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Bhanwarsingh and ors. Vs. State of Rajasthan - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberS.B. Criminal Misc. Transfer Application No. 1285 of 1971
Judge
Reported in1971WLN593
AppellantBhanwarsingh and ors.
RespondentState of Rajasthan
DispositionApplication dismissed
Cases Referred(Coblentz v. Sparks
Excerpt:
.....193 cr.p.c. appears to be that the additional sessions judges will try such cases only as the state government by general or special order may make over to them for trial. while sub-section (1) employs the language of taking 'cognizance of any offence as a court of original jurisdiction' sub-section (2) employs the language 'shall try such cases'. in my opinion when notice of an offence is taken in a judicial capacity with a view to initiate judicial proceedings it is included in the expression 'shall try such cases.' the sources 'through which the cases will reach the additional sessions judge contemplated by sub-section (2) are two in number (a) by the orders of the state government and (b) as the sessions judge of the division may make over to the additional sessions judge.;the..........urged by learned counsel for the applicants, is section 9 which reads as follows:9. (1) the state government shall establish a court of sessions for every sessions division, and appoint a judge of such court.(2) the state government may, by general or special order in the official gazette, direct at what places the court of sessions shall ordinary hold its sitting; but if, in any particular case, the court of sessions is of opinion that it will tend to the general convenience of the parties and witnesses to hold its sitting at any other place in the sessions division, it may, with the consent of the prosecution and the accused, sit at that place for the disposal of the case or the examination of any witness or witnesses therein.(3) the state government may also appoint additional.....
Judgment:

B.P. Beri, J.

1. This is an application by 7 accused persons, who have been committed by the Munsiff Magistrate, Desuri. for facing their trial under Sections 120B, 307, 392, 398, 458, 324, 148 and 149 I.P.C. in the Court of the Additions Sessions Judge, Sirohi. The grounds for the transfer urged before me are that it will be convenient for the defence to engage eminent lawyers from Jodhpur for defending the accused at Pali and also because the learned Munsiff Magistrate could not commit the case directly to the learned Additional Sessions Judge, Sirohi, in view of the provisions of Sections 9 and 193 of the Code of Criminal Procedure.

2. It will be proper to first dispose of the legal question raised before me. Mr. Bhimraj, learned Counsel for the applicants, argued that under the Criminal Procedure Code there is only one Sessions court in one Sessions division, who takes cognizance of sessions cases on commitment, and an Additional Sessions Judge only works as a Sessions Judge when any case is transferred to him by the Sessions Judge and the law docs not permit any direct commitment to the Additional Sessions Judge. He urged, therefore, that the order of direct commitment is illegal. He relied on Hem Singh v. The State 1956 R.L.W. 457; Kamleshwar Singh v. Dharemdeo Singh : AIR1957Pat375 and In re, Paspulati Nanjappa : AIR1961AP471 . The learned Deputy Government Advocate placed before me a Notification No. F.19(27) Jud/68/IV dated 31st May, 1968, issued by the State of Rajasthan in exercise of the powers conferred by Sub-section (2) of Section 193 of the Code of Criminal Procedure and urged that in view of this general order it was competent for the Additional Sessions Judge, Sirohi, to receive the case by direct commitment.

3. The statutory provision, which require consideration in the light of the arguments urged by learned Counsel for the applicants, is Section 9 which reads as follows:

9. (1) The State Government shall establish a Court of Sessions for every Sessions division, and appoint a judge of such Court.

(2) The State Government may, by general or special order in the Official Gazette, direct at what places the Court of Sessions shall ordinary hold its sitting; but if, in any particular case, the Court of Sessions is of opinion that it will tend to the general convenience of the parties and witnesses to hold its sitting at any other place in the Sessions division, it may, with the consent of the prosecution and the accused, sit at that place for the disposal of the case or the examination of any witness or witnesses therein.

(3) The State Government may also appoint Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in one or more such Courts.

(4) A Sessions Judge of one Sessions division may be appointed by the State Government to be also an Additional Sessions Judge of another division, and in such case he may sit for the disposal of cases at such place or places in either division as the State Government may direct.

(5) All Courts of Sessions existing when this Code comes into force shall be deemed to have been established under this Act.

It will be noticed that the State Government under Section 9(3) has power to appoint Additional Sessions Judges to exercise jurisdiction of the Sessions Court. There can be only one court of Sessions for every Sessions division but it may be manned by several Judges is clear from the phraseology employed in Section 9.

4. Section 193 reads as follows:

193. (1) Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Sessions shall take cognizance of any offence as a Court of original jurisdiction unless the accused has been committed to it by a Magistrate duly empowered in that behalf.

(2) Additional Sessions Judges and Assistant Sessions Judges shall try such cases only as the State Government by general or special order may direct them to try, or as the Sessions Judge of the division, by general or special order, may make over to them for trial.

This section broadly speaking lays down that no Court of Sessions shall take cognizance of an offence unless the accused has been committed by a competent Magistrate. The object sought to be achieved by the provision is that the cases which are congnizable by the Court of Sessions, being offences of grave character, the person accused of such a charge should be firstly afforded an opportunity by means of a preliminary inquiry to acquaint himself with the circumstances of the offence imputed against him enabling him to make his defence, and secondly, by this process of screening the precious time of a Court of Sessions is not wasted in regard to cases which are not supported by adequate evidence or which can be tried and disposed of by courts of inferior jurisdiction. The word 'cognizance' employed in this section or elsewhere in the Code of Criminal Procedure has not been defined. Their Lordships of the Supreme Court in Jamuna Singh and Ors. v. Bhadai Shah A.I.R. 1954 S.C. 1541 (1545) have held that the expression 'take cognizance of an offence' means taking notice of an offence in a judicial capacity with a view to the initiation of judicial proceedings against the offender in respect of that offence.

5. The question which arises for consideration before me is whether an Additional Sessions Judge, who has been appointed pursuant to the powers contained in Section 9(3), can take cognizance of an offence on commitment directly from the Magistrate who has held the preliminary enquiry or must it necessarily pass through Sessions Judge of the division? The intention underlying Sub-section (2) of Section 193 Cr.P.C. appears to be that the Additional Sessions Judge will try such case only as the State Government by general or special order may direct or as the Sessions Judge of the division by general or special order may make over them for trial. While Sub-section (1) employs the language of taking 'cognizance of any offence as a court of original jurisdiction' Sub-section (2) employs the language 'shall try such cases'. In my opinion when notice of an offence is taken in a judicial capacity with a view to initiate judicial proceedings it is included in the expression 'shall try such cases'. The sources through which the cases will reach the Additional Sessions Judge contemplated by Sub-section (2) are two in number : (a) by the orders of the State Government and (b) as the Sessions Judge of the division make over to the Additional Sessions Judge This can be done either by a general or a special order. The argument advanced by the learned Counsel for the applicants is that it may be pursuant to a general or special order but it is only the Sessions Judge who can take cognizance of the case and then he is to make over such a case to an Additional Sessions Judge If this interpretation was accepted some of the words of sub-section of Section 193, become practically redundant. The language of Sub-section (2) is not that the Sessions Judge of a division will only make over to Additional Sessions Judges and Assistant Sessions Judges, those cases which he or the State Government by general order decide for being tried by him. The language employed envisages a general or a special order made by the State Government conferring powers on an Additional Sessions Judge for trying such cases as he may be directed by the State Government. Ler me now examine the cases cited by the learned Counsel in support of his construction. In the Rajasthan case 1956 R.L.W. 457 six persons including 3 petitioners were challaned by the police in the Court of Sub-Divisional Magistrate, Jodhpur, under Section 395 I.P.C. The case was transferred to the Court of Additional First Class Magistrate, Jodhpur. After making an inquiry be committed three of them to the Court of the Sessions Judge, Jodhpur, for standing their trial under Sections 395 and 397 I.P.C. and the three petitioners were discharged by him. After commitment the learned Sessions Judge transferred the case to the Additional Sessions Judge on 8th January, 1955. An application was presented on 15-1-1955 by the Public Prosecutor to the Additional Sessions Judge under Sections 436 and 437 Cr.P.C. and it was urged that the three petitioners were wrongly discharged by the committing court. The petitioners raised an objection that the Additional Sessions Judge had no jurisdiction to entertain the application unless it was first filed before the Sessions Judge and then transferred to the Court of the Additional Sessions Judge. The argument was turned down by the learned Additional Sessions Judge & it was held by virtue of Section 432-A Cr.P.C. that he could hear the application The High Court inter alia observed:

It may be pointed out there that Section 193(2) allows the Additional Sessions Judges to try such cases only as the State Government may by general or special order direct them to try or as the Sessions Judge of a division may by general or special order make over to them for trial. This is with regard to original Sessions cases. Then Section 409(2) of the Criminal Procedure Code provides that an Additional Sessions Judge or an Assistant Sessions Judge shall hear only such appeals as the State Government may, by general or special order, direct or as the Sessions Judge of the division may make over to him. Thus, in the matter of appeals also, the Additional Sessions Judge is to hear only such appeals as may be made over to him by the Sessions Judge or as the State Government may direct by general or special order. Section 438 Cr.P.C. is included in Chapter XXXII which deals with Reference and Revision. Sub-section (2) is meant to provide corresponding powers to Additional Sessions Judges in matters of reference and revision, but again, that power is to be exercised only when a case is transferred to the Additional Sessions Judge by or under any general or special order of the Sessions Judge. Thus, the entire scheme of the Criminal Procedure Code is that an Additional Sessions Judge is to try only those original cases, appeals-references and revisions which respectively come to him under Sections 193, 409 and 438 of the Criminal Procedure Code. In the present case, the revision application was not transferred to the learned Additional Sessions Judge and, therefore, he could not exercise his powers under chapter XXXII.

6. In the Full Bench case of the Patna High Court A.I.R. 1957 Patna 375 it was held that the word 'Court of Session' occurring in Section 408 refer only to the Court of Sessions presided over by the Sessions Judge and an Additional Sessions Judge or an Assistant Sessions Judge, as a judge of the Court of Session has no powers to receive and admit appeals filed in the Court of Sessions.

7. In the Andhra Pradesh Full Bench case A.I.R. 1961 A.P. 471 it was held that an Additional Sessions Judge has no power under the Code by virtue of his office, to receive appeals and admit them. G.O.Ms. No. 934 gave only a direction that an Additional Sessions Judge shall hear appeals of persons convicted by second or third class Magistrates. It did not expressly confer on an Additional Sessions Judge a power to receive such appeals if presented to him and to admit and take them on file. It was held that it cannot be said that the directions to hear contained in the G.O. implied or included a power to receive, admit and take on file. Consequently it was held that the Additional Sessions Judge no power to hear and dispose of appeal which had been directly filed before him by the appellant against his conviction.

8. In none of the three cases there was any Government Order of the nature and amplitude as is before me The Andhra Pradesh case A.I.R. 1961 A.P. 471 is distinguishable because the notification did not authorise direct reception of appeals. The Rajasthan case 1956 R.L.W. 457 had no order conferring powers by general or special order issued by the State Government under Section 193(2) to consider. Likewise there was no order in the Full Bench Patna case A.I.R. 1957 Patna 375 under Section 193(2).

9. The Government Order reads:

GOVERNMENT OF RAJASTHAN

JUDICIAL DEPARTMENT

NOTIFICATION

No. F. 19 (27) Jud/68/IV

Dated the 31st May, 1968.

In exercise of the powers conferred by Sub-section (2) of Section 193 of the Code of Criminal Procedure, 1898 (Central Act V of 1998), the State Government hereby directs that with effect from the 15th June, 1968, the Additional Sessions Judges mentioned in column 2 of the Table given below shall try all cases triable by a Court of Session arising within the local limits of their jurisdiction as mentioned in column 3 of the said Table, and in all such cases the accused shall be committed to their courts directly:

TABLES.No. Additional Sessions Judge Local limits ofjurisdiction1 2 3... ... ...10. Additional Sessions Judge Sirohi Sirohi District &Bail; Sub-Division of Pali District... ... By Order of the Governor,Sd/- Anop Singh Secretary to Government

The expression used in this notification is 'in all such cases the accused shall be committed to their courts directly'. The simple, if important, question is whether such an order could be made. In my opinion the answer must be in the affirmative. I have already held that the words 'shall take cognizance' and 'shall try' connote the same meaning so far the provisions of Section 193 are concerned. Further it will be a meaningless ritual if the State Government authorised the Sessions Judge of Pali to transfer cases relating to Sirohi District and Bali Sub-Division of Pali Discrict to be made over to the Additional Sessions Judge, Sirohi. I am in respectful agreement with the observations contained in Kamleshwar Singh's case AIR 1957 Patna 375 that where alternative constructions are open the Court will adopt that construction by which the intention of the legislature will be better effectuated or it will be consistent with the smooth working of the system which the statute purports to regulate and that alternative is to be rejected which will introduce uncertainty, friction or confusion into the working of the system. I might add that principal purpose of procedural laws is to facilitate the attainment of justice without delay and consistent with principle of natural justice. J G. Sutherland in 'Statutes and Statutory Construction' Section 6802 has observed as follows:

legislation designating the method of enforcing and establishing substantive rights, as a general rule, is enacted not for art end in itself, but to provide a better way of accomplishing an end. (of Duggan v. Ogden 278 Mass. 432). Statutes on procedure, then, have as their obvious purpose the providing of expeditious means whereby the plaintiff holding a cause of action may enforce his right, and the facilities whereby the defendant may interpose his defences. Therefore, the judiciary has generally been very generous in the treatment of statutes relating to proof dure. (Coblentz v. Sparks, 35 F. Supp. 605)

The interpretation suggested by the learned Counsel for the applicant would merely delay the proceedings and thereby the dispensation of justice. The legislature in my of opinion clearly intended that the Additional Sessions Judge will try all those cases which the State Government may by general or special order direct them to do. The notification aforesaid is clearly intra vires and confers powers on the Additional Sessions Judge, Sirohi, to receive by commitment cases for trial from the District of Sirohi and the Sub-Division of Bali. The .first argument of the learned Counsel for the applicant, then fore, fails.

10. Learned Counsel for the applicants submits that it will be convenient for the Advocate engaged by the defence and the applicant himself if the case is transferred to Pali. I am not prepared to accept that competent legal assistance is not available to the applicant at Sirohi. The trial of a case cannot possibly be permitted to be regulated by the choice of the Advocate by the defence and his consequent covenience. So far as the convenience of the witnesses is concerned it has been contested by the learned Deputy Government Advocate. He urged that it will not be inconvenient for the witnesses to come to Sirohi. I am not, therefore, persuaded by the ground of convenience to transfer this case.

11. The result is that this application for transfer fails and is dismissed.


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