The answer to this is in the affirmative as per a recent verdict of the High Court of Kerala in Suresh v. State of Kerala – 2018 (1) KHC 735 rendered in criminal appeal No. 633 of 2009. The learned Judge has held that such a trial by a Court of Session would be irregular and void.
THE FACTS LEADING TO TRIAL
The accused in that case was the driver of a bus and it was alleged that due to his rash and negligent driving, the bus driven by him knocked down a pedestrian causing him fatal injuries to which he succumbed. The accused was prosecuted for offences punishable under Sections 279 and 304 A of the Indian Penal Code. Both the said offences are triable by a Magistrate of the first class. However, the Magistrate concerned, presumably under the mistaken impression that the offence punishable under Section 304 A of the Indian Penal Code was exclusively triable by a Court of Session, committed the case to the Sessions Court. The Additional Sessions Judge to whom the case was made over for trial, instead of proceeding under Section 228 (1) (a) Cr.P.C by transferring the case to the Magistrate for trial, framed a charge against the accused under Section 228 (1) (b) Cr.P.C and took his plea. On the accused pleading not guilty to the charge framed against him for the aforesaid offences, the Sessions Judge tried him, convicted him and passed a sentence on him.
On appeal by the accused to the High Court, it was argued on his behalf that the learned Sessions Judge erred in himself trying the case and that he ought to have framed a charge and transferred the case to the Magistrate concerned by invoking his power under Section 228 (1) (a) Cr.P.C. The accused, therefore, contended that the Sessions Judge by trying the case without being empowered by law to do so, offended Section 461 (l) Cr.P.C rendering the trial and the proceedings void. He also argued the appeal on the merits as well.
The learned Judge of the High Court upheld the above argument regarding jurisdiction and held that since the offences were not exclusively triable by a Court of Session, the Sessions Judge by not following the mandate under Section 228 (1) (a) Cr.P.C, went wrong in himself trying the case and the consequent verdict was void for want of jurisdiction in view of Section 461 (l) Cr.P.C. On the merits also the verdict of the trial Judge was reversed.
THE AUTHOR’S VIEW
The reversal of the trial Court’s verdict on the merits of the case by the High Court after an evaluation of the oral and documentary evidence in the case may be unassailable. But, I am afraid that I find myself unable to agree with the High Court on the question of jurisdiction of the Sessions Court. This was a case wherein the offences, though not exclusively triable by a Court of Session, were mistakenly treated by the Magistrate concerned as exclusively triable by a Court of Session and committed to the Sessions Court for trial. Even in a case involving offences exclusively triable by a Court of Session, a three-Judge Bench of the Supreme Court in Rattiram v. State of M.P – (2012) 4 SCC 516 = AIR 2012 SC 1485 held that a trial by the Sessions Judge without the case having been committed to the Court of Session by the Magistrate concerned under Section 193 Cr.P.C, and without any demur by the accused, would not be void for non-compliance of Section 193 Cr.P.C and that such a trial without a committal would only be an irregularity curable under Section 465 (1) Cr.P.C . In the case on hand, although the offences were not exclusively triable by a Court of Session, there was a committal.
Section 228 (1) (a) Cr.P.C only says that, where the offence is not exclusively triable by a Court of Session the Sessions Judge may frame a charge and transfer the case to the Magistrate for trial. It is not a mandatory provision obliging the Sessions Judge to frame a charge and transfer each and every such case to the Magistrate for trial. But where the Sessions Judge frames a charge and transfers the case to the Magistrate for trial, the above provision says that the Magistrate shall try the offence. The fact that the very same sub-section uses the words “may” and “shall” at different places, was held to unmistakably indicate that where the offence involved in the case which has been committed is not exclusively triable by a Court of Session, the Sessions Judge is not bound to proceed under Section 228 (1) (a) by transferring the case to the Magistrate for trial. (vide Sudhir v. State of M.P – (2001) 2 SCC 688 = AIR 2001 SC 826). It was, therefore, held that the Sessions Judge would be within his jurisdiction if he were to himself try such case. The above ruling of the Supreme Court rendered by Justice K. T. Thomas has also taken note of Section 26 Cr.P.C as per which the Sessions Judge has power to try any offence under the Indian Penal Code. Hence, the learned Judge of the High Court was not quite right in observing in paragraph 14 of the verdict that as per the mandate in Section 228 Cr.P.C the accused ought to have been tried by the Magistrate and not by the Sessions Judge. There is no such mandate.
Unlike Section 29 Cr.P.C which prescribes the outer limits of the sentences which a Chief Judicial Magistrate and Magistrates of the first and second class may pass, Section 28 Cr.P.C does not prescribe any such outer limit for the High Court or the Sessions Judge or the Additional Sessions Judge. Going by Section 28 (2) Cr.P.C the Sessions Judge or the Additional Sessions Judge can pass any sentence authorised by law and the only rider is that a sentence of death passed by the Sessions Judge or the Additional Sessions Judge shall be subject to confirmation by the High Court. Hence, it will not be illegal if the Sessions Judge were to himself try a case involving an offence not exclusively triable by a Court of Session. In the case of a case and counter-case (cross-cases) there can be situations in which the main case may involve offences exclusively triable by a Court of Session whereas the counter-case may involve only magisterial offences and pending trial before a Magistrate. But since both cases have to be tried by the same Judge and the Magistrate cannot try the Sessions offences, the case pending before the Magistrate will have to be brought for trial to the Sessions Judge before whom the main case may be pending. As per the mandate in Section 193 Cr.P.C, the Sessions Judge cannot, as a Court of original jurisdiction, take cognizance of the offences (pending trial before the Magistrate) unless the case is committed to the Court of Session. A trial of both the cases by the Sessions Judge is enabled by the Magistrate invoking the power under Section 323 Cr.P.C which does not insist that the case should be one exclusively triable by a Court of Session in order to justify a committal of the case to the Court of Session. Section 323 has been incorporated in the Cr.P.C to meet such contingencies. (vide Sudhir’s case (Supra). This will further show that the Sessions Judge can try a case even if it does not involve an offence exclusively triable by a Court of Session. That explains the reason why the Legislature has employed the expression “may” in Section 228 (1) (a) Cr.P.C giving the option to the Sessions Judge either to transfer the case to the Magistrate for trial or to himself try the case without transferring the same.
Equally misconceived is the reliance placed by the High Court on Section 461 (l) Cr.P.C to hold that the trial and the proceedings before the Sessions Court were void. In the first place, Sections 460 and 461 Cr.P.C apply only to a Magistrate and not to a Sessions Judge. It is not as if the expression Magistrate used in Sections 460 and 461 Cr.P.C, was intended to include other criminal Courts as well. For instance, in Sections 462 to 465 occurring in the very same Chapter XXXV, the expression used is “Court” which means that it is not confined to the Magistrate alone. Hence, Section 461 (l) Cr.P.C could not have been pressed into service for holding that the trial of the case before the Court of Session was irregular and void.
I am, therefore, of the humble view that the aforesaid verdict of the High Court so far as it concerns the jurisdiction of the Sessions Judge to try a case not involving an offence exclusively triable by a Court of Session, does not lay down the law correctly.
Justice V. Ramkumar is a Former Judge at High Court of Kerala.
[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]