Vijendra Vijai vs State of U.P.

K. Nath, J.—This revision u/s 397 Code of Criminal Procedure is directed against an order dated 4-9-85 of the V Additional Sessions Judge, Hardoi (Sri Pratap Singh) u/s 228 of the Code of Criminal Procedure, 1973 transferring a case against the applicant u/s 3/25 of the Arms Act to the Court of Chief Judicial Magistrate, Hardoi for the applicant''s trial.

It appears that one Sheo Nath Singh had lodged a first information report against the 3 known persons and one unknown person for committing murder of Sukhendra Singh and Sunil Kumar Singh on 18-8-83 at about 8 A.M. and in the same transaction for committing robbery of rifle No. 8042 of deceased Sukhendra Singh. The looted rifle is said to have been recovered from the unlawful possession of the applicant Vijendra Vijai on 5-10-83 at 4.30 A.M. by the police officer investigating the crime of murder and robbery. The applicant obviously did not carry any licence for the rifle and consequently a case u/s 3/25 of the Arms Act was registered against him. He was also considered by the Investigating Officer to have been involved in the murder of Sukhendra Singh and Sunil Kumar Singh and consequently the applicant was not only included as an accused in the charge-sheet for the said murders but was also separately charge-sheeted for illicit possession of the rifle of one of the deceased.

The case of murder was obviously triable exclusively by the Court of Sessions and consequently all the accused including the applicant were committed to the Court of Sessions u/s 209 of the Code of Criminal Procedure. It is stated in para 4 of this application that in the matter of the offence u/s 3/25 of the Arms Act, the Magistrate came to the conclusion that because the recovered rifle was alleged to have been robbed in the transaction of murder of its owner, the recovery of the rifle from the possession of the applicant was an issue which was bound to affect the case of murder and robbery also and for that reason the Magistrate committed the case u/s 3/25 of the Arms Act also to the Court of Sessions for trial.

The learned Additional Sessions Judge took up the 2 Sessions Trials. He observed that the offence u/s 3/25 of the Arms Act had no connection with the offence u/s 302 and 394 IPC. He observed that the case u/s 3/25 of the Arms Act was exclusively triable by the Magistrate, hence, in exercise of powers u/s 228 of the Code he transferred the case to the Court of the Chief Judicial Magistrate for disposal according to law.

Sri Imtiaz Murtaza, the learned Counsel for the applicant has urged that the committal of the case u/s 3/25 of the Arms Act was made u/s 323 of the Code of Criminal Procedure and the Sessions Judge had no jurisdiction to interfere with that committal in exercise of the powers u/s 228 of the Code. It was next urged that the acquittal or conviction of the applicant in the case u/s 3/25 of the Arms Act was bound to effect the result of the case u/s 302/394 IPC and there could be a conflict of findings if the 2 cases were to be tried separately by 2 Courts; hence in any case, the order transferring the case u/s 3/25 of the Arms Act to the Chief Judicial Magistrate for trial was not proper and was likely to cause injustice.

At the time of the hearing of this revision Sri R.N. Gupta Advocate appeared on behalf of the First Informant and assisted the Additional Government Advocate to oppose this revision. His contention is that the offence allegedly committed by the applicant u/s 3/25 of the Arms Act has nothing to do with the offence of murder and robbery allegedly committed by the applicant alongwith others and therefore there is no illegality in the order of the Additional Sessions Judge directing the case to be transferred u/s 228 of the Code.

The contention of the learned Counsel for the applicant that a case which is committed to the Court of Sessions u/s 323 of Code of Criminal Procedure cannot be ordered to be returned to the Court of the Magistrate u/s 228 of the Code, cannot be accepted. There is no doubt that u/s 209 of the Code only those cases are committed to the Court of Sessions where the offence is triable exclusively by it and that the power u/s 323 Code of Criminal Procedure extends to offence which are not so exclusively triable The power to commit a case to the Court of Sessions u/s 323 is stated to relate to such cases "which ought to be tried by the Court of Sessions". The expression "ought to be tried" obviously cannot be confined to the cases exclusively triable by the Court of Sessions, if that was not so, Section 323 Code of Criminal Procedure would be redundant and the power to commit a case treated initially to be not triable exclusively by the Court of Sessions but subsequently found to be so triable could still be committed to the Court of Sessions u/s 209 of the Code. Section 323 Code of Criminal Procedure therefore would apply to all those cases which are not exclusively triable by the Court of Sessions but in the opinion of the Magistrate "ought to be tried by the Court of Sessions.

It is not possible to record any exhaustive proposition in construction of the expression "ought to be tried". The scope of the expression would depend upon the nature of each case on its own features. I would revert to that question shortly; at the present stage I would notice that the power of the Court of Sessions u/s 228(1)(a) of the Code extends to all cases which are "not exclusively triable by the Court of Sessions." Those are the cases contemplated by Section (sic) those u/s 209 Code of Criminal Procedure if the Sessions Court so finds on the material before him at the time when he frames the charge. I would not agree with the learned Counsel for the applicant therefore that the learned Additional Sessions Judge was not competent to direct the cases to be transferred to the Chief Judicial Magistrate u/s 228 of the Code because the commitment of the case was made u/s 323 of the Code.

Even so the power of the Court of Sessions u/s 228(1)(a) of the Code is a discretionary power. The words used are--"he may frame a charge against an accused and by order transfer the case for trial to the Chief Judicial Magistrate...." It is not disputed that a Court of Sessions is competent to try an offence punishable u/s 3/25 of the Arms Act. A perusal of the decision of the Supreme Court in the case of State of U.P. v. Khusi Ram 1960 AWR 498 would show that where a Magistrate, who is competent to try a case, commits it to the Court of Sessions, neither the order of committal is a nullity nor the jurisdiction of the Court of Sessions to try the case is affected. The question is whether the order of transfer passed by the Additional Sessions Judge was in exercise of sound discretion and whether this Court should interfere with the exercise of that discretion u/s 397 of the Code of Criminal Procedure.

It is not possible to accept the contention of Sri R.N. Gupta, the learned Counsel for the complainant that the offence u/s 3/25 of the Arms Act has nothing to do with the offence u/s 302 and 394 IPC in this case. This extreme proposition can be of some worth if the learned Counsel could also concede that the evidence of recovery of rifle from the possession of the Petitioner was not relevant or admissible for the purposes of the trial of the applicant for the offence u/s 302/394 IPC. Even if he had conceded it, the concession could be of no legal validity because the admissibility or relevancy of evidence is a question of law and cannot be governed by admissions. It is the clear statement in para 4 of this petition that the Magistrate had come to the conclusion that the recovery of the rifle from the possession of the applicant was an issue which was bound to affect the case of murder and robbery; there is no specific denial of the view taken by the Magistrate.

Linked with this question is the question of issue estoppel and I should think that the decision in the case of Mahinder Singh v. State of Punjab 1965 (1) CLJ 112 by the Supreme Court deserves to be noticed. According to the facts of that case, Mahinder Singh had committed murder on 12-4-60 with a country made pistol. After being arrested, Mahinder Singh made a discovery of the country made pistol on April 26, 1960 u/s 27 of the Evidence Act. The Ballistic Expert had given an opinion that the spent cartridges which were found near the dead bodies immediately after the murder, had been fired by the same pistol. Mahinder Singh was tried separately for the offences of murder punishable u/s 302 IPC and of possessing illicit arm punishable u/s 19(1)(f) of the old Arms Act. The evidence of discovery of the country made pistol at the instance of Mahinder Singh was treated to be a valuable corroborative evidence for his trial in the case of murder. In para 9 of the report, the Supreme Court observed as follows:

The evidence of the eye witnesses is further fortified by the discovery on the statement of the accused of the pistol and the 2 cartridges in cloth bag described by him and the identity of the weapon in relation to the empty cartridges found at the scene of the occurrence and which were responsible for the death of Dula Singh and the injuries to the others.

Likewise in the present case on a finding of the robbery of the rifle punishable u/s 394 of the IPC as also a finding of its recovery from illicit possession of the applicant, punishable under the Arms Act in the 2 trials, the doctrine of issue estoppel is likely to operate one way or the other in one case or the other. In this situation, the commitment of the case u/s 3/25 of the Arms Act to the Court of Sessions for trial was a fair and proper exercise of his powers u/s 323 of the Code by the Magistrate. The order of the Additional Sessions Judge transferring the case to the Chief Judicial Magistrate for trial is bound to result in prejudice and injustice one way or the other. The discretion exercised by the learned Additional Sessions Judge therefore was not sound and must be remedied by this Court.

I am informed that in the trial of the offence u/s 302/394 IPC the evidence has been concluded and the case is at the stage of judgment. It is absolutely necessary therefore that the trial of the case for the offence u/s 3/25 of the Arms Act must be concluded promptly.

The application is allowed. The impugned order dated 4-9-85 of the V Additional Sessions Judge, Hardoi is set aside and he (Sri Pratap Singh) is directed to proceed with the trial of Sessions Trial No. 78 of 1984 u/s 3/25 of the Arms Act expeditiously and to deliver the judgment in that case alongwith the judgment in the Sessions Trial for the offence u/s 302/394 IPC. The applicant shall appear or shall be produced (as the case may be) before the learned Additional Sessions Judge on 12-5-86 for purposes of trial for which date the prosecution evidence shall be summoned and the case shall proceed so far as possible from day to day. A copy of this order shall be sent immediately by the office to the Court of the Additional Sessions Judge referred to above for compliance.

Application allowed.