Research › Search › Judgment

Calcutta High Court · body

2001 DIGILAW 247 (CAL)

JISHU JAIN v. STATE OF WEST BENGAL

2001-04-30

DEBIPRASAD SENGUPTA

body2001
D. P. SENGUPTA, J. ( 1 ) THIS revisional application is directed against an order dated 9. 4. 2001 passed by the learned Asstt. Sessions Judge, 4th Court, Alipore in Sessions trial No. 3 (3)/2001 which corresponds to Sessions Case No. 40 (2) / 2001 arising out of Behala P. S. Case No. 596 (12)/2000 dated 26. 12. 2000 under sections 326 / 307 / 459 IPC. ( 2 ) THE present petitioner was put up on trial before the learned Asstt. Sessions Judge to meet a charge under sections 326 / 307 / IPC. ( 3 ) THE grievance of the petitioner is that since section 307 IPC is punishable with imprisonment for life, the learned Asstt. Sessions Judge, who is not empowered to inflict such punishment, is not competent to try such offence. The learned advocate appearing for the petitioner submits that in view of provision of section 28 (3) Cr. PC an Assistant Sessions Judge may pass the sentence authorised by law except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding 10 years. Since the offence under section 307 IPC is punishable with imprisonment for life, according to the learned advocate of the petitioner, the learned Asstt. Sessions Judge is not competent to try such offence. A prayer was made before the learned Asstt. Sessions Judge in this regard and the same was rejected. Hence this revision. ( 4 ) IN support of his contention, the learned advocate of the petitioner relies on a judgment of this Court reported in 1999 (II) CHN 259 (Smt. Sandhya Rani Maity v. The State and Ors ). On a perusal of the said judgment, it appears that taking into consideration the provision of section 28 (3) Cr. PC the learned single Judge of this Court was of the view that since the offence under section 307 IPC is punishable with imprisonment above10 years upto imprisonment for life and since the learned Asstt. Sessions Judge cannot award sentence of imprisonment above 10 years, the learned Asstt. Sessions Judge is not competent to try such offence. ( 5 ) THERE is another judgment of this Court reported in 1950 (I) CHN 504 (Ashutosh Hatai v. The State and Ors. ). Sessions Judge cannot award sentence of imprisonment above 10 years, the learned Asstt. Sessions Judge is not competent to try such offence. ( 5 ) THERE is another judgment of this Court reported in 1950 (I) CHN 504 (Ashutosh Hatai v. The State and Ors. ). From a reading of the said judgment, it appears that the learned single Judge of this Court was of the view that if a case under section 304 Part-I is transferred to the Court of the learned Asstt. Sessions Judge, he cannot pass a sentence exceeding 10 years. But there is nothing in the Code which restricts the power of the learned Sessions Judge to transfer such a case to the Asstt. Sessions Judge. An Asstt. Sessions Judge cannot pass a sentence for more than 10 years, but only for that reason it cannot be said that an Asstt. Sessions Judge in such a case is without jurisdiction to try the case. From a reading of the said judgment it becomes clear that this Court was of the view that even a case under section 304 Part-I where the maximum sentence is imprisonment for life, the Asstt. Sessions Judge is competent to try such offence. This judgment was not brought to the notice of this Court when the case of Smt. Sandhya Rani Maity (supra) was decided by this Court by the learned single Judge. ( 6 ) IN this connection, section 9 (3) Cr. PC may be taken into consideration. The expression "sessions Judge" does not include an Addl. Sessions Judge or an Asstt. Sessions Judge, but the expression "court of Sesssions" will certainly include the Addl. Sessions Judge and Asstt. Sessions Judge by virtue of section 9 (3) Cr. PC. The provision of section 9 (3) Cr. PC was not taken into consideration by the learned single Judge while deciding the case of Smt. Sandhya Rani Maity (supra ). The earlier judgment of this Court, namely the case of Ashutosh Hatai (supra) was also not brought to the notice of the learned single Judge of this Court while deciding the case of Smt. Sandhya Rani Maity. Accordingly, I am of the view that the judgment delivered by Justice Sujit Barman Roy in the case of Smt. Sandhya Rani Maity is per incuriam since the relevant provision of law namely 9 (3) Cr. Accordingly, I am of the view that the judgment delivered by Justice Sujit Barman Roy in the case of Smt. Sandhya Rani Maity is per incuriam since the relevant provision of law namely 9 (3) Cr. PC and the earlier judgment of this Court as aforesaid was not brought to the notice of this Court and was not considered by this Court at the time of delivering the judgment of Smt. Sandhya Rani Maity. ( 7 ) APART from what has been discussed above, it is also pertinent to note that it is entirely the discretion of the trial Court that what should be the sentence to be imposed upon the accused. I failed to understand how the accused will be prejudiced in this case if any punishment less than 10 years is imposed upon him. If anybody is aggrieved by any lesser punishment, it is the State and the accused has got no reason to be prejudiced in any way by imposition of any lesser punishment. section 307 IPC provides for punishment with imprisonment of either description for a term which may extend to 10 years and also with fine. It is further provided in the said section that if any hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life or to such imprisonment as is hereinbefore mentioned. So, it clear from section that even if hurt is caused the accused may be sentenced to imprisonment for a period which may extend to 10 years. In such circumstances, I am of the view that the learned Asstt. Sessions Judge is quite competent to try an offence under section 307 IPC. ( 8 ) AFTER hearing the learned advocate of the petitioner as also the learned Addl. Public Prosecutor of this Court, I am of the view that this revisional application does not have any merit and this is not a fit case for interference by this Court. Accordingly, the revisional application fails and the same is dismissed. ( 9 ) IT is submitted by the learned advocate for the State that the trial is still continuing and 7 witnesses have already examined in this case. In such circumstances, I am of the view that it will not be proper for this Court to interfere with the trial in any manner whatsoever. ( 9 ) IT is submitted by the learned advocate for the State that the trial is still continuing and 7 witnesses have already examined in this case. In such circumstances, I am of the view that it will not be proper for this Court to interfere with the trial in any manner whatsoever. I further direct the learned trial Judge to expedite the trial and to conclude the same with utmost expedition without granting any unnecessary adjournment to either of the parties. Re: C. R. R. 926 of 2001 since similar point of law is involved in C. R. R. 926 of 2001, judgment delivered in C. R. R. 880 of 2001 shall also govern the said revisional application. (C. R. R. 926 of 2001 ). ( 10 ) THE present application accordingly fails and the same is also dismissed. 25-4-2001. Let this matter stand adjourned till Friday (27. 4. 2001 ). ( 11 ) IN the meantime, the petitioner shall serve a copy of the revisional application upon the State, service through the learned Public Prosecutor, High Court, Calcutta and to file an affidavit-of-service to that effect on the next date of hearing. Order accordingly.