ABDUL RASHID SHALLA Vs. JAGDISH LAL

JUDGEMENT

(1.) THIS reference made by the-City Munsiff, Magistrate 1st Class, Srinagar, which seeks directions from this Court regarding delivery and custody of Bus No. JKA 3845 appears to me to be totally misconceived and incompetent. Under the provisions of Section 438 of the Code of Criminal Procedure, it is only a Sessions Judge or a District Magistrate who can after examination under Section 435 of the Code of Criminal Procedure, of the record of any proceeding or otherwise make a reference to the High Court. The High Court is not an advisory body and it is not open to any Magistrate to refer any question of fact for the opinion, of the High Court. The only provision entitling a trial Magistrate to make a reference is the one contained in Section 432 of the Code of Criminal Procedure which was added by the State Legislature vide Act No. 27 of 1957. The said section reads as under:

(2.) IT is only when all these conditions are satisfied that a trial Magistrate has the power to make a reference to the High Court. In no other case can a trial Magistrate make a reference to the High Court. As the requirements of the aforesaid provisions contained in Section 432 of the Code of Criminal Procedure are not satisfied in the present case, the reference is wholly-untenable.

(3.) THE reference accordingly fails and is hereby rejected. The record shall go back to the trial Magistrate who shall dispose of the matter expeditiously according to law.