Barpeta at that time and the Sessions Judge In-charge Mr. JC Kalita transferred some of the cases and his transferring some of the Sessions Trial case or cases was unwarranted and before transferring Session cases he would have as responsible officer applied his judicial mind instead consulting other officers and Advocates as indicated by him in his report which can be termed to be his unbecoming act. Consequently, I hold the view that the order so passed by the Sessions Judge In-charge Mr.JC Kalita dated nil by transferring the Sessions Case to the file of Assistant Session Judge was without jurisdiction which requires interference and it is fit to be set aside. Taking that view the said order of the Sessions Judge In-charge so passed in Session Case No.43 (B) of 1988 is set aside. The other orders passed on 31.10.88 by the Assistant Sessions Judge and on 1.12.88 by the Chief Judicial Magistrate in GR case by transferring the case to the Judicial Magistrate, First Class also become ineffective and not to be operated upon because of the initial order dated nil passed by the Sessions Judge In-charge transferring the Session Trial being set aside in this revision. It is also hereby ordered that the records of Sessions Case No.43 (B) of 1988, GR Case No.677 of 1983 and other connecting papers including the case diary be made available to the Sessions Judge, Barpeta, who will take up the matter afresh under Chapter XVIII of the Code of Criminal Procedure, 1973. This disposes of the criminal revision so initiated suo motu.