ORDER This is a writ petition for the issue of a writ of mandamus or any other appropriate writ, order or direction declaring that the punishments prescribed under section 307, Indian Penal Code, are uncostitutional and to pass such other order or orders as are deemed fit and proper in the circumstances of the case. 2. In the affidavit filed in support of the petition it is stated by the petitioner that a case under section 307, Indian Penal Code, was registered by the State of Andhra Pradesh the 1st respondent, in crime No. 1 of 1983 of the Kanchikacherla Police Station in connection with an accident which is alleged to have taken place on 3rd January, 1983 at 10 p. m. in the Poonavaram village. In the said case the petitioner Jasti Punnarao has been implicated as an accused. Charge sheet has also been filed and the matter is pending before the Court of the Additional Sessions Judge, Vijayawada in S. C. No. 115 of 1983. Under section 307, Indian Penal Code, two types of punishments are prescribed, the first being imprisonment for life or alternatively ten years R.I. and fine. No definite guidelines are prescribed by the Code as to when either of the sentences can be imposed, which leaves unfettered discretion with the Presiding Officer. 3. The petitioner further stated that the Code of Criminal Procedure by section 9, provides for the appointment of Sessions Judges, Additional and Assistant Sessions Judge's to exercise jurisdiction in a Court of Session. The difference between the Additional Sessions Judge and Assistant Sessions Judge as prescribed under section 28 of the Code is that while Sessions Judge or Additional Session Judge can pass any sentence authorised by law, the Assistant Sessions Judge cannot pass any sentence exceeding imprisonment for ten years. By virtue of the powers conferred by the Code, the Sessions Judge would distribute the work among the Additional and Assistant Sessions Judge. There are no definite rules regarding the distribution of work. In such a case, it is just a chance whether a case in which the charge-sheet under section 307, Indian Penal Code, is to the posted before the Additional Sessions Judge or the Sessions Judge or before the Assistant Sessions Judges. Sometimes such cases are posted before Assistant Sessions Judge and at times before the Additional Sessions Jaddges. In such a case, it is just a chance whether a case in which the charge-sheet under section 307, Indian Penal Code, is to the posted before the Additional Sessions Judge or the Sessions Judge or before the Assistant Sessions Judges. Sometimes such cases are posted before Assistant Sessions Judge and at times before the Additional Sessions Jaddges. Such being the situation, an accused person like the petitioner is left to be vagaries of chance, science it is the chance that decides that the should face the trial before a Judge who has power to impose the penalty of life imprisonment or before a Judge who can only impose a penalty of 10 years imprisonment and fine for the same offence. Both the punishments, however, are sanctioned by the Indian Penal Code, for the offence under section 307, It is further stated that since his case is posted before the Additional Sessions Judge but not before an Assistant Sessions Judge, leaves him exposed to a larger punishment if the trial Court comes to the conclusion that he is guilty. The prescription of different punishments for the same offence is discriminatory and violative of his fundamental rights under Articles 14 and21 of the Constitution. He has no other alternative remedy except to file the present writ petition. 4. No counter-affidavit is filed. But the learned Public Prosecutor addressed his arguments contradicting the above allegations in the affidavit of the petitioner. 5. The learned Counsel appearing for the petitioner raised two points for consideration. The first point relates to the constitutional validity of section 307, Indian Penal Code, in so far as it prescribes two types of punishments for the same offence, and the second relates to the power of the Sessions Judge to allot the cases to Additional Sessions Judge and Assistant Sessions Judge. The learned Counsel sum its that there is no provision in the Code of Criminal Procedure to retransfer the matter to the Sessions Court by the Assistant Sessions Judge when a case is allotted to him. In the absence of any such provision. Assistant Sessions Judge has to decide the matter subject to the limitations imposed by the Code. He can only sentence the accused for a term not exceeding 10 years. In the absence of any such provision. Assistant Sessions Judge has to decide the matter subject to the limitations imposed by the Code. He can only sentence the accused for a term not exceeding 10 years. On the other hand, if the case is tried by the Sessions Judge or Additional Sessions Judge, the accused can be sentenced for life for the same offence under section 307, Indian Penal Code, Thus, there is discrimination in the punishment to the imposed on the accused and this is discriminatory and violative of Article 14 of the Constitution. Article 14 is violated by creating different forums for trying the cases under section 307, Indian Penal Code, and entrusting the cases to different forums; 6. The learned Public Prosecutor contends that after the conviction of the accused, sentences are imposed by the Magistrates and the Sessions Judges as per the terms mentioned in the Criminal Procedure Code. If the Magistrate is of the view that a more severe sentence is likely to be passed against the accused for which he is not competent so to do, he can refer the case to the Sessions Judge and request him to try the case. 7. Now I will examine the respective contentions or both the learned Counsel. 8. So for as the Constitution of the Court of Session is concerned, it is found in section 9 of the Code of Criminal Procedure, the relevant portion of which is as under: “Court of Session: (1) The State Government shall establish a Court of Session for every Sessions division. (2) Every Court of Session shall be presided over by a Judge to be appointed by the High Court. (3) The High Court may also appoint Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in a Court of Session. 9. Section 10 is with regard to the subordination of Assistant Sessions Judges; and is as under: “(1) All Assistant Sessions Judges shall be subordinate to the Sessions Judge in whose Court they exercise jurisdiction. (2) The Sessions Judge may, from time to time make rules consistent with this Code as to the distribution of business among such Assistant Sessions Judges.” 10. Sub-section (3) of section 9 indicates that the High Court may appoint Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in a Court of Session. (2) The Sessions Judge may, from time to time make rules consistent with this Code as to the distribution of business among such Assistant Sessions Judges.” 10. Sub-section (3) of section 9 indicates that the High Court may appoint Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in a Court of Session. Whenever the Additional Sessions Judge of the Assistant Sessions Judge exercires jurisdiction, he exercises jurisdiction in a Court of Session. Therefore, the cases tried by Additional Sessions Judges and Assistant Sessions Judges are tried as if they are tried by a Court of Session. There is no difficulty in so far as the designations of the Judges are concerned. The contentions raised by the learned Counsel for the petitioner are with regard to the allotment of work and the sentence that will be imposed on the accused. Chapter III deals with the power of Courts. Section 26 reads thus : “26. Courts by which offences are Triable.–Subject to the other provisions of this Code,- (a) any offence under the Indian Penal Code may be tried by– (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: (b) any offence under any other law shall, when any 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 — (1) the High Court, or (ii) any other Court by which such offence is shown in the First Schedule to be triable.” It is clear from the above provision that the High Court may try any offence under the Indian Penal Code. The Court of Session also try any offence under the Indian Penal Code. Any other Court may try the offences shown in the First schedule which are triable by it. 11. The Court of Session also try any offence under the Indian Penal Code. Any other Court may try the offences shown in the First schedule which are triable by it. 11. Section 307 of the Indian Penal Code, reads as under: “Whoever does any act with such intention or knowledge and under such circumstances that it he by that act caused death, he would be guilty of murder shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life or to such punishment as is herein before mentioned. * * * * *” 12. The first schedule of the Code of Criminal Procedure indicates that the trial could be conducted by the Court of session The learned Counsel for the petitioner submitted that there is difference as regards the sentence that could be imposed by the Sessions Judge, Additional Sessions Judge and by the Assistant Sessions Judge. 13. In this regard section 28, Criminal Procedure Code, is relevant which provides: “Sentences which High Courts and Sessions Judges may pass- (1) A High Court may pass any sentence authorised by law. (2) 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; (3) An Assistant Sessions Judge may any pass sentence authorised by law except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding ten years” The learned Counsel for the petitioner submitted that under sub-section (3) of section 28 an Assistant Sessions Judge can any pass sentence authorised by law except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding ten years. In other words, an Assistant Sessions Judge can pass a sentence of imprisonment for a term not exceeding ten years only. But the Sessions Judge or Additional Sessions Judge can pass a sentence authorised by law; but any sentence of death passed by any such Judge shall be subject to confirmation by any mean the High Court. In other words, an Assistant Sessions Judge can pass a sentence of imprisonment for a term not exceeding ten years only. But the Sessions Judge or Additional Sessions Judge can pass a sentence authorised by law; but any sentence of death passed by any such Judge shall be subject to confirmation by any mean the High Court. Therefore, while passing sentences there is a distinction of powers between Sessions Judge and Additional Sessions Judge and Assistant Sessions Judge. If the case is tried by Sessions Judge or Additional Sessions Judge there is likelihood of the sentence of life imprisonment being passed; but if it is tried by Assistant Sessions Judge, the sentence or imprisonment cannot exceed 10 years. 14. Thus, the learned Counsel submitted that this will create discrimination in so far as the imposition of sentence is concerned even though the offence is the same, namely one under section 307, Indian Penal Code. If it is tried by the Sessions or Additional Sessions Judge the sentence can be for a period of ten years or for life. On the other hand, if it is tried by an Assistant Sessions Judge the sentence cannot exceed ten years because he has no power to convict the accused for more than ten years Therefore, it is submitted that the trial of the same offence by different forums leads discrimination in regard to punishment and thus violative of the fundamental rights guaranteed under Articles 14 and 21 of the Constitution. 15. On the other hand, the learned Public Prosecutor submitted that the case under section 307, should be tried by a Sessions Court alone. The Government establishes a Court of Sessions for every Sessions Division, and every such Court shall be presided over by a Judge to be appointed by the High Court, section 9, Criminal Procedure Code, also provides that the High Court may also appoint Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in a Court of Sessions. The language employed by section 9 makes it clear that even the Assistant Sessions Judge has to exercise jurisdiction in a Court of Session. The offence under section 307, Indian Penal Code, is to be tried by a Court of Session, which again includes the Court of Assistant Sessions Judge. The language employed by section 9 makes it clear that even the Assistant Sessions Judge has to exercise jurisdiction in a Court of Session. The offence under section 307, Indian Penal Code, is to be tried by a Court of Session, which again includes the Court of Assistant Sessions Judge. It is now, section 194, Criminal Procedure Code that provides for the cases to be tried by the Additional Assistant Session's Judge. It states that the Additional or Assistant Sessions Judge shall try such cases as the Sessions Judge of that division makes over to him for trial. So, it is the Sessions Judge of the division that makes over cases for trial to Additional as well as Assistant Sessions Judge in that division. As already noted the case under section 307, Indian Penal Code, is triable by a Court of Session and therefore it is competent for the Session Judge to make it over to the Additional or Assistant Judge under section 194 of the Criminal Procedure Code. In the instant case the learned Sessions Judge made over this case to the Additional Sessions Judge under section 194, Criminal Procedure Code, and therefore the learned Public Prosecutor submitted that the order of making over the case to the Additional Sessions Judge cannot be questioned. At this stage, it is relevant to have a look at section 307, Indian Penal Code, which reads thus: “307. Attempt to murder.-Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of murder small be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is herein before mentioned”. As seen, the section envisages two types of cases, namely: (1) where the victim suffers hurt and (11) when; the victim does not suffer hurt, in the course or the transaction. It is needless to point out here that in both the cases the offender intends to came death of the victim. As seen, the section envisages two types of cases, namely: (1) where the victim suffers hurt and (11) when; the victim does not suffer hurt, in the course or the transaction. It is needless to point out here that in both the cases the offender intends to came death of the victim. The legislature accordingly wanted to bring in a distinction between cases where the victim suffers hurt and where he does not suffer hurt in so for as the prescription of sentence is concerned. So it prescribed a sentence of imprisonment for ten years and fine in cases where the victim does not suffer hurt and a sentence of imprisonment for life or for ten years and fine in cases where the victim suffers hurt. Therefore, the imposition of sentence depends upon the fact whether the victim suffered hurt or not in the course of the transaction. Therefore, the learned Public Prosector submitted when the section is clear and categorical with regard to the prescription of sentence by saying that in cases where the person assaulted suffers hurt during the course of attempt to murder him the sentence to be imposed is imprisonment for life or for ten years with fine — and in cases where the person assaulted does not suffer hurt in the course of attempt to murder him the sentence prescribed is imprisonment for ten years and fine — it cannot be said that the section is violative of the fundamental rights under Articles 14 and 21 of the Constitution and that the question of discrimination does not arises. 16. The next submission of the learned Counsel for the petitioner is that the power of the Sessions Court to allot cases to the Additional Sessions Judge is arbitrary. Normally the cases falling under section 307, Indian Penal Code, are made over to the Assistant Sessions Judge. But in the instant case, the case is made over to the Additional Sessions Judge. In this context it is submitted that if the case is tried by the Additional Sessions Judge the accused could be given life-sentence where as if is tried by the Assistant Sessions Judge he could give only imprisonment for ten years and fine. But in the instant case, the case is made over to the Additional Sessions Judge. In this context it is submitted that if the case is tried by the Additional Sessions Judge the accused could be given life-sentence where as if is tried by the Assistant Sessions Judge he could give only imprisonment for ten years and fine. Therefore, according to the learned Counsel, when all the cases under section 307, Indian Penal Code, are made over to the Assistant Sessions Judge there is no reason why this should be made over to the Additional Sessions Judge for trial. The learned Public Prosecutor submitted that it is the discretion of the Sessions Judge under section 194, Criminal Procedure Code, to make over the cases either to the Additional or Assistant Sessions Judge and that so far as the question of sentence is concerned the section is clear on the aspect whether the person-assaulted suffered hurt or not during the course of attempt to murder him, So far as the Additional Sessions Judge, is concerned, he can impose sentence of imprisonment for life but the Assistant Sessions Judge cannot impose life-sentence. Therefore, if the Assistant Sessions Judge is of the view that it requires a higher punishment of life-sentence he could return back the case to the sentence which requires to be imposed is imprisonment for life, which he cannot impose on account of lack of power. Then it is for the Sessions Judge to take appropriate proceedings in the matter. At this juncture, the learned counsel for the petitioner submitted that there is no provision in the Criminal Procedure Code for the Assistant Sessions Judge to return the papers to the Sessions Judge though there is such an enabling provision for a Magistrate to return when he was of the view that he cannot impose sufficiently severe sentence. It is section 325, Criminal Procedure Code, which states that when the Magistrate is of the opinion that the accused to receive a punishment more severe than he is empowered to inflict the Magistrate may record the opinion and submit his proceedings and forward the accused to the Chief Judicial Magistrate to whom he is subordinate. It is noteworthy here that the re the Magistrate took cognizance of the case and tried the case. It is noteworthy here that the re the Magistrate took cognizance of the case and tried the case. But so far as the Sessions Court is concerned it does not take cognizance of the offences, but the Magistrate commits the cases to the Sessions Court for trial by the Sessions Court On such a receipt of the case, the Sessions Judge, Additional Sessions Judge or to the Assistant Sessions Judge under section 194, Criminal Procedure Code. We have already noted that Sessions Court as defined is one-whether it is sessions Court, Additional Sessions Court or Assistant Sessions Court. It is also to be noted that as per column-6 of Schedule I of the Criminal Procedure Code, the offence under section 307, is triable by a Court of Session which includes the Additional as well as Assistant Sessions Court. In this background of the matter, it is not, in my view, necessary to provide a section similar to section 325, Criminal Procedure Code, in so far as the Assistant Sessions Judge is concerned. Consequently, the contention of the learned Counsel for the petitioner that the punishments contemplated by section 307, Indian Penal Code are discriminatory has no substance. 17. The learned Counsel for the petitioner referred to Ram Kissem v. State Ram Kissem v. State A.I.R. 1952 Cal. 639. Before a Special Bench of the Calcutta High Court the point that arose for consideration was, whether the Tribunal hearing the criminal charges had any jurisdiction to decide constitutional matters. There, the petitioners were prosecuted 1 or alleged offences under the West Bengal Black Marketing Act, the Essential Supplies (Temporary Powers) Act an Cotton Textiles Control Order. The case was allotted by the State Government to the Special Tribunal for trial by notification issued under section 12 (1) of the Black Marketing Act. An application was made to the Special Tribunal praying that the records of the case be transferred to the High Court to enable the High Court to decide whether or not the Tribunal had jurisdiction to hear the case, the contention being that section 12 (1), Black Marketing Act, was ultra vires the Constitution in that it offended Article 14 of the Constitution. The charge preferred against the petitioners there was under section 3 of the West Bengal Black Marketing Act read with section 7(1) of the Essential Supplies (Temporary Powers) Act of 1946 and sections 22 and24 of the Cotton Textiles Control Order, 1948. The facts that gave rise to the charge were that the petitioner had sold a quantity of cloth at a price in excess of that permitted by the Cotton Textiles Control Order. It was found that prosecution could have been launched for contravention of those clauses of the Cotton Textiles Control Order read with section 7 (1) of the Essential Supplies Act and had the petitioners been found guilty of such charges they would have been convicted and sentenced to a term of imprisonment not exceeding three years and to a fine, etc. The very same facts, however constituted clearly an offence under the Black Marketing Act. Selling goods in the way of trade at a price in excess of that fixed by any lawful order would be black marketing as defined by section 2 (1) of the Black Marketing Act and would therefore he an offence punishable under section 3 of the Act. The Act complained of therefore constituted, if established, offences both under the Black Marketing Act and under the Essential Supplies Act. As the alleged offence fell within the definition of ‘Black Marketing’ Government allotted the case to a Special Tribunal under section 12 (1) of the Black Marketing Act. 18. It is contended before the High Court that section is clearly ultra vires the Article 14 of the Constitution and therefore the Tribunal had no jurisdiction to proceed to hear and determine the case. The High Court is of the view that there is nothing which compels Government to prosecute a person under the Black Marketing Act on facts which create not only an offence under the Black Marketing Act but also under the Essential Supplies Act, two punishments are prescribed for like offences and a different or higher punishment can be imposed on one person than upon another guilty of the very same facts. That also seemed to the High Court to make section 12 discriminatory because there was nothing which compelled Government to charge persons under section 3, Black Marketing Act in all cases falling within that section. That also seemed to the High Court to make section 12 discriminatory because there was nothing which compelled Government to charge persons under section 3, Black Marketing Act in all cases falling within that section. It is also observed, it is open to Government to charge them under the Essential Supplies Act on the very same acts with very different results. For those reasons, the High Court held that section 12 (1) of the West Bengal Black Marketing Act is ultra vires the Constitution and therefore the Special Tribunal had no jurisdiction to hoar the case pending before it. 19. The learned Counsel for the petitioner submitted that the above Calcutta case is applicable to the facts of the instant case, in that when the trial for the offence under section 307, Indian Penal Code is conducted by the Assistant Sessions Judge the punishment that he should impose is only ten years imprisonment — whereas when it is conducted by the Additional Assistant or Sessions Judge he sentence that they could impose is upto life. The difference in the forum is resulting in the difference of punishment just as in the earlier citation under the Black Marketing Act. The learned Public Prosecutor on the other hand, submitted that the above Calcutta citation has no application to the facts of the instant case. The offence in the Calcutta High Court case is under two different enactments — one under the Black Marketing Act and the other under3.Essential Supplies Act. The Punishment under the Black Marketing Act is for seven years while under the Essential Supplies Act it is three years for the same offence. But in the instant case the offence is only under the Indian Penal Code, under section 307, and the forum competent to try the offence is ‘Court of Session’ namely : (i) Sessions Court; or (ii) Additional Sessions Court. As noted above, if the Assistant Sessions Judge convicting the accused of the offence feels that the accused had to suffer a punishment higher than he could impose, it is open for him to send back the record to the Sessions Judge for necessary action mentioning his view therein. As noted above, if the Assistant Sessions Judge convicting the accused of the offence feels that the accused had to suffer a punishment higher than he could impose, it is open for him to send back the record to the Sessions Judge for necessary action mentioning his view therein. It is not necessary in ray view that there should be a specific provision like section 325, Criminal Procedure Code, for the Assistant Sessions Judge also to return the case-record to the Sessions Judge, for ‘Court of Sessions’ is one and one unit’ for all practical purpose as defined under section 9 of the Criminal Procedure Code As submitted by the learned Public Prosecutor in the citation of the Calcutta High Court there are two different enactments under which the very same offence falls Therefore, in my view the said authority has no application to the present facts. 20. The learned Public Prosecutor, on the other hand, referred to Babu Ram v. State Babu Ram v. State A.I.R. 1958 All. 838. The point urged before the Allahabad High Court was that the powers given to the Sessions Judge under section 193 (2), Criminal Procedure Code to transfer the case to the Assistant Sessions Judge are unguided and unfettered, discriminatory in nature and as such hit by Article 14 of the Constitution of India. The relevant portion of section 193 (2), Criminal Procedure Code reads, as under: “(2)……Assistant Sessions Judge shall try such cases only — as the Sessions Judge of the division, by general or special order, may make over to them for trial”. Dealing with that question, the contention urged was that inasmuch as the section did not lay-down any rules or directions for the guidance of the Sessions Judge in the matter of making over of the case, he could pick out the case of one accused from those of others in a like situation without giving any reason therefore and thereby deprive an accused whose case had been transferred of his right to prefer an appeal to the High Court while others similarly situated would continue to possess that right. Therefore, it was submitted that the said section was hit by Article 14 of the Constitution and accordingly ultra vires. Therefore, it was submitted that the said section was hit by Article 14 of the Constitution and accordingly ultra vires. The learned Counsel for the State there refuted this contention and urged that the power given to the Sessions Judge under section 193 (2), Criminal Procedure Code is not a naked and arbitrary power since there is a valid classification implicit in it which controls the exercise of that power — the classification being bases upon the question of sentence within the opinion of a Sessions Judge is likely to be imposed up a particular case. It is further observed at page 840 thus: “Since under section 31(3) of the Criminal Procedure Code. An Assistant Sessions Judge is not empowered to pass a sentence of imprisonment for a term exceeding fen years, the classification consists of cases in which the Sessions Judge is of the opinion that sentences exceeding ten years are likely to be imposed and cases in which they are likely to be ten years or less. There being this classification, learned Counsel for the State contended that there was no room for the argument that a particular accused was discriminated against with reference to others similarly situated”. Ultimately it was held that section 193 (2), Criminal Procedure Code, is not hit by Article 14 of the Constitution and not ultra vires 21. At this stage, it is pertinent to note that old section 193 (2), Criminal Procedure Code, with which the Allahabad High Court dealt in the above case corresponds to section 194 of the present Criminal Procedure Code, to the extent relevant reads thus: “194. Additional and Assistant Sessions Judge to try cases made ever to them — 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 …….” For the very same reasons given by the Allahabad High Court in the case referred to above. I cannot accede to the contention of the learned Counsel here that section 194, Criminal Procedure Code, is hit by Article 14 of the Constitution and accordingly ultra vires. 22. I cannot accede to the contention of the learned Counsel here that section 194, Criminal Procedure Code, is hit by Article 14 of the Constitution and accordingly ultra vires. 22. It is to be further noted that as already observed the Assistant Sessions Judge can always refer back the case to the Sessions Judge, if he thinks that the case warrants a sentence of imprisonment which he is not capable of imposing. Therefore, looking the question from either angle it cannot be said that the section 194, Criminal Procedure Code, is hit by Article 14 of the Constitution. 23. In the result, the writ petition is dismissed, but in the circumstances without costs. P.P.‘s fee Rs. 250. G.P's fee Rs. 100. V.K. ----- W.P. dismissed.