1. This is an appeal against convictions and sentences under Section 364, Penal Code. The four appellants and two others were placed on their trial on a charge under Section 364, Penal Code, before the Assistant Sessions Judge of Bogra. The jury gave a unanimous verdict in respect of the four appellants to the effect that they were guilty of the offence with which they were charged, and in respect of the other two accused that they were not guilty of the offence with which they were charged. The learned Assistant Sessions Judge accepted the unanimous verdict of the jury, acquitted the other two accused and convicted the four appellants and sentenced them each under Section 364, Penal Code, to undergo rigorous imprisonment for five years.
2. The case for the prosecution in brief is that Panaulla (Court witness 1) fell in love with a prostitute named Sushila, persuaded the woman to adopt Islam and then married her in March 1941. Panaulla took this new wife, who after her conversion took the name of Abeda Khatun, to his village home to live in the same bari with his previous wife and with his father and brothers. His father and brothers were annoyed at this conduct and they resented Abeda Khatun's presence in their bari. On Monday 23r.d March 1942, Panaulla left his home for Sarishabari. After he had gone away the accused--Asmatulla Akanda, Nijamuddin Akanda, Ijjatulla Akanda, Sonaulla Akanda, Abedali Akanda, and Majibar Rahman Sarkar together with another man named Akamuddin Pramanik seized Abeda Khatun and carried her forcibly away from the bari. In doing so one or other of the assailants kept his hand on Abeda Khatun's mouth and the others squeezed her throat. They carried her away some distance to the river bank. Thereafter they returned home and Abeda Khatun was never again seen alive. Certain of the villagers were witnesses to the carrying away of Abeda Khatun.
3. Some days later two of the accused persons were observed scattering sand with their feet at a place on the river bank near the burning what. The man who saw them became suspicious and informed others about what he had seen. Information was given to the police and ultimately a search was made at the place where Malekuddin Fakir had seen these accused scattering the sand. Prom that spot the body of a female was disinterred. People of the village identified the body as that of the missing woman Abeda Khatun. The body was sent for post-mortem examination and the doctor who held the post-mortem examination was of opinion that death was due to asphyxia and that it was a case of homicide. On these materials a charge under Section 201 read with Section 120B, Penal Code, was framed by the committing Magistrate and seven persons were committed to the Court of Session. The learned Sessions Judge of Pabna and Bogra transferred the case to the file of the Assistant Sessions Judge of Bogra for disposal apparently without having read the actual charge. The actual charge framed by the committing Magistrate was that the seven accused persons conspired to murder Abeda Khatun and to conceal the evidence of the murder. The committing Magistrate ought to have described the charge as a charge under Section 302/120B and under Section 201/120B and not merely one under Section 201/120B; and if he had done so probably the case would not have been sent to the Assistant Sessions Judge for trial.
4. On receipt of the record by the Assistant Sessions Judge a date was fixed for hearing and a number of common jurors was summoned to attend the trial. On the date of hearing one of the accused persons Akamuddin Pramanik, filed a petition before the Assistant Sessions Judge praying that the Judge should tender him a pardon under Section 338, Criminal P. C., and examine him as an approver in the case. After hearing arguments of both sides as to whether he had jurisdiction to act under Section 338, the learned Assistant Sessions Judge directed the committing Magistrate to tender a pardon to the accused Akamuddin Pramanik on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relating to the offence. Thereafter the committing Magistrate tendered a pardon to Akamuddin Pramanik and recorded his evidence, but not in the presence of the other accused. Akamuddin was sent to the Assistant Sessions Judge as a witness for examination in the case. After receiving the evidence of Akamuddin Pramanik recorded by the committing Magistrate the learned Assistant Sessions Judge cancelled the charge under Section 201/120B and framed a new charge against the remaining six accused, namely:
That you, on or about the 9th day of Chaitra 1348 B. S. at Parbhetabari P. S. Shariakandi Abducted Sushila Peshkar alias Abeda Khatun in order that the said Sushila Peshkar alias Abeda Khatun might be murdered, and thereby committed an offence punishable under Section 364, Penal Code, and within my cognizance.
5. After framing this charge the learned Assistant Sessions Judge recorded the evidence and proceeded with the trial of the six accused persons on this one charge alone with the result already stated. It is obvious from what is stated above that the prosecution sought to prove that the reason for the abduction of the woman Abeda Khatun was that she might be murdered, by proving that in fact she was murdered in consequence of the abduction. The facts on which the prosecution relied to establish the charge under Section 364 were sufficient, if believed, to establish the more serious offence of murder or at least abetment of murder. If the evidence of murder was not believed, there was practically nothing before the jury to show that the object with which the woman was taken away was that she might be murdered or placed in danger of being murdered. In other words, if the case under Section 364 was established, the graver case under Section 302 or Section 302/109 must be established and if the case under Section 302 or Section 302/109 was not established a case under Section 364 was also not established.
6. In these circumstances, it seems to me that the proper charge on the materials before the Assistant Sessions Judge was a charge under Section 302 or Section 302/109 against the accused persons. But an Assistant Sessions Judge is not empowered to pass the only sentence which under the law may be passed on persons convicted under Section 302 or Section 302/109, Penal Code. Therefore the Assistant Sessions Judge ought not to have tried this case at all. The learned Assistant Sessions Judge was certainly not entitled to omit framing the charge under the more serious offence and to frame a charge under the less serious offence under Section 364 in order to acquire jurisdiction; and if he framed less serious charge instead of the more serious one through a misappreciation of the evidence, he failed to exercise a proper discretion in the matter. An objection was taken during the argument to the learned Assistant Sessions Judge tendering a pardon to Akamuddin Pramanik under Section 338, Criminal P. C, and it was argued by Mr. N.K. Basu that the Assistant Sessions Judge was not the Court to which, the commitment was made and was therefore not the Court entitled to take action under Section 338. Mr. Basu argued that the accused were committed to the Court of Session and that the Sessions Judge alone was the Court of Session to whom the commitment was made. Section 9(3), Criminal P. C, provides:
The Local Government may also appoint Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in one or more such Courts' (Courts of Session.)
7. Section 17(3), Criminal P. C., provides that all Assistant Sessions Judges shall be subordinate to the Sessions Judge 'in whose Court they exercise jurisdiction.' It is obvious therefore that the Assistant Sessions Judges exercise their jurisdiction in the Courts of Session; and they are, therefore, when presiding over a trial by Sessions, the Courts of Session, and therefore Courts to which the commitment is made. I am satisfied that the Assistant Sessions Judge when conducting a trial by jury is the Court which has jurisdiction under Section 338, Criminal P. C. either to tender a pardon or to order the committing Magistrate or the District Magistrate to tender a pardon to an accused person. In the result therefore the convictions and sentences are set aside and it is ordered that the accused persons be retried on charges of murder or abetment of murder. The appellants should surrender to their bail and be detained in custody pending orders by the Sessions Judge.