Criminal Revision Application No.250 of 2010

16th June, 2010

Petitioner Counsel: Mr. NITIN PRADHAN,Ms. MAHALAXMI GANAPATI,Ms. S. D. KHOT
Respondent Counsel: Mr. D. R. MORE,Mr. S. N. GAWADE

Cases Cited:
Kamleshwar Singh Vs. Dharamdeo Singh, AIR 1957 Patna 375 [Para 5]
Bhola Bind Vs. Emperior, AIR 1944 Patna 92 [Para 6]

JUDGMENT

JUDGMENT :- Rule. Rule made returnable forthwith. Heard learned Counsel for the parties.

2. On a report lodged by one Ibrahim Kasamali Shaikh, who is real brother of the present applicant/accused No.1, Crime No.232/2007 was registered under Section 307, IPC at Pydhonie Police Station. After investigation, charge-sheet was filed under Section 307 read with Section 34, IPC. The case was committed to the Court of Sessions and was registered as Sessions Case No.105 of 2008. The learned Sessions Judge made over the case to the Assistant Sessions Judge for trial and disposal as per law. After trial, the learned Assistant Sessions Judge acquitted the accused No.2, who is wife of the applicant and convicted accused No.1 for the offence punishable under Section 326, IPC and sentenced him to undergo R.I. for two years and to pay fine of Rs.1,500/- and also in default to pay fine, to undergo further R.I. for one month. The accused No.1 preferred Criminal Appeal No.213 of 2009. That appeal was dismissed by the learned Additional Sessions Judge, Mumbai, after hearing the parties.

3. The conviction of the accused No.1 under Section 326 has been challenged in the present Revision Application on several grounds. However, at the time of hearing, Mr. Pradhan, learned Counsel for the applicant pressed the Revision Application only on one ground. According to him, the offence punishable under Section 307, IPC is punishable with life imprisonment or imprisonment which may extend to 10 years and fine and the offence is triable by the Court of Sessions, which, according to him, means Sessions Judge or Additional Sessions Judge who has the power to impose punishment of imprisonment for life. He contended that as the Assistant Sessions Judge has power to award sentence of imprisonment upto ten years and not life imprisonment he does not have jurisdiction to try and dispose of the case under Section 307, IPC. Therefore, according to the learned Counsel, the trial and conviction of the accused is void ab initio and therefore the conviction is liable to be set aside. On the other hand, the learned Addl.P.P. Mr. More vehemently contended that the Assistant sessions Judge is a Judge of the Court of Sessions and the offence punishable under Section 307 is triable by Court of Sessions. According to the learned A.P.P., the power to award sentence of imprisonment is not relevant nor the maximum sentence of imprisonment which may be awarded for the offence under Section 307 is relevant. for the purpose of deciding whether the Assistant Sessions Judge has got jurisdiction to try and dispose of the case under Section 307, IPC. Learned APP contended that the Asstt. Sessions Judge, being Judge of Court of Sessions, has jurisdiction to try the case and can also award sentence subject to limit on his power to award sentence of imprisonment.

4. To appreciate the rival contentions and the arguments advanced by the learned Counsel for the parties, it will be useful to see the Scheme of the Criminal Procedure Code and to scan the different provisions of Cr.P.C. to find out whether the Assistant Sessions Judge has got jurisdiction or not to try the case under Section 307, IPC. Section 6 of the Cr.P.C. provides that besides the High Courts and the Courts constituted under any other law, there shall be in every State the following classes of Criminal Courts, namely :-

(i) Courts of Session;

(ii) Judicial Magistrates of the first class and, in any metropolitan area Metropolitan Magistrate;

(iii) Judicial magistrates of the second class; and

(iv) Executive Magistrates.

Section 9 provides that the State Government shall establish a Court of Session for every sessions division and every Court of Session shall be presided over by a Judge to be appointed by the High Court. Under Section 9, sub-section (3), the high Court may also appoint Additional sessions Judges and Assistant Sessions Judges to exercise jurisdiction in a Court of Sessions. Section 10 provides that all Assistant Sessions Judges shall be subordinate to the Sessions judge in whose Court they exercise jurisdiction and the Sessions Judge may, from time to time, make rules consistent with this Code as to the distribution of business among such Assistant Sessions Judges. Section 194 provides that an Additional Sessions Judge or Asstt. Sessions Judge shall try such cases as the Sessions Judge of the Division may by general or special order make over to him for trial. Section 28(1) provides that the High Court may pass any sentence authorised by law. Sub-section (2) provides that a Sessions Judge or Additional Sessions Judge may pass any sentence authorised by law; but any sentence of death passed by any such Judge shall be subject to confirmation by the High Court. Section 28(3) provides that an Assistant Sessions Judge may pass any sentence authorised by law except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding ten years. From this, it is clear that the Assistant Sessions Judge can impose any sentence of imprisonment upto ten years. In view of the arguments advanced by the learned Counsel for the applicant, the question is whether the Assistant Sessions Judge has jurisdiction to try the case under section 307 or not in view of the fact that the offence is punishable with imprisonment for life or imprisonment which may extend to ten years.

5. The learned Counsel relied upon certain authorities in support of his contention. In Kamleshwar Singh Vs. Dharamdeo Singh, AIR 1957 Patna 375, the Full Bench of the Patna High Court held that under section 17(3) of the Code of Criminal Procedure, 1898, an Assistant sessions Judge, who exercises his jurisdiction in the Court of Session, has no separate or independent entity in the sense that the Court over which he presides while exercising such jurisdiction, does not constitute an independent Court of Session within the meaning of Sec.9(1) of the Code. It was further observed that under Section 409 of that Code, it was not the intention of the Legislature that the powers given to Assistant Sessions Judges and Additional Sessions Judges to hear appeals under section 409 should include also the power to receive and admit such appeals. In para 6 of the Judgment, the Patna High Court observed as follows :-

"(6) In my opinion the contention of Mr. Rameswar Prasad Sinha that the words "Court of Session" occurring in section 408 refers only to the Court of Session presided over by the Sessions Judge and that an Additional Sessions Judge or an Assistant Sessions Judge, as a judge of the Court of session, has no powers to receive such appeals is well-founded. The contrary view urged by the learned additional Government Pleader seems to me to be unacceptable."

There can be no dispute about the proposition of law as laid down by the Full Bench of the Patna High Court that the Assistant Sessions Judge or Addl. Sessions Judge cannot be treated as independent and separate entity while exercising the jurisdiction in the Court of Session and he also does not get the powers to receive and decide the appeals. This view is fortified by Section 381(2) of Cr.P.C., 1973 which provides that Addl. Sessions Judge or Asstt. Sessions Judge shall hear only such appeals as the Sessions Judge of the Division may, by general or special order, make over to him. As pointed out earlier, as per Section 10, the Sessions Judge has powers to make rules to distribute the business amongst the Additional Sessions Judge and Assistant sessions Judge for disposal as per law and as per Section 194 Addl. Sessions Judge or Asstt. Sessions Judge shall try only such cases as are made over to him by the Sessions Judge. Thus the Assistant Sessions Judge gets the jurisdiction to try and dispose of the cases as may be made over to him by the Sessions Judge. In Kamleshwar Singh (supra), the Patna High Court only held that Assistant Sessions Judge does not have jurisdiction to receive appeals directly and that he can hear and dispose of only such appeals which are made over to him by the Sessions Judge. This authority, in my considered opinion, does not help the applicant in this case.

6. The learned Counsel for the applicant also placed reliance upon Bhola Bind and Ors. Vs. Emperior, AIR 1944 Patna 92. The learned Judges referred to the observations made by the Patna High Court in Baudh Koeri Vs. Emperior, Cri. Appeal No.320 of 1942, wherein the learned Judges had observed as follows :-

"I am quite satisfied that Bamkewal was killed by Baud Koeri by driving a spear through his body... The conviction under Section 304 was, in my judgment, wrong, and apart from that, the sentence of four and a half years, having regard to the circumstances of the case, was wholly inadequate... Had the matters come to the notice of this Court at an earlier stage, a rule for enhancement would unquestionably have been issued. This case is not an isolated one, but one of a number which have come to our notice recently in which persons guilty of plain murder have been convicted of lesser offences and given grossly inadequate sentences. It appears necessary to remind the subordinate Courts that where a man intentionally kills another, or intentionally inflicts bodily injury sufficient in the ordinary course of nature to cause death, his act is murder, unless the accused can bring the case within one of the exceptions, specified in section 300, Penal code. Under Section 105, Evidence Act, not only is the burden of proving the existence of circumstances bringing the case within an exception upon the accused persons, but the Court shall presume the absence of such circumstances. That is the point of view from which the case should be approached. It is necessary to impress upon Sessions Judges and District Magistrates that cases of this type should never be transferred to an Assistant Sessions Judge or to a Magistrate specially empowered under Section 30, Criminal P.C. for trial. The law prescribes only two possible punishments for murder death or transportation for life. It is the duty of the Sessions Judge to examine every commitment order bearing this in mind, and if there is any possibility that murder has been committed, he must either try the case himself, or send it to an Additional Sessions Judge, if one is available. Should a Court, not empowered to impose the legal sentence, find that a case of this type has been inadvertently transferred to it, it should not proceed to try it, but should return the case at once to the transferring authority for necessary orders."

From these observations, it will be clear that the learned Judges of the Patna High Court had come to conclusion in view of the facts that the offence of murder was committed, but the case was made over to the Assistant Sessions Judge, who had no powers to try the case of murder because he could not inflict either the death sentence or the life imprisonment. Their Lordships felt that the conviction under Section 304, IPC was wrong in view of the facts of the case and therefore the High Court directed all the Sessions Judges to be careful while making over cases for trial to Additional or assistant Sessions Judges. In fact, in Bhola Bind also the High Court had came to conclusion that the accused should have been charged and tried for an offence under Section 302 and not under Section 304, IPC. These observations clearly show that the offence of murder cannot be tried by Assistant Sessions Judge because he does not have power to award either the death sentence or life imprisonment which are the only possible sentences for the offence of murder. This authority does not pertain to trial of the offence under Section 307, IPC. and therefore, does not help the applicant.

7. On a combined reading of Sections 6 and 9, Cr.P.C., it becomes clear that Court of Sessions is one of the classes of Criminal Courts and it shall be presided over by a Sessions Judge. The High Court may also appoint Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in the Court of Session. From this, it is clear that Additional Sessions Judges and Assistant Sessions Judges exercise jurisdiction in the Court of Sessions which is presided over by the Sessions Judge and therefore neither Additional Sessions Judge nor Assistant Sessions Judge has any independent and separate entity. They try and hear only such cases and appeals as may be made over to them by the Sessions Judge. While the Sessions Judge and Additional sessions Judge may pass any sentence auhorised by law, subject to confirmation in case of sentence of death, the Assistant Sessions Judge can award sentence of imprisonment upto ten years. It means while exercising the jurisdiction in the Court of Sessions, the Additional Sessions Judge has got the same judicial powers as the Sessions Judge, but powers of Assistant Sessions Judge to impose sentence of imprisonment are limited upto ten years only.

8. To appreciate the arguments advanced by learned Counsel for the parties, it will be useful to scan Part-I of the First Schedule to the Cr.P.C. which prescribes as to which offences are cognizable or non-cognizable, bailable or non-bailable and by which Court they are triable. Before that it may be noted that in Section 6, there is no separate class of the Court of Additional Sessions Judge or Assistant Sessions Judge or even of Chief Judicial Magistrate. While Sec.12 makes provision for appointment of Chief Judicial Magistrate and Additional Chief Judicial Magistrate by the High Court, Section 17 makes provision for appointment of Chief Metropolitan Magistrate and Additional Chief Metropolitan Magistrate by the High Court in the metropolitan area. Section 29 provides that Chief Judicial Magistrate may pass any sentence authorised by law except the sentence of death or imprisonment for life or imprisonment of a term exceeding seven years, while the Judicial Magistrate, First Class, may pass sentence of imprisonment not exceeding three years or fine not exceeding ten thousand rupees. The powers of Chief Metropolitan Magistrate and Metropolitan Magistrate are equal to Chief Judicial magistrate and Judicial Magistrate, First Class respectively.

9. While the Criminal Procedure Code makes provision for appointment of the Additional Sessions Judge, Assistant Sessions Judge and Chief Judicial Magistrate, the Schedule does not specify any case which is triable by Additional Sessions Judge, Assistant Sessions Judge or Chief Judicial Magistrate. The Schedule provides that certain cases are triable by Court of Sessions, certain cases are triable by Court of Judicial magistrate, First Class and some cases are triable by Judicial Magistrate, Second Class. The Schedule is part of the Code of Criminal Procedure which prescribes as to which offences are triable by which court. It cannot be assumed that the Legislature had lost sight of the provisions in the Cr.P.C. which provide for appointment of Additional Sessions Judge, Assistant Sessions Judge or Chief Judicial Magistrate. It also cannot be assumed that the Legislature had forgotten or ignored to make provision for the cases which could be tried by the Additional or Assistant Sessions Judge or by Chief Judicial Magistrate. Section 26 provides that any offence in the Indian Penal Code may be tried by High Court or the Court of Sessions or any other Court by which such offence is shown in the First Schedule to be triable. The Schedule shows that offence to commit murder under Section 307 is triable by Court of Sessions and offences under Sections 302 and 304 are also triable by Court of Sessions. It is material to note that the offence to commit culpable homicide under Sec.308 is punishable with imprisonment for three years or file and if a hurt is caused, it is punishable with imprisonment for seven years or fine or both and still it is triable by court of Sessions. The offence of voluntarily causing grievous hurt under Section 325 is punishable with imprisonment for seven years and fine. The offence of causing grievous hurt by dangerous weapon is punishable with imprisonment for life or imprisonment for ten years. The offence under Sec.327 is punishable with imprisonment for ten years, and offence under Sec.330 is punishable with seven years. All these offences are triable by Judicial Magistrate, First class, but the Judicial Magistrate First Class cannot award imprisonment for more than three years. If the maximum sentence prescribed for a particular offence would be the criteria and parameter to decide the jurisdiction of a particular Court to try the same, none of these cases could have been tried by Judicial Magistrate, First Class, but still the legislature specifically provided that these offences are triable by Judicial Magistrate, First Class.

10. A question may arise if the offence is serious and sentence of more than three years is required to be awarded, whether the accused will get benefit of the fact that the powers of the Judicial magistrate, First Class are limited to imprisonment for three years and whether adequate sentence cannot be awarded to him. The law has made provisions for such eventualities. As noted above, the Schedule nowhere states which cases are triable by Additional Sessions Judge, Assistant Sessions Judge or Chief Judicial Magistrate. Section 325 provides that where the Magistrate is of the opinion, after hearing the evidence for the prosecution that the accused is guilty and that he ought to receive a punishment different in kind from or more severe than that which such Magistrate is empowered to inflict, he may record the opinion and submit the proceedings and forward the accused to the Chief Judicial Magistrate to whom he is subordinate. The Chief Judicial magistrate to whom such proceedings are submitted, may, if he thinks fit, examine the parties and recall and examine any witness who has already given evidence and may call for and take any further evidence and shall pass such judgment, sentence or order in the case as he thinks fit. From this, it will appear that while Judicial Magistrate, First Class is empowered to try a particular case, if he finds during the trial or at the end of trial that he will not be in a position to award adequate sentence, he may make a report to Chief Judicial Magistrate who may withdraw the case and hear and dispose of the same as per law. For example, the offence under Sec.326, IPC is punishable with imprisonment for life or imprisonment upto ten years but the case is triable by Judicial Magistrate, First Class. If he finds that imprisonment upto three years is sufficient, he can convict and pass sentence, but if he finds that he will not be in a position to pass adequate sentence, he may make over the case to the Chief Judicial Magistrate who has powers to award imprisonment upto seven years. Neither the C.J.M. nor JMFC has powers to award imprisonment for life, still the case under Sec.326 is triable by such Magistrate as per the Schedule.

11. As the schedule does not prescribe that any particular case is triable by Additional Sessions Judge or Assistant Sessions Judge it cannot be assumed that the Additional Sessions Judge or Assistant sessions Judge does not have power to try any of the cases under the Penal Code. They get the power to try the cases when the cases are made over to them by the Sessions Judge presiding over the Court of Session in which the Additional or Assistant sessions Judge exercises the jurisdiction. Section 409(1), Cr.P.C. provides that a Sessions Judge may withdraw any case or appeal from, or recall any case or appeal which he has made over to, any Assistant Sessions Judge or Chief Judicial Magistrate subordinate to him. Sub-sec.(2) provides that at any time before the trial of the case or the hearing of the appeal has commenced before the Additional Sessions Judge, a Sessions Judge may recall any case or appeal which he has made over to any Additional Sessions judge. Under sub-section (2), the Sessions Judge can withdraw any case or appeal from the file of Additional Sessions Judge before the commencement of trial or hearing. Once the trial or the hearing of the case or appeal commences before the Additional Sessions Judge, the Sessions Judge cannot withdraw that case. However, there is no such restriction on withdrawal of the cases from the file of Assistant Sessions Judge under sub-section (1). It does not mention at what stage such case can be withdrawn. It indicates that the Sessions Judge can withdraw such case from the file of Assistant sessions Judge at any stage till the judgment is delivered. Coming to the specific case under Sec.307, which is punishable with imprisonment for life or imprisonment upto ten years, if such a case is made over by Sessions Judge to Assistant Sessions Judge for trial, and the trial takes place before the Assistant Sessions Judge, if at any stage before the judgment is delivered, it comes to the notice of the assistant Sessions Judge or the Sessions Judge that the offence is so serious that the sentence of imprisonment for life may be required to be awarded, either on the report of Assistant Sessions Judge or suo motu the Sessions Judge may withdraw that case from the file of Assistant Sessions Judge and either make over the case to any Additional sessions Judge for trial and disposal or he may himself try and dispose of the same as per law. From this, it will be clear that merely because the offence under Sec.307 is punishable with imprisonment for life or imprisonment upto ten years, it cannot be said that the offence is not triable by Assistant Sessions Judge who is exercising the jurisdiction within the Court of Session, but only limit is that he cannot award sentence of imprisonment for more than ten years. If the offence is serious to require punishment of imprisonment for life, the case can be withdrawn by the Sessions Judge at any stage.

12. Taking into consideration the provisions of the Cr.P.C. and on scanning the Schedule, it would appear that there is no restriction on trial of a case under Sec.307 or any offence wherein alternative sentence of imprisonment for life or any other sentence of imprisonment is provided, by the Assistant Sessions Judge, but the Assistant Sessions Judge cannot award the sentence of imprisonment for more than ten years. The jurisdiction to try the case is not dependent on the maximum sentence which may be awarded for a particular offence under the Indian Penal Code. Thereof, I find no substance in he contention of the learned Counsel for the applicant that the Assistant Sessions Judge does not have jurisdiction to try the case under Sec.307, merely because the case is punishable with imprisonment for life or imprisonment upto ten years.

13. For the aforesaid reasons, the Revision Application stands dismissed.

14. At this stage, a request is made by the learned Counsel for the applicant to stay the execution of sentence of imprisonment for further four weeks. I see no merit in the request. Therefore, the request is refused.

Application dismissed.