Prabhakar Vs. The State of Maharashtra 2012 Cri. L.J. 4726

Introduction

The Present case is all about rule is returnable forthwith. Petitioner is challenging the order passed by the 3rd Ad-hoc Assistant Sessions Judge, Greater Bombay dated 26/12/2011 whereby the learned Assistant Judge was pleased to dismiss the application filed by the Petitioner wherein he had challenged the jurisdiction of the Assistant Sessions Judge in trying and entertaining the sessions case in which the accused was charged for the offence punishable u/s 326 (Voluntarily causing grievous hurt by dangerous weapons or means) of the IPC and in the complaint filed by him in which the accused was charged for the offence punishable u/s 307 (Attempt to murder) of the IPC. This Petition which is filed under Article 226 and 227 of the Constitution of India and also u/s 482 (Punishment for using a false property mark) of the Criminal Procedure Code

Facts of the case

• Sessions Case No.29 of 2010 was assigned to the 3rd Ad-hoc Assistant Sessions Judge, Greater Bombay. The accused was charged for the offence punishable u/s 326 of the Indian Penal Code. miscellaneous Application was filed by the Petitioner in which it was contended that in view of section 28(3) of the Criminal Procedure Code, the Assistant Sessions Judge was empowered to award maximum punishment up to ten years but he was not competent and did not have jurisdiction to try the case where offence was punishable with life imprisonment or imprisonment for a term exceeding ten years
• The Assistant Sessions Judge relied on the judgment of this Court in jabbar Kasamali Sheikh vs. State of Maharashtra and held that in view of the said judgment, the Assistant Sessions Judge had the jurisdiction to try cases where the offence was punishable for life imprisonment.
• The learned Counsel appearing on behalf of the Petitioner submitted that section 28 of the Criminal Procedure Code imposes a restriction on the power of the Assistant Sessions Judge to impose punishment exceeding 10 years and, therefore, offences punishable with life or death were never given for trial before the Assistant Judge. He submitted that, however, the offences where minimum sentence was upto 10 years and the maximum sentence was for life, such as offences punishable u/s 307 or 326 of the IPC or similar offences were assigned to the Assistant Sessions Judge by the Sessions Judges all over Maharashtra. He submitted that, therefore, it was necessary to lay down the correct position in law since, in such cases, the accused will have the advantage of being assured that the sentence would not be more than 10 years once the case was assigned to the Assistant Sessions Judge.
• He submitted that for the offence punishable u/s 307 IPC, the said section could be divided into two parts. So far as the case where there was no injury, the sentence could be awarded first up to 10 years and under the second part where there was an injury caused to the victim, the sentence could be life or up to 10 years.
• He submitted that, however, unlike section 323 or section 325, there was no similar provision under the Cr.P.C. permitting the Assistant Sessions Judges to transfer the case to Sessions Judge. He further submitted that the exercise which is contemplated under sections 323 and 325 could not be undertaken by the Sessions Court while exercising power u/s 409. He also invited our attention to the provisions of sections 409 and 410. He submitted that, viewed from any angle, the Assistant Sessions Judge did not have jurisdiction to try cases where imprisonment could be above 10 years. He relied upon the judgment of the Apex Court in Mansha Ram vs. the Bhan AIR 1962 Punjab 110 (V 49, C 32). On the question of interpretation of the said provision, he relied upon the following judgments in Sri Jagatram Ahuja Vs. The Commissioner of Gift Tax, Hyderabad, and in Ashoka Kumar Thakur vs. Union of India & Ors AIR 2008 SC (Supp) 1
•  The learned appellate appearing on behalf of the State, on the other hand, invited our attention to the judgment given by the learned Single Judge of this Court in Jabbar Kasamali Sheikh vs. State of Maharashtra 2010(3) Bom. C.R. (Cri) 96 and submitted that the very same question fell for consideration before the learned Single Judge who was pleased to hold that if the offence is serious and it requires punishment of imprisonment for life, the case could be withdrawn by the Sessions Judge at any stage and that the jurisdiction to try the case is not dependent on maximum sentence which may be awarded for a particular offence under IPC.

Issue raised

• Whether the Assistant Sessions Judge is competent to try a case where the maximum punishment which can be awarded to the accused is life or more than 10 years and is extendable to life?

Contentions of the petitioner 

• The schedule annexed to the Criminal Procedure Code prescribes which offences are triable by which court. Perusal of the schedule clearly discloses that certain offences are triable by Magistrate and certain offences are triable by Sessions Court. The schedule does not make distinction between cases which are triable by the Assistant Sessions Judge, Additional Sessions Judge or Sessions Judge. At the same time, in the definition clause, there is no separate definition of Assistant Sessions Judge. Sections 9 and 10 prescribe categories of Sessions Judges.
•  The said provision also lays down that the Sessions Judge has power to assign sessions cases to the Additional Sessions Judge and the Assistant Sessions Judge. Section 28, however, in specific terms, lays down that the Assistant Sessions Judge cannot award sentence above 10 years. Plain reading of the said section, therefore, clearly spells out the intention of the legislature in restricting power of the Assistant Sessions Judge in awarding sentence.
• So far as Magistrates are concerned, the Chief Judicial Magistrate has power to assign cases to the Judicial Magistrates. Section 29 of the Criminal Procedure Code imposes restriction on the Magistrate in awarding a sentence and it lays down that maximum sentence which can be awarded by the Magistrate is three years. However, there is a specific provision viz section 325 of the Criminal Procedure Code which, in turn, lays down that the learned Magistrate who is trying a case where the maximum sentence which can be awarded is above three years, is of the opinion that in view of the facts and circumstances of the case, severe punishment needs to be awarded, he has a discretion to transfer the case to the Chief Judicial Magistrate. Unfortunately, there is no similar provision in the Cr.P.C.

Contentions of the respondent

• The Sessions Judge, however, has power of withdrawing cases from the Assistant Sessions Judge and Additional Sessions Judge and this power can be exercised by him u/s 409. However, the section in terms lays down that once the trial begins, the Sessions Judge cannot withdraw that case from the Additional Sessions Judge. Perusal of section clearly reveals that the Assistant Sessions Judge is subordinate to the Sessions Judge. It would also be relevant to take into consideration provisions of section 409 which reads as under:

409 Withdrawal of cases and appeals by Sessions Judges.-(1) 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.

(2) At any time before the trial of the case or the hearing of the appeal has commenced before the Additional Sessions Judge, as Sessions Judge may recall any case or appeal which he has made over to any Additional Sessions Judge.

(3) Where a Sessions Judge withdraws or recalls a case or appeal under sub-section (1) or sub-section (2), he may either try the case in his own Court or hear the appeal himself, or make it over in accordance with the provisions of this Code to another Court for trial or hearing, as the case may be.

Judgment

• In our view,the provisions of section 28 of the Criminal Procedure Code, which expressly bars the Assistant Sessions Judge from awarding sentence above 10 years, it would not be proper and legal for the Sessions Judge to assign such cases to the Assistant Sessions Judge.
• Firstly, it has to be seen that what was the intention of the legislature in putting embargo on the power of awarding sentence by the Assistant Sessions Judge. When a person is appointed as an Assistant Sessions Judge, he does not have any experience in dealing with serious cases where punishment of life and death can be awarded and, therefore, in order to ensure that during initial period when he does not have any experience of dealing with such cases as long as he continues as Assistant Sessions Judge, the Sessions Judge is expected to assign him the cases where punishment upto 10 years can be awarded. Against the order of the Assistant Sessions Judge, an appeal can be preferred to the Sessions Judge and, as such, if any error of law or appreciation of evidence is committed by the Assistant Sessions Judge, it can be corrected in appeal by the Sessions Judge. The intention of the legislature also has to be gathered from the fact that the provision similar to section 325 is not incorporated under the statute authorizing the Assistant Sessions Judge to transfer the case to the Sessions Judge. The reason is quite obvious. The legislature, therefore, did not extend the same power to the Assistant Sessions Judge as is given to the Judicial Magistrate u/s 325 since the legislature felt that the Assistant Sessions Judge was not equipped to deal with serious cases where the imprisonment is more than 10 years. The question which, therefore, needs to be answered is : where in the absence of a similar provision like section 325, whether it is possible to interpret other provisions and read into it the power of transferring a case to the Sessions Judge. In our view, such a course is not available or permissible which is evident from the several judgments of the Supreme Court.
• 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-section (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. 12. Taking into consideration the provisions of the Cri.P.C. and on scanning the Schedule, it would appear that there is no restriction on trial of a case u/s 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 the contention of the learned Counsel for the applicant that the Assistant Sessions Judge does not have jurisdiction to try the case u/s 307, merely because the case is punishable with imprisonment for life or imprisonment upto ten years.

• The learned Single Judge, therefore, has read into the provisions of section 409 the power of the Sessions Judge to withdraw the case to himself. In  our view, provisions of section 409 cannot be resorted by the Assistant Sessions Judge while deciding the said case. There is no provision in the Criminal Procedure Code which permits the Assistant Sessions Judge to make an application for transfer of case to the Sessions Judge on the ground that the higher sentence is to be awarded. That being the position, the Sessions Judge would never know which case has to be withdrawn from the Assistant Sessions Judge. In view of the judgments which have been referred to in para 4 above, therefore, such an interpretation would not be permissible in the absence of any specific provision in the Code.

•  We are, therefore, of the view that in cases where the sentence which has to be awarded is more than 10 years, the Sessions Judge is not authorized to assign such cases to Assistant Sessions Judge in view of section 28 of the Criminal Procedure Code which is a substantive provision in the Criminal Procedure Code and, therefore, section 28 will have to be construed as a provision which imposes a bar on the Sessions Judge in assigning cases to the Assistant Sessions Judge where the sentence above 10 years can be awarded.

Conclusion 

This case had raised the big question on extension and jurisdiction of session Judges The Sessions Judge is directed to withdraw the said case from the Assistant Sessions Judge and assign the case to any other Additional Sessions Judge. Writ Petition is disposed of in the aforesaid terms. Rule is made absolutely accordingly.

This article is written by Y Sakshi Choudhary Guru Ghasidas Central University, an intern under Legal Vidhiya

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