Mufti Baha-Ud-Din Farooqi, Actg. C.J.
1. These revisions, one by the State and the other by the complainant, are directed against an order passed on 10-4-1980, by the Sessions Judge, Srinagar. The order reads thus:
After the opening address, it was found that a prima facie case under Sections 304/504/447 R.P.C. is made out against the accused Ab. Rahim Rather. The learned P. P. in his opening address conceded that it was not a case under Section 302 R.P.C. but prima facie, a case under Section 304 R.P.C. was made out against this accused. As against the accused Abdul Ahad Khan a prima facie case under Section 504 R.P.C. was made out. The accused Abdul Rahim Rather was, therefore, charged under Section 304/504/447 R.P.C. and the accused Abdul Ahad Khan was charged under Section 504 R.P.C. The contents of the charges were read out to the accused persons. They pleaded not guilty and claimed to be tried. So the P. P. should produce evidence in the case now. Put up the case on 28, 29 and 30th April, 1980, respectively.
2. For the accused a preliminary objection was taken in regard to the maintainability of these revisions on the ground that no revision is competent against an interlocutory order. The argument of the learned Counsel for the accused is that the impugned order is in the nature of an interlocutory order, being an order framing the charge, which has been passed at the intermediate stages of the proceedings as a step towards the final determination of the guilt of the accused. For this, he relied upon the provisions of the newly added Clause (4-a) of Section 435 Cr. P.C. as also on the decisions reported in V.C. Shukla v. State 1980 Cri LJ 690 (SC) and Manohar Nath v. State of Jammu and Kashmir 1980 Cri LJ 292 : AIR 1980 NOC 72 (J & K) (FB):
2-A. Section 435(4-A), Cr. P. C provides:
The powers of revision conferred by this section shall not be exercised in relation to any interlocutory order, passed in any appeal, inquiry, trial or other proceedings.
3. In the case of Manohar Nath (supra), a Full Bench of this court has held that an 'interlocutory order' is one which is passed at some intermediate stage of a proceeding to advance the cause of justice for the final determination of the rights between the parties. In the case of V., C. Shukla, the Supreme Court has specifically observed that an order framing the charge is an interlocutory order. It necessarily follows that if the impugned order is an order framing the charge then no revision would lie. The argument of the learned Counsel for the revisionist, however, is that, in effect and substance, the impugned order is an order discharging the accused Abdul Rahim Rather, of the offence under Section 302, R.P.C. and so viewed, it is a revisable order. The argument has enough substance in it. The police submitted a charge-sheet complaining that the accused Abdul Rahim Rather had committed an offence under Section 302/447, R.P.C. The learned Sessions Judge framed a charge against him under Section 304/504/447, R.P.C. Thus he impliedly discharged the accused Abdul Rahim Rather under Section 302, R.P.C. The question is whether an implied order of discharge is contemplated by Section 268 of the Cr. P.C. I say so, because the learned Counsel for the accused contended that newly inserted Section 268, Cr. P.C. contemplates an express order of discharge only. Section 268, Cr. P.C. reads thus:
If upon consideration of the record of the case and the documents submitted therewith and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.
4. The provisions of this section are in pari materia with the provisions of Section 209(1) of the Criminal Procedure Code. The provisions of Section 209(1) fell for consideration by the Supreme Court in the case of Ramekbal Tiwary v. Madan Mohan Tiwary : 1967CriLJ1076 and the Supreme Court held:
It is apparent from the language of Section 209(1), Cr. P.C. that an express order of discharge is only contemplated in a case where the Magistrate comes to the conclusion that the allegations against the accused do not amount to an offence at all, and therefore, no question arises of trying him either by himself or by any other court. But the section does not contemplate that an express order of discharge should be made in a case where upon the same facts it is possible to say that though no offence exclusively triable by a Court of Session is made out, an offence triable by a Magistrate is nevertheless, made out and the Magistrate, thereafter proceeds with the trial of that offence.
The appropriate court will be prevented in some cases exclusively triable by that court, from trying the accused for the graver offence on those very facts on which the Magistrate has tried the accused on minor offence, thinking that the offence is a minor one which he can try. It is to obviate such a consequence and to prevent inferior courts from exercising a jurisdiction which they do not possess that the provisions of Section 437, Criminal Procedure Code have been enacted. To say that these provisions can be availed of only where an express order of discharge is made by a Magistrate would be to render those provisions ineffective and inapplicable to the very class of cases for which they were intended.
5. It necessarily follows that Section 268, Cr. P.C. does not contemplate that there should be an express order of discharge in a case where, in the opinion of the Sessions Judge, an offence triable exclusively by the Court of Session is made out though not being the same for which a charge was brought against the accused. Consequently it cannot be reasonably contended that the powers of revision are available only where there is an express order of discharge under Section 268, Cr. P.C. The section contemplates an implied order of discharge as well. If that be so, as it really is, then an implied order of discharge can be the subject matter of a revision as much as express order of discharge. In this view, the preliminary objection fails.
6. Coming to the merits of the order, the argument of the learned Counsel for the revisionists is that the impugned order is vitiated by an error of jurisdiction. They urged that the learned Sessions Judge has never cared to apply his mind. He has passed the impugned order mechanically. For this, they relied upon several circumstances: Firstly that the charge does not give proper description of the factual position relied upon by the prosecution. Secondly, the Sessions Judge has charged the accused for an offence under Section 504, R.P.C. about which there was no accusation in the charge-sheet submitted by the Police. Thirdly, that the Sessions Judge has acted upon the concession of the Public Prosecutor without ascertaining whether the concession so made was founded upon facts.
7. There is ample force in this argument. The learned Sessions Judge has framed a charge against Abdul Rahim Rather accused stating that he inflicted one blow on the head of the deceased which caused his death. The case of the prosecution, however, is that not only one but two blows in succession were inflicted by the said accused on the head of the deceased and this is borne out prima facie by the evidence collected by the Police under Section 161, Cr. P.C. Thus the first circumstance cannot be said to be ill-founded.
8. The second circumstance is equally borne out from the record. The prosecution has nowhere alleged that the accused Abdul Rahim Rather was guilty of an offence under Section 504, R.P.C. In fact there is not a whisper in the charge-sheet or in the evidence collected by the Police that the said accused had used abusive language. Even the charge framed by the Sessions Judge does not say so, and yet the Sessions Judge was advised to frame the charge against the accused under this section as well.
9. Coming to the third circumstance, there can be no doubt that the Public Prosecutor has conceded that an offence under Section 304, R.P.C. only was prima facie made out against the accused Abdul Rahim Rather, but the Sessions Judge could act upon such a concession only if it was based upon the facts and circumstances of the case. The learned Sessions Judge has nowhere recited such facts or circumstances, much less, considered the same. Thus the learned Sessions Judge has acted mechanically upon the concession of the Public Prosecutor.
10. The circumstances mentioned above leave no room for doubt that the learned Sessions Judge has not applied his mind to the facts and circumstances of the case. Consequently the impugned order suffers from an error of jurisdiction. For, the settled principle is that non-application of mind constitutes an error of jurisdiction.
11. In the result these revisions succeed and are accordingly allowed. The impugned order, in so far as it relates to the accused Abdul Rahim Rather, is set aside. The learned Sessions Judge is directed to frame fresh charges against him after going through the record and hearing the parties.
12. The parties are directed to appear before the Court of Sessions Judge, Srinagar on 30th October, 1980.