Shilpi Lawrence Elenjikal vs Union Of India And Others

Ramesh Ranganathan, CJ

This writ petition is filed seeking a writ of mandamus to the Respondent(s) 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 Indian Penal Code, 1860, is illegal, as it mandates trial by the Magistrate, who otherwise does not have competence to award the prescribed sentence, and to declare these provisions in the Code of Criminal Procedure, 1973, as ultra-vires the Constitution of India; a writ of Mandamus to the respondents to bring an appropriate amendment to the schedule, thereby making the said offences triable by the Court of Sessions instead of the Magistrate, Ist Class.

In so far as the second prayer is concerned, the petitioner, in fact seeks a mandamus to the legislature to amend the law though it is well settled that no mandamus can be issued to the legislature either to make or amend the law. The second prayer cannot, therefore, be granted.

While the first prayer is for a mandamus to hold Schedule-I of the Code of Criminal procedure, 1973 as ultra vires the Constitution of India, it has not been explained how the said Schedule violates any of the provisions of the Constitution of India, nor has the petitioner been able to show which provision of the Constitution of India has been violated by the said Schedule. 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 No.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 No.2 of List III, the Parliament cannot be said to suffer from lack of legislative competence in making the said Law.

The only other ground on which the Schedule to the Criminal Procedure Code can be declared ultra-vires the Constitution, is if it violates any particular provision of the Constitution of India. As noted herein above, the petitioner has not been able to show which provision of the Constitution has been violated by the Schedule.

Even on merits, the submission put forth, on behalf of the petitioner, necessitates rejection. The contention, in short, is that Article 325 of the Criminal Procedure Code prescribes the procedure when a Magistrate cannot pass a sentence sufficiently severe under his jurisdiction, and requires him to forward the record with his opinion, and submit his proceedings, and forward the accused, to the Chief Judicial Magistrate to whom he is subordinate; however, there is no provision conferring power on the Chief Judicial Magistrate to refer the matter to the District & Sessions Judge in cases where he lacks the power to impose the sentence prescribed under the Indian Penal Code.

The answer to this question is to be found in Section 323 of the Criminal Procedure Code which prescribes that, if in any inquiry into an offence or a trial before a Magistrate, appears to him, at any stage of the proceedings before signing judgment, that the case is one which ought to be tried by the Court of Session, he shall commit it to that Court under the provisions here in before contained; and, thereupon, the provisions of Chapter XVIII shall apply to the commitment so made.

As power is conferred, under Section 323 of the Criminal Procedure Code, on the Magistrate to refer the matter to the Court of Session, if he satisfied that the offence of which the accused is charged, can only be tried by the court of Session, and not by him, the apprehension expressed, on behalf of the petitioner, is wholly misconceived.

The writ petition fails and is, accordingly, dismissed. However, in the circumstances, without costs.