The High Court of Kerala held that a Sessions Court retains the power to try an offence not exclusively triable by sessions courts under S.26 Cr.P.C., even if S.228 allows transfer. The transcendence view in the Single Judge judgment was corrected, affirming the Sessions Judge's discretion to continue the trial.
The Criminal Misc. Case is dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW
THURSDAY, THE 5TH DAY OF JULY 2018 / 14TH ASHADHA, 1940
Crl.MC.No. 3376 of 2018
SC.NO.196/2017 of ADDL.DISTRICT COURT, KOZHIKODE CRIME NO.1525/2015 OF KASABA POLICE STATION,KOZHIKODE
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PETITIONER(S)/1ST ACCUSED
SELVAKUMAR, AGED 58 YEARS, S/O. CHIDAMBARAM, HOUSE NO. 75, SOUTH CAR STREET, THURAYOOR P.O, TRICHI DISTRICT, TAMIL NADU.
BY ADVS.SRI.M.RAMESH CHANDER (SR.) SMT.K.A.SANJEETHA
RESPONDENT(S)/COMPLAINANT & STATE:
STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.
BY SENIOR PUBLIC PROSECUTOR SRI.C.S.HRITHWIK
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 05-07-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
TS
Crl.MC.No. 3376 of 2018 ()
APPENDIX
PETITIONER(S)'ANNEXURES
ANNEXURE A1: PHOTOSTAT COPY OF THE CHARGE FILED BY THE POLICE BEFORE THE JUDICIAL FIRST CLASS
MAGISTRATE - III, KOZHIKODE
ANNEXURE A2: PHOTOSTAT COPY OF THE CHARGE.
ANNEXURE A3: PHOTOSTAT COPY OF THE PROCEEDINGS OF THE LEARNED SESSIONS JUDGE IN SC.NO.196/17 WHICH THE PETITIONER'S COUNSEL COULD OBTAIN FROM THE NET.
RESPONDENT(S)'ANNEXURESTS - NIL
/TRUE COPY/
PS TO JUDGE
TS 12.07.2018
K.ABRAHAM MATHEW J.
Crl.M.C. NO.3376 of 2018
Dated this the 5th day of July, 2018
ORDER
Can a Sessions Court to which a case was committed by a Magistrate try it after it enters a finding that the facts of the case do not disclose commission of any offence exclusively triable by it ? This is the only question that arises for consideration in this Crl. M.C.
Crl.M.C. NO.3376 of 2018 2
Chief Judicial Magistrate or another Judicial Magistrate of the First Class.
and the learned Public Prosecutor.
“In the case on hand, after forming an opinion that sufficient grounds exist for proceeding against the accused for the offences under Sections 279 and 304A, and framing of charge against the accused for the said offences, though the offences under Section 304A is not one exclusively triable by the Court of Session, the Court below did not transfer the case by order to the Chief Judicial Magistrate or the Judicial First Class Magistrate, but proceeded with the trial on its own. Or in other words, the Court below has
Crl.M.C. NO.3376 of 2018 3
proceeded with the trial after framing the charge for the offences knowingly that those are not exclusively triable by it. Thus the Court below has committed an irregularity.”
(1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which -
(a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate or any other Judicial Magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate, or, as the case may be, the Judicial Magistrate of the first class, on such date as he deems fit, and thereupon such Magistrate shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report;
(b) is exclusively triable by the Court, he shall
frame in writing a charge against the accused.
Crl.M.C. NO.3376 of 2018 4
(2) Where the Judge frames any charge under
clause (b) of sub-section(1), the charge shall be read
and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried.
(1) of Section 228 of the Code. The rule of interpretation is that when 'may' is used in connection with one direction and 'shall' with another direction in the same provision, the former is discretionary and the latter mandatory. The direction in Clause (a) that the Court of Session may frame a charge against the accused by order and transfer the case for trial to the Chief Judicial Magistrate or any other Judicial Magistrate of First Class shows the empowerment of the Sessions Court to do so. On
the other hand, the word 'shall' in the direction that the Magistrate shall try the offence makes it clear that he is bound to try the case on the
Crl.M.C. NO.3376 of 2018 5
basis of the charge framed and sent to him by the Sessions Court. He cannot commit it again holding that the facts of the case disclose sessions offence.
“In this context, we may point out that a Sessions Judge has the power to try any offence under the Indian Penal Code. It is not necessary for the Sessions Court that the offence should be one exclusively triable by a Court of Session. This power of the Sessions Court can be discerned from a reading of S.26 of the Code. When it is realised that the
Crl.M.C. NO.3376 of 2018 6
Sessions Judge has the power to try any offence under the Indian Penal Code and when a case involving offence not exclusively triable by such Court is committed to the Court of Sessions, the Sessions Judge has to exercise a discretion regarding the case which he has to continue for trial in his court and the case which he has to transfer to the Chief Judicial Magistrate.”
curium .
In the result, this Crl.M.C is dismissed.
Sd/-
K.ARAHAM MATHEW JUDGE
pm
3 issues framed by the court
Can a Sessions Court try a case after finding facts do not disclose an offence exclusively triable by it?
Does Section 228 Cr.P.C. take away the Sessions Court's power to try all offences under the Penal Code?
Can this Court interfere with the Sessions Judge's discretion to try the case himself?
Colour shows how this judgement treated each authority
Suresh Vs. State of KeralaDissented from¶38
Suresh Vs. State of Kerala (2018 (1) KHC 735)
State of Kerala vs. VijayanApplied¶57
State of Kerala vs. Vijayan (1977 KLT 458)
Sudir v. State of M.PApplied¶58
Sudir v. State of M.P ( AIR 2001 SC 826) · Who else cites this
3 provisions across 2 enactments
Selvakumar
State of Kerala
K.Abraham Mathew
K.Araham Mathew
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
