IMPORTANT POINT
Expression Magistrate appearing in Section 26 of the Evidence Act would mean only a Judicial Magistrate and not an Executive Magistrate

JUDGMENT

Ujjal Bhuyan, J.—The two appeals are before us on a reference made by a Division Bench of this Court to examine and decide the following question of law:—

“Whether the expression Magistrate appearing in Section 26 of the Evidence Act would mean Judicial Magistrate or an Executive Magistrate?”

2. Before we deal with the referral order and answer the question referred, it would be apposite to make a brief reference to the two appeals out of which the reference has arisen.

3. Both the appeals have been preferred against the judgment and order dated 13.11.2007 passed by the Additional Sessions Judge (FTC), Bongaigaon in Sessions Case No.25(D)/2001 convicting the appellants under Sections 120(B)/460/302/34 IPC and sentencing them to rigorous imprisonment for 10 years with fine of Rs.5,000/- each with a default clause for the offence under Section 460 IPC; imprisonment for life with fine of Rs.5,000/- each with a default clause for the offence under Sections 120(B)/302 IPC; imprisonment for life with fine of Rs.5,000/- each with a default clause for the offence under Sections 302/34 IPC.

4. Shri Kartik Chakraborty, Jabed Ali and Ali Akbar are the appellants in Criminal Appeal No.7/2008 whereas Shri Ajay Chakraborty is the appellant in Criminal Appeal No.8/2008.

5. Appellant Shri Ajay Chakraborty is the husband of the deceased Anita Chakraborty whereas appellant Shri Kartik Chakraborty is the brother of Shri Ajay Chakraborty. Jabed Ali and Ali Akbar were stated to be hired killers engaged by Shri Kartik Chakraborty at the instance of Shri Ajay Chakraborty to cause murder of Anita Chakraborty.

6. The referral order dated 12.12.2013 indicates that there were matrimonial disputes between accused No.1 Shri Ajay Chakraborty and deceased Anita Chakraborty. Accused No.1 had requested accused No.2 Shri Kartik Chakraborty, his brother, to make arrangement for causing murder of the deceased. Accused No.2 in turn engaged accused Nos.3 and 4, Jabed Ali and Ali Akbar, to cause the murder. On 09.10.1999, accused No.1 went to Cooch Bihar stating that he was going there to bring ornaments for his wife Anita leaving behind Anita in the house of her sister Smt. Gita Das. On the fateful night, Anita was sleeping in the same bed with Smt. Gita Das and her minor daughter. Husband of Smt. Gita Das, Shri Prabir Das, had gone to the residence of Shri Ajay Chakraborty to guard the house during night time in the absence of Shri Ajay Chakraborty. At around midnight, one miscreant entered into the house of Smt. Gita Das by digging a small tunnel whereafter he opened the door. Hearing the noise, Smt. Gita Das woke up and saw one person inside the room. She tried to wake her sister Anita. In the meanwhile, another person entered into the room and came near the bed where they were sleeping. With the help of torchlight, they identified Anita whereafter they dealt repeated dagger blows on the person of Anita. They dragged her to the floor and continued to deal dagger blows on her. When Smt. Gita Das tried to raise hue and cry, the two miscreants threatened her in Bengali language to remain silent. After she died, the two miscreants left the room.

7. On the next date, i.e., on 10.10.1999, Smt. Gita Das lodged ejahar before the Dhaligaon Police Station on the basis of which Dhaligaon Police Station Case No.57/1999 under Sections 460/302 IPC was registered.

8. In the course of investigation, police apprehended accused Nos.3 and 4 on 25.10.1999 and made a requisition to the Additional District Magistrate, Bongaigaon for magisterial assistance in carrying out the investigation. Additional District Magistrate deputed PW 25 Md. Mitta Uddin Ahmed, Executive Magistrate, who was then serving as Extra-Assistant Commissioner, Dhubri, to assist in the investigation. Accused Nos.3 and 4 were interrogated by the police in the presence of PW 25 and in the face of sustained interrogation, they confessed that they were engaged by accused Nos.1 and 2 to cause the murder for w