NESAR AHMAD Vs. EKRAM AHMAD

JUDGEMENT

(1.) This application in revision by the private party is directed against an order, dated the 10th December, 1963, passed by a Magistrate as also against the order, dated the 4th February, 1964, passed by an Additional Sessions Judge refusing to commit the accused persons to the Court of Session.

(2.) The case giving rise to this application arose on the first information report filed by the petitioner on the 4th August, 1961. After the charge sheet was submitted by the police in this case, the Magistrate proceeded with the trial. The petitioner filed a petition before the Magistrate on the 15th November, 1962, for adopting commitment procedure under chapter XVIII of the Code of Criminal Procedure, because the offences as alleged were triable exclusively by the Court of Session. The learned Magistrate rejected the petition saying that the question would be considered after the recording of the evidence to be adduced by the prosecution. The prosecution closed its evidence on the 9th October, 1968, and 10th of December, 1983, was the date fixed for defence. In the meantime, on the 26th November, 1963, the petitioner applied for adjournment of the case on the ground that he had filed a petition before the Sessions Judge for transfer of the case from the Magistrate's Court, but the petition for adjournment was rejected on the same day. Again, on the 7th December, 1963, the petitioner filed a petition before the Magistrate for commitment of the accused to the Court of Session and this petition was rejected by the Magistrate on the 10th December, 1963, whereafter some defence witnesses were also examined. The petitioner went before the Sessions Judge against this order and the learned Additional Sessions Judge has upheld the order of the Magistrate and rejected the petitioner's prayer for commitment "solely on the ground of delay", holding that regard being had to the facts of the present case, it was unnecessary to enter into the question whether, on the facts alleged, the case was exclusively triable by the Court of Session. As a matter of fact, neither the learned Magistrate nor did the learned Sessions Judge give his reasons with reference to the facts of the case why it was not triable by the Court of Session. It is in these circumstances that the present petition has been filed.

(3.) The first information report disclosed that during the relevant night, between the 2nd and 3rd of August, 1961, one of the informant's servants, Md. Taslim, was sleeping at the house of Nesar when the eleven accused persons turned up variously armed with deadly weapons. Some of them assaulted brutally Taslim and subsequently carried him to the house of accused Ekram who is a brother of the informant, Nesar, and kept him detained there and that they tried to put on end to his life, though he was spared at the instance of some of the members of the family of Ekram. The first information report further disclosed that some of the accused persons also assaulted another servant of Nesar, named Nathuni, and that subsequently they had looted away from the house of Nesar various properties such as grains, clothings, cycle etc. The first information report also said that the accused persons had also snatched away one golden earring from the ear of Nesar's daughter-in-law.