High Court rejected criminal revision challenging conviction by Assistant Sessions Judge for attempted murder under Section 307 IPC, holding that power to try is distinct from sentencing powers and plea raised not earlier, suffers no prejudice given right of appeal exercised.
Revision application dismissed; bail bonds cancelled.
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IN THE HIGH COURT OF BOMBAY AT GOA
CRIMINAL REVISION APPLICATION NO. 30 OF 2005
Shri Katu Dholo Gaonkar, s/o Dholo Gaonkar, aged 46 years, r/o H.No.264, Nuvem, Shirstal, CanaconaGoa. ... Applicants
versus
State(Through P.P.) ... Respondent
Mr. Arun Bras De Sa, Advocate for the Applicant.
Mr. S. N. Sardessai, Public Prosecutor for the State.
CORAM : N. A. BRITTO, J.
DATE : 6TH DECEMBER, 2005.
ORAL ORDER
The applicant in this revision application is an accused who has been convicted and sentenced by the learned Assistant Sessions Judge vide Judgment/Order dated 312005 and whose conviction and sentence has been upheld by the
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learned Sessions Judge, Margao, vide Judgment/Order dated 10112005.
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three months, and under Section 307 I.P.C., to undergo five years S.I. and fine of Rs.5000/ and in default to undergo six months S.I. A sum of Rs.5000/ from the fine, if recovered, is ordered to be paid to the brother of the accused i.e. PW5/Chandrakant Gaonkar.
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allegedly committed by the accused was punishable with imprisonment for life and, therefore, the case could not be tried by an Assistant Sessions Judge who can inflict punishment upto ten years in terms of Section 28(3) of the Code. As per him, an Assistant Sessions Judge is not an Additional Sessions Judge. Mr. Bras De Sa has, therefore, submitted that the conviction and sentence imposed on the accused is ab initio without jurisdiction, illegal, null and void. It has also been submitted that the impugned Judgment of the learned Assistant Sessions Judge is unsustainable in the eyes of law inasmuch as in case of punishment imposed against him under Section 307 I.P.C. by the learned Sessions Judge or an Additional Sessions Judge an appeal would lie to this Court which he has been deprived of and, therefore, serious prejudice has been caused to the accused. Mr. Bras De Sa has submitted that consent of the accused could not have given jurisdiction to the learned Assistant Sessions Judge to try his case and in support of this submission Mr. Bras De Sa has placed reliance on the case of Harshad Chiman Lal Modi v. DLF Universal Ltd. and another ((2005) 7 SCC 791). Mr. Bras has also submitted that where law requires a thing to be done in a certain manner, it has to be done in that manner or
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not at all and in support of this proposition Mr. Bras has placed reliance on the case of Dhanajaya Reddy v. State of Karnataka ((2001) 4 SCC 9).
"In the present case, the appeal has been made over to the Assistant Sessions Judge by an Order of the Sessions Judge which is reflected in the roznama. Obviously, this ground regarding jurisdiction was not raised before the learned Assistant Sessions Judge and it is being raised for the first time in this Criminal Revision Application. The petitioner had
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submitted to the jurisdiction of the learned Assistant Sessions Judge hearing the appeal. It is also not claimed before me that any prejudice has been caused to the applicant/accused by the learned Assistant Sessions Judge hearing the appeal. In any event, the Assistant Sessions Judge vide Section 381 of the Code was competent to hear the appeal assigned to it".
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chance judgment and then assail it in appeal on the ground that the Court had no jurisdiction to try him.
Courts and that includes besides the High Court, the Court of Session, the Judicial Magistrate of the first class and, in case of metropolitan area, the Metropolitan Magistrate and the Judicial Magistrate of the second class and the Executive Magistrate. A Court of Session is established by the State Government in terms of Section 9 of the Code and SubSection(2) thereof provides
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that every Court of Session shall be presided over by a Judge, to be appointed by the High Court. SubSection(3) thereof which is
of more importance reads as follows:
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High Courts and Sessions Judges may pass and SubSection(2) thereof provides that a Sessions Judge or Additional Sessions Judge may pass any sentence authorised by law; but any sentence of death passed by any such Judge shall be subject to confirmation by the High Court. SubSection(3) of Section 28 which is next in importance reads as follows:
"An Assistant Session Judge may pass any sentence authorised by law except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding 10 years. Section 194 of the Code provides that an Additional Sessions Judge or Assistant Sessions Judge shall try such cases as the Sessions Judge of the division may, by general or special order, make over to him for trial or as the High Court may, by special order direct him to try.
the offences are triable. SubSection(a) which we are concerned
provides that any offence under the Indian Penal Code(45 of 1860) may be tried by
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(i) the High Court, or
(ii) the Court of Session, or
(iii) any other Court by which such offence is shown in the First Schedule to be triable.
shows by which Courts the offences under the Indian Penal Code are triable, namely, the Court of Session, Magistrate of the first class and any Magistrate in respect of offences mentioned in column 1. As far as Section 307 is concerned, the same has been made triable by the Court of Session. I have already stated that the power to try an offender for offences punishable under the Indian Penal Code is different from the power to inflict punishment and one need not be dependent on the other. This could be found with reference to Section 326 of the Indian Penal Code.
imprisonment for life or imprisonment for ten years and fine but as far as the trial of the same is concerned, it can be tried by the Magistrate of the first class, as can be seen from column 6 of the First Schedule to the Code. There is no doubt that Section 325
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of the Code has made a provision regarding cases when the Magistrate is unable to pass a sufficiently severe sentence and SubSection(1) thereof provides that whenever a Magistrate is of the opinion, after hearing the evidence of the prosecution and the accused, that the accused is guilty and that he ought to receive a punishment different in kind from, or more severe than that which such Magistrate is empowered to inflict, or, being a Magistrate of the second class is of the opinion that the accused ought to be required to execute a bond under Section 106, he may record the opinion and submit his proceedings and forward the accused to the Chief Judicial Magistrate to whom he is subordinate and the Chief Judicial Magistrate in terms of Sub Section(3) is required to examine the parties etc. and to pass a Judgment, sentence or order as he thinks fit and in accordance with law. One may tend to argue that there is no such provision as far as the trial of offences by Assistant Session Judges are concerned which enables them to forward the case to the Sessions Judge, whenever they are unable to pass a sentence of more than ten years. However, I must hasten to add that we are not concerned with such a situation in this case. Even otherwise, it can be noticed that although Section 326 I.P.C. is made punishable with life imprisonment and even if a case is transferred to the Chief Judicial Magistrate, in terms of Section 325 the
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Chief Judicial Magistrate will have his own limitations in that he will not be able to impose life imprisonment, his power of sentencing being of not more than seven years. In fact, Mr. Bras De Sa was unable to provide any explanation as to what type of work Assistant Session Judges were required to do when they are appointed to exercise the jurisdiction in the Court of Sessions. In my view, an Assistant Sessions Judge in terms of SubSection (3) of Section 9 exercises jurisdiction in a Court of Session and while exercising such jurisdiction an Assistant Sessions Judge could have certainly tried a case under Section 307 I.P.C. which is sessions triable in terms of Section 26 of the Code r/w Schedule I and, therefore, there is no question that he had no jurisdiction to try the case under Section 307 I.P.C. In my view, the trial of cases is governed by Section 26 of the Code r/w Schedule I and imposition of the sentences by Section 28 of the Code and Section 26 of the Code is not dependent on Section 28 of the Code. In other words, the power or jurisdiction to try an offence is not dependent on the power to impose sentences. The contention that the trial of the accused was without jurisdiction, therefore, deserves to be rejected. As far as the aspect of prejudice being caused to the accused, it may be stated that Section 374 deals with Appeals from convictions. SubSection(2) of Section 374 provides that when any person is convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or on a trial held by any other Court
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in which a sentence of imprisonment for more than 7 years has been passed against him or against any other person convicted at the same trial, may appeal to the High Court. SubSection(3) of Section 374 of the Code further provides that save as otherwise provided in subsection(2), any person,
(a) convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or Magistrate of the first class, or
(b) sentenced under Section 325, or
(c) in respect of whom an order has been made or a sentence has been passed under Section 360 by any Magistrate, may appeal to the Court of Session.
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not only the benefit of a right of appeal to the Court of Session but can now also prefer a revision application to this Court which the accused would otherwise not be entitled to. Hence, in my view, there is no prejudice which has been caused to the accused.
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protruding out of the said injury as per the evidence of PW3/Dr.Shaba Gaonkar. As per the evidence of PW4/Dr. E. J. Rodrigues, the said injury was fatal in the ordinary course of nature. The other evidence on record shows that there was enemity between both the brothers namely the accused and PW5/Chandrakant Gaonkar and the injury was inflicted by the accused without any immediate provocation and at a time when PW5/Chandrakant Gaonkar was inside his house along with his wife, having tea when the accused suddenly entered the house, caught the shirt collar of PW5/Chandrakant Gaonkar with his left hand and with the right hand stabbed PW5/Chandrakant Gaonkar with the said knife and saying "Ata Mor Re"(now you die) and thereafter ran away along with the said knife. In my view, the words of the accused speak more eloquently than the injury caused by him to PW5/Chandrakant Gaonkar and being so the conclusion was inescapable that the accused had inflicted the said injury intending to cause the death of PW5/Chandrakant Gaonkar. Mr. Bras De Sa submits that PW1/Suvarna has not corroborated PW5/Chansdrakant as regards the said words uttered by accused. She might have not. However, it is not the case of the accused that PW5/Chandrakant had added those words in the course of trial. Both the Courts have accepted the version of PW5/Chandrakant and I have no reasons not to accept the same. In my
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view, there is no scope for reduction of conviction from Section 307 to 326 I.P.C.
N. A. BRITTO, J.
RD
2 issues framed by the court
Whether an Assistant Sessions Judge lacks jurisdiction to try an offence under Section 307 IPC punishable with life imprisonment.
Whether the plea of want of jurisdiction can be raised for the first time in a criminal revision when it was not raised before the trial or appeal court.
Colour shows how this judgement treated each authority
Harshad Chiman Lal Modi v. DLF Universal Ltd.Distinguished¶23
Harshad Chiman Lal Modi v. DLF Universal Ltd. and another ((2005) 7 SCC 791) · Who else cites this
Dhanajaya Reddy v. State of KarnatakaDistinguished¶25
Dhanajaya Reddy v. State of Karnataka ((2001) 4 SCC 9) · Who else cites this
Vasudeo Raut v. StateFollowed¶26
Vasudeo Raut v. State
Hari Kishan v. State of HaryanaReferred¶68
Hari Kishan v. State of Haryana (1988 SC 2127)
7 provisions across 2 enactments
Shri Katu Dholo Gaonkar
State
N. A. BRITTO
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
