ALI MOHD. WANTI Vs. ALI ASGHAR

JUDGEMENT

(1.) THIS order will dispose of three revision petitions arising out of the same order passed by learned Sessions Judge, Baramulla in a Sessions case titled State v. Ali Ahanger and Others.

(2.) IT appears that eight persons were committed to the Sessions Court to stand their trial for various offence including offence under Section 302 RPC. It is alleged that on 27.8.84 two groups of Shia community belonging to village Khanpat clashed with order. The clash had taken place because one group had tried to prevent the other from attending a 'Majlis' i.e. a religious congregation. The group which had prevented the other is the group of accused persons. It is alleged that Ali Ahanger had hit one Akbar Najar on his head with a Lathi while the two other accused persons namely, Mohammad Dar and Ahmed Dar had trampled him on his chest. It is further alleged that the deceased had not died because of trampling on his chest by the two accused persons named above but had died because of the head injury caused by Ali Ahanger. The learned Sessions Judge has observed that the common object of the accused party was only to deter the complainant party from attending the Majilis and such object did not extend to the causing of death". Accused persons are said to have been carrying Lathies with them and the learned Sessions Judge has observed that only five been seized by the police. It is also observed by such lathies have the learned Sessions Judge that though the accused persons formed an unlawful assembly but they could not be said to have anticipated that as a result of their forming an unlawful assembly, death of the deceased would take place. After discussing some case law on the subject, the learned Sessions Judge has come to the conclusion that common object of unlawful assembly was not to cause death but was something different, therefore, all the accused cannot be charge sheeted under Section 302 R.P.C. and it was only accused No. 1 viz. Ali Ahanger who is alleged to have given fatal blow on the head of the deceased who could be charged under Section 302 RPC.

(3.) ON behalf of accused person Miss Shaista for Mr. H.M. Sadiq Advocate has appeared and argued the case. She has raised a preliminary objection so far as revision petitions filed by the State and Ali Mohd. Wani are concerned. Her objection is that revision petitions are not maintainable because framing of charge under a particular section would amount only to an interlocutory order which was not revisable. Her contention is that it cannot be construed that by framing charge against the accused persons, other than Ali Ahanger, under Section 148 RPC an implied discharge order under Section 302 RPC has been recorded against them. The discharge order under law is to be made expressly and it cannot be implied. If an express discharge order was there, then the revision petitions would lie. Since that has not been done by the trial court, therefore these revisions petitions were not maintainable as they were against framing of charges though for an offence which was a lenient one.