NIREN SARMA Vs. STATE OF ASSAM

JUDGEMENT

(1.) The order dated 8-3-1991 passed by the learned Sessions Judge, Shillong in Sessions Case No. 1 of 1989 is the subject matter under challenged in this revision petition under sections 397, 401 and/or 482 of the Code of Criminal Procedure. The facts of the prosecution case in a short compass are, as follows.

(2.) Due to infiltration of refugees from Bangladesh into the State of Assam, there was great resentment by the people of Assam particularly the different Students Associations/Organisations. The All Assam Students Union called bandhs, hartals and picketing and demanded deportation of refugees and foreign nationals. On 18-1-1980, a large picketing was organised in Duliajan in the District of Dibrugarh and the police resorted to firing where students were killed and many others injured. The students were of the view that Mr. Parthasarathy, Commissioner of Upper Assam Division, Jorhat, was responsible for Duliajan firing. According to the, prosecution, Shri Abhijit Sarma, the present petitioner No.2 issued a statement through local newspaper demanding judicial enquiry against the Commissioner, Mr. Parthasarathy in connection with the North Lakhimpur, G.R. Case No. 25(5) 81, where one Shri Gagan Dutta was arrested and a diary was recovered from his possession which indicated that the students blamed all non-Assamese Administrative Officers responsible for the said incident. During the investigation, it revealed that the present petitioners alongwith other 4 (four) persons had been meeting together and making plan for elimination of Mr. Parthasarathy and further; the said accused persons have been found procuring arms, ammunition and explosives and on 5-4-1981, the accused persons planted a hand grenade to be operated for explosion through a special device in the chair of Mr. Parthasarathy and. on 6-41981, when the said Mr. Parthasarathy came to office and occupied the chair, the grenade exploded resulting to his ultimate death. During the investigation, it is alleged that cogent and reliable evidence have been found pin-pointing the active participation of the above named, accused, persons in the commission of the crime. After the investigation is over, the accused persons including the present 3 (three) petitioners have been charge-sheeted under section 120-B read with Section 302 I.P.C. and Section 5 of the Explosives Substance Act. Two separate charge-sheets have also been filed against the accused Pradip Hazarika and Niren Sarma (petitioner No.1) for committing the defence punishable under section 25 of the Arms Act. Both the cases arose in the State of Assam but the trial is/was taken up in the Court of Sessions Judge at Shillong under the order of the Honble Supreme Court of India. After the commitment, the accused persons including the present 3 (three) petitioners appeared before the Court of the Sessions Judge at Shillong and made a prayer for discharging them from the charges levelled against them.

(3.) According to the defence, the present petitioner No. 1. Shri Niren Sarma was charge-sheeted separately under section 25 of the-Arms Act and the said case is to be tried by a competent Magistrate and not by the Sessions Judge and the alleged unlawful possession of the arms has nothing to do with the killing of Mr. Parthasarathy so as to form the same transaction and, as such, there cannot be a joint trial of the case under section 25 of the Arms Act with the main case of murder under section 302 of the I.P.C.