Jammu & Kashmir High Court
State vs Mohd. Lateef Dar And Ors. on 17 October, 2005
Equivalent citations: 2006(2)JKJ485
Author: Manoor Ahmad Mir
Bench: Manoor Ahmad Mir
JUDGMENT Manoor Ahmad Mir, J.
1. This Reference has been made by the Judicial Magistrate, 1st Class (Munsiff), Magam, which seeks directions in order to determine the following points:
I/Whether the statement recorded under Section 161 Cr.P.C. can be used for the purpose of ascertaining the truth and false-hood of the complaint and the investigating officer has the power to drop the charges under Section 302, 307/RPC on the basis of statement recorded under section 161 Cr.P.C.
II/Whether the investigating officer can play the role of judge and can pronounce the verdict on the truth or false-hood of the allegations leveled in the said complaint while exercising his discretion under Section 169 Cr.P.C.
III/Whether the investigating officer without obtaining further remand under Section 167 Cr.P.C. in a murder case from a competent court can drop the charges against the accused persons and thereby release all of them on bail.
2. It appears that the learned Magistrate has given the facts of the case and has also tried to frame his own opinion.
3. Considered.
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.
4. Chapter XXXII of Criminal Procedure Code, prescribes how reference is to be made and revision is to be preferred.
5. Any court can make reference in terms of Section 432 Cr.P.C., when a question has arisen before the said court as to the validity of any Act or Ordinance, or of any provision contained in an Act or Ordinance, the determination of which is necessary for the just decision or for the disposal of the said case.
6. Any Sessions Judge or the Chief Judicial Magistrate can call the record of inferior criminal courts situated within its jurisdiction and the Sessions Judge can make recommendations in terms of provisions of Section 438 of Cr.P.C.
7. The Reference in hand has not been made by any Sessions Judge or the Chief Judicial Magistrate, but as stated above, has been made by the Magistrate, 1st Class.
8. The meat of the matter is whether the reference is squarely falling within the four corners of the mandate of Section 432 Cr.P.C. It is useful to reproduce the said provision herein:
432. Reference to High Court (1) Where any Court is satisfied that a case pending before it involves a question as to the validity of any 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 opinion that such Act or Ordinance or provision is invalid or inoperative, but has not been to 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 therefore, and refer the same for the decision of the High Court....
9. As discussed above, any court can make reference in terms of Section 432 Cr.P.C., when any matter involves a question as to the validity of any Act or Ordinance, or of any provision contained in an Act or Ordinance, the determination of which is necessary for the disposal of the said case and the said court is of the opinion that the said Act, Ordinance or provision is invalid or in-operative and has not been so declared by the High Court or by the Supreme Court, and accordingly, can refer the matter to the High Court.
10. Applying the test to the case in hand, the questions framed are not failing within the four corners of Section 432 Cr.P.C. It appears that the learned Magistrate has made the reference without going through the provisions contained in Chapter XXXII of Cr.P.C.
11. The Magistrate has ample powers to, control investigation, at the investigation stage and, pass appropriate orders during inquiry and trial. If the Magistrate comes to a conclusion that on the basis of, the material collected during investigation or, the evidence which is lead during trial, the accused are involved in offence/offences, the Magistrate is within its powers to pass appropriate orders in terms of the provision of the Criminal procedure Code. The Magistrate, however, cannot make reference in terms of Section 435 Cr.P.C., read with Section 438 of the Criminal Procedure Code.
12. In the given circumstances, I am of the view that the reference in hand is not tenable. My this view is fortified by a judgment of our own court reported in AIR 1969 Jammu and Kashmir 60, Abdul Rashid Shalla v. Jagdish Lal and Ors.. It is profitable to reproduce para 2 of the said judgment, herein:
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.
13. In , The State v. Keshab Chandra Naskar, it has been held that the Magistrate cannot make reference unless the mandate of Section 432 of Cr.P.C., is complied with. It is profitable to reproduce para 6 of the said judgment, herein:
Before proceeding to discuss the question raised on the Reference, it will be proper to emphasise at the outset the conditions required for such a Reference under Section 432 of the conditions required for such a Reference under Section 432 of the Code of Criminal Procedure for some of them do not appear to have been observed. The governing words in that section are:
(1) "Where any court is satisfied that a case pending before it involves a question as to the validity of any Act.
That is the first condition. In other words, a court has to be satisfied that the question of the validity of an Act is raised in a case pending before it. The second fact which constitutes another condition for Reference under Section 432 of the Code of Criminal Procedure is that the court has to be satisfied that the determination of that point is necessary for the disposal of the case. In other words, whenever and wherever the validity of an act is raised, it does not necessarily follow that a Reference must be made. It must be such a point that its determination is necessary or essential for the disposal of the case. The third and the last major condition in this section for a Reference is that the Court must be of the opinion that such Act 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. When these three major conditions are satisfied then of course, it is the duty of the court to send the case setting out its opinion and the reasons therefore and refer the same for the decision of the High Court.
14. Applying the test in the instant case, I am of the view that the reference in hand is not tenable.
The Reference is answered accordingly.
The record be sent down.