AHAD BHAT Vs. STATE

JUDGEMENT

(1.) ON April 6, 1974, Rehman Bhat lodged a report at the police post Chara -i -Sharif alleging therein that while he was cultivating his field comprised in Khasra No. 217 situated at Karapora which he had duly purchased in 1973, Ahad Bhat and five ors came there in a body trespassed into his field, overwhelmed and beat him with Dandas and Ahad Bhat assaulted his brother Khalil Bhat, with a "Levan" on account of which the latter became unconscious and fell down. The informant further alleged that if Abdul Kabir Wani son of Ahmed, Abdul Ganai Mir son of Abdul Rahim Mir, and Mohamad Akram Meer son of Ahmed, residents of Karapora had not arrived at the spot in time and rescued him and his brother from the clutches of the accused they would have been done to death. On receipt of this report a case under Section 147/148 R.P.C. was registered by the Police Station, Pulwama, and investigation started which resulted in the challan of the accused under Sections 302, 148, 447/149 R.P.C. in the court of the Munsiff Judicial Magistrate 1st Class, Pulwama. The case was still at the investigation stage when Khalil Bhat succumbed to his injuries on April 11, 1974, in the S.M.H.S. Hospital Srinagar, where he had been removed from Charari -Sharif dispensary and admitted as an indoor patient Dr. Ghulam Nabi who conducted the post mortem examination of the body of Khalil Bhat opined that the cause of the death of the latter was sub -dural haemorrhage caused by the injury on the scalp leading to the formation of massive sub -dural hemorrhage. After recording the evidence adduced by the prosecution and examining the accused the learned Munsiff Magistrate took upon himself the onerous task of determining whether the accused were prima facie guilty of the offence of culpable homicide amounting to murder under Section 304 R.P.C. read with Section 149 R.P.C. or of the offence under Section 304 R.P.C. and finding that the prosecution had made out a prima -facie case against the accused under Section 304(1) 148, 447, 342 and 149 of the Penal Code he framed charge against them under the said Sections of the Penal Code and committed them for trial to the court of Sessions at Anantnag.

(2.) AT the commencement of the trial the learned Sessions Judge scrutinized the charge framed by the committing court and being of the opinion that the main charge under section 304 Part I of the Ranbir Penal Code framed against the accused by the Committing Magistrate required to be rectified, altered the same to one under Section 302 of the Penal Code vide his order dated December, 27, 1974. Aggrieved by this order, the accused made an application on the revisional side of this court, which came up before my learned brother. Mufti Baha -ud -Din Farooqi J. At the hearing of the application it was contended before the learned Judge on behalf of the accused that the learned Sessions Judge was not competent to alter the charge framed by the Committing Court. It was also stated before the learned Judge by the learned counsel for the parties that there was no decision of the Supreme Court directly bearing on the matter and the only authorities on the point were two decisions of the Allahabad High Court. Thinking that the question raised was of considerable importance and required an authoritative decision, the learned Judge directed the papers to be laid before me for constituting a larger bench. This is how the case is before us.

(3.) RELYING on an over -ruled decision of Single Judge of the Gujrat High Court in Kantilal Keshewlal Shah V. Prabodh Chandra Panachand of Ahmeddabad and ors, 1964 (2) Criminal Law Journal, 87 Mr. T. Hussain, learned counsel for the accused, has urged, as he did before the learned Single Judge, that the learned Sessions Judge was not competent to alter the charge. Elaborating his contention the learned counsel for the accused has submitted that since under Section 207 -A (7) Cr.P.C. if a magistrate is of the opinion that the accused should be committed for trial he has to frame a charge under his hand, declaring with what offence the accused is charged and under Section 271 Cr.P.C. it is that charge that has to be read and explained to the accused at the commencement of the proceedings in Sessions Court and the accused has to be asked whether he pleads guilty to the charge or not, the learned Sessions Judge could not alter the charge framed by the Committing Court. He has further urged that when a person has been committed to the Sessions Court for trial for a particular offence, the Sessions Court has to try him for that offence and it is not open to the court to quash the charge directly or indirectly by framing a fresh charge for a different offence.