Case Note & Summary
The petitioner, Kedar Rayjirao Salunke, was being prosecuted for offences punishable under Sections 353, 504, and 506(2) of the Indian Penal Code (IPC) in Regular Criminal Case No. 3736/2015, arising from Crime No. 232/2014. The trial was almost over and had reached the stage of final arguments when the Government of Maharashtra enacted the Maharashtra Act 40 of 2018, which amended Section 353 IPC to classify the offence as cognizable, non-bailable, triable by Sessions Court, and punishable with imprisonment for five years or fine or both. In view of this amendment, the prosecution moved an application under Section 323 of the Code of Criminal Procedure, 1973 (CrPC) for committing the proceedings to the Court of Sessions. The learned Additional Chief Judicial Magistrate, First Class, Pune, allowed the application and committed the case to the Sessions Court, directing the petitioner to appear before that court. The petitioner challenged this order by filing a writ petition under Article 227 of the Constitution of India before the Bombay High Court. The main legal issue was whether the Magistrate was justified in committing the case to the Sessions Court under Section 323 CrPC after the amendment, even though the trial was at the stage of final arguments. The petitioner's counsel, Mr. Lokesh Zade, fairly submitted that in view of the Supreme Court's judgment in Ramesh Kumar Soni v. State of Madhya Pradesh, (2013) 14 SCC 696, and the Bombay High Court's judgment in an unreported case, the Magistrate was bound to commit the case. The court held that when an offence is made exclusively triable by a Court of Session by a subsequent amendment, the Magistrate must commit the case under Section 323 CrPC, and the accused has no vested right to be tried by a particular forum. The petition was dismissed, and the order of the Magistrate was upheld.
Headnote
A) Criminal Procedure - Committal to Sessions Court - Section 323 CrPC - Amendment of IPC by State Act - When an offence is made exclusively triable by a Court of Session by a subsequent amendment, the Magistrate must commit the case to the Sessions Court under Section 323 CrPC, even if the trial before the Magistrate is at an advanced stage. The accused has no vested right to be tried by a particular forum. (Paras 3-6)
B) Criminal Law - Offence under Section 353 IPC - Amendment by Maharashtra Act 40 of 2018 - The amendment reclassified the offence under Section 353 IPC as cognizable, non-bailable, triable by Sessions Court, and punishable with imprisonment for five years. Consequently, the Magistrate committed the case to the Sessions Court. (Paras 3-4)
Issue of Consideration
Whether the Magistrate was justified in committing the case to the Sessions Court under Section 323 CrPC after the Maharashtra Act 40 of 2018 amended Section 353 IPC to make it triable by Sessions Court, even though the trial before the Magistrate was at the stage of final arguments.
Final Decision
The petition was dismissed. The order dated 6th March 2019 passed by the Additional Chief Judicial Magistrate, First Class, Pune, committing the case to the Sessions Court was upheld.
Law Points
- Amendment to IPC by state act changes forum of trial
- Section 323 CrPC mandates committal when offence becomes exclusively triable by Sessions Court
- no vested right to trial by particular forum
Case Details
2021 LawText (BOM) (12) 102
Writ Petition No. 2807 of 2019
Mr. Lokesh D. Zade for the Petitioner, Smt. S.V. Sonawane, APP for State
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Nature of Litigation
Criminal writ petition challenging order of committal to Sessions Court
Remedy Sought
Petitioner sought to quash the order dated 6th March 2019 passed by the Additional Chief Judicial Magistrate, First Class, Pune, which committed the case to the Sessions Court.
Filing Reason
The petitioner challenged the Magistrate's order shifting the forum of trial from Magistrate to Sessions Court following the amendment by Maharashtra Act 40 of 2018, which enhanced the punishment for Section 353 IPC and made it triable by Sessions Court.
Previous Decisions
The trial before the Magistrate was almost over and had reached the stage of final arguments when the prosecution moved an application under Section 323 CrPC for committal, which was allowed by the Magistrate.
Issues
Whether the Magistrate was justified in committing the case to the Sessions Court under Section 323 CrPC after the Maharashtra Act 40 of 2018 amended Section 353 IPC to make it triable by Sessions Court, even though the trial before the Magistrate was at the stage of final arguments.
Submissions/Arguments
Petitioner's counsel fairly submitted that in view of the judgments in Ramesh Kumar Soni v. State of Madhya Pradesh and an unreported judgment of this Court, the Magistrate was bound to commit the case.
State's counsel supported the order of committal.
Ratio Decidendi
When an offence is made exclusively triable by a Court of Session by a subsequent amendment, the Magistrate must commit the case under Section 323 CrPC, and the accused has no vested right to be tried by a particular forum.
Judgment Excerpts
This petition under Article 227 of the Constitution of India challenges the order dated 6th March, 2019 below Exhibit–47 passed by the Additional Chief Judicial Magistrate, First Class, Pune in Regular Criminal Case No. 3736/2015 by which the learned Magistrate shifted the forum of trial of the Petitioner-Accused, from the Court of Judicial Magistrate, First Class to the Court of Sessions, in wake of state amendment – Maharashtra Act of 40 of 2018.
Mr. Lokesh Zade appearing for the Petitioner, in all fairness submitted that in view of the judgment of the Apex Court in the case of Ramesh Kumar Soni Vs. State of Madhya Pradesh, (2013) 14 SCC 696; and the judgment of this Court in the case of ... the Magistrate was bound to commit the case.
Procedural History
The petitioner was prosecuted in R.C.C. No. 3637/2015 for offences under Sections 353, 504, 506(2) IPC. The trial was almost over and at the stage of final arguments. The Maharashtra Act 40 of 2018 amended Section 353 IPC, making it triable by Sessions Court. The prosecution moved an application under Section 323 CrPC for committal. The Additional Chief Judicial Magistrate, First Class, Pune, allowed the application and committed the case to the Sessions Court by order dated 6th March 2019. The petitioner challenged this order by filing Writ Petition No. 2807 of 2019 before the Bombay High Court, which was dismissed on 8th December 2021.
Acts & Sections
- Indian Penal Code, 1860 (IPC): 353, 504, 506(2)
- Code of Criminal Procedure, 1973 (CrPC): 323
- Constitution of India: 227
- Maharashtra Act 40 of 2018:
