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.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.428 OF 2012
Prabhakar @ Babu Laxman Pawar v state of maharashtra
Judgment pronounced on 02/07/2012
JUDGMENT: (Per V.M. Kanade, J.)
1. 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 3rdAd-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 3
rd
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
1
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
1 2010(3) Bom.C.R. (Cri) 96
3/164
(WP428.12)
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 years
under section 29 of the Cr.P.C. However, the Magistrate was
empowered to try cases where the maximum sentence could
be upto seven years. However, in case the Magistrate comes
to the conclusion that the accused is liable for more severe
punishment then under section 325 of the Code, he could
refer the case to the Chief Judicial Magistrate. 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
under section 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 further submitted that on the ground
that plain interpretation of a provision would lead to strange
and absurd results, the judge could not interpret the
provision in a particular manner. He relied upon the
judgment of the Apex Court in Mansha Ram vs. the Bhan
1
.
On the question of interpretation of the said provision, he
relied upon the following judgments in Jagatram Ahuja vs.
Commissioner of Gift-tax
2
and in Ashoka Kumar Thakur vs.
Union of India & Ors
3
6. The learned APP appearing on behalf of the State, on
the other hand, invited our attention to the judgment given
1 AIR 1962 Punjab 110 (V 49, C 32)
2 AIR 2000 SC 3195
3 AIR 2008 SC (Supp) 1
by the learned Single Judge of this Court in Jabbar Kasamali
Sheikh vs. State of Maharashtra
1
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.
REASONS:
7. We have given our anxious consideration to the
submissions made by the learned Counsel appearing on
behalf of the Petitioner and the learned APP appearing on
behalf of the State.
8. An interesting question of law which falls for
consideration before us is : 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?
9. Before taking into consideration the rival submissions, it
would be relevant to take into consideration the provisions of
the Criminal Procedure Code in respect of trial of cases by
1 2010(3) Bom.C.R. (Cri) 96
the Criminal Courts. 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.
10. 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
7/168
(WP428.12)
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.
giving discretion to the Assistant Sessions Judge to transfer
the case to the Sessions Judge if he comes to the conclusion
that the sentence which has to be 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
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.
8/169
(WP428.12)
(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.”
A conjoint reading of sections 409 and 410, therefore, clearly
reveals that the said provision cannot be equated with
section 325 of the Criminal Procedure Code which empowers
the Magistrate to transfer the case to the Chief Judicial
Magistrate if he is of the opinion that the punishment of more
than three years may be awarded in the facts and
circumstances of the said case. This being the position,the
question is, whether, in the absence of any similar provision
under the Criminal Procedure Code empowering the Assistant
Sessions Judge to transfer the case to the Sessions Judge, it
would be proper and lawful to assign the cases to the
9/1610
(WP428.12)
Assistant Sessions Judge where the sentence is extendable
up to life?
11. In our view, 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.
12. 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
10/1611
(WP428.12)
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 under section 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.
13. Reliance is placed by the learned APP appearing on
behalf of the State on the judgment of the learned Single
Judge of this Court in Jabbar Kasamali Sheikh vs. State of
Maharashtra
1
. We respectfully disagree with the view
expressed by the learned Single Judge. The learned Single
Judge in paras 11 and 12 of the said judgment has observed
as under:-
“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
1 2010(3) Bom.C.R. (Cri) 96
11/1612
(WP428.12)
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. 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 of 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
12/1613
(WP428.12)
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 section 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 section
307 is punishable with imprisonment for life or
13/1614
(WP428.12)
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 Cri.P.C. and on scanning the Schedule,
it would appear that there is no restriction on
trial of a case under section 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 under section 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.
14. 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.
15. The impugned order is, therefore, set aside. 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.
16. Writ Petition is disposed of in the aforesaid terms. Rule
is made absolutely accordingly.
17. Copy of this order be circulated to all the Sessions
Judges in Maharashtra.
(P.D. KODE, J.) (V.M. KANADE, J.)
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