STATE Vs. MOHD ZAMAN

JUDGEMENT

(1.) THIS judgment will govern the disposal of Criminal' Revision Petitions Nos: 112 of 1979 and 7 of 1980, as these are directed against two orders passed by Sessions Judge, (Poonch) in the same case pending trial before him. By his earlier order dated 22-10-1979, he dropped proceedings against two accused persons, namely, respondents Nazir' Hussain Shah and Mst. Sarir Fatima in Petition No. 112, and by his later order dated 27-11-1979 he refused to charge-sheet the respondents in petition No. 7 under Section 302 R. P. C, and charfte-sheeted them only under Sections 14b, 325, 323 and 326 read with Section 149 R. P. C. The facts leading to the filing of these petition;: may he briefly stated us below: Police Station, Mendhar, initially put up a challan against ten accused persons namely, respondents Zaman Shah, Aftab Shah, Muslim Shah, Zuhid Shah, Zaqir Shah, Asgar Shah, Qaramat Shah, Sabir Hussain Shah, Manzoor Hussain Shah and Mst. Sakina Bi in the Court of Chief Judicial Magistrate, Poonch, for having committed the murder of one Mst. Kaki, and for having caused grievous injuries to few others. Out of the aforesaid ten accused persons, two, namely, Zaman Shah and Aftab Shah were found to have absconded. The learned Magistrate proceeded against them under Section 512 of the J. and K. Cr. P. C. hereinafter to be referred to as the State Code, and committed all the ten respondents to stand their trial before Sessions Judge, Poonch, for the offences charged. The respondents were yet to be charge-sheeted by the learned Sessioas Judge, when a fresh report was put up by the police on the basis of fresh investigation held by them, adding two more persons namely, respondents Nazir Hussain and Mst. Sarir Fatima to the array of the accused, and charging all the twelve respondents with offences under Sections 302, 326, 325, 324. 323 and 148 read with Section 140 R. P. C. Two separate applications, i. e. , one on behalf of respondent Nazir Hussain, and other on behalf of respondent Sarir Fatima were moved before the learned Sessions Judge, raising two contentions: one, that there was no provision in the State Code authorising the police to conduct a fresh investigation into the offence, after they had submitted their report under Section 173, and two, that the Sessions Judge had no jurisdiction to try them in the absence of a formal committal order by a Magistrate as Sub-section (1) of Section 193 of the State Code created a clear bar against such a trial. The first contention was repelled by the learned Sessions Judge for the reason that ample power vested in the police under Sub-section (8) of Section 173 of the State Code to conduct a fresh investigation, but the second contention did not find favour with him who, consequently dropped the proceedings against respondents Nazir Hussain and Sarir Fatima and charge-sheeted the other respondents as already indicated. The State has felt aggrieved of these orders; hence the revision petitions.

(2.) A preliminary objection has been raised on behalf of the respondents in petition No. 7 that an order charge-sheeting an accused person being merely an interlocutory order, no revision is competent against the same under Sub-section 4-a) of Section 435 of the State Code, which expressly bars revision petitions against interlocutory orders passed in appeals, inquiries, trials or other proceedings. The objection, in my opinion, must prevail for the point whether or not an order charge-sheeting an accused is interlocutory in character, is no more res integra. The majority view taken in a recent Supreme Court decision in V. C. Shukla v. State undoubtedly lends support to the respondents' contention, and hardly leaves any room for further arguments. His Lordship S. M. F. Ali, J. , after exhaustively discussing the law on the poinr, expressed the majority view in the following words:

(3.) THIS brings me to the other order by which proceedings against respondents Nazir Hussain and Mst. Sarir Fatima in Revision Petition No. 112 of 1980 were dropped by the Sessions Judge. Distinguishing the corresponding provisions of the Cr. P. C. 1973 (Central Act No. 2 of 1974), hereinafter to be referred to as the Central Code, the learned Sessions Judge held that Sections 205-D and 351 of the State Code being subject to the provisions of Sub-section (1) of Section 193 of the said Code, a Sessions Judge could not take cognizance of an offence unless the accused charged with its commission was also committed for (contd. on col. 2) STATE CODE Section 193: Cognizance of offences by Court of Session:- (1) Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the accused has been committed to it by a Magistrate duly empowered in that behalf. (2) xx xx xx xx Section 173: Report of police officer on completion of investigation:-XX XX XX (8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under Sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of Sub-sections (2) to (6) shall as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under Sub-section (2 ). Section 205-D: Commitment of a case to Court of Session when offence, is triable exclusively by it.-- When in a case in stituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall: (a) commit the case to the Court of Session. Section 351: Detention of offenders attending the Court.-- (1) Any person attending a criminal Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of inquiry into or trial of any offence of which such Court can take cognizance and which, from the evidence, may appear to have been committed, and may be proceeded against as though he had been arrested or summoned. (2) When the detention takes place in the course of an inquiry under Chap. XVIII or after a trial has been begun, the proceedings in respect of such penson shall be commenced afresh and the witnesses reheard. CENTRAL CODE Section 193: Cognizance of offences by Courts of Session:-- Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code. Section 173: Report of police officer on completion of investigation:-XX XX XX (8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under Sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed, and the provisions of Sub-sections (2) to (6) shall, as far as they may be apply in relation to such report or reports as they apply in relation to a report forwarded under Sub-section (2 ). Section 209: Commitment of case to Court of Session when offence is triable exclusively by it.- When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall:- (a) commit the case to the Court of Session. XX XX XX Section 319: Power to proceed against other persons appearing to be guilty of offence.-- (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed. (2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid. (3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed. (4) Where the Court proceeds against any person under Sub-section (1), then: (a) the proceedings in respect of such person shall be commenced afresh, and the witnesses reheard; (b) Subject to the provisions of Clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.