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Abdul Rashid Shalla Vs. Jagdish Lal and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtJammu and Kashmir High Court
Decided On
Judge
Reported in1969CriLJ610
AppellantAbdul Rashid Shalla
RespondentJagdish Lal and ors.
Excerpt:
- .....to refer any question of fact for the opinion, of the high court. the only provision entitling a trial magistrate to make a reference is the one contained in section 432 of the code of criminal procedure which was added by the state legislature vide act no. 27 of 1957. the said section reads as under:(1) where any court is satisfied that a case pending before it involves a question as to the validity of an act, or ordinance or of any provision contained in an act or ordinance, the determination of which is necessary for the disposal of the case and is of the opinion that such act or ordinance or provision is invalid or inoperative but has not been so declared by the high court to which that court is subordinate or by the supreme court, the court shall state a case setting out its.....
Judgment:
ORDER

Jaswant Singh, J.

1. This reference made by the-City Munsiff, Magistrate 1st Class, Srinagar, which seeks directions from this Court regarding delivery and custody of Bus No. JKA 3845 appears to me to be totally misconceived and incompetent. Under the provisions of Section 438 of the Code of Criminal Procedure, it is only a Sessions Judge or a District Magistrate who can after examination under Section 435 of the Code of Criminal Procedure, of the record of any proceeding or otherwise make a reference to the High Court.

The High Court is not an advisory body and it is not open to any Magistrate to refer any question of fact for the opinion, of the High Court. The only provision entitling a trial Magistrate to make a reference is the one contained in Section 432 of the Code of Criminal Procedure which was added by the State Legislature vide Act No. 27 of 1957. The said section reads as under:

(1) Where any court is satisfied that a case pending before it involves a question as to the validity of an Act, or Ordinance or of any provision contained in an Act or Ordinance, the determination of which is necessary for the disposal of the case and is of the opinion that such Act or Ordinance or provision is invalid or inoperative but has not been so declared by the High Court to which that Court is subordinate or by the Supreme Court, the Court shall state a case setting out its opinion and the reasons therefor and refer the same for the decision of the High Court.

(2) Any court making a reference to the High Court under Sub-section (1) may, pending the decision of the High Court thereon, either commit the accused to Jail or release him on bail to appear when called upon. A careful study of the above provision of Law will show that for its applicability, the following conditions must concur.

(1) The Court must be satisfied that a case pending before it involves a question as to the validity of any Act, or Ordinance or any provision contained in an Act, or Ordinance. The question involved must be real and substantial. A mere plea by a party that an Act or Ordinance or provision contained in an Act or Ordinance is ultra vires or a mere doubt entertained by the Court would not be enough. If the Court is not so satisfied, it should proceed with the trial and leave the aggrieved party to move the High Court under Section 105 of the Constitution of Jammu and Kashmir and continue the trial until such a motion is admitted and trial stayed by the High Court.

(2) The determination of the said question must be necessary for the disposal of the case.

(3) The Court must be of the opinion that such Act or Ordinance, or provision is invalid or inoperative.

(4) The said Act or Ordinance or provision must not have been already declared by the High Court to which the Court is subordinate or by the Supreme Court to be invalid or inoperative.

2. It is only when all these conditions are satisfied that a trial Magistrate has the power to make a reference to the High Court. In no other case can a trial Magistrate make a reference to the High Court. As the requirements of the aforesaid provisions contained in Section 432 of the Code of Criminal Procedure are not satisfied in the present case, the reference is wholly-untenable.

3. The reference accordingly fails and is hereby rejected. The record shall go back to the trial Magistrate who shall dispose of the matter expeditiously according to law.


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