| Headnote |
Issue for consideration: Conduct of the trial for offence under Section 409, Penal Code, 1860; exercise of powers under Cr.PC, for committal of cases to the Court of competent jurisdiction. Code of Criminal Procedure, 1973 – ss.26, 29, 12, 323; First Schedule to CrPC – Penal Code, 1860 – s.409 – Courts by which offences are triable – Procedure when, after commencement of inquiry or trial, Magistrate finds case should be committed– Appellant charged for commission of various offences including u/s.409, IPC punishable with imprisonment for life or imprisonment of either description for a term which may extend to 10 years and fine and under two other enactments – Facing trial before the Court of the Chief Judicial Magistrate, not competent to impose a corporeal sentence of imprisonment beyond 7 years – Appellant had already undergone incarceration for more than 8 years – Parties ad idem that the Court of Chief Judicial Magistrate is not competent to try the offence u/s.409, IPC:Held: True that going by the First Schedule to Cr.PC an offence u/s.409, IPC is triable by a ‘Court of the Magistrate of the First Class’ – Nonetheless, it is the indubitable position revealed from the very text of s.26 itself that the said Section and the First Schedule to Cr. PC enumerating the Courts by which different offences could be tried, are controlled by the other provisions of Cr.PC, as the Section itself opens with the phrase, “subject to the other provisions of this Code” – The First Schedule to Cr.PC, when lies in conflict with the other specific provisions under the Cr.PC must give way to such other provisions under the Cr.PC – ‘Magistrate of the First Class’ and ‘Any Magistrate’ used in the explanatory note No. (2) in the First Schedule not only takes in ‘Metropolitan Magistrates’ but also takes in ‘Chief Judicial Magistrates’ as explicit from s.12, Cr.PC – The trial of the appellant is to be conducted before a Court of Session having jurisdiction over the area in question – As relates to an offence u/s.409 IPC, going by the First Schedule to Cr.PC, it is triable by Court of a Magistrate of the First Class and since that expression takes in the Court of a Chief Judicial Magistrate – A scanning of the provisions u/s.323, CrPC would show that in any inquiry or trial before a Magistrate, “which expression would take in the Chief Judicial Magistrate as well”, it appears to him at any stage of the proceedings before signing the judgment that the case is one which ought to be tried by the Court of Session, it should commit to that Court before signing the judgment, the power u/s.323, CrPC is available to be exercised – Under normal circumstances, it was desirable to direct the Court of the Magistrate concerned to exercise the power after due consideration – However, in view of the peculiar circumstances of this case, that the maximum penalty imposable by the Court of Chief Judicial Magistrate is imprisonment not exceeding 7 years, taking into account the fact that the appellant had already undergone incarceration for more than 8 years, order passed for his release on bail and the fact that only 10 out of 86 witnesses on the side of the prosecution have been examined, Court of the Chief Judicial Magistrate, Raipur to commit the case under trial against the appellant to the Court of Session to which he is subordinate, to enable that Court to conduct the trial in the said case – Court of Session concerned shall proceed with the trial of the case in accordance with law under Chapter XVIII, Cr. PC – Constitution of India – Article 21 – Prize Chits and Money Circulation Schemes (Banning) Act, 1978 – Negotiable Instruments Act, 1881. [Paras 11, 12, 26, 27] Code of Criminal Procedure, 1973– Explanatory Note No. (2) in the First schedule to Cr.PC; ss.3(1)(c), 12:Held: Expressions ‘Magistrate of the First Class’ and ‘Any Magistrate’ used in the First schedule to Cr.PC, include ‘Chief Judicial Magistrates’ as well – Any contra-construction would lead to a situation denuding the status of ‘trial Court’ to a Court Held: In the Cr.PC, there is no provision to empower a Court of a Chief Judicial Magistrate or Court of a Magistrate of the first class to pass any sentence not authorized u/s.29 (1) or 29 (2), Cr.PC, as the case may be – s.31, Cr. PC deals with sentence in cases on conviction of several offences at one trial and needless to say that this provision would not cloth power on a Magistrate to bypass the provision u/s.29(1) or 29(2), Cr.PC in respect of imposing sentence in any given offence upon conviction of the offender and, therefore, it is different from s.34 of the old Code, 1898. [Para 18] Constitution of India – Article 21 – Speedy trial, a facet of fair trial – Necessity of – Discussed. Code of Criminal Procedure, 1973 – s.300(1):Held: In the light of the provision u/s.300 (1), Cr. PC, an accused is having a right to claim to be tried (if he were to be tried) before a Court of competent jurisdiction because acquittal or conviction by a Court lacking competence would not be a bar for a second trial – Maxims - ‘Nemo Debet Bis Vexari’.[Para 20] Code of Criminal Procedure, 1973 – First Schedule to CrPC, surveyed – Court of competence in the hierarchy of Courts empowered to try a particular offence where imprisonment for life or imprisonment for 10 years and fine is prescribed:Held : Barring very few offences including s.409, IPC, in all cases, where the offence concerned is punishable with imprisonment for life or imprisonment for 10 years and fine, the First Schedule to Cr. PC provides the Court competent to try such offences as “Court of Session” – Barring some exceptions, it is essentially the severity of the punishment imposable and severe nature of the offence that acts as the decisive factor in the matter of fixing the forum in the hierarchy of Courts, for trying the different offences. [Paras 21, 24] |
