Uttaranchal High Court: The instant writ petition was entertained by a Division Bench of Ramesh Ranganathan, C.J. and Alok Kumar Verma, J., and the interesting issue discussed was related to seeking mandamus against the respondent to ‘hold that Schedule-I of the Code of Criminal Procedure, 1973, qua Sections 326, 327, 363A, 377, 382, 386, 389, 392, 394, 409, 455, 458, 467, 493, and 495 of the Penal Code, 1860, were illegal, as they mandated trial by the Magistrate, who otherwise did not have the competence to award the prescribed sentence, and to declare these provisions in the Code of Criminal Procedure, 1973, as ultra-vires.
It was contended by the petitioner to direct the respondents to bring appropriate amendments to the Schedule, hence, to make appropriate trial by the Court of Session instead of Magistrate, Ist Class. Another contention forwarded by the petitioner was related to issue mandamus against the Legislature to amend law.
The Court clearly held that it was a well-settled law that no mandamus could be issued to the Legislature; hence the prayer of the petitioner was disregarded. The Court stated that the petitioner had not explained how the said Schedule violated any provision of the Constitution of India. It was noticed that, “The Constitutional validity of plenary legislation can only be examined in the context of lack of legislative competence, or for violation of any other provision of the Constitution of India. The power to enact the Criminal Procedure Code has been conferred under Entry 2 of List III of the Constitution of India. Since both Parliament and the State Legislatures have the power to make or amend the Criminal Procedure Code under Entry 2 of List III, the Parliament cannot be said to suffer from lack of legislative competence in making the said Law.”
The point of law discussed by the Court was that Section 325 of the CrPC prescribed the procedure when a Magistrate cannot pass a sentence sufficiently severe under his jurisdiction and it required him to forward the record with his opinion, and submit his proceedings, and forward the accused, to the Chief Judicial Magistrate to whom he was subordinate; however, there was no provision conferring power on the Chief Judicial Magistrate to refer the matter to the District & Sessions Judge in cases where he lacked the power to impose the sentence prescribed under the Penal Code. Hence the answer cited was referred to Section 323 CrPC, where if in any inquiry into an offence or a trial before a Magistrate, appeared to him, at any stage of the proceedings before signing judgment, that the case was one which ought to be tried by the Court of Session, he shall commit it to that Court under the provisions hereinbefore contained; and, thereupon, the provisions of Chapter XVIII applied to commitment so made.
Hence, the Court found that the apprehension expressed by the petitioner was wholly misconceived and dismissed the petition as power was conferred under Section 323 CrPC, on the magistrate to refer the matter to Court of Session, if he was satisfied that the offence was only to be tried by Court of Session.[Shilpi Lawrence v. Union of India, 2019 SCC OnLine Utt 634, decided on 04-07-2019]