STATE Vs. MOHD SHAFI JILDSAZ

JUDGEMENT

(1.) THIS order will govern the disposal of criminal references No&. 10, 11, 12, 13, 14 and 15 of 1975.

(2.) THESE references arise like this: By notification SRO 493 dated 16th October, 1971 the Govt. in consultation with the High Court, conferred upon the Chief Judicial Magistrate, Srinagar all the powers of a Judicial Magistrate of first class in respect of the following cases within the Sessions Divisions Anantanag, Baramulla and Srinagar and appointed him to be a Special Magistrate for the trial of these cases namely:

(3.) ADMITTEDLY it was not legal or proper for the learned Magistrate to commit these cases to the court of Sessions, Srinagar, as the places, where the offences were committed, fell outside the territorial jurisdiction of the said court. But the remedy does not lie in the cases being transferred to the Courts of Sessions having such jurisdiction. That may not be proper and legal to do. Because it would amount to this court making the commitment which the law does not countenance. The appropriate way of removing the defect is to quash the commitment and ask the magistrate to make the commitment a new to the competent courts. In this I am supported by the decision in case State Vs. Pyloth (AIR 1956 Travancore -Cochin, 29) in which it was held: "Where an order of commitment is made to a Court of Session which has no jurisdiction over the offence and the defect is discovered before the trial begins, then on a reference made to the High Court the order of commitment should be quashed. The view that in such a case the case should be transferred to the Court to which it ought to have been committed does not seem to have a firm legal basis."