J.L. Kilam, J.
1. The accused persons by name, Habib Rather, Asboor Ganai, Ramzan Sheikh, Khaliq Waza, Lassi Ganai, Mahda Ganai, Rehman Ganai, Khazit Rather and Shaban Rather were committed to sessions by the Munsiff Magistrate first class Sopore to stand their trial under Sections 302/149 R. P. C. All the nine accused were found guilty, under Sections 302/149, R. P. C. and were sentenced to life imprisonment and to a fine of Rs. 15/- each with two months further rigorous imprisonment in default of payment of fine. The accused Habib Rather, Ashoor Ganni, Ramzan Sheikh and Khizar Rather were further convicted under Sections 148/149 R. P. C. and were sentenced to three years' rigorous imprisonment and to a fine of Rs. 15/- each, and in default to undergo two months imprisonment. Khaliq Waza, Lassi Ganai, Mehda Ganai, Rehman Ganai and Shaban Rather were likewise convicted under Sections 148/149 R. P. C. and sentenced to two years' rigorous imprisonment and to a fine of Rs. 15/- and in default to undergo two months' imprisonment. The sentences of imprisonment were ordered to run concurrently. All the accused persons have come up in appeal to this Court which is disposed of by this order.
2. According to the prosecution the relations between the accused Nos. 1, 2, 3 and 4 and Sultan Rather deceased were strained on account of various reasons which in view of the order that we are going to pass, we need not detail here. Suffice it to say that on the fateful day, the accused persons who had somehow or the other taken scent of the fact that the deceased was proceeding alone towards some place, way-laid him, made a concerted attack on him and belaboured him with Lathis which ultimately ended in his death. The prosecution produced about thirty witnesses and ultimately the learned Addl. Sessions Judge found the accused persons guilty under Section 302 R. P. C. and sentenced them as aforesaid.
3. Mr. J. N. Bhat Advocate appearing on behalf of the accused raised a preliminary objection that the proceedings taken and the trial conducted by the Addl. Sessions Judge was without jurisdiction. It appears that Mr. M. S. Naqishbandi, S. J. was appointed as Secretary in the Law Department vide Government Order No. 18 Order 1957 dated 9-8-1957. The Registrar High Court while forwarding a copy of this order to the District and Sessions Judge Kashmir made an endt. (?) to the effect that Mr. Naquishbandi District & Sessions Judge should hand over charge of his office to Mr. Abdul Qadir, Addl. Sessions Judge.
It was further directed by the order that the Addl. Sessions Judge shall attend to the routine work of the Sessions Court. Later on Mr. Abdul Qadir Addl. Sessions Judge was appointed as the Offg. Sessions Judge Order 19-10-57. that is to say it was after 19-10-57 that the Offg. Sessions Judge could have exercised the powers of a Sessions Judge. But as we find it Mr, Abdul Qadir made an order Order 29-8-1957 transferring this case to the file of the Addl. Sessions Judge Kashmir, i.e., to his own file.
From this it would appear that Mr. Abdul Qadir presuming to exercise the powers of a Sessions Judge transferred this case to his own Court. Learned Counsel appearing on behalf of the accused-appellants submits that the transfer order made by Mr, Abdul Qadir while assuming powers of a Sessions Judge was ultra vires of his powers for the simple reason that he was only to attend to the routine work and not pass such orders as only a Sessions Judge could do, without having been invested with the powers of a Sessions Judge.
It may be stated here that the power to transfer cases pending before a Sessions Judge to the Addl. Sessions Judge is vested only in a Sessions Judge. But in this case what we find is that the Addl. Sessions Judge transferred this case from the file of the Sessions Judge to his own file. This in the submission of the learned Counsel, was quite against law. The learned Counsel further submitted that the trial before the Addl. Sessions Judge being without jurisdiction, the order of conviction and sentence passed by him needs being set aside. We agree with him. In the circumstances of the case, we find that there is considerable force in the submission made by the learned Counsel, and the Advocate General has not been able to support the procedure adopted by the Addl. Sessions Judge.
4. There is yet one more point raised by Mr. Omkar Nath Tiku appearing on behalf of the accused persons. He has drawn our attention to the fact that the assessors have not been examined by the Addl. Sessions Judge in the manner provided by law. According to Section 309, Criminal P. C. in a case tried with the aid of assessors, the Court after taking down the evidence for the prosecution and the defence, shall require each of the assessors to state his opinion orally on all charges on which the accused has been tried, and shall record such opinion, and for that purpose may ask the assessors such questions as are necessary to ascertain what their opinions are.
It is further provided in Section 309 that all such Questions and answers shall be recorded. But in the present case the Addl. Sessions Judge has simply recorded the opinion of the assessors on the whole case without inviting them to express opinion on particular charges. He has not put any question to the assessors. To clarify the matter further, we might give the opinion of the assessors as recorded by the Addl. Sessions Judge.
Sadar-ud-Din: The accused must get the benefit of doubt.
Vishna Kaul: I am in agreement with the opinion expressed by Sadar-ud-Din.
S. Mirak Shah: I am in agreement with the opinion expressed by Saddar-ud-Din and Vishan Kaul.
5. In Prem Nath v. State of Delhi AIR 1958 SC 4 (A), the law has been summarized in the following words:
The not taking of the. opinion of the assessors in respect of all the charges for which the accused was tried is certainly a grave violation of an imperative provision of the Code. A conviction in respect of a charge on which the opinion of the assessors was not at all taken would be clearly illegal....
6. In the case before their Lordships of the Supreme Court the assessors had given their opin-: ion about the charge of murder, though about other charges they had not expressed any opinion; and it was therefore argued before their Lordships that so far as the conviction of murder was concerned, that cannot be set aside merely because the assessors were not called to express their opinion with regard to other charges.
But in their Lordships' view the acts which were the subject-matter of the various charges, namely, the possession of an unlicensed fire-arm by the appellant and the commission of two murders and two attempts to murder with the firearm, constituted not only one transaction, but were in such quick succession and integrally connected with the truth or falsity of one or the other. All this in their Lordships' opinion was sufficient to have prejudiced the appellant merely by the fact that the opinion of the assessors was not called on all charges. In the present case no opinion has been called from the assessors on any charge whatsoever. All that the assessors have done was to have expressed their opinion about the whole case in a general manner. Under these circumstances the conviction and sentence of the appellants must accordingly be set aside and there must be a re-trial of the appellants in respect of all the charges, for which they were previously placed on trial before the Addl. Sessions Judge. J. N. WAZIR, C. J.:
7. I agree that the convictions and sentences of the appellants be set aside and the appellants be retried for all the charges for which they were tried previously by the Additional Sessions Judge.