Wednesday, April 21, 2021
154,225FansLike
654,155FollowersFollow
0SubscribersSubscribe
Want create site? Find Free WordPress Themes and plugins.

Not mandatory for Sessions Court to frame charges when transferring case back to Judicial Magistrate: Delhi High Court

The Court pronounced its decision in a revision petition which was filed by the complainant where the complainant was strangled by the accused at a shooting range which left him unconscious.

Want create site? Find Free WordPress Themes and plugins.

The Delhi High Court has said that it is not mandatory for the Court of Sessions to frame charges when transferring a case back to Judicial Magistrate if it is of the opinion that the case is not exclusively triable by the Court of Sessions.

The Court pronounced its decision in a revision petition which was filed by the complainant where the complainant was strangled by the accused at a shooting range which left him unconscious. The complainant approached the Court for registration of FIR. On the point of the Charge, the Court of Metropolitan Magistrate concluded that offence under Section 307 made out and committed the case to the Court of Sessions.

The Court of Session, after examining the issue, was of the view that a case of Section 307 (attempt to murder) was not made out. During the framing of the Charge, the accused wasn’t offered an opportunity to be heard. The Court of Session transferred the case back to the Chief Judicial Magistrate without framing charges.

Following which, the Complainant challenged the said decision in a revision petition before the Delhi High Court alleging that Court of Sessions cannot transfer the case back to the Chief Metropolitan Magistrate without framing the Charge.

The question solely came before the Delhi High Court whether the Sessions Judge was justified in transferring the case back to Metropolitan Magistrate without framing the charge in a case which is not exclusively triable by him under Section 228(1)(a) CrPC.

Section 228 CrPC reads as follows;

“228. Framing of charge.

(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, and thereupon the Chief Judicial 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.

(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.”

The complainant’s counsel contended that the impugned order is contrary to the mandate of Section 228(1)(b) as it is mandatory on the part of the Additional Sessions Judge to frame charges before he transfers the case back to the Chief Metropolitan Magistrate.

The counsel for the accused submitted that language of Section 228 CrPC is not ambiguous and it is not mandatory on the part of the Court of Session to frame charges. Further, he said, that failure to frame charges by the court of Sessions in a case not exclusively triable by the Court of Sessions is not an irregularity under Section 460 or Section 461 of CrPC.

The Delhi High Court has noted that “Section 228 Cr.P.C finds its place in Chapter XVIII of the Cr.P.C which deals with trial before the Court of Sessions. Section 228(1)(a) Cr.P.C deals with the cases which are not exclusively triable by the Court of Sessions. Section 228(1)(b) Cr.P.C deals with the cases which are exclusively triable by the Court of Sessions. Section 228(1)(a) Cr.P.C specifically states that if the Judge is of the opinion that there is a ground for presuming that the accused has committed an offence which is not exclusively triable by the Court of Sessions he ‘may’ frame a charge against the accused and transfer the case to the Chief Judicial Magistrate for further proceedings. However under Section 228(1)(b) if an offence is exclusively triable by the Court of Session then the Sessions Court ‘shall’ frame charge in writing.

The Delhi High Court noted the decision passed by the single bench of the Punjab and Haryana High Court in Devinder Singh v. State of Punjab, 2018 SCC OnLine P&H 4161, stated that the provisions of Section 228 Cr.P.C. is not mandatory and it is the discretion of the Court of Sessions that it can frame the charge and then send it to the Magistrate or it can send the case to the Magistrate under Section 228 Cr.P.C. without framing the charge and in that eventuality the Magistrate will frame charges.

Also Read: Delhi High Court seeks response from Centre on petition seeking quashing of private reports on Delhi riots

Paragraph eight of the said judgment reads as under: ”8. The provisions of Section 228 Cr.P.C. itself show that the Court of Session may frame charge and these provisions are not mandatory. It is the discretion of the Court of Session that it can frame the charge and then send it to the Magistrate or it can send the case to the Magistrate under Section 228 Cr.P.C. without framing the charge and in that eventuality the Magistrate will frame charge.”

The Delhi High Court noted, “It is well settled that in the absence of any context indicating a contrary intention the same meaning should be attached to the word used in the statute and departure from literal rule of interpretation should be done only in very rare case and ordinarily there should be judicial restraint. A departure from giving a different meaning of the words in the statue is adopted only to avoid hardship, inconvenience, injustice, absurdity or if it leads to any anomaly.”

It further said, “…the purpose, Section 228(1)(b) Cr. P.C has used the word “shall” which makes it mandatory on the part of the Judge to frame the charge. However, under Section 228(1)(a) Cr. P.C if after hearing the accused and considering all the material on record and after hearing the submissions of the accused and the prosecution, the Judge is of the opinion that there is a ground for the presumption that the accused has committed an offence which is not exclusively triable by the Court of Sessions, he may frame charges and transfer the case…

…The legislature has consciously used the word “may” as opposed to the word “shall” in Section 228(1)(b) Cr.P.C. A reading of the Section 228 Cr.P.C in its entirety would show that the legislature has used the words “may” and “shall” in the same Section at different places. Had the legislature intended that while exercising powers under Section 228(1)(a) Cr.P.C, the Court of Sessions is required to frame charges, while transferring the case, the same would have been made mandatory much like, Section 228(1)(b).”

The Delhi High Court has said, “There is no reason to give any other meaning to the word “may” and there is no necessity to read the word “may” as “shall” in Section 228(1)(a) Cr.P.C. It is open to the Sessions Court either to frame charge or not, while transferring the case to the Chief Judicial Magistrate of first class who may either try the offence himself or send it to any other Magistrate of competent jurisdiction who will then proceed further in accordance with the procedure prescribed in the Cr.P.C.”

Also Read: After losing statehood, preventive detention in Jammu and Kashmir comes under NSA provisions not PSA, says PIL in High Court

The Court has further said, bare reading of the Section 228 Cr.P.C shows that it is not mandatory for the Sessions Court to first frame a charge under Section 228(1)(a) of the Cr.P.C unlike under Section 228(1)(b) of the Cr.P.C. Hence, the High Court found no error in the judgment impugned in the revision petition and the same was dismissed.

SMP22022021CRLR3152018-160340

Did you find apk for android? You can find new Free Android Games and apps.

News Update

National Lok Adalat to be held in Calcutta HC premises on June 6

The matters to be dealt with include those pending before the High Court and pertaining to the ADR mechanism and settlement process among the parties.

SC sets aside bail given to 6 murder accused, criticises Gujarat HC verdict

The Division Bench of Justice D.Y. Chandrachud and Justice M.R. Shah set aside the Gujarat High Court order, wherein the six persons were granted bail on the grounds of parity.

Please wake up: Uttarakhand HC raps state govt on Covid failures in Maha Kumbh

A bench of Chief Justice Raghvendra Singh Chauhan and Justice Alok Verma was hearing a batch of PILs filed against the State and the district authorities regarding shortcomings in the Maha Kumbh preparations.

Bangkok court acquits five senior monks of money laundering charges

A BANGKOK court has acquitted five senior monks of money laundering charges in connection with a temple fund embezzlement scandal. The court also returned the money that was frozen during investigation.

Covid-19: Bombay HC notice to Centre, state on PIL saying only high and mighty get treatment

The petitioner Arshil Shah, a local lawyer had filed a PIL on delayed RT-PCR tests on lack of rapid antigen testing in municipal hospitals, non-availability of beds for COVID-19 patients, and non-supply of Remdesivir medicine for proper oxygen for Coronavirus patients.
Did you find apk for android? You can find new Free Android Games and apps.