Rashid Paul

HC recommends administrative action against junior judge for transgressing jurisdiction

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Srinagar, Oct 13: The J&K High Court on Saturday recommended initiation of administrative action against the Special Mobile Magistrate (Electricity), Unit-III, Pattan, for conducting trial in a case of death of a young person from Baramulla and drawing conclusions on “conjectures and surmises”.

Justice M K Hanjura recommended to Chief Justice and the portfolio judge, looking into the affairs of district Baramulla, “to initiate administrative action against the Special Mobile Magistrate (Electricity), Unit-III, Pattan, for having travelled into an area which was neither within his domain nor in his power”.

The Magistrate had concluded that the deceased Azad Ahmad Lone had died under mysterious circumstances, a conclusion contrary to the findings of the police investigation, which said his death was the result of a suicide on 6th of July, 2011.

The police had filed an FIR into the case and conducted its investigation.

The matter, however, took a complicated turn as the father of the deceased filed an application in the court of CJM Sopore praying therein that the police authorities be directed to register an FIR in the case and conduct the investigation afresh.

The court instantly directed the SHO Police Station Sopore to register an FIR immediately and submit the report to it.

However, the CJM Sopore did not pass any order in the case but he transferred the matter to the Court of Special Mobile Magistrate (Electricity) Pattan on November 15, 2012.

The Special Mobile Magistrate (Electricity) Pattan proceeded to record the evidence in the matter and passed the order dated December 30, 2013.

The Magistrate had no jurisdiction to record the evidence in the case or to pass the order, pleaded the aggrieved parties in the case.

He had to follow the procedure as laid down in Section 205-E CrPC. He having not done so and instead having proceeded to record the statements of the witnesses and based on surmises and conjectures, passed an order that caused great miscarriage of justice, argued their counsel.

The counsel also said that when a private complaint is filed before a Magistrate in relation to the offences which are triable by the Court of Sessions, the Magistrate after recording the statement of the complainant, has to commit the case to the Session Court.

He cannot proceed to record evidence in the case and pass an order, holding the accused guilty of the commission of the crime which is exclusively triable by the Court of Session.

“The proceedings thus initiated by the Special Mobile Magistrate (Electricity) Pattan, as also the order dated 30.12.2013 are without jurisdiction and are liable to be set aside.”

He said that warrants were unnecessarily issued against SDPO Sopore, the medical officer and SHO P/s Kupwara, for their appearance before the Magistrate.

He not only recorded the evidence in the case, but has also harassed the witnesses by issuing bailable warrants against them, without any jurisdiction, he added.

The High Court after hearing all the sides observed that both the actions of the Chief Judicial Magistrate, directing the registration of an FIR when the matter was already being investigated into by the police authorities in the FIR registered at the police station at an earlier point of time and directing the re-investigation of the case during the course of the investigation itself are illegal and cannot withstand the scrutiny of law, it held.

The Chief Judicial Magistrate as is reiterated here transferred the case to the Special Mobile Magistrate (Electricity) Pattan, who adopted a novel procedure which is unknown to the provisions of law, it observed.

The magistrate has followed the procedure in breach and violated it with impunity and has proceeded to record the evidence in camera, which cuts at the very root of the case, it held.

The entire exercise of the Judicial Magistrate, Pattan, is dehors the law, it concluded.

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