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The Superintendent and Remembrancer of Legal Affairs Vs. Mansur Ali and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
AppellantThe Superintendent and Remembrancer of Legal Affairs
RespondentMansur Ali and anr.
Excerpt:
- .....accused-opposite parties, mansur ali and bajra mia who were awaiting trial before the assistant sessions judge, coochbehar under sections 366 and 376 read with section 34 of the i.p.c. along with another accused nurul mia.2. the relevant facts connected with the application before us are simple. the accused-opposite parties along with one nurul mia were committed to the court of session for trial by the committing magistrate under sections 341, 448 and 376 of the i.p.c. the learned sessions judge transferred the case for trial to the file of the assistant sessions judge. nurul mia was granted bail but the learned assistant sessions judge rejected the prayer for bail made on behalf of the accused-opposite parties on 22-1-1977. thereafter the said accused-opposite parties mansur ali and.....
Judgment:

R. Bhattacharya, J.

1. The present revisional application has been filed by the Superintendent and Remembrancer of Legal Affairs, West Bengal on behalf of the State against the order passed by the Sessions Judge, Coochbehar on 18-2-1977 granting bail to the accused-opposite parties, Mansur Ali and Bajra Mia who were awaiting trial before the Assistant Sessions Judge, Coochbehar under Sections 366 and 376 read with Section 34 of the I.P.C. along with another accused Nurul Mia.

2. The relevant facts connected with the application before us are simple. The accused-opposite parties along with one Nurul Mia were committed to the Court of Session for trial by the committing Magistrate under Sections 341, 448 and 376 of the I.P.C. The learned Sessions Judge transferred the case for trial to the file of the Assistant Sessions Judge. Nurul Mia was granted bail but the learned Assistant Sessions Judge rejected the prayer for bail made on behalf of the accused-opposite parties on 22-1-1977. Thereafter the said accused-opposite parties Mansur Ali and Bajra Mia filed before the learned Sessions Judge an application under Section 439 of the Cr. P.C., 1973 for bail and on hearing the parties the learned Judge granted bail on 18-2-1977. Against that order, the present revisional application has been filed.

3. Two contentions have been urged from the side of the petitioner-State by Mr. S. S. Roy, the learned Advocate. It has been first contended that the Assistant Sessions Judge to whom the case was transferred for trial being a Court of Session, the learned Sessions Judge had no jurisdiction to interfere with the order refusing bail. Secondly, it has been urged that in the absence of any specific provision in the Cr. P.C., 1973 giving jurisdiction to the learned Sessions Judge for considering a prayer for bail after it has been rejected by the learned Assistant Sessions Judge who was in seisin of a sessions trial, the impugned order of the learned Sessions Judge was without jurisdiction. The application has been opposed by Mr. Tapandeb Nandy appearing on behalf of the accused opposite parties.

4. For consideration of the submissions made on behalf of the petitioner, first of all let us consider Section 7 of the Cr. P.C., 1973. It says that every State shall be a Sessions Division or shall consist of Sessions Divisions and every Sessions Division shall, for the purpose of the Code, be a District or consist of Districts. There is no dispute that the District of Coochbehar is a Sessions Division. Sub-section (1) of Section 9 of the Code says that the State Government shall establish a Court of Session for every Sessions Division. Sub-section (2) mandates that every Court of Session shall be presided over by a Judge to be appointed by the High Court. There is no dispute also that the District Judge of Coochbehar is the Sessions Judge of the Court of Session in the Sessions Division of Coochbehar. According to Sub-section (3) of Section 9 the High Court may also appoint Additional Sessions Judges or Assistant Sessions Judges to exercise jurisdiction in a Court of Session. We have seen that according to Sub-section (1) there will be one Court of Session for every Sessions Division and, naturally, there would be one Sessions Judge of the said Court of Session. In addition, we find that Additional Sessions Judges and Assistant Sessions Judges may be appointed by the High Court for exercising jurisdiction in the Court of Session. Sub-section (5) of Section 9 states that where the office of the Sessions Judge is vacant, the High Court may make arrangements for the disposal of any urgent application which is or may be made or pending before the Court of Session by an Additional or Assistant Sessions Judge or, if there be no Additional or Assistant Sessions Judge, by a Chief Judicial Magistrate in the Sessions Division and every such Judge or Magistrate shall have jurisdiction to deal with any such application.

5. From the reading of the provisions in Section 9 of the Cr. P.C., it is clear that there will be one- Sessions Judge presiding over the Court of Session for every Sessions Division and that, if there be Additional Sessions Judges or Assistant Sessions Judges appointed by the High Court, they are so appointed only to exercise jurisdiction in the Court of Session. Any of the Additional Sessions Judges or the Assistant Sessions Judges cannot be the Sessions Judge as indicated in Section 9. Such Additional or Assistant Sessions Judges are only appointed to exercise jurisdiction in a Court of Session in respect of the cases made over to them for trial or for disposal by the Sessions Judge of the Sessions Division or as the High Court may, by special order, direct them to try according to Section 194 of the Code. Section 193 of the Code says:

193. Cognizance of offences by courts of session : - Except as otherwise expressly provided by this Code or any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code.

Clearly, therefore in the Sessions Division there will be only one Sessions Judge who presides over the Court of Session and the Additional Sessions Judge or the Assistant Sessions Judge, if there be any, cannot be Sessions Judge presiding over the Court of Session of the Division but is appointed simply to exercise the jurisdiction vested in the Court of Session of the Sessions Division.

6. Now let us come to Section 439 of the Code which is relevant for our purpose on the question of granting bail by the Court of Session. Chapter XXXIII of the Code contains provisions as to bail and bonds in respect of a person accused of an offence as mentioned therein. In particular, Section 437 speaks about bail of a person accused of or suspected of the commission of any non-bailable offence when he appears or is brought under arrest or detained without warrant before a court other than the High Court or the Court of Session to be granted by the Court concerned. Section 439 of Chap. XXXIII gives special powers to High Court and the Court of Session regarding bail to be granted by such court in respect of a person accused of an offence and in custody. The section runs as follows:

439. Special powers of High Court or Court of Session regarding bail : - (1) A High Court or Court of Session may direct-

(a) that any person accused of an offence and in the custody be released on bail, and if the offence is of the nature specified in Sub-section (3) of Section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section.

(b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified:

Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.

(2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.

The language of the section clearly says that besides the power of the trial court to grant bail to the person accused of an offence before it, the High Court and the Court of Session have been vested with special powers to consider the question of bail and grant the same, if necessary, to a person accused of an offence in connexion with a trial or investigation before any court within their jurisdiction. This special power can be exercised by the High Court or the Court of Session despite the refusal of the bail by the trial court.

7. It has been contended by Mr. Roy appearing on behalf of the petitioner that when the sessions case in question committed to the Court of Session was transferred to the Court of Assistant Sessions Judge, the said transferee court should be deemed to be the Court of Session as contemplated in Section 9 of the Cr. P.C., 1973 and, therefore, when the bail was refused by the said Assistant Sessions Judge, the Court of Session presided over by the Sessions Judge cannot have any jurisdiction to review the order of the Assistant Sessions Judge or sit in appeal over the order passed by the Assistant Sessions Judge refusing the bail. The contention of Mr. Roy cannot be accepted. Section 9, as we have already stated, speaks about one Court of Session in the Sessions Division, in the present case, of Coochbehar. There should be only one Sessions Judge presiding over the Court of Session. Additional Sessions Judges and Assistant Sessions Judges are appointed only to exercise jurisdiction in a Court of Session. When the Sessions Judge of the Court of Session of a particular Sessions Division makes over a Sessions case for trial to an Additional Sessions Judge or an Assistant Sessions Judge, such Judge exercises the jurisdiction in the Court of Session presided over by the Sessions Judge and disposes of the case in exercise of such jurisdiction. The said Additional Sessions Judges or the Assistant Sessions Judges exercising jurisdiction of a Court of Session cannot be held to be Sessions Judges and their Courts cannot be regarded as Courts of Session. Such Additional Sessions Judge or Assistant Sessions Judges are simply vested, in particular, to exercise jurisdiction of a Court of Session in respect of cases made over to them.

8. The term 'Court' has not been defined in the Criminal Procedure Code. According to the Websters Seventh New Collegiate Dictionary, 'Court' means amongst other things, 'a chamber or other place for the administration of justice' and 'a Judge or Judges in session'. In Oxford Dictionary the meaning of the word is given as 'body with judicial powers, tribunal, the Judge of a Law Court, hall in which Court sits'. In Osborn's The Concise Law Dictionary 4th Edn. we get the meaning of the word 'Court' as (1) a place where the justice is administered (2) the Judge or Judges who sit in a Court. When a sessions case is disposed of on trial by an Additional Sessions Judge or an Assistant Sessions Judge in exercise of the jurisdiction of a Court of Session, it may be stated that such case has been disposed of by a Court of Additional Sessions Judge or the Court of Assistant Sessions Judge respectively in a general way. But that does not mean that in such a case the Additional Sessions Judge or the Assistant Sessions Judge would be regarded as the Sessions Judge or that his Court would be deemed as a Court of Session as defined and enumerated in Section 9 of the Cr. P.C.

9. Section 439 of the Code gives special power to the Court of Session and the High Court as a special case to grant bail to the person accused of an offence irrespective of the fact that the bail of the accused has been refused by the trial court. It has not been mentioned in that section that this power is given to the Additional Sessions Judge or the Assistant Sessions Judge appointed to exercise jurist diction in a Court of Session. That the Sessions Judge of the Sessions Division is quite distinct from an Additional Sessions Judge or the Assistant Sessions Judge would further appear from Section 194 of the Code where the Sessions Judge is given power to make over certain sessions cases for trial to an Additional Sessions Judge or an Assistant Sessions Judge. In Section 374 of the Code relating to the appeals from convictions we find in Sub-sections (2) and (3) that Sessions Judge has not been equated either with the Additional Sessions Judge or with the Assistant Sessions Judge. In Clause (c) of Sub-section (3) of Section 374, we find a provision for appeal to the Court of Session. This Court of Session certainly means the Court of Session of the Sessions Division presided over by the Sessions Judge and not any court presided over by the Additional Sessions Judge or an Assistant Sessions Judge exercising jurisdiction in a Court of Session as mentioned in Section 9 of the Code. Our attention has been drawn to a few sections of the Cr. P.C. where a Court of Session means and includes the Courts of Additional Sessions Judge and Assistant Sessions Judge. For example, in Section 376 we get provisions that no appeal lies in certain cases where the Court of Session or a Metropolitan Magistrate passes only a sentence of imprisonment for a term not exceeding 3 months or of fine not exceeding Rs. 200/- or of both. Here from the reading of the entire provision it appears quite clear that here the Court of Session is used in a wider sense to include the courts presided over by the Additional Sessions Judge and the Assistant Sessions Judge. The meaning of the 'Court' here is wider and in popular sense. According to Section 193 of the Code, all sessions triable cases should be sent to the Court of Session for trial and according to Section 194 the Sessions Judge may make over sessions cases to the Additional Sessions Judges or the Assistant Sessions Judges for trial. Here in Clause (b) of Section 376 of the Code, the Court of Session has been used in a wider and popular sense to include the Court of Additional Sessions Judge and the Assistant Sessions Judge. Section 381 like Section 194 has given authority to the Sessions Judge for distribution of the appeals to the Additional Sessions Judge and the Assistant Sessions Judge or the Chief Judicial Magistrate, Section 384 clearly distinguishes the Court of Session and admittedly the Additional Sessions Judge or the Assistant Sessions Judge has no independent power to entertain the appeal or revision for admission, The Court of the Additional Sessions Judge and the Court of the Assistant Sessions Judge have never been equated with a Court of Session presided over by the Sessions Judge of the Sessions Division. It is to be particularly noted in this connexion that Section 400 clearly enumerates the position of the Additional Sessions Judge with reference to the Sessions Judge of the Sessions Division. According to this section an Additional Sessions Judge shall have and may exercise all the powers of a Sessions Judge under Chap. XXX in respect of any case which may be transferred to him by or under general or special order of the Sessions Judge. According to Section 10, Assistant Sessions Judge is subordinate to the Sessions Judge in whose court he exercises jurisdiction.

10. We have also noticed Sections 413 and 414 of the Code. According to Section 413 when in a case submitted to the High Court for confirmation of a sentence to death, the Court of Session receives the order of confirmation or other order of the High Court thereon, it shall cause such order to be carried into effect by issuing warrant or taking such other steps as may be necessary. Section 414 says that when a sentence of death is passed by the High Court in appeal or in revision, the Court of Session shall, on receiving the order of the High Court, cause the sentence to be carried into effect by Issuing warrant. These two sections according to the language used clearly indicate that the 'Court of Session' used there implies and includes the Court of Session presided over by the Sessions Judge and also the courts presided over by the Additional Sessions Judges who disposed of the cases referred to therein after they had been made over to them for disposal. The use of the words 'Court of Session' in Clause (b) of Section 376 or Sections 413 and 414 of the Code does not equate the Court of Session with the Court of the Additional Sessions Judge or the Court of Assistant Sessions Judge in the matter of Section 439 where the Court of Session of a Session Division has been particularly vested with special power without mentioning the Additional Sessions Judges or Assistant Sessions Judges or their courts. The Court of Session and the Sessions Judge have been described and their positions with reference to the Additional Sessions Judge and the Assistant Sessions Judges and their; courts have been clearly delineated and mentioned leaving no scope for confusion. Of course in Section 2 meant for definitions of certain terms, 'Court of Session' and 'Sessions Judge' have not been denned. But the absence of such definition will not alter the position of the Sessions Judge and the Sessions Court in the Sessions Division as mentioned in Section 9 of the Cr. P.C. In these circumstances ordinarily and generally 'Court of Session will mean the Court of Session in the Sessions Division as presided over by the Sessions Judge as mentioned in Section 9. But if there is any provision in the Code the language of which implies without any ambiguity that the Court of Session includes a court presided over by the Additional Sessions Judge or an Assistant Sessions Judge, it may be read as such in a wider sense to include such courts exercising the jurisdiction of a Court of Session. The meaning of 'Court of Session' will be determined according to the context and the language used to give a practical and workable meaning. However, with regard to Section 439 of the Code, we have no doubt that the words 'Court of Session' used therein mean the Court of Session presided over by the Sessions Judge and does not include any court presided over by either an Additional Sessions Judge or an Assistant Sessions Judge subject, however, to Sub-section (5) of Section 9 of the Code. This section gives special power to the Court of Session presided over by the Sessions Judge as mentioned in Section 9 of the Code. In this view of the matter we must hold that the Court of Session presided over by a Sessions Judge has got jurisdiction to entertain an application for bail on behalf of the accused persons in spite of the fact that their application for bail has already been refused by the Additional Sessions Judge or the Assistant Sessions Judge to whom the case is made over for disposal. This is a special power given to the Court of Session and can be exercised quite independently by that Court.

11. The second submission of Mr. Roy regarding the alleged absence of special authority to the Sessions Judge for consideration of bail is of no substance as well in view of Section 439 already discussed above.

12. As discussed above we find that both the points urged by Mr. Roy on behalf of the petitioner cannot be accepted. We hold that the learned Sessions Court had jurisdiction and was justified to entertain the application for bail filed by the accused-opposite parties.

13. Regarding the merits as to the granting of bail, we find that the learned Sessions Judge has considered the facts and circumstances of this case. He finds that one of the accused persons has already been granted bail and also it is found that the accused-opposite parties were all along on bail and and that they never misused the privilege given to them. The learned Sessions Judge is satisfied that there is no chance of abscondence or tampering with the evidence on the part of the accused-opposite parties. It appears that the learned Sessions Judge applied his mind judicially to the facts of the case and his reasons appear to be acceptable. We find no reason to interfere with the order for bail as passed by the Sessions Court below.

14. This revisional application is, therefore, rejected and the Rule is hereby discharged.

15. It appears from the office report that the Sessions case concerned is pending in the Court of the Assistant Sessions Judge for a long period and that the next date fixed is 1-8-1978. It is desirable that the matter should be disposed of as quickly as possible.

16. Send down a copy of this order to the Sessions Judge immediately for transmission to the Assistant Sessions Judge who shall dispose of the case at the earliest time possible.

Monoj Kumar Mukherjee, J.

17. I agree.


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