HABIB RATHER Vs. STATE

JUDGEMENT

(1.) THE accused persons by name, Habib Rather, Asboor Ganai, Ramzan Sheikh, Khaliq Waza, Lassi Ganai, Mahda Ganai, Rehman Ganai, Khazit Rather and Shaban Rather were committed to sessions by the Munsiff Magistrate first class Sopore to stand their trial under Sections 302/149 R. P. C. All the nine accused were found guilty, under Sections 302/149, R. P. C. and were sentenced to life imprisonment and to a fine of Rs. 15/- each with two months further rigorous imprisonment in default of payment of fine. The accused Habib Rather, Ashoor Ganni, Ramzan Sheikh and Khizar Rather were further convicted under Sections 148/149 R. P. C. and were sentenced to three years' rigorous imprisonment and to a fine of Rs. 15/- each, and in default to undergo two months imprisonment. Khaliq Waza, Lassi Ganai, Mehda Ganai, Rehman Ganai and Shaban Rather were likewise convicted under Sections 148/149 R. P. C. and sentenced to two years' rigorous imprisonment and to a fine of Rs. 15/- and in default to undergo two months' imprisonment. The sentences of imprisonment were ordered to run concurrently. All the accused persons have come up in appeal to this Court which is disposed of by this order.

(2.) ACCORDING to the prosecution the relations between the accused Nos. 1, 2, 3 and 4 and Sultan Rather deceased were strained on account of various reasons which in view of the order that we are going to pass, we need not detail here. Suffice it to say that on the fateful day, the accused persons who had somehow or the other taken scent of the fact that the deceased was proceeding alone towards some place, way-laid him, made a concerted attack on him and belaboured him with Lathis which ultimately ended in his death. The prosecution produced about thirty witnesses and ultimately the learned Addl. Sessions Judge found the accused persons guilty under Section 302 R. P. C. and sentenced them as aforesaid.

(3.) MR. J. N. Bhat Advocate appearing on behalf of the accused raised a preliminary objection that the proceedings taken and the trial conducted by the Addl. Sessions Judge was without jurisdiction. It appears that Mr. M. S. Naqishbandi, S. J. was appointed as Secretary in the Law Department vide Government Order No. 18 Order 1957 dated 9-8-1957. The Registrar High Court while forwarding a copy of this order to the District and Sessions Judge Kashmir made an endt. (?) to the effect that Mr. Naquishbandi District and Sessions Judge should hand over charge of his office to Mr. Abdul Qadir, Addl. Sessions Judge. It was further directed by the order that the Addl. Sessions Judge shall attend to the routine work of the Sessions Court. Later on Mr. Abdul Qadir Addl. Sessions Judge was appointed as the Offg. Sessions Judge Order 19-10-57. that is to say it was after 19-10-57 that the Offg. Sessions Judge could have exercised the powers of a Sessions Judge. But as we find it Mr, Abdul Qadir made an order Order 29-8-1957 transferring this case to the file of the Addl. Sessions Judge Kashmir, i. e. , to his own file. From this it would appear that Mr. Abdul Qadir presuming to exercise the powers of a Sessions Judge transferred this case to his own Court. Learned Counsel appearing on behalf of the accused-appellants submits that the transfer order made by Mr, Abdul Qadir while assuming powers of a Sessions Judge was ultra vires of his powers for the simple reason that he was only to attend to the routine work and not pass such orders as only a Sessions Judge could do, without having been invested with the powers of a Sessions Judge. It may be stated here that the power to transfer cases pending before a Sessions Judge to the Addl. Sessions Judge is vested only in a Sessions Judge. But in this case what we find is that the Addl. Sessions Judge transferred this case from the file of the Sessions Judge to his own file. This in the submission of the learned Counsel, was quite against law. The learned Counsel further submitted that the trial before the Addl. Sessions Judge being without jurisdiction, the order of conviction and sentence passed by him needs being set aside. We agree with him. In the circumstances of the case, we find that there is considerable force in the submission made by the learned Counsel, and the Advocate General has not been able to support the procedure adopted by the Addl. Sessions Judge.