The main legal point established in the judgment is that the Assistant Sessions Judge does not have jurisdiction to try cases where the imprisonment could be above 10 years, as per the provisions of section 28 of the Criminal Procedure Code.

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 ye