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]

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One comment

  • This is with reference to 323 CrPC and power/jurisdiction of magistrate while committing case to Session Court….The issue in hand is that in a complaint case, at the time of framing of charge, magistrate passed an order where he gave his findings that complainant is able to prove offenses u/s ….., and …and… (i.e. offenses triable by magistrate) and also u/s …..(i.e. offense exclusively triable by Court of Sessions) and then accordingly he committed matter (u/s 323 CrPC) to court of Session stating that one of offense is exclusively triable by court of Sessions. After that, revision petition was filed by accused and it was allowed where Session Court quashed the committal order passed by trial court qua findings recorded by magistrate for offense exclusively triable by court of Sessions. Session court did not gave any observations on other offenses and sent case back to magistrate. Now, magistrate view is that arguments can not be advanced by accused as in earlier trial Court order (i.e. through which committal was done) had its findings for other offenses and hence accordingly framed the charges. Now, in this scenario, (i) was magistrate right to make observations (in committal order) for offenses (triable by magistrate) when he found that case should be committed u/s 323 CrPC… should he not restrained himself from appreciating evidence for other offenses when he made up his mind that this case should be tried by Session Court (ii) Now when matter came back to magistrate then at this stage, magistrate view is that order is set aside qua one of offense (triable by Session) and hence he should not allow accused to advance arguments again for framing of charges where if we consider true sprit of Session Court order then considering observations of Session Court, the story alleged in complaint is not believed to most extent.

    We plan to file revision in Session again against the charges framed using earlier trial Court observations. Can you please share your views and relevant citations which can help in argument to remand back the case to trial Court and directions to reconsider charges based on evidence on record.

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