STATE Vs. SHYAMAL KR DEY

JUDGEMENT

(1.) Criminal Reference 5 of 1982 arises on a reference made by the Assistant Session Judge, 3rd Court, Howrah under S 395(2) of the Code in connection with Sessions Trial No.2 of January, 1982 (State v. Shyamal Kr. Dey & Ors.) under S. 399/402 I.P.C. and 27 of the Arms Act. While we were disposing of Criminal Reference No. 5 of 1982 on March 15, 1982 and I put my signature my learned brother was about to put his signature, Mr. Dilip Kumar Dutta, learned Advocate appearing on behalf of the petitioner in Criminal Revision Case No. 257 of 1982 submitted that the same point of law is involved in Criminal Revision Case No. 257 of 1982 and asked to hear him on the points of law. Thereafter, we heard both Criminal Refernce No. 5 of 1982 along with Criminal Revisional Case No.257 of 1982 together and requested Mr. Balai Ch. Roy to assist the Court. Mr. Roy readily complied with our request and lent his able assistance. Criminal Reference No. 5 of 1982

(2.) G. R. Case No. 1535 of 1978 was registered in the Court of the Sub-divisional Judicial Magistrate, Howrah, under S 399/402 I.P.C. and 25/27 of the Arms Act and under S 6(3) of the Indian Explosives Act. The learned Sub-divisional Judicial Magistrate committed the case to the Court of Sessions. The learned Sessions Judge transferred the case to the court of the Assistant Session Judge. The learned Judge framed charge under S. 395/402 and also under S. 25(1) and 27 of the Arms Act. The plea of the accused was taken. It appeared to the learned Judge subsequently that commitment of this case to the Court of Sessions was without jurisdiction in so far as it involves the offence under S. 25(1)(a) and 27 of the Arms Act and the order of the Court in relation to the framing of charges under those sections of the Arms Act against accused Shyamal Dey and his taking of plea thereunder was also without jurisdiction. The learned Judge on 2.2.82 passed a long order quoting several sections of the Criminal Procedure Code and the Schedule of the Code. The learned Judge is of opinion that the offences under Ss. 25 and 27 of the Arms Act are exclusively triable by a Magistrate and as such accused Shyamal Kr. Dey could not have been committed to the Court of Sessions to face his trial under Ss. 25 and 27 of the Arms Act. The learned Judge refers S. 26(b) of the Code which provides that "subject to the other provisions of this Code any offence under any other law shall, when no court is mentioned in this behalf in such law, be tried by such court and when no court is so mentioned, may be tried by - (i) The High Court, or (ii) in any other court by which such offence is shown in the first schedule to be triable." The learned Judge then points out that punishment under Ss. 25 and 27 of the Arms Act is less than 7 years and in the Arms Act there is no provision as to which court will try the offences. In the schedule of the New Code officers for which punishments are up to 7 years can be tried by a Magistrate of First Class. The Court of Sessions which appeared in the Schedule of the Old Code for trying such offences has been omitted from the Schedule of the New Code. As such according to the learned Judge, when the accused has also been charged under Ss. 25 and 27 of the Arms Act, the case so far as there offences are concerned could not have been committed to the Court of Sessions and the learned Sessions Judge also could not have taken cognisance and framed charges under Ss. 25 and 27 of the Arms Act and should not have taken the plea of the accused.

(3.) Mr. Dilip Dutta supports all the reasonings of the learned Judge, Mr. Dutta refers to a Full Bench decision reported in AIR 1959 Calcutta 500 (Jiban Banerjee v. The State). In this case, it was held "The correct position in law is that the provisions as regards joint trial as provided in S. 235 and S. 239 will have application only if the court concerned has jurisdiction under other provisions of law to try the offences sought to be tried together. Thus if under other provisions of the Criminal Procedure Code or any other law a Magistrate has jurisdiction to try offences A, B and C, these offences may be tried together if they come within the provision of Ss. 235 and 239; if, on the other hand, of these offences, A, B and C the Magistrate has under other provisions, jurisdiction to try offences A and B but not the offence C, only offences A and B can be tried together but not the offence C." It was, of course suggested by their Lordships that to remove lacuna in law, amendment should be made of Ss 235 and 239 introducing suitable words to provide that a Magistrate having jurisdiction to try and of the offences which may be tried together will have jurisdiction to try all of them. Mr. Dutta next refers to a decision reported in AIR 1964 SC 1673 (The State of Uttar Pradesh v. Sabir Ali & anr.). In this case, the accused was charged with offence under S 15(1) U. P. Private Forests Act, 1948. Such offence required to be tried by Magistrate of Second of Third Class. The offence was tried by a Magistrate of the First Class. It was held that "As jurisdiction of the Magistrate of the First Class is excluded by S. 29, Criminal Procedure Code, the trial is void under S. 530(p), Criminal Procedure Code". It is no doubt that as the Schedule now stands under the New Criminal Procedure Code, if a person is charged under Ss. 25 and 27 of the Arms Act, he will have to be tried by a Magistrate of the First Class and not by the Court of Session. The point for our consideration is if a person is also charged with other offences along with these offences and if the other offences cannot be tried by a Magistrate but must be tried by a Court of Sessions whether such a case can be tried by a Court of Sessions.