RASID ALI MONDAL Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) THE petitioner accused has filed this application under Section 482 of the Code of Criminal Procedure, 1973 praying for quashing the criminal proceeding being S.T. Case No.1(3) of 2009 arising out Rajarhat P. S. case No.440 dated 01.11.2006 under Section 377/506 I. P. C. The petitioner has also prayed for setting aside order dated 7th of March, 2009 as well as order dated 13th of November, 2013 passed by the learned Sessions Judge in connection with said Sessions trial.

(2.) MR . Kamalesh Chandra Saha, learned counsel for the petitioner, submits that on the basis of a complaint Rajarhat P. S. case No. 440 dated 1st of November, 2006 under Section 377/ 506 I. P. C. was initiated which culminated into filing of a charge sheet. According to him, the offence was exclusively triable by a court of magistrate as per schedule appended to the Criminal Procedure Code, 1973 but the same was wrongly committed to a Court of Sessions. He submits that a charge under Section 377/506 I. P. C. was framed by the learned Sessions Judge on 7th of March, 2009. He further submits that as both the offences were triable by a Court of Magistrate learned Sessions Judge should have remitted the matter back to the learned Chief Judicial Magistrate under Section 228 (1)(a) of the Code of Criminal Procedure for said case to be tried by a competent Court of Magistrate. According to him, the Sessions Court though was not empowered to try a criminal case under Section 377/506 I. P. C. continued to try the case illegally. He submits that when the matter was detected an application dated 18th of November, 2013 was filed in the trial court for passing necessary order as said court had no jurisdiction to try a case under Section 377 and 506 I. P. C. He submits that learned trial court wrongly rejected said application by assuming jurisdiction to try said magistrate triable case by invoking Section 26 of the Criminal Procedure Code. According to him, the entire proceeding and trial in the Sessions Court vitiated for want of jurisdiction and that the criminal proceeding should be quashed.

(3.) CHAPTER III relates to power of courts. Section 26 of the Code of 1973 is reproduced below for sake of convenience. Section 26: Courts by which offences are triable. ­ Subject to the other provisions of this Code, -