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1996 DIGILAW 235 (ALL)

STATE OF UTTAR PRADESH v. RAJ KUMAR

1996-02-27

K.S.SIDHU

body1996
K. S. SIDHU, J. ( 1 ) THIS will dispose of ten appeals, the first two Nos. 979 of 1977 and 982 of 1977 by the State against the acquittal of Raj Kumar and Ram Dhani respectively and the remaining eight Nos. 2490, 2491, 2492, 2493, 2494, 2495, 2496 and 2497 of 1976 by Sukhdeo, Parmeshwar, Munshiraja, Ram Lakhan, Majid Hussain, Jamadar Singh, Ganga Singh and Amirullah Khan respectively who and a host of others were tried by Special Addl. District Judge (P. A. C.) Mirzapur and out of whom, the said eight appellants were convicted under Section 7 (c) of the U. P. P. A. C. Act, 1948 and sentenced to rigorous imprisonment for two years each while the rest were acquitted by the said Judge vide his judgement dated 13-10-1976. ( 2 ) I have heard the sides and have examined the records. Now the records show that the accused respondents in the first two appeals, appellants in the remaining eight appeals and a host of others were committed by an Executive Magistrate vide his commitment order dt. 21-10-1974 to stand their trial in the Court of session. Thereafter the Addl. Sessions Judge to whom the case was entrusted for disposal by the Sessions Judge and who was curiously called Special Addl. District Judge (P. A. C.) Mirzapur tried and decided the case as aforenoticed. It is well settled and brooks of no contradiction that correctly the proceedings that led to the passing of the commitment order by the Executive Magistrate dt. 21-10-1974 which were pending before the Executive Magistrate at the time of coming into force of the new Criminal Procedure (Cr. P. C.) should have been by virtue of the proviso to Section 484 2 (a) Cr. P. C. , dealt with under the new Cr. P. C. and the case, if at all the same was to be committed to the Court of session, should have been so committed to the Court of session by a Judicial Magistrate and not by an Executive Magistrate. That being so, the commitment of the instant case to the Court of session by the Executive Magistrate vide his order dt. 21-10-74 passed after coming into force of the new Cr. That being so, the commitment of the instant case to the Court of session by the Executive Magistrate vide his order dt. 21-10-74 passed after coming into force of the new Cr. P. C. was without jurisdiction with the inevitable consequence that as the commitment was without jurisdiction the trial of the accused by the Court of Session to be precise the Court of the Special Addl. District Judge (P. A. C.) Mirzapur was without jurisdiction as well. The argument by Sri P. S. Mishra learned counsel for the eight appellants who have been convicted and sentenced that the commitment by the Executive Magistrate was without jurisdiction and bad in law and as a result the trial by the Special Addl. District Judge (P. A. C.) Mirzapur was as well without jurisdiction and bad in law therefore, prevail is that as the offences for commission of which the accused were committed to the Court of session were all triable by a Magistrate the commitment of the case to the Court of session was bad in law on that score as well. The records bear out that the offence for commission of which the accused were committed to the Court of session in the instant case were all triable by a Magistrate and none of the offences was exclusively triable by a Court of session. So the commitment of the case to the Court of session was indeed bad in law on this count as well. ( 3 ) THE upshot is that appeal Nos. 979 of 1977 and 982 of 1977 by the State are without merit and are dismissed while appeal Nos. 2490, 2491, 2492, 2493, 2494, 2495, 2496 and 2497 of 1976 by Sukhdeo, Parmeshwar, Munshiraja, Ram Lakhan,majid Hussain, Jamadar Singh, Ganga Singh and Amirullah Khan respectively are accepted and the convictions and sentences of the eight appellants namely Sukhdeo, Parmeshwar, Munshiraja, Ram Lakhan, Majid Hussain, Jamadar Singh, Ganga Singh and Amirullah Khan respectively are hereby set-aside. It will however, be open to the State, if it so wants, to reinitiate proceedings for prosecution of the accused in the case that has given rise to these appeals before the competent Court in accordance with law. It will however, be open to the State, if it so wants, to reinitiate proceedings for prosecution of the accused in the case that has given rise to these appeals before the competent Court in accordance with law. This Court, however, hopes and trusts that the State before a decision in the matter would consider whether it should reinitiate proceedings keeping in view that the accused for no fault of theres have had to bear the burnt of having this case pending against them and hanging over their heads like a proverbial sword for the past over two decades with all the hardships and rigors that implies. Appeal dismissed. .