JABBER KASAMALI SHEIKH Vs. STATE OF MAHARAHTRA

JUDGEMENT

(1.) Rule. Rule made returnable forthwith. Heard learned Counsel for the parties.

(2.) On a report lodged by one Ibrahim Kasamali Shaikh, who is real brother of the present applicant/accused No.1, Crime No.232/2007 was registered under Section 307 IPC at Pydhnie Police Station. After investigation, charge sheet was filed under Section 307 read with Section 34 IPC. The case was committed to the Court of Sessions and was registered as Sessions case No.105 of 2008. The learned Sessions Judge made over the case to the Assistant Sessions Judge for trial and disposal as per law. After trial, the learned Assistant Sessions Judge acquitted the accused No.2, who is wife of the applicant and convicted accused No.1 for the offence punishable under Section 326 IPC and sentenced him to undergo R.I. for two years and to pay fine of Rs.1,500/- and also in default to pay fine, to undergo further R.I. for one month. The accused No.1 preferred Criminal Appeal No.213 of 2009. That appeal was dismissed by the learned Additional Sessions Judge, Mumbai, after hearing the parties.

(3.) The conviction of the accused No.1 under Section 326 has been challenged in the present Revision Application on several grounds. However, at the time of hearing, Mr. Pradhan, learned Counsel for the applicant pressed the Revision Application only on one ground. According to him, the offence punishable under Section 307 IPC is punishable with life imprisonment or imprisonment which may extend to 10 years and fine and the offence is triable by the Court of Sessions, which, according to him, means Sessions Judge or Additional Sessions Judge who has the power to impose punishment of imprisonment for life. He contended that as the Assistant Sessions Judge has power to award sentence of imprisonment upto ten years and not life imprisonment he does not have jurisdiction to try and dispose of the case under Section 307 IPC. Therefore, according to the learned Counsel, the trial and conviction of the accused is void ab initio and therefore the conviction is liable to be set aside. On the other hand, the learned Addl.P.P. Mr. More vehemently contended that the Assistant sessions Judge is a Judge of the Court of Sessions and the offence punishable under Section 307 is triable by Court of Sessions. According to the learned A.P.P., the power to award sentence of imprisonment is not relevant nor the maximum sentence of imprisonment which may be awarded for the offence under Section 307 is relevant. for the purpose of deciding whether the Assistant Sessions Judge has got jurisdiction to try and dispose of the case under Section 307 IPC. Learned APP contended that the Asstt. Sessions Judge, being Judge of Court of Sessions, has jurisdiction to try the case and can also award sentence subject to limit on his power to award sentence of imprisonment.