Mansoor Ahmad Mir, J.@mdashThis Review Petition is directed against the order dated 10th October, 2005 (hereinafter for short impugned
order) passed by Special Judge (Principal District and Sessions Judge, Jammu) in the case titled as State v. Ghulam Ahmad Mir and Ors..
2. The petitioners have assailed the impugned order on the grounds that learned Special Judge has wrongly, arbitrarily and erroneously framed
charge against the petitioners. Further it is averred that material was not available before the trial court for presuming that petitioners were prima
facie involved in the commission of offence punishable u/s 3 of Enemy Agents Ordinance 2005 (hereinafter for short Ordinance).
3. Mr. Rathore, learned AAG, raised a preliminary objection that this petition is not maintainable. While developing the argument, Mr. Rathore
argued that the remedy provided by Section 9 of Ordinance can be pressed into service by a convicted person or by the Special Judge who
submits the proceedings to the Reviewing Judge for review after certifying that in his opinion the case involves the question(s) of fact or law of
special difficulty or any such question which for any other reason ought properly to be reviewed.
4. Mr. Qayoom, learned Counsel for petitioners, while rebutting the arguments, argued that in terms of Section 9 Sub-clause (b) of Ordinance,
Reviewing Judge has the power and jurisdiction to call for and examine the record of any proceedings before the special judge.
5. Considered.
The aim and object of the Ordinance was to create an offence and to provide a machinery for the punishment of those offences which is provided
in Sections 3 and 4 and the subsequent provisions of the Ordinance.
The Ordinance provides how to regulate and conduct trial.
6. Section 2 of the Ordinance defines who is ""Enemy"" and who is ""Enemy Agent"". Section 3 provides the penalty. Sections 4 and 5 of the
Ordinance mandate how trial is to be conducted and who will conduct the trial. Section 7 prescribes the procedure and Section 9 provides review
of convictions. The other provisions i.e., Sections 10, 11, 12 and 13 of Ordinance provide how proceedings are to be conducted with some fetters
and restrictions on appearance of pleaders/Advocates. Section 12 of Ordinance also provides how to record the evidence. Section 14 of
Ordinance excludes interference of other courts.
7. Having view of the provisions of Ordinance, one comes to an inescapable conclusion that Special Judge has to be appointed and the trial is to
be conducted strictly in terms of the provisions of Ordinance and not in the manner trial is conducted in other cases.
8. No appeal is prescribed and interference of all courts is excluded except the remedy(ies) provided by the Ordinance.
9. The Ordinance provide how reviewing judge can exercise the powers in terms of Section 9 of Ordinance, as discussed above.
10. Section 9 of the Ordinance provide that out of the Judges of the High Court a Reviewing Judge is to be appointed and the Reviewing Judge is
invested with all powers exercisable in terms of Section 439 Code of Criminal Procedure.
The bone of contention is whether this review petition is maintainable?
11. In order to thrash out and marshall out the contention, it is useful to reproduce Section 9 of Enemy Agents Ordinance, 2005 herein, which
reads as under:
Section 9. Review of convictions:
(1) If any proceeding before a Special Judge....
(a) a person convicted is sentenced to death or to imprisonment for life or
(b) though no person is so sentenced, the Special Judge certifies that in his opinion the case has involved questions of special difficulty, whether of
law or fact or is one which for any other reason ought properly to be reviewed, the proceedings shall be submitted for review by a person chosen
by the Government from the Judges of the High Court and the decisions of that person shall be final.
(2) Where any proceedings are so submitted for review, the Judge reviewing the proceedings may exercise in his discretion any of the powers
exercisable u/s 439 of the Code of Criminal Procedure, 1989, by the High Court in the case of any proceedings which the said Section 439 refers:
Provided that where in the exercise of these powers the judge reviewing the proceedings directs the retrial of the accused, or directs further
evidence to be taken, the reviewing judge may direct the retrial to be held or the further evidence to be taken by the Special Judge, or by a special
judge to be appointed for the purpose by the Government.
(3) The person appointed under Sub-section (1) to review the proceedings of a special judge may for an examine the record of any proceedings
before the special judge for the purpose of satisfying himself as to the correctness, legality or propriety of any finding, sentence or order recorded
or passed and as to the regularity of any proceedings of the special judge, and may exercise in the case of proceedings the record of which has
been so called for any of the powers which would have been exercisable by him in the case of such proceedings had they been submitted to him
for review under Sub-section (1).
12. Keeping in view the mandate of Section 9 of the Ordinance, I am of the considered view that this remedy can be availed by a convicted
person or by the Special Judge when he submits proceedings for review after certifying that the case involves question(s) of law or fact of special
difficulty or when the Special Judge is of the opinion that for any other reason it ought to be properly reviewed.
13. The instant review petition is neither filed by a convicted person nor submitted by the Special Judge in terms of Section 9(b) of Ordinance.
Thus, it can be safely held that this review petition is not maintainable.
14. The next question which emerges for determination is whether the Reviewing Judge can call for and examine the record of any proceedings
before the Special Judge in order to satisfy himself as to the correctness, legality or propriety of any finding, sentence or order passed and also as
to the regularity of any proceedings.
15. In order to answer this question, I deem it proper to reproduce Section 435 (1) and (4-a) of Code of Criminal Procedure herein, which reads
as under:
435. Power to call for records of inferior Courts.-d) The High Court or any Sessions Judge [or Chief Judicial Magistrate] may call for and examine
the record of any proceeding before any inferior Criminal Court situate within the local limits of its or his jurisdiction for the purpose of satisfying
itself or himself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any
proceedings of such; inferior Court and may, when calling for such record, direct that the execution of any; such sentence [or order] be suspended
and, if the accused is in confinement that he be released on bail or on his own bond pending the examination of the record.
[4-a) 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.
16. The language and the words used in Section 435(1) of Code of Criminal Procedure and Section 9(3) of Enemy Agents Ordinance, 2005 are
same. Neither word 'revision' is contained in Section 435 of Criminal Procedure Code nor is used in Section 9(3) of Enemy Agents Ordinance,
2005. In terms of Section 435(1), Criminal Procedure Code, the High Court or any Sessions Judge can call for and examine the record of any
proceedings in order to satisfy himself about the correctness, legality or propriety of any finding, sentence or order and also regularity of any
proceedings. Section 9(3) of Ordinance is couched in the same words.
17. Thus, I am of the considered view that Reviewing Judge can exercise revisional powers and has jurisdiction and power to call for and examine
the record of any proceedings before the Special Judge, even before the conviction or acquittal is recorded.
18. The meat of the matter at this stage is whether this Court can exercise the revisional jurisdiction and powers in order to record whether the
impugned order has been passed legally or otherwise?
19. Before deciding this issue, the moot point which emerges for consideration is whether impugned order is interlocutory one?
20. Learned Special Judge has prima facie held that there were grounds for presuming that (accused) petitioners are involved in the commission of
offence punishable u/s 3 of Ordinance and has accordingly framed charge against the accused.
21. It is beaten law of the land that framing of charge is an interlocutory order. In terms of mandate of Section 435(4)(a) of Criminal Procedure
Code, referred hereinabove, the revisional jurisdiction and power cannot be exercised in relation to an interlocutory order.
22. The argument of Mr. Qayoom, learned Counsel for the petitioners, that the material placed before the trial court was insufficient to frame
charge and Special Court had no jurisdiction to frame charge is devoid of any force for the following reasons:
23. The trial court (Special Judge) is not required to pass speaking order while holding that there are grounds to presume for framing charge.
Speaking and reasoned order is required when order of discharge is passed. Special Judge has to frame prima facie opinion. Even if the said order
is cryptic that cannot be ground for exercise of revisional jurisdiction and power. My this view is fortified by a judgment delivered in case Kanti
Bhadra Shah and Another Vs. The State of West Bengal, . Paras 8 and 10 of the judgment reads as under:
8. We wish to point out that if the trial Court decides to frame a charge there is no legal requirement that he should pass an order specifying the
reasons as to why he opts to do so. Framing of charge itself is prima facie order that the trial Judge has formed the opinion, upon considering the
police report and other documents and after hearing both side, that there is ground for presuming that the accused has committed the offence
concerned. Chapter XIX deals with provisions for trial of warrant cases instituted on police report....
24. The Apex Court has held in a judgment Munna Devi Vs. State of Rajasthan and anr, that it is premature for High Court to quash charges by
saying that material before trial court was insufficient. It is profitable to reproduce para 3 and 4 of the judgment, which reads as under:
3. We find substance in the submission made on behalf of the appellant. The revision power under the Code of Criminal Procedure cannot be
exercised in a routine and casual manner. While exercising such powers the High Court has no authority to appreciate the evidence in the manner
as the trial and the appellate courts are required to do. Revisional powers could be exercised only when it is shown that there is a legal bar against
the continuance of the criminal proceedings or the framing of charge or the facits as stated in the First Information Report even if they are taken at
the face value and accepted in their entirety do not constitute the offence for which the accused has been charged. This Court in Kanti Bhadra
Saha and Anr. v. State of West Bengal has held that there is no legal requirement for the trial court to write a reasoned or lengthy order for framing
the charges.
4. In the instant case the learned Judge ignored the basic principles which conferred the jurisdiction upon the High Court for exercise of revisional
powers. It was premature for the High Court to say that the material placed before the trial court, was insufficient for framing the charge or that the
statement of the prosecutrix herself was not sufficient to proceed further against the accused-respondents.
25. In the given circumstances, the review petition is not maintainable.
Having glance of the above discussion, I therefore hold that Reviewing Judge has revisional jurisdiction and power in terms of Section 9(3) of
Ordinance.
26. Viewed thus, review petition is dismissed.
Registry is directed to send copy of this Court to the trial court for information.
