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2006 DIGILAW 24 (JK)

State Of J. &K. v. Ab. Rehman Rather

2006-03-03

MANSOOR AHMAD MIR

body2006
1. The learned Judicial Magistrate, Ist Class, Kangan has made this reference in the case titled State Vs. Abdul Rehman Rather and others, under Section 447, 147 and 436-A RPC, FIR No.19 of 2003, P/S Ganderbal, on the ground that in Criminal Procedure Code, hereinafter, for short Code, it is not shown by which Court the offence punishable under Section 436-A RPC is triable. 2. Heard. Perused. Considered. It is necessary to notice Sections 6-A, 28, 29, 30 and 34 of the Code herein, which read as under:- "A-1. CLASSES OF MAGISTRATES. [6-A. Classes of Magistrates.-There shall be the following classes of Magistrates, namely:- I. JUDICIAL MAGISTRATES. (1) Chief Judicial Magistrates. (2) Judicial Magistrates of the first class. (3) Judicial Magistrates of the second class. (4) Special Judicial Magistrates. II. EXECUTIVE MAGISTRATES. (1) District Magistrates. (2) Addl. District Magistrates. (3) Sub-divisional Magistrates. (4) Executive Magistrate of the first class. (5) Executive Magistrates of the second class. (6) Special Executive Magistrate]. 28. Offences under Ranbir Penal Code.-Subject to the other provisions of this Code any offence under the Ranbir Penal Code may be tried- (a) by the High Court, or (b) by the Court of Session, or (c) by any other Court by which such offence is shown in the eighth column of the Second Schedule to be triable. 29. Offences under other laws.-(1) Subject to the other provisions of this Code any offence under any other law shall, when any court is mentioned in this behalf in such law, be tried by such court: Provided that if the Court so mentioned is a Court specified in column (1) of the Table below, such offence shall be tried by the Court of the Judicial Magistrate specified against it in column (2) thereof. Nameof Court Specified in the law. Court by which Triable 1 2 1. Chief Presidency Magistrate 2.Presidency Magistrate Chief Judicial Magistrate 3.District Magistrate 4. Magistrate of the Ist Class Judicial Magistrate of the first class. 5. Sub-Divisional Magistrate 6.Magistrate of the second class Judicial Magistrate of the second class. 7.Magistrate of the third class Judicial Magistrate. Nameof Court Specified in the law. Court by which Triable 1 2 1. Chief Presidency Magistrate 2.Presidency Magistrate Chief Judicial Magistrate 3.District Magistrate 4. Magistrate of the Ist Class Judicial Magistrate of the first class. 5. Sub-Divisional Magistrate 6.Magistrate of the second class Judicial Magistrate of the second class. 7.Magistrate of the third class Judicial Magistrate. 8.Magistrate (except where it occurs in any expression  mentioned above) (2) When no Court is so mentioned, it may be tried by the High Court or subject as aforesaid by any Court constituted under this Code by which such offence is shown to be triable in the sixth column of the Second Schedule under the heading offences against the laws.] [30. Offences punishable with imprisonment not exceeding seven years. -- Notwithstanding anyting contained in sections 28 or 29, a Chief Judicial Magistrate or where there is no Chief Judicial Magistrate, the Additional District Magistrate shall have the powers to try as a Judicial Magistrate all offences not punishable with death or imprisonment for life or imprisonment for a term not exceeding seven years. [34. Higher powers of Chief Judicial Magistrate. -- Notwith-standing anything contained in section 32, the Court of Chief Judicial Magistrate or where there is no Chief Judicial Magistrate the Additional District Magistrate may pass any sentence of death or of imprisonment for life or imprisonment for a term exceeding seven years.]" 3. In terms of mandate of Section 28 of the Code, the offences can be tried by High Court or by the Court of Sessions or any other Court by which such offence is shown in the eighth column of the Second Schedule of the Code to be triable. Thus, those Courts which are shown in eighth column of the Second Schedule of the Code can try such offence. While going through the Schedule, it appears that offence punishable under Section 436-A of RPC is not included in the Schedule and that is why the learned Magistrate has made the reference. 4. A bare look at the second schedule of the Code indicates that in eighth column it recognizes only the two courts by which various offences mentioned in RPC can be tried, which are Court of Session and Court of Judicial Magistrate. 5. Section 6-A of the Code, reproduced hereinabove, provides two classes of Magistrates i.e. Judicial Magistrates and Executive Magistrates. A bare look at the second schedule of the Code indicates that in eighth column it recognizes only the two courts by which various offences mentioned in RPC can be tried, which are Court of Session and Court of Judicial Magistrate. 5. Section 6-A of the Code, reproduced hereinabove, provides two classes of Magistrates i.e. Judicial Magistrates and Executive Magistrates. Judicial Magistrates includes Chief Judicial Magistrate, Judicial Magistrate of the Ist Class, Judicial Magistrate of the 2nd Class and Special Judicial Magistrates. 6. Section 32 of the Code, referred hereinabove, provides the sentence which various Judicial Magistrates, can impose. Learned Magistrate has lost sight of the schedule under the "heading offences under other laws". It is profitable to reproduce the relevant portion of the said schedule under the "heading offences under other laws" herein:- "1 2 3 4 5 6 7 8 Offence By what Court Triable. If punishable with Imprisonment for 3 years And upwards, but less than 7 Court of Session or Judicial Magistrate of first class 7. The offence which is punishable with imprisonment for 3 years and upwards but less than 7 years is shown to be triable by the Court of Session or Judicial Magistrate of the first class. The offence punishable under Section 436-A of RPC carries maximum punishment of five years or fine or both and, is not exclusively triable by the Court of Session. Thus, it is triable by the Court of Judicial Magistrate of the first class. 8. It is also pertinent to mention herein that the offences punishable under Sections 429, 430, 431, 432 RPC carries maximum punishment of five years or fine or both and are shown in the eighth column of the Second Schedule triable by Ist Class Judicial Magistrate. Thus, argument advanced by learned counsel for accused that the Magistrate cannot try the case for the reasons that offence carries five years punishment is devoid of any force. 9. Thus, argument advanced by learned counsel for accused that the Magistrate cannot try the case for the reasons that offence carries five years punishment is devoid of any force. 9. In view of the above discussion and while taking note of various provisions noticed hereinabove, read conjointly with the second schedule, it is crystal clear that offence which are not exclusively triable by the Court of Session can be tried by various Judicial Magistrates including Chief Judicial Magistrate, but the extent of the punishment which can be imposed shall be governed by the powers of punishment contained in Sections 32 and 34 of the Code and in other cases shall be governed by Sections 347, 349 of the Code. 10. Reference is accordingly answered. Registry is directed to send down the record along with a copy of this order. 11. Learned Magistrate is directed to issue notice to the accused before proceeding ahead in the matter.