KALYANI BHATTACHARJEE Vs. ACHINTA NARAYAN CHOUDHURY

JUDGEMENT

(1.) This is a reference made by learned Sessions Judge, Karimganj purported to be under S.395(2) of the Criminal P. C. for our decision as to whether the Executive Magistrates empowered under the Code of Criminal Procedure (Assam Amendment Act, 1983) were legally competent to release an accused person on bail. It should have been the precise question but learned Judge has asked a larger question which has no nexus with the facts and circumstances of the case.

(2.) The question; is "whether under the provisions of the Code of Criminal Procedure (Assam Amendment) Act, 1983 (Assam Act No. III of 1984), the Executive Magistrates can legally exercise the powers of remand, etc. in respect of any case involving offences which they are not empowered to take cognizance of and try and dispose"? The issue is now a mere academic question.

(3.) Under S.395(1) of "the Code" the obligation of the High Court is to resolve a "live question" and not a dead issue. In the instant case bail was granted by the Sub-Divisional Executive Magistrate and the First Informant had applied to learned Sessions Judge for cancellation of the order granting bail by the Sub-Divisional Magistrate (Executive). The learned Sub-divisional Executive Magistrate in purported exercise of the power under the Code of Criminal Procedure (Assam Amendment) Act, 1983 (Assam Act No. III/84) passed the order. However, "the Act" has been repealed by the Assam Repealing Act, 1986. We have noticed that notwithstanding the repeal cases pending before the Executive Magistrates or any other Court or authority stand transferred to "the Court competent to try such cases under the Criminal Procedure Code, 1973", vide Assam Gazette (Extra Ordinary), June 27, 1986. It follows, therefore, that the question as to whether the Executive Magistrate has jurisdiction to remand an accused, grant bail and so forth, are no longer live questions. We are of the opinion that under S.395(2) of "the Code" the obligation of the High Court is to answer an animate question and not a lifeless question.