The State vs Shafiq Ahamad

A.S. Anand, J.—Sessions Judge, Srinagar, has made this reference on 9-8-1983 recommending the quashing of an order of commitment dt.

19-4-1983 made by the City Magistrate, Srinagar. Brief facts giving rise to the reference may first be noticed.

The accused respondent is allegedly involved in an offence punishable u/s 409 R.P.C. and a challan against the accused respondent for the said

offence was pending in the court of City Magistrate, Srinagar. The learned City Magistrate, vide order dt. 19-4-1983, committed the case to the

court of Sessions for its trial. The learned City Magistrate was of the opinion that u/s 30 Cr.P.C. as amended by the Criminal Procedure

(Amendment) Act, 1978, offences punishable with imprisonment for a term not exceeding seven years alone could be tried by the Chief Judicial

Magistrate and that since the punishment for an offence u/s 409 R.P.C. is life imprisonment or imprisonment up to 10 years and fine, (hat offence

could only be tried by a Sessions Judge, The learned Sessions Judge has made a reference to this Court with the recommendation that the order of

the City Magistrate dt. 19th April 1983, be quashed and the case transferred to the Court of Chief Judicial Magistrate. Srinagar, for its trial.

I have heard learned Counsel for the parties and for the reasons, which follow, the order of reference deserves to he rejected.

An offence u/s 409 R.P.C. according to the Second Schedule to the Code of Criminal Procedure, is punishable with ""imprisonment for life or

imprisonment of either description for 10 years and fine"" and is triable by the Court of Sessions or the Judicial Magistrate of the 1st Class. The

Code of Criminal Procedure (Amendment) Act. 1978 has amended Section 30 Cr.P.C. The amended Section 30 provides :-

Offences punishable with imprisonment not exceeding seven years.-- Notwithstanding anything contained in Sections 28 and 29, a Chief

Judicial Magistrate or where there is no Chief Judicial Magistrate, the Additional District Magistrate shall have the powers to try as a Judicial

Magistrate all offences not punishable with death or imprisonment for life or imprisonment for a term not exceeding seven years.

A bare reading of this section would show that the Chief Judicial Magistrate has the power to try all such offences as are not punishable with

death or imprisonment for life or imprisonment for a term exceeding seven years. It is therefore, obvious that where the punishment for an offence

exceeds seven years, the Chief Judicial Magistrate has no power to try that offence. The learned Sessions Judge in the order of reference has

recommended that ""the case be transferred to the Court of C.J.M. Srinagar who u/s 30 Cr.P.C. is authorised to award punishment up to 7 years.

Since, an offence u/s 409 R.P.C. is punishable, as already noticed, with imprisonment for life or imprisonment of either description for 10 years

and fine, it is patent that the learned Chief Judicial Magistrate cannot try an offence under this section. Any such offence, which is punishable with

imprisonment of more than 7 years, has thus to be tried by the Sessions Judge only. This position is also borne out by the provisions of Section 34

as amended by the 1978 Act. That section provides :-

HIGHER POWERS OF CHIEF JUDICIAL MAGISTRATE : Notwithstanding anything contained in Section 32 the Court of Chief Judicial

Magistrate or where there is no Chief Judicial Magistrate the Additional District Magistrate may pass any sentence authorised by law except a

sentence of death or of imprisonment for life or imprisonment fur a term exceeding seven years.

A combined reading of Sub-section 30 and 34 Cr.P.C. (as amended) together with the Schedule Second to the Cr.P.C. makes it abundantly

clear that an offence u/s 409 R.P.C. for which the punishment prescribed is imprisonment up to 10 years and fine, is triable by the Court of Session

in terms of Section 205-D Cr.P.C. while interpreting that section the expression ""exclusively"" has to he considered along with the other provisions

of the Cr.P.C. and particularly those relating to the power of punishment.

The learned Sessions Judge, therefore, has fallen in error in recommending that the case be transferred to the learned Chief Judicial Magistrate

for trial. In view of the provisions noticed above, the order of commitment made by the learned City Magistrate on 19-4-1983 is sound and the

same is upheld.

Thus, for what has been said above, the recommendation of the learned Sessions Judge to quash that order is not at all well founded. The

reference is accordingly rejected.

The record of the case is directed to be sent back to the Sessions Judge. Srinagar, for its trial in accordance with law.

Learned Counsel for the parties are directed to appear before learned Sessions Judge, Srinagar, on 28th of May, 1984.