STATE OF ASSAM Vs. SAMSUL HAQUE

JUDGEMENT

(1.) This case is initiated suo moto in this Court as to examine whether the Assistant Sessions Judge Mr. J.C. 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)/1988 (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 U/S. 228 (1) (a) of the Code of Criminal Procedure on 31.10.99 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 U/s. 307 IPC- an offence exclusively triable by the Court of Sessions rather directing framing of charge U/s. 324 IPC.

(2.) After initiation of the suo-moto revision under the provisions of Section 397/401 Cr.P.C. read with Art. 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 then Sessions Judge-in-Charge, on that date Mr. J.C.Kalita. It further transpires that this Court had also appointed Mr. J, Singh, learned counsel as to assist the Court.

(3.) M r. M.A.Sheikh,learned counsel appears on behalf of the accused-opposite party Samsul Haque. The report so called for from Mr. J.C. Kalita is also received which is dated 7.7.90. Mu. 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; above mentioned 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) Cr. P.C., 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. N.C. 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. J.C. Kalita transferred the case to the Asstt. Sess. Judge, by the notification of the High Court, he was conferred with the powers U/s 9 (5) Cr.P.C. 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. J.C. Kalita, Asstt. Sess. Judge, Barpeta was empowered under Sub-sec (5) of Section 9 of the Cr.P.C. 1973 as to deal with urgent applications that may come up before the Court of Session during the period of absence of the District and Sessions Judge at Barpeta.