The Court of Sessions has the power to transfer a case under Section 228 Cr. P.C. even though it was committed to the Court of Sessions under Section 323 Cr. P.C., but the exercise of this power is discretionary and must be done in a sound manner.

K. Nath, J.

1. THIS revision under Section 397 Cr. P.C. is directed against an order dated 4-9-85 of the V Additional Sessions Judge, Hardoi (Sri Pratap Singh) under Section 228 of the Code of Criminal Procedure, 1973 transferring a case against the applicant under Section 3/25 of the Arms Act to the Court of Chief Judicial Magistrate, Hardoi for the applicant's trial.

2. IT appears that one Sheo Nath Singh had lodged a first information report against the 3 known persons and one unknown person for committing murder of Sukhendra Singh and Sunil Kumar Singh on 18-8-83 at about 8 A. M. and in the same transaction for committing robbery of rifle No. 8042 of deceased Sukhendra Singh. The looted rifle is said to have been recovered from the unlawful possession of the applicant Vijendra Vijai on 5-10-83 at 4.30 A. M. by the police officer investigating the crime of murder and robbery. The applicant obviously did not carry any licence for the rifle and consequently a case under Section 3/25 of the Arms Act was registered against him. He was also considered by the Investigating Officer to have been involved in the murder of Sukhendra Singh and Sunil Kumar Singh and consequently the applicant was not only included as an accused in the charge-sheet for the said murders but was also separately charge-sheeted for illicit possession of the rifle of one of the deceased. The case of murder was obviously triable exclusively by the court of Sessions and consequently all the accused including the applicant were committed to the court of Sessions under Section 209 of the Code of Criminal Procedure. It is stated in para 4 of this application that in the matter of the offence under Section 3/25 of the Arms Act, the Magistrate came to the conclusion that because the recovered rifle was alleged to have been robbed in the transaction of murder of its owner, the recovery of the rifle from the possession of the applicant was an issue which was bound to affect the case of murder and robbery also and for that reason the Magistrate committed the case under Section 3/25 of the Arms Act also to the court of Sessions for trial.

3. THE learned Additional Sessions Judge took up the 2 Sessions Trials. He observed that the offence under Section 3/25 of the Arms Act had no connection with the offence under Section 302 and 394 IPC. He observed that the case under Section 3/25 of the Arms Act was exclusively triable by the Magistrate, hence, in exercise of powers under Section 228 of the Code he transferred the case to the court of the Chief Judicial Magistrate for disposal according to law.

4. SRI Imtiaz Murtaza, the learned counsel for the applicant has urged that the committal of the case under Section 3/25 of the Arms Act was made under Section 323 of the Code of Criminal Procedure and the Sessions Judge had no jurisdiction to interfere with that committal in exercise of the powers under Section 228 of the Code. It was next urged that the acquittal or conviction of the applicant in the case under Section 3/25 of the Arms Act was bound to effect the result of the case under Section 302/394 IPC and there could be a conflict of findings if the 2 cases were to be tried separately by,2 courts; hence in any case, the order transferring the case under Section 3/25 of the Arms Act to the Chief Judicial Magistrate for trial was not proper and was likely to cause injustice. At the time of the hearing of this revision Sri R. N. Gupta Advocate appeared on behalf of the First Informant and assisted the Additional Government Advocate to oppose this revision. His contention is that the offence allegedly committed by the applicant under Section 3/25 of the Arms Act has nothing to do with the offence of murder and robbery allegedly committed by the applicant along with others and therefore there is no illegality in the order of the Additional Sessions Judge directing the case to be transferred under Sec. 228 of the Code.

5. THE contention of the learned counsel for the ap