QADIR CHHANDU Vs. STATE

JUDGEMENT

(1.) THIS is a revision application directed against an order of the learned Sessions Judge Kashmir dated 28th Magh 2006. The accused was convicted under Sections 3/4 of Ordinance 3 of 2006 and was sentenced to four months' rigorous imprisonment and a fine of Rs. 5 and in default of payment of fine he was ordered to undergo one months' further rigorous imprisonment. On appeal, the learned Sessions Judge upheld both the conviction and sentence.

(2.) THE allegation against the accused is that he is a registered Hanji and that he was put in charge of 109 khirwars and 11 1/2 traks of Shali by the Government for effecting sale amongst the ration ticket-holders under the supervision of the Ghat Munshi and that he had out of this Shali sold illegally four traks to one Qadir Gujri for a consideration of Rs. 6. Both the Courts below have found unanimously on the basis of the evidence led in the case that the accused had as a matter of fact sold Shali to Qadir and had thereby contravened the relevant provisions of Ordinance in 3 of 2006. I do not find myself in a position to take a different view from the one taken by the Courts below.

(3.) IN this section all that we find is that no court shall have authority to revise the order or sentence of a Special Magistrate. Section 11, barring some verbal changes here or there which has made its meaning a little bit obscure, is more or less the same as Section 26 of Ordinance 2 of 1942, with this difference that the exclusion of interference in Ordinance 2 of 1942 is for all Courts constituted under that Ordinance, while in our section it is only the Special Magistrate who has been given this protection. According to Section 13 of Ordinance 2 of 1942 a Special Judge was constituted to hear appeals of the Special Magistrates but according to Section 8 of our ordinance the provisions of the Criminal Procedure Code of 1989 which provide for appeals from conviction, have been made applicable to all sentences imposed for offences under this ordinance. Besides that under sub sections (3) of Section 9 the provision of the Criminal Procedure Code, so far as they are not inconsistent with the ordinance have been made applicable to the proceedings of a Special Magistrate. The result is that an appeal against an order passed by a Special Magistrate shall lie to a Sessions Judge and secondly the Criminal Procedure Code would apply in all proceedings before a Special Magistrate, excepting where there is a provision to the contrary in the ordinance.