Smt. Asha and Another vs Abdul Rahim and Others

Mufti Baha-Ud-Din Farooqi, Actg. C.J.

These revisions, one by the State and the other by the complainant, are directed against an order passed on 10-4-1980, by the Sessions Judge,

Srinagar. The order reads thus:

After the opening address, it was found that a prima facie case under Sections 304/504/447 R.P.C. is made out against the accused Ab. Rahim

Rather. The learned P. P. in his opening address conceded that it was not a case u/s 302 R.P.C. but prima facie, a case u/s 304 R.P.C. was made

out against this accused. As against the accused Abdul Ahad Khan a prima facie case u/s 504 R.P.C. was made out. The accused Abdul Rahim

Rather was, therefore, charged u/s 304/504/447 R.P.C. and the accused Abdul Ahad Khan was charged u/s 504 R.P.C. The contents of the

charges were read out to the accused persons. They pleaded not guilty and claimed to be tried. So the P. P. should produce evidence in the case

now. Put up the case on 28, 29 and 30th April, 1980, respectively.

Sd/- Judge.

For the accused a preliminary objection was taken in regard to the maintainability of these revisions on the ground that no revision is competent

against an interlocutory order. The argument of the learned Counsel for the accused is that the impugned order is in the nature of an interlocutory

order, being an order framing the charge, which has been passed at the intermediate stages of the proceedings as a step towards the final

determination of the guilt of the accused. For this, he relied upon the provisions of the newly added Clause (4-a) of Section 435 Cr. P.C. as also

on the decisions reported in V.C. Shukla Vs. State through C.B.I., and Manohar Nath Sher Vs. State of J. and K., :

2-A. Section 435(4-A), Cr. P. C provides:

The powers of revision conferred by this section shall not be exercised in relation to any interlocutory order, passed in any appeal, inquiry, trial or

other proceedings.

In the case of Manohar Nath (supra), a Full Bench of this court has held that an ""interlocutory order"" is one which is passed at some

intermediate stage of a proceeding to advance the cause of justice for the final determination of the rights between the parties. In the case of V., C.

Shukla, the Supreme Court has specifically observed that an order framing the charge is an interlocutory order. It necessarily follows that if the

impugned order is an order framing the charge then no revision would lie. The argument of the learned Counsel for the revisionist, however, is that,

in effect and substance, the impugned order is an order discharging the accused Abdul Rahim Rather, of the offence u/s 302, R.P.C. and so

viewed, it is a revisable order. The argument has enough substance in it. The police submitted a charge-sheet complaining that the accused Abdul

Rahim Rather had committed an offence u/s 302/447, R.P.C. The learned Sessions Judge framed a charge against him u/s 304/504/447, R.P.C.

Thus he impliedly discharged the accused Abdul Rahim Rather u/s 302, R.P.C. The question is whether an implied order of discharge is

contemplated by Section 268 of the Cr. P.C. I say so, because the learned Counsel for the accused contended that newly inserted Section 268,

Cr. P.C. contemplates an express order of discharge only. Section 268, Cr. P.C. reads thus:

If upon consideration of the record of the case and the documents submitted therewith and after hearing the submissions of the accused and the

prosecution in this behalf, the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused

and record his reasons for so doing.

The provisions of this section are in pari materia with the provisions of Section 209(1) of the Criminal Procedure Code. The provisions of

Section 209(1) fell for consideration by the Supreme Court in the case of Ramekbal Tiwary Vs. Madan Mohan Tiwary and Another, and the

Supreme Court held:

It is apparent from the language of Section 209(1), Cr. P.C. that an express order of discharge is only contemplated in a case where the

Magistrate comes to the conclusion that the allegations against the accused do not amount to an offence at all, and therefore, no question arises of

trying him either by himself or by any other court. But the section does not contemplate that an express order of discharge should be made in a

case where upon the same facts it is possible to say that though no offence exclusively triable by a Court of Session is made out, an offence triable

by a Magistrate is nevertheless, made out and the Magistrate, thereafter proceeds with the trial of that offence.

The appropriate court will be prevented in some cases exclusively triable by that court, from trying the accused for the graver offence on those

very facts on which the Magistrate has tried the accused on minor offence, thinking that the offence is a minor one which he can try. It is to obviate

such a consequence and to prevent inferior courts from exercising a jurisdiction which they do not possess that the provisions of Section 437,

Criminal Procedure Code have been enacted. To say that these provisions can be availed of only where an express order of discharge is made by

a Magistrate would be to render those provisions ineffective and inapplicable to the very class of cases for which they were intended.

It necessarily follows that Section 268, Cr. P.C. does not contemplate that there should be an express order of discharge in a case where, in the

opinion of the Sessions Judge, an offence triable exclusively by the Court of Session is made out though not being the same for which a charge was

brought against the accused. Consequently it cannot be reasonably contended that the powers of revision are available only where there is an

express order of discharge u/s 268, Cr. P.C. The section contemplates an implied order of discharge as well. If that be so, as it really is, then an

implied order of discharge can be the subject matter of a revision as much as express order of discharge. In this view, the preliminary objection

fails.

Coming to the merits of the order, the argument of the learned Counsel for the revisionists is that the impugned order is vitiated by an error of

jurisdiction. They urged that the learned Sessions Judge has never cared to apply his mind. He has passed the impugned order mechanically. For

this, they relied upon several circumstances: Firstly that the charge does not give proper description of the factual position relied upon by the

prosecution. Secondly, the Sessions Judge has charged the accused for an offence u/s 504, R.P.C. about which there was no accusation in the

charge-sheet submitted by the Police. Thirdly, that the Sessions Judge has acted upon the concession of the Public Prosecutor without ascertaining

whether the concession so made was founded upon facts.

There is ample force in this argument. The learned Sessions Judge has framed a charge against Abdul Rahim Rather accused stating that he

inflicted one blow on the head of the deceased which caused his death. The case of the prosecution, however, is that not only one but two blows in

succession were inflicted by the said accused on the head of the deceased and this is borne out prima facie by the evidence collected by the Police

u/s 161, Cr. P.C. Thus the first circumstance cannot be said to be ill-founded.

The second circumstance is equally borne out from the record. The prosecution has nowhere alleged that the accused Abdul Rahim Rather was

guilty of an offence u/s 504, R.P.C. In fact there is not a whisper in the charge-sheet or in the evidence collected by the Police that the said

accused had used abusive language. Even the charge framed by the Sessions Judge does not say so, and yet the Sessions Judge was advised to

frame the charge against the accused under this section as well.

Coming to the third circumstance, there can be no doubt that the Public Prosecutor has conceded that an offence u/s 304, R.P.C. only was

prima facie made out against the accused Abdul Rahim Rather, but the Sessions Judge could act upon such a concession only if it was based upon

the facts and circumstances of the case. The learned Sessions Judge has nowhere recited such facts or circumstances, much less, considered the

same. Thus the learned Sessions Judge has acted mechanically upon the concession of the Public Prosecutor.

The circumstances mentioned above leave no room for doubt that the learned Sessions Judge has not applied his mind to the facts and

circumstances of the case. Consequently the impugned order suffers from an error of jurisdiction. For, the settled principle is that non-application

of mind constitutes an error of jurisdiction.

In the result these revisions succeed and are accordingly allowed. The impugned order, in so far as it relates to the accused Abdul Rahim

Rather, is set aside. The learned Sessions Judge is directed to frame fresh charges against him after going through the record and hearing the

parties.

The parties are directed to appear before the Court of Sessions Judge, Srinagar on 30th October, 1980.