Adhir Kumar Ray Chaudhuri vs The State

The question for consideration in this appeal is whether the court of Sessions that tried and convicted this Appellant had jurisdiction to try the cases. There were five charges on which the Appellant was tried--one u/s 467 of the Indian Penal Code for; an offence of forgery said to have been committed at 77, Kailash Basu Street, Calcutta, another for an offence u/s 471 read with Section 467 of the Indian Penal Code for user at the same address, namely, 77, Kailash Basu Street, Calcutta, of a forged document as genuine, and for three other offences u/s 414 of the Indian Penal Code and two u/s 37& of the Indian Penal Code said to have been committed at places within the jurisdiction of the court of Sessions, 24-Pargands. It appears that immediately before the trial commenced before the learned Assistant Sessions Judge an application was filed on behalf of this Appellant stating that the court had no jurisdiction to try the offence u/s 467 of the Indian Penal Code. The learned Assistant Sessions Judge rejected this contention and held that the court of Sessions at Alipore had jurisdiction to try all the offences, though some of the offences were said to have been committed within the local limits of the Ordinary Original Criminal Jurisdiction of the High Court of Calcutta.

It is quite clear that two of the five offences, which were triable by a court of Sessions, namely, the offence u/s 467 of the Indian Penal Code and one u/s 471, read with Section 467 of the Indian Penal Code, were both alleged to have been committed at a place which is outside any Sessions division in this State of West Bengal and is at a place within the Ordinary Original Criminal Jurisdiction of the High Court of Calcutta.

The position, therefore, is that a court of Sessions at Alipore has tried five offences, two of which are triable only by the High Court in the exercise of its Ordinary Original Criminal Jurisdiction. For, Section 177 of the Code of Criminal Procedure provides that every offence shall ordinarily be inquired into and tried by a court within the local limits of whose jurisdiction; it was committed. There is no provision in ch. XV which deals with the jurisdiction of the criminal courts in inquiries and trials under which the court of Sessions at Alipore could have any jurisdiction to try these offences which were committed within the local limits of the High Court's Ordinary Original Criminal Jurisdiction. Mr. Sinha, appearing for the State, tried to convince us that, as all the five offences were committed in the course of the same transaction and three of the offences were committed within the jurisdiction of the courts at Alipore, that court had also a jurisdiction to try offences committed outside that jurisdiction. This is clearly against the provisions of Section 177 of the Code of Criminal Procedure and, as there is no provision in the sections that follow in ch. XV for the exercise of such jurisdiction by the Alipore courts, we are unable to accept his contention. Our conclusion is that the Alipore Sessions court was not competent to try the accused for the offence u/s 467 of the Indian Penal Code and for the offence u/s 471 read with Section 467 of the Indian Penal Code.

The other three offences were not ordinarily triable by the court of Sessions at all. They could be tried in the court of Sessions if the offences under Sections 467 and 471, read with Section 467 of the Indian Penal Code, had been triable by the Alipore court of Sessions. The trial of the Appellant for these offences by the court of Sessions at Alipore was, therefore, without jurisdiction.

Mr. Sinha has contended further that, in view of the provisions of Section 531 of the Code of Criminal Procedure, this Court should not set aside the order of conviction and sentence passed by the learned Assistant Sessions Judge. Section 531 of the Code of Criminal Procedure provides that no finding, sentence or order of any criminal court shall be set aside merely on the ground that the inquiry, trial or other proceeding in the course of which it was arrived at or passed, took place in a wrong Sessions division, district, subdivision or other local area, unless it appears that such error has in fact occasioned a failure of justice.

The High Court Sessions is not a Court presiding over a Sessions division created u/s 7 of the Code of Criminal Procedure. This is abundantly clear from Sections 6, 7 and 9 of the Code of Criminal Procedure.

Section 6 lays down that, besides the High Courts and the courts constituted under any law other than the Criminal Procedure Code for the time being in force, there shall be five classes of criminal courts in British India, namely:

Courts of Session,

Presidency Magistrates,

Magistrates of the first class.

Magistrates of the second class,

Magistrates of the third class.

Section 7 provides that every province (excluding the presidency town) shall be a Sessions division or shall consist. of Sessions divisions; and empowers the Provincial Government to alter the limits or the number of Sessions divisions.

Section 9 provides that the Provincial Government shall establish a court of Sessions for every Sessions division and appoint a Judge of such court.

It is abundantly clear from these sections that the area in which the High Court exercises its Ordinary Original Criminal Jurisdiction is not and cannot be a Sessions division within the meaning of the Code of Criminal Procedure.

Clearly, therefore, this is not a case of a trial having taken place in a wrong Sessions division. Where a case should be tried in Sessions division A, but instead of that it is tried in Sessions division B, that might attract the operation of Section 531 of the. Code of Criminal Procedure. In the present case, the offences were triable by the High Court. They were tried in a Sessions division in 24-Pargands. There is no scope here for the application of Section 531 of the Code of Criminal Procedure.

It is also important to remember that in the present case an objection on the question of jurisdiction was taken before the learned Assistant Sessions Judge and, in spite of that the Assistant Sessions Judge decided to proceed with the case. As we read Section 531 of the Code of Criminal Procedure, it is intended to provide against interference by superior courts with orders passed without jurisdiction through inadvertence and is not intended to apply to orders passed deliberately without jurisdiction. We may add that in our opinion, when a case is triable by the High Courts, but trial takes place in a Sessions division in mofussil that itself should ordinarily be considered to occasion a failure of justice. For the accused in a trial by the High Court Sessions has many special rights which he has not got when he is tried-by a Sessions in the mofussil. The difference between a trial by the High Court in the exercise of its Ordinary Original Criminal Jurisdiction and the trial by a court of Sessions in mofussil is not a mere matter of form but of substance.

Our conclusion, therefore, is that the trial of the Appellant by the court of Sessions at Alipore has been without jurisdiction. The order of conviction and sentence passed by the learned Judge, must, therefore, be set aside.

Accordingly, we allow the appeal and set aside the order of conviction and sentence passed by the learned Judge.