(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