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2012 Supreme(Bom) 1166
High Court of Judicature at Bombay
V.M. KANADE & P.D. KODE
Prabhakar @ Babu Laxman Pawar
Versus
State of Maharashtra & Another
Criminal Writ Petition No.428 of 2012
Decided On : 02-07-2012
For the Petitioner:Murtaza Najmi with Khaiyam Shaikh & Ms Farheen Qureshi i/b Bhupesh Singh, Advocates.
For the Respondents: Mrs. P.H. Kantharia, APP.
Headnote:CRIMINAL PROCEDURE CODE, 1973 - Sections 28, 409 and 410 - Awarding sentence.
It would not be proper and lawful for Sessions Judge to assign case to Assistant Sessions Judge where sentence is extendable up to life. - In a case schedule annexed to Cr. PC does not make distinction between cases which are triable by the Assistant Sessions Judge, Additional Sessions Judge or Sessions Judge. As the same time, in the definition clause, there is no separate definition of Assistance Sessions Judge. Sections 9 and 10 prescribe categories of Sessions Judge. The said provisions 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.
There is a specific provisions viz., Section 325 of the Criminal Procedure Code which, in turn, lays down that the 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 PC giving discretion to the Assistant Sessions Judge to transfer the case to the Sessions Judge if the comes to the conclusion that the sentence which has to awarded should be more than 10 years.
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 under Section 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 .
A conjoint reading of Sections 409 and 410, therefore, clearly reveals that the said provision cannot be equated with Section 325 of the Cr PC. This being the position, the question is, whether, the absence of any similar provision under Cr PC empowering the Assistant Sessions Judge to transfer the case to the Sessions Judge, it would be proper and law to assign the cases to the Assistant Sessions Judge where the sentence is extendable up to life?
In view of 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.
Rule. Rule is made returnable forthwith. Respondents waive service. By consent of parties, Petition is taken up for final hearing.
2. By this Petition which is filed under Article 226 and 227 of the Constitution of India and also under section 482 of the Criminal Procedure Code, 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 under section 326 of the IPC and in the complaint filed by him in which the accused was charged for the offence punishable under section 307 of the IPC.
3. Brief facts are as under:-
FACTS:
4. Sessions Case No.29 of 2010 was assigned to the 3rd Adhoc Assistant Sessions Judge, Greater Bombay. The accused was charged for the offence punishable under section 326 of the Indian Penal Code. Misc. 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 upto 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 2010 (3) Bom.C.R. (Cri) 96 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.
5. 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 under section 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 this caused a serious prejudice to the private complainant and also to the State since in a case where accused deserved life sentence, in view of the embargo in section 28 of Cr.P.C the Court could only award the sentence upto 10 years. He further submitted that, therefore, in view of section 28 of the Cr.P.C., the Assistant Sessions Judge did not have jurisdiction to try and entertain the case where punishment which could be awarded was more than 10 years. He submitted that for the offence punishable under section 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 upto 10 years and under the second part where there was an injury caused to the victim, the sentence could be life or upto 10 years. He further submitted that by assigning trial of a case under section 307, the Principal Judge, therefore, indirectly, before the evidence is adduced, is arbitrarily deleting the second part of section 307 and restricting the trial only to the first part, since the Assistant Sessions Judge was not competent to award sentence under second part of section 307. He submitted that so far as Magistrates are concerned, the Judicial Magistrate, First Class was not empowered to award maximum sentence beyond three y
