SHILPI LAWRENCE ELENJIKAL Vs. UNION OF INDIA

JUDGEMENT

(1.) 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 Ss. 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.

(2.) 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.

(3.) 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.