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2001 Supreme(Cal) 248
High Court Of Calcutta
DEBIPRASAD SENGUPTA
JISHU JAIN - Appellant
Versus
STATE OF WEST BENGAL - Respondent
C. R. R. 880 Of 2001
Decided On : 04/30/2001
DEBASIS ROY, H.K.DEY, S.MOITRA
An Assistant Sessions Judge is competent to try an offence under Section 307 IPC, even though the maximum punishment for the offence is imprisonment for life, as the offence is also punishable with imprisonment for a term which may extend to 10 years.
Headnote:
CRIMINAL LAW - JURISDICTION OF ASSISTANT SESSIONS JUDGE - SECTION 307 IPC - SECTION 28(3) CRPC - SECTION 9(3) CRPC - An Assistant Sessions Judge is competent to try an offence under Section 307 IPC, even though the maximum punishment for the offence is imprisonment for life, as the offence is also punishable with imprisonment for a term which may extend to 10 years.
Fact of the Case:
The petitioner was put up on trial before the Assistant Sessions Judge to meet a charge under Sections 326/307 IPC. The petitioner challenged the jurisdiction of the Assistant Sessions Judge to try the offence under Section 307 IPC, arguing that since the offence is punishable with imprisonment for life, the Assistant Sessions Judge, who is not empowered to inflict such punishment, is not competent to try the offence.
Finding of the Court:
The court held that the Assistant Sessions Judge is competent to try an offence under Section 307 IPC, even though the maximum punishment for the offence is imprisonment for life, as the offence is also punishable with imprisonment for a term which may extend to 10 years.
Issues: Whether an Assistant Sessions Judge is competent to try an offence under Section 307 IPC, even though the maximum punishment for the offence is imprisonment for life.
Ratio Decidendi: The court relied on Section 9(3) of the Code of Criminal Procedure, which provides that the expression "court of sessions" includes the Additional Sessions Judge and Assistant Sessions Judge. The court also noted that Section 307 IPC provides for punishment with imprisonment of either description for a term which may extend to 10 years and also with fine. Therefore, the court held that the Assistant Sessions Judge is competent to try an offence under Section 307 IPC.
Final Decision: The court dismissed the revisional application and directed the trial court to expedite the trial and conclude the same with utmost expedition.
( 1 ) THIS revisional application is directed against an order dated 9. 4. 2001 passed by the learned Asstt. Sessions Judge, 4th Court, Alipore in Sessions trial No. 3 (3)/2001 which corresponds to Sessions Case No. 40 (2) / 2001 arising out of Behala P. S. Case No. 596 (12)/2000 dated 26. 12. 2000 under sections 326 / 307 / 459 IPC.
( 2 ) THE present petitioner was put up on trial before the learned Asstt. Sessions Judge to meet a charge under sections 326 / 307 / IPC.
( 3 ) THE grievance of the petitioner is that since section 307 IPC is punishable with imprisonment for life, the learned Asstt. Sessions Judge, who is not empowered to inflict such punishment, is not competent to try such offence. The learned advocate appearing for the petitioner submits that in view of provision of section 28 (3) Cr. PC an Assistant Sessions Judge may pass the sentence authorised by law except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding 10 years. Since the offence under section 307 IPC is punishable with imprisonment for life, according to the learned advocate of the petitioner, the learned Asstt. Sessions Judge is not competent to try such offence. A prayer was made before the learned Asstt. Sessions Judge in this regard and the same was rejected. Hence this revision.
( 4 ) IN support of his contention, the learned advocate of the petitioner relies on a judgment of this Court reported in 1999 (II) CHN 259 (Smt. Sandhya Rani Maity v. The State and Ors ). On a perusal of the said judgment, it appears that taking into consideration the provision of section 28 (3) Cr. PC the learned single Judge of this Court was of the view that since the offence under section 307 IPC is punishable with imprisonment above10 years upto imprisonment for life and since the learned Asstt. Sessions Judge cannot award sentence of imprisonment above 10 years, the learned Asstt. Sessions Judge is not competent to try such offence.
( 5 ) THERE is another judgment of this Court reported in 1950 (I) CHN 504 (Ashutosh Hatai v. The State and Ors. ). From a reading of the said judgment, it appears that the learned single Judge of this Court was of the view that if a case under section 304 Part-I is transferred to the Court of the learned Asstt. Sessions Judge, he cannot pass a sentence exceeding 10 years. But there is nothing in the Code which restricts the power of the learned Sessions Judge to transfer such a case to the Asstt. Sessions Judge. An Asstt. Sessions Judge cannot pass a sentence for more than 10 years, but only for that reason it cannot be said that an Asstt. Sessions Judge in such a case is without jurisdiction to try the case. From a reading of the said judgment it becomes clear that this Court was of the view that even a case under section 304 Part-I where the maximum sentence is imprisonment for life, the Asstt. Sessions Judge is competent to try such offence. This judgment was not brought to the notice of this Court when the case of Smt. Sandhya Rani Maity (supra) was decided by this Court by the learned single Judge.
( 6 ) IN this connection, section 9 (3) Cr. PC may be taken into consideration. The expression "sessions Judge" does not include an Addl. Sessions Judge or an Asstt. Sessions Judge, but the expression "court of Sesssions" will certainly include the Addl. Sessions Judge and Asstt. Sessions Judge by virtue of section 9 (3) Cr. PC. The provision of section 9 (3) Cr. PC was not taken into consideration by the learned single Judge while deciding the case of Smt. Sandhya Rani Maity (supra ). The earlier judgment of this Court, namely the case of Ashutosh Hatai (supra) was also not brought to the notice of the learned single Judge of this Court while deciding the case of Smt. Sandhya Rani Maity. Accordingly, I am of the view that the judgment delivered by Justice Sujit Barman Roy in the case of Smt. Sandhya Rani Maity is per incuriam since the relevant provision of law namely 9 (3)
