AMANDEEP SINGH SARANversusSTATE OF CHHATTISGARH

                [2023] 16 S.C.R. 435 : 2023 INSC 1028



                           CASE DETAILS

                    AMANDEEP SINGH SARAN
                                    v.
                     STATE OF CHHATTISGARH
                  (Criminal Appeal No. 2625 of 2023)
                         NOVEMBER 29, 2023
     [C.T. RAVIKUMAR AND SUDHANSHU DHULIA, JJ.]
                             HEADNOTES
     Issue for consideration: Conduct of the trial for offence under Section
409, Penal Code, 1860; exercise of powers under Cr.PC, for committal of
cases to the Court of competent jurisdiction.
      Code of Criminal Procedure, 1973 – ss.26, 29, 12, 323; First
Schedule to CrPC – Penal Code, 1860 – s.409 – Courts by which offences
are triable – Procedure when, after commencement of inquiry or trial,
Magistrate finds case should be committed– Appellant charged for
commission of various offences including u/s.409, IPC punishable with
imprisonment for life or imprisonment of either description for a term
which may extend to 10 years and fine and under two other enactments
– Facing trial before the Court of the Chief Judicial Magistrate, not
competent to impose a corporeal sentence of imprisonment beyond 7
years – Appellant had already undergone incarceration for more than
8 years – Parties ad idem that the Court of Chief Judicial Magistrate
is not competent to try the offence u/s.409, IPC:
      Held: True that going by the First Schedule to Cr.PC an offence
u/s.409, IPC is triable by a ‘Court of the Magistrate of the First Class’
– Nonetheless, it is the indubitable position revealed from the very
text of s.26 itself that the said Section and the First Schedule to Cr. PC
enumerating the Courts by which different off ences could be tried, are
controlled by the other provisions of Cr.PC, as the Section itself opens
with the phrase, “subject to the other provisions of this Code” – The
First Schedule to Cr.PC, when lies in conflict with the other specific
provisions under the Cr.PC must give way to such other provisions
                                   435
436          SUPREME COURT REPORTS                        [2023] 16 S.C.R.


under the Cr.PC – ‘Magistrate of the First Class’ and ‘Any Magistrate’
used in the explanatory note No. (2) in the First Schedule not only
takes in ‘Metropolitan Magistrates’ but also takes in ‘Chief Judicial
Magistrates’ as explicit from s.12, Cr.PC – The trial of the appellant is
to be conducted before a Court of Session having jurisdiction over the
area in question – As relates to an offence u/s.409 IPC, going by the
First Schedule to Cr.PC, it is triable by Court of a Magistrate of the First
Class and since that expression takes in the Court of a Chief Judicial
Magistrate – A scanning of the provisions u/s.323, CrPC would show
that in any inquiry or trial before a Magistrate, “which expression would
take in the Chief Judicial Magistrate as well”, it appears to him at any
stage of the proceedings before signing the judgment that the case is
one which ought to be tried by the Court of Session, it should commit
to that Court before signing the judgment, the power u/s.323, CrPC is
available to be exercised – Under normal circumstances, it was desirable
to direct the Court of the Magistrate concerned to exercise the power
after due consideration – However, in view of the peculiar circumstances
of this case, that the maximum penalty imposable by the Court of Chief
Judicial Magistrate is imprisonment not exceeding 7 years, taking into
account the fact that the appellant had already undergone incarceration
for more than 8 years, order passed for his release on bail and the fact
that only 10 out of 86 witnesses on the side of the prosecution have been
examined, Court of the Chief Judicial Magistrate, Raipur to commit the
case under trial against the appellant to the Court of Session to which he
is subordinate, to enable that Court to conduct the trial in the said case
– Court of Session concerned shall proceed with the trial of the case in
accordance with law under Chapter XVIII, Cr. PC – Constitution of India
– Article 21 – Prize Chits and Money Circulation Schemes (Banning)
Act, 1978 – Negotiable Instruments Act, 1881. [Paras 11, 12, 26, 27]
     Code of Criminal Procedure, 1973– Explanatory Note No. (2) in
the First schedule to Cr.PC; ss.3(1)(c), 12:
       Held: Expressions ‘Magistrate of the First Class’ and ‘Any Magistrate’
used in the First schedule to Cr.PC, include ‘Chief Judicial Magistrates’ as
well – Any contra-construction would lead to a situation denuding the status
of ‘trial Court’ to a Court of Chief Judicial Magistrate and in other words,
AMANDEEP SINGH SARAN v. STATE OF CHHATTISGARH 437


any such contra-construction would tantamount to a declaration that as per
the First Schedule to Cr. PC no offence is triable by a Court of Chief Judicial
Magistrate. [Paras 15, 16]
     Criminal Law – Object of Penology – Discussed.
     Code of Criminal Procedure, 1973 – ss.3(1)(c), 29, 31:
      Held: In the Cr.PC, there is no provision to empower a Court of a
Chief Judicial Magistrate or Court of a Magistrate of the first class to pass
any sentence not authorized u/s.29 (1) or 29 (2), Cr.PC, as the case may be
– s.31, Cr. PC deals with sentence in cases on conviction of several offences
at one trial and needless to say that this provision would not cloth power
on a Magistrate to bypass the provision u/s.29(1) or 29(2), Cr.PC in respect
of imposing sentence in any given offence upon conviction of the offender
and, therefore, it is different from s.34 of the old Code, 1898. [Para 18]
      Constitution of India – Article 21 – Speedy trial, a facet of fair
trial – Necessity of – Discussed.
     Code of Criminal Procedure, 1973 – s.300(1):
     Held: In the light of the provision u/s.300 (1), Cr. PC, an accused is
having a right to claim to be tried (if he were to be tried) before a Court of
competent jurisdiction because acquittal or conviction by a Court lacking
competence would not be a bar for a second trial – Maxims - ‘Nemo Debet
Bis Vexari’.[Para 20]
      Code of Criminal Procedure, 1973 – First Schedule to CrPC,
surveyed – Court of competence in the hierarchy of Courts empowered
to try a particular offence where imprisonment for life or imprisonment
for 10 years and fine is prescribed:
     Held : Barring very few offences including s.409, IPC, in all cases,
where the offence concerned is punishable with imprisonment for life or
imprisonment for 10 years and fine, the First Schedule to Cr. PC provides the
Court competent to try such offences as “Court of Session” – Barring some
exceptions, it is essentially the severity of the punishment imposable and
severe nature of the offence that acts as the decisive factor in the matter of
fixing the forum in the hierarchy of Courts, for trying the different offences.
[Paras 21, 24]
438          SUPREME COURT REPORTS                       [2023] 16 S.C.R.



       LIST OF CITATIONS AND OTHER REFERENCES
     Maneka Gandhi v. Union of India, AIR (1978) SC 597: [1978] 2 SCR
621; Abdul Rehman Antulay v. R.S. Nayak, AIR (1992) SC 1701: [1991] 3
Suppl. SCR 325; Budhan Choudhry v. State of Bihar, AIR (1955) SC 191:
[1955] 1 SCR 1045 – followed.
      Hussainara Khatoon and Ors. v. Home Secretary, State of Bihar, (1980)
1 SCC 81: [1979] 3 SCR 169; Nirmal Singh Kahlon v. State of Punjab and
Ors., (2009) 1 SCC 441: [2008] 14 SCR 1049 – referred to.
       OTHER CASE DETAILS INCLUDING IMPUGNED
              ORDER AND APPEARANCES
    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No.2625 of 2023.
    From the Judgment and Order dated 18.04.2019 of the High Court of
Chhattisgarh at Bilaspur in MCRC No.1730 of 2019.
      Appearances:
      Varinder Kumar Sharma, Adv. for the Appellant.
    Sourbh Roy, Ld. AAG, Sumeer Sodhi, Prabudh Singh, Yash Gupta,
Advs. for the Respondent.
       JUDGMENT / ORDER OF THE SUPREME COURT

                              JUDGMENT

      C. T. RAVIKUMAR, J.
      1. This appeal by special leave directed against the order dated
18.04.2019 passed by the High Court of Chhattisgarh at Bilaspur in MCRC
No.1730/2019, owing to various circumstances including the inordinate
delay occasioned in the matter of trial, now, poses a legal conundrum. The
appellant is facing trial before the Court of the Chief Judicial Magistrate,
Raipur in criminal case arising from FIR No.22/2015 of Police Station,
New Rajendra Nagar, Raipur in the State of Chhattisgarh, registered under
Sections 420, 409/34 and 120B of the Indian Penal Code, 1860 (hereinafter
referred for short ‘IPC’) and Sections 3 and 4 of the Prize Chits and Money
AMANDEEP SINGH SARAN v. STATE OF CHHATTISGARH 439
             [C. T. RAVIKUMAR, J.]

Circulation Schemes (Banning) Act, 1978 (for short ‘the Banning Act’) and
Section 138 of the Negotiable Instruments Act, 1881. In terms of Section
29(1) of the Code of Criminal Procedure, 1973 (for short ‘Cr.PC’) the Court
of Chief Judicial Magistrate, Raipur where the case is now pending can only
impose, in case found him guilty, a maximum corporeal punishment of a term
up to 7 years even if it is of the view that the appellant deserves more severe
punishment. We may hasten to clarify here that we shall not be understood
to have expressed an opinion that the appellant deserves to be convicted
and handed down such a sentence. Even the question whether he should
be convicted or acquitted is a matter of evidence and to be decided by the
trial Court, on appreciation of evidence, at the appropriate stage of trial. But
then, by now the appellant had already undergone incarceration for a term
of more than eight years. We do not think it just or appropriate to treat this
situation as a mere happenstance and leave it there for the appellant to get
resolved or remedied later. Taking note of the scope of the SLP this Court,
normally, would be loath to permit the parties to submit beyond the question
whether to grant or not to grant bail, but the very peculiar circumstances
involved and also evolved tends us to think that disinclination to go into
the legal conundrum emerging in this case may result in great miscarriage
of justice in all probabilities. It is also to be noted that both sides submit
and pray that appropriate orders be passed to ensure a fair trial by a court
of competent jurisdiction. In such circumstances, the parties were heard in
extenso.
     2. We have heard Mr. Varinder Kumar Sharma, learned counsel for
the appellant, Mr. Sourbh Roy, learned Additional Advocate General and
Mr. Sumeer Sodhi, learned counsel for the respondent State.
      3. We have already noted that the appellant herein has been charged for
commission of various offences under the IPC including indictment under
Section 409, IPC punishable with imprisonment for life or imprisonment
of either description for a term which may extend to 10 years and fine and
under the stated provisions of the two enactments mentioned hereinbefore.
Essentially, taking into account the fact that the appellant had already
undergone incarceration for more than 8 years as per order dated 02.08.2023,
this Court called for an affidavit from the respondent-State as to the steps
taken to apprehend the other absconding accused and also indicating the
stage of trial proceedings as on date.
440           SUPREME COURT REPORTS                          [2023] 16 S.C.R.


      4. In compliance with the directions in the order dated 02.08.2023,
the respondent-State filed an additional affidavit. It is stated therein that
with respect to the illegal Collective Investment Scheme (CIS), being run
by M/s HBN Dairies and Allied Limited, the appellant and other Directors
indulged in collection of huge sums of money from around 97,707 investors
under false assurances and then failed to return the amount upon maturity.
Two First Information Reports, including the present one being FIR No.22
of 2015 were registered. As relates the appellant herein, it is stated therein
that after registration of the FIR he was absconding and was arrested by the
Bureau of Immigration on 02.02.2015 from the Indira Gandhi International
Airport, New Delhi. It is further stated therein that chargesheet was filed in
the case on 15.10.2015 and currently the matter is at the stage of prosecution
evidence where 10 witnesses had been examined and 76 more witnesses
are yet to be examined. Thus, it is evident that though the chargesheet was
laid on 15.10.2015 by now only 10 out of the 86 prosecution witnesses
alone were examined and the appellant had already undergone incarceration
for more than 8 years. There can be no doubt with respect to the object of
penology that is to protect the society against the criminals and in other
words, for imposition of appropriate, adequate, just and proportionate
sentence commensurate with the nature and gravity of the crime and the
manner of its commission, in case of conviction. Having said this, we
cannot be oblivious of the rights of the accused as well. In the circumstances
expatiated above, the question is how long the appellant-accused should
carry the tag of “accused”? But, certainly, taking into account the legal and
factual circumstances the appellant has to stand the trial.
      5. Puzzling legal issues arise for consideration in the instant case in
view of the attending circumstances as also the various provisions under
the IPC, Cr.PC and also in view of various relevant decisions of this Court.
Before delving into those aspects, we think it only appropriate to refer to
the necessity of speedy trial which is a facet of fair trial, taking into account
the fact that in the case on hand by now the appellant had already undergone
incarceration for more than 8 years whereas the Court before which his
matter is now facing trial is not competent to impose a corporeal sentence of
imprisonment beyond 7 years. The requirement of a speedy trial assumes a
 AMANDEEP SINGH SARAN v. STATE OF CHHATTISGARH 441
              [C. T. RAVIKUMAR, J.]

new gloss with the verdict in Maneka Gandhi v. Union of India1. Thereafter,
this Court issued guidelines in Abdul Rehman Antulay v. R.S. Nayak2 for
the speedy trial of cases. It was held therein that fair, just and reasonable
procedure implicit in Article 21 of the Constitution of India creates a right in
the accused to be tried speedily. The concern underlying the right to speedy
trial from the point of view of the accused was also highlighted therein and
one of the aspects of concern is as under:-
     “The period of remand and pre-conviction detention should be as short
     as possible. The accused should not be subjected to unnecessary or
     unduly long incarceration prior to his conviction.”
      6. The factual narration made hereinbefore regarding the period of
incarceration underwent by the appellant and the punitive jurisdictional
limit of the Court where the case of the appellant is under trial at present,
would reveal the non-adherence, rather, the failure to follow the guidelines
issued by this Court for the speedy trial of an accused. In view of certain
relevant provisions under the Cr.PC and IPC, to be referred to hereafter,
and the factual scenario of the case on hand, a formative analysis capable
of formulating clues/guidelines to avoid recurrence of similar situations, is
required.
      7. A reference to Section 300 (1) Cr. PC, which lays down that a person
once convicted or acquitted cannot be tried for the same offence, will not be
inappropriate in the matter of such a formative analysis, as mentioned above.
This law based on the maxim ‘Nemo Debet Bis Vexari’ is founded on the
condition that the initial trial must be by a Court of competent jurisdiction
for the offences concerned. We are afraid, in the scenario now obtained if
this Court is not passing appropriate directions, the appellant accused may
have to face fresh trial or prolonged proceedings even after the conclusion
of proceedings before the Court where the matter is presently pending. To
know the raison d’etre for our remark, one may have to refer to various
provisions of law, including the provisions referred infra:
     8. Chapter III, Cr. PC deals with 3 topics idest.,



1   AIR 1978 SC 597
2   AIR 1992 SC 1701
442           SUPREME COURT REPORTS                        [2023] 16 S.C.R.


      (i)   Courts by which offences are triable;
      (ii) The sentences which these courts can pass including passing of
           sentence in case of conviction of several offences at one trial;
           and
      (iii) Modes of conferring of powers on and withdrawal of powers
            from the persons or officials by the High Court and the State
            Government.
      9. Section 26, Cr.PC, in so far as it is relevant reads thus:-
            “26. Courts by which offences are triable.—Subject to the
            other provisions of this Code,—
            (a) any offence under the Indian Penal Code (45 of 1860) may
            be tried by−
            (i) the High Court, or
            (ii) the Court of Session, or
            (iii) any other Court by which such offence is shown in the First
            Schedule to be triable;…”
                                                         (underline supplied)
      10. Thus, going by the First Schedule to Cr. PC, an offence under
Section 409, IPC is triable by “Magistrate of the first class”. It is in
this context that the phrase ‘subject to the other provisions of this code’
appearing in Section 26 of Cr.PC, and its impact on the ‘First Schedule to
Cr.PC’ invites serious discourse. As noted above, offence under Section
409, IPC is punishable with imprisonment for life or with imprisonment of
either description for a term which may extend to 10 years and also with
fine. However, sub-section (1) of Section 29, Cr.PC, limits the power of
punishment of the Court of a Chief Judicial Magistrate and it empowers the
Court to pass any sentence short of a sentence of death or imprisonment for
life or imprisonment for a term exceeding 7 years. Sub-section 2 thereof
provides that Court of a Magistrate of the First Class may pass a sentence
of imprisonment for a term not exceeding 3 years or of fine exceeding
10,000/- Rupees or of both. Evidently, in this case, after completion of the
investigation a report under Section 173 (2), Cr. PC was filed before the Court
 AMANDEEP SINGH SARAN v. STATE OF CHHATTISGARH 443
              [C. T. RAVIKUMAR, J.]

of Chief Judicial Magistrate, not merely by taking note of the accusation
of having committed offence under Section 409 IPC, but owing to Section
9 of the Banning Act. Though the chargesheet was filed on 15.10.2015 the
trial has progressed only upto the stage of examination of only a very few
prosecution witnesses and in the meanwhile, the appellant had to remain
in custody as an undertrial prisoner for more than 8 years which period is
indisputably in excess of the maximum term of imprisonment imposable by
a Court of Chief Judicial Magistrate. The disturbing fact is that even then
the stage of prosecution evidence has reached only up to the examination of
10 out of 86 witnesses of the prosecution. The trial if permitted to continue
in the Court where the appellant is presently under trial, may, in all the
aforesaid circumstances, lead to a situation enabling either of the parties to
contend that it was not a fair trial. On acquittal or conviction, either of the
parties may call in question the verdict on the ground that it was conducted
before a Court lacking competence to try the offence under Section 409,
IPC as both the parties are ad idem on the point that the Court of Chief
Judicial Magistrate is not competent to try the offence under Section 409,
IPC. If ultimately, for any reason it is found that the trial was not before
a Court of competent jurisdiction the appellant may again have to face
fresh trial in view of the position obtained under Section 300(1), Cr.P.C.
It is taking into account all the aforesaid circumstances that we made the
initial remark. At this juncture, we may have to make a mention about the
decision of this Court in Hussainara Khatoon and Ors. v. Home Secretary,
State of Bihar3 where this Court, not only held that an accused got a right
to fair trial but also that he got a fundamental right for speedy trial of his
case because a speedy trial is an integral and essential part of fundamental
right to life and liberty guaranteed under Article 21 of the Constitution of
India. It is equally relevant to refer to the decision of this Court in Nirmal
Singh Kahlon v. State of Punjab and Ors.4. In the said decision this Court
held that both the accused and victim of a crime have right to fair trial and
that fair investigation and fair trial are concomitant to preservation of the
fundamental right of an accused under Article 21 of the Constitution of India.
In short, in the case on hand, in order to have a fair trial, fair to both sides,


3   (1980) 1 SCC 81
4   (2009) 1 SCC 441
444            SUPREME COURT REPORTS                         [2023] 16 S.C.R.


and to do complete justice between the parties, we think it only appropriate
to proceed with consideration of the joint submission of the parties that the
case pending before the Court of the Chief Judicial Magistrate, Raipur is
liable to be committed to the Court of Session having jurisdiction over the
area in question.
      11. Now, we will proceed to consider how to resolve these peculiar and
puzzling circumstances so as to make a fair trial possible. We have already
referred to Section 26, Cr.PC. Sub- clause (ii) of clause (a) thereof would
reveal that a Court of Session has the power to try any offence under the IPC
subject to the rider specified and sub-clause (iii) thereof would reveal that
any other Court inferior in rank to a Court of Session can try only offences
shown in the First schedule to the Cr.PC as triable by it. True that going by
the First Schedule to Cr.PC an offence under Section 409, IPC is triable by a
‘Court of the Magistrate of the First Class’. Nonetheless, it is the indubitable
position revealed from the very text of Section 26 itself that the said Section
and the First Schedule to Cr. PC enumerating the Courts by which different
offences could be tried, are controlled by the other provisions of Cr.PC.
We say so because the very Section itself opens with the phrase, “subject
to the other provisions of this Code.” Our view will get support from the
decision of a Seven Judge Bench of this Court in Budhan Choudhry v.
State of Bihar5, where taking note of the fact that Section 28 under the old
Code, 1898 (corresponding to Section 26, Cr.PC) begins with the clause
‘subject to the other provisions of the code’ it was held that it would mean
that the Section and the Second Schedule of the Code (old Code, 1898) are
controlled by the other provisions of the Code. It was held therein thus:-
       “6….
       ***                 ***              ***      ***              ***
       It will be noticed that Section 28 begins with the clause “subject to
       the other provisions of this Code”. This means that the Section and
       the Second Schedule referred to therein are controlled by the other
       provisions of the Code including the provisions of Section 30. Further,
       the text of Section 30 itself quite clearly says that its provisions will



5     AIR 1955 SC 191
 AMANDEEP SINGH SARAN v. STATE OF CHHATTISGARH 445
              [C. T. RAVIKUMAR, J.]

     operate “notwithstanding anything contained in Section 28 or Section
     29”. Therefore, the provisions of Section 28 and the Second Schedule
     must give way to the provisions of Section 30.
     ***                  ***               ***               ***      ***”
     12. Following the same analogy, despite the absence of a provision
under Section 30 of the old Code in ‘Cr.PC’, it can safely be said that the First
Schedule to Cr.PC, when lies in conflict with the other specific provisions
under the Cr.PC must give way to such other provisions under the Cr.PC.
      13. Now, we will refer to the other relevant provisions. Section 3(1)
(c), Cr.PC, reads thus:-
     “Section 3 (1). In this code, -
     (a) …………………………………………
     (i) ……………………………..
     (ii) ………………………………
     (b) ………………………………………….
     (c) Any reference to a Magistrate of the first class shall,-
     (i) In relation to a metropolitan area, be construed as a reference to a
     Metropolitan Magistrate exercising jurisdiction in that area;
     (ii) In relation to any other area, be construed as a reference to a
     Judicial Magistrate of the first class exercising jurisdiction in that
     area;”
     14. In the Explanatory Note No. (2) in the First schedule to Cr.PC,
insofar as it is relevant, it is stated thus:-
     “In this schedule, (i) the expressions “Magistrate of the first class”
     and “Any Magistrate” include Metropolitan Magistrates but not
     Executive Magistrates;…….”
      15. According to us, the expressions ‘Magistrate of the First Class’ and
‘Any Magistrate’ used in the explanatory note No. (2) in the First Schedule
not only takes in ‘Metropolitan Magistrates’ but also takes in ‘Chief Judicial
Magistrates’. This position is explicit from Section 12, Cr.PC, which reads
thus:-
446          SUPREME COURT REPORTS                          [2023] 16 S.C.R.


      “S.12. Chief Judicial Magistrates and Additional Chief Judicial
      Magistrate etc.-
      (1) In every district (not being a metropolitan area), the High Court
      shall appoint a Judicial Magistrate of the First Class to be the Chief
      Judicial Magistrate”.
                                                        (Underline supplied)
     16. In short, the expressions ‘Magistrate of the First Class’ and ‘Any
Magistrate’ used in the First schedule to Cr.PC, include ‘Chief Judicial
Magistrates’ as well and any contra-construction would lead to a situation
denuding the status of ‘trial Court’ to a Court of Chief Judicial Magistrate
and in other words, any such contra-construction would tantamount to a
declaration that as per the First Schedule to Cr. PC no offence is triable by
a Court of Chief Judicial Magistrate.
      17. Should we assume in view of the afore-extracted provisions that
the choice of the Court, where one allegedly committed an offence under
Section 409, IPC simpliciter or along with other lesser punishable offences,
is to be tried, is left to the whim or idiosyncrasy of the officer in-charge of
the police station concerned by the legislature so that he may file final report
under Section 173 (2), Cr.PC either before a Magistrate of the First Class
exercising jurisdiction in the area concerned or before the Chief Judicial
Magistrate/Magistrate according to his sweet will. If it is so, it would create
havoc in view of the difference in their power of punishment as is evident
from sub-sections (1) and (2) of Section 29, Cr.PC., which read thus:-
      Section 29 –
      “(1) The Court of a Chief Judicial Magistrate may pass any sentence
      authorised by law except a sentence of death or of imprisonment for
      life or of imprisonment for a term exceeding seven years.
      (2) The Court of a Magistrate of the first class may pass a sentence
      of imprisonment for a term not exceeding three years, or of fine not
      exceeding [ten thousand rupees] or of both.”
      18. Certainly, any such unconscionable or undesirable situation as
mentioned above, is avertable by a timely, judicious exercise of discretion
of the powers under the relevant provision under Cr.PC, for committal of
 AMANDEEP SINGH SARAN v. STATE OF CHHATTISGARH 447
              [C. T. RAVIKUMAR, J.]

such cases to the Court of competent jurisdiction. But then, we are of the
considered view that disuse of such powers judiciously at the appropriate
time will render the penal provision under Section 409, IPC otiose to certain
extent inasmuch as it would create a situation where the offender would be
liable only for a maximum punishment of rigorous imprisonment only of 7
years irrespective of the magnitude and seriousness though, statutorily the
punishment imposable for the conviction thereunder is imprisonment for
life or imprisonment of either description for a period which may extend to
10 years, going by Section 409, IPC. It is relevant to note that in the Cr.PC,
there is no provision to empower a Court of a Chief Judicial Magistrate or
Court of a Magistrate of the first class to pass any sentence not authorized
under Section 29 (1) or 29 (2), Cr.PC, as the case may be. We may hasten
to add that Section 31, Cr. PC deals with sentence in cases on conviction of
several offences at one trial and needless to say that this provision would
not cloth power on a Magistrate to bypass the provision under Section 29(1)
or 29(2), Cr.PC in respect of imposing sentence in any given offence upon
conviction of the offender and, therefore, it is different from Section 34 of
the old Code, 1898. Pithily stated, the sole solution to avert a situation to
raise the contention of conduct of a trial before a Court lacking jurisdictional
competence in any given situation, is conduct of the trial for an offence under
Section 409, IPC before a Court of Session. Since no minimum sentence is
prescribed no prejudice would be caused to the accused concerned or to the
prosecution by the conduct of a trial before a Court of Session as it would
be open to the Court of Session to impose lesser or higher sentence than 7
years imprisonment, of either description, in case of conviction taking into
account all relevant aspects. We will dilate the matter further.
     19. It is to be noted that the division of cases into summons and
warrant cases itself is based on the punishment which can be awarded to
an offender. The division thus marks off ordinary cases from serious ones
to determine the mode of trials. The procedure for the trial of summons
cases is provided by Chapter XX, Cr.PC, whereas that of warrant cases
are dealt with in Chapter XIX, Cr.PC, a trial before a Court of Session is
provided under Chapter XVIII, Cr. PC. Indubitably, the procedures provided
thereunder are different and distinct. There can be no doubt that an accused,
unless relieved from facing the trial in accordance with the provisions of
Cr. PC, has to face the trial.
448            SUPREME COURT REPORTS                        [2023] 16 S.C.R.


       20. Certainly, standing the trial is said to be an ordeal. Hence, in the
light of the provision under Section 300 (1), Cr. PC, we have no hesitation
to hold that an accused is having a right to claim to be tried (if he were
to be tried) before a Court of competent jurisdiction because acquittal or
conviction by a Court lacking competence would not be a bar for a second
trial. When that be the consequence of conduct of a trial before a Court
lacking competence to try any particular offence, the accused concerned
while facing the trial in relation to such an offence must have the right to
raise the question of competence of the Court to try him for that offence
and once such a question is raised it must obtain a due and expeditious
consideration in accordance with law.
       21. In the contextual situation, it is only befitting to have a survey
through the First Schedule to Cr. PC, carrying enumeration of Courts by
which different offences can be tried. Such a survey would enable the Court
to identify the Court of competence in the hierarchy of Courts empowered
to try a particular offence where imprisonment for life or imprisonment for
10 years and fine is prescribed as is imposable on offender(s). Such a survey
would reveal that barring very few offences including Section 409, IPC,
in all cases, where the offence concerned is punishable with imprisonment
for life or imprisonment for 10 years and fine the First Schedule to Cr. PC
provides the Court competent to try such offences as “Court of Session”. It
is apposite to state that though such exceptions are exponible we could not
find explicans anywhere.
     22. Be that as it may, for an easy reference, we will refer to the outcome
of such survey in the following tabulated form: -
 Offences     Sentence awardable on conviction              Triable in terms of
 punishable                                                the First Schedule
 under IPC                                                 of Cr. PC
 Section 121 Punishable with death or imprisonment for     By Court of Session
             life and fine.
 Section 121A Imprisonment for life or imprisonment for By Court of Session
              10 years and fine.
 Section 122    Imprisonment for life or imprisonment for By Court of Session
                10 years and fine
AMANDEEP SINGH SARAN v. STATE OF CHHATTISGARH 449
             [C. T. RAVIKUMAR, J.]

Section 124A Imprisonment for life or with imprisonment By Court of Session
             which may extend to three years with fine.
Section 125 Im pri sonme nt for li fe and fine o r By Court of Session
             imprisonment for 7 years and with fine.
Section 128 Imprisonment for life or imprisonment for By Court of Session
             10 years and fine.
Section 130   Imprisonment for life or imprisonment for By Court of Session
              10 years and fine.
Section 131 Imprisonment for life or imprisonment for     By Court of Session
            10 years and fine.
Section 132 Punishable with death or imprisonment for     By Court of Session
            life or imprisonment for 10 years with fine.
Section 194 Imprisonment for life or with rigorous        By Court of Session
            imprisonment for a term which may extend
            to ten years and fine.
Section 222 Imprisonment for life or with imprisonment    By Court of Session
            of either description for a term which may
            extend to fourteen years and fine.
Section 225 Imprisonment for life or imprisonment of      By Court of Session
(Para V)    either description for a term not exceeding
            ten years and fine.
Section 232 Imprisonment for life or imprisonment for     By Court of Session
            10 years and fine.
Section 238 Imprisonment for life or imprisonment for     By Court of Session
            10 years and fine.
Section 255 Imprisonment for life or with imprisonment    By Court of Session
            of either description for a term which may
            extend to ten years and fine.
Section 302 Punishable with death or imprisonment for     By Court of Session
            life with fine.
Section 304 Imprisonment for life or imprisonment for By Court of Session
(Para I)    10 years with fine.
Section 305   Punishable with death or imprisonment for By Court of Session
              life or imprisonment for 10 years with fine.
Section 307   Imprisonment for life or imprisonment for By Court of Session
              10 years with fine.
450           SUPREME COURT REPORTS                          [2023] 16 S.C.R.



Section 307    Imprisonment for life or imprisonment for    By Court of Session
(Para II)      10 years with fine.
Section 307    Punishable with death or imprisonment for    By Court of Session
(Para III)     10 years with fine.
Section 311    Imprisonment for life with fine.              By Court of Session
Section 313    Imprisonment for life or imprisonment for    By Court of Session
(Para I)       10 years with fine.
Section 314    Imprisonment for life or imprisonment for    By Court of Session
(Para II)      10 years with fine.
Section 326A   Ten years which may extend to imprisonment   By Court of Session
               for life and fine.
Section 329    Imprisonment for life or imprisonment for By Court of Session
               10 years with fine.
Section 363A Imprisonment for life and fine.             By Court of Session
(2)
Section 364 Imprisonment for life or Rigorous By Court of Session
             Imprisonment (R.I.) for 10 years with fine.
Section 364A Punishable with death or imprisonment for By Court of Session
             life with fine.
Section 370 Imprisonment for life or imprisonment for By Court of Session
(3)         10 years with fine.
Section 370    Imprisonment for life or imprisonment for By Court of Session
(4)            10 years with fine.
Section 370    Imprisonment for life or imprisonment for By Court of Session
(5)            14 years with fine.
Section 370    Imprisonment for life with fine.           By Court of Session
(6)
Section 370    Imprisonment for life with fine.              By Court of Session
(7)
Section 371    Imprisonment for life or imprisonment for By Court of Session
               10 years with fine.
Section 376  RI for not less than 10 years but which may By Court of Session
             extend to imprisonment for life with fine.
Section 376A RI for not less than 20 years but which By Court of Session
             may extend to imprisonment for life which
             shall mean imprisonment for the remainder
             of that person's natural life, or with death.
AMANDEEP SINGH SARAN v. STATE OF CHHATTISGARH 451
             [C. T. RAVIKUMAR, J.]

Section       RI for a term which shall not be less than By Court of Session
              twenty years, but which may extend to
376AB
              imprisonment for life, which shall mean
              imprisonment for the remainder of that
              person's natural life, and with fine or with
              death.
Section 376D RI for a term which shall not be less than By Court of Session
             twenty years, but which may extend to life
             which shall mean imprisonment for the
             remainder of that person's natural life, and
             with fine.
Section      Imprisonment for life, which shall mean By Court of Session
             imprisonment for the remainder of that
376DA
             person's natural life, and with fine.
Section      Imprisonment for life, which shall mean By Court of Session
             imprisonment for the remainder of that
376DB
             person's natural life, and with fine, or with
             death.
Section 376E Imprisonment for life which shall mean By Court of Session
             imprisonment for the remainder of that
             person's natural life, or with death.
Section 395 Imprisonment for life, or with RI for a term By Court of Session
             which may extend to ten years, and fine.
Section 396   Punishable with death, or imprisonment for By Court of Session
              life, or RI for a term which may extend to
              ten years, and fine.
Section 400   Imprisonment for life, or with RI for a term By Court of Session
              which may extend to ten years, and fine.
Section 412   Imprisonment for life, or with RI for a term By Court of Session
              which may extend to ten years, and fine.
Section 413   Imprisonment for life, or with imprisonment By Court of Session
              of either description for a term which may
              extend to ten years, and fine.
Section 436   Imprisonment for life, or with imprisonment By Court of Session
              of either description for a term which may
              extend to ten years, and fine.
452            SUPREME COURT REPORTS                        [2023] 16 S.C.R.



 Section 438    Imprisonment for life, or with imprisonment By Court of Session
                of either description for a term which may
                extend to ten years, and fine.
 Section 449    Imprisonment for life, or with rigorous By Court of Session
                imprisonment for a term not exceeding ten
                years, and fine.
 Section 459    Imprisonment for life, or imprisonment of By Court of Session
                either description for a term which may
                extend to ten years, and fine.
 Section 460    Imprisonment for life, or with imprisonment By Court of Session
                of either description for a term which may
                extend to ten years, and fine.
 Section 489A Imprisonment for life, or with imprisonment By Court of Session
              of either description for a term which may
              extend to ten years, and fine.
 Section 489B Imprisonment for life, or with imprisonment By Court of Session
              of either description for a term which may
              extend to ten years, and fine.
 Section 489D Imprisonment for life, or with imprisonment By Court of Session
              of either description for a term which may
              extend to ten years, and fine.

      23. Section 53, IPC would reveal that imprisonment for life is
the second extreme punishment to which an offender is liable after
the death penalty under the provisions of IPC. We have already noted
that Cr. PC, firstly enumerates the Courts by which different offences
can be tried and then defines the limits of sentencing power of each of
such Courts in the order of hierarchy. Hereinbefore, we have already
extracted the relevant provisions under Sections 26 and 29 Cr. PC.
It is profitable to refer to Section 28, Cr. PC as well in this context.
It reads thus:-
      “28. Sentences which High Courts and Sessions Judges may pass.—
      (1) A High Court may pass any sentence authorised by law.
      (2) A Sessions Judge or Additional Sessions Judge may pass any
      sentence authorised by law; but any sentence of death passed by any
      such Judge shall be subject to confirmation by the High Court.
AMANDEEP SINGH SARAN v. STATE OF CHHATTISGARH 453
             [C. T. RAVIKUMAR, J.]

     (3) An Assistant Sessions Judge may pass any sentence authorised
     by law except a sentence of death or of imprisonment for life or of
     imprisonment for a term exceeding ten years.”
      24. A scanning of the facts and factors mentioned hereinbefore
with reference to various provisions would reveal that barring some
exceptions, it is essentially the severity of the punishment imposable
and severe nature of the offence that acts as the decisive factor in the
matter of fixing the forum in the hierarchy of Courts, for trying the
different offences. A scanning of the First Schedule to Cr.PC also would
reveal that barring some exceptions, in respect of the offences where
the punishment imposable is imprisonment for life or imprisonment
which may extend to 10 years and fine, the forum for trial is invariably
the “Court of Session”. The legislative intention appears to be that in
respect of very serious or/and heinous offences where extreme sentence
of imprisonment for life is imposable, trial has to be conducted before
a Court of Session after following the procedure under Chapter XVIII,
Cr.PC. We have already noted hereinbefore the consequences of conduct
of a trial before a Court lacking competence in the light of the provisions
under Section 300 (1) Cr. PC and also the object of penology that it
is to protect the society by ensuring, granting of adequate, just and
proportionate sentence commensurate with the nature and gravity of
crime. In other words, to have a fair trial, both the accused and to the
prosecution it is only appropriate to ensure that the first trial itself is
being conducted by a Court having competent jurisdiction, lest it would
prejudice either the accused concerned or the prosecution in which event
it would be detrimental to the society at large. Thus, upon a diallage
we find that in respect of a case where the offence to be tried is under
Section 409, IPC, as in the case on hand, it is only conducive to conduct
the trial before a Court of Session.
      25. Having held as above and looking into the indisputable position
that cases reach the Courts of Session for trial only upon committal by
the Committal Court in accordance with the procedures the question is
how this kind of legal conundrum could be resolved. It is bearing in mind
such situation, we made an earlier observation that a timely and judicious
exercise of power for committal of cases provided in the Cr. PC could
454          SUPREME COURT REPORTS                       [2023] 16 S.C.R.


avert any such situation. In the case on hand, the appellant/accused is
facing trial for offences including Section 409, IPC before the Court of
the Chief Judicial Magistrate, Raipur. Both the sides made submissions to
the effect that the case may be sent for trial before a Court of competent
jurisdiction. Upon a diallage, including the impact of conduct of a trial
before a Court lacking the jurisdiction, we find that the trial has to be
before the Court of Session having jurisdiction over the area in question.
We make it clear that this conclusion shall not be misinterpreted or
misunderstood that it is for the purpose of ensuring handing down of
conviction and upon such conviction imposition of a sentence of more
than 7 years, upto a maximum of 10 years or imprisonment for life.
Certainly, the Court of competent jurisdiction conducting the trial must
have the power to acquit or convict the accused concerned, based on
appreciation of evidence on record and in case of conviction to decide
the quantum of punishment. With this we will proceed to consider the
issue further.
       26. As noticed hereinbefore, before the Court of the Chief Judicial
Magistrate, Raipur, the trial against the appellant was in progress and
10 out of 86 prosecution witnesses were examined. When the upshot of
the discussion made hereinbefore is that the trial of the appellant is to
be conducted before a Court of Session having jurisdiction over the area
in question, there can be no doubt with respect to the position that going
by the scheme of Cr. PC, a Sessions Court can try an offence against any
accused upon committal of the case to the Court of Sessions. In respect
of offences which are exclusively triable, certainly when the accused
appears or brought before the Magistrate concerned, the case would be
committed to the Court of Session after complying with the provisions
in accordance with law. We have already found that as relates to an
offence under Section 409 IPC, going by the First Schedule to Cr.PC,
it is triable by Court of a Magistrate of the First Class and since that
expression takes in the Court of a Chief Judicial Magistrate. The case on
hand is presently under trial before the Court of Chief Judicial Magistrate,
Raipur. The question is what should be the procedure to be followed
for committal of such a case before the Court of Session concerned at
this stage. Since the case is already before the Court of Chief Judicial
Magistrate, the learned counsel for both sides submitted that the case
 AMANDEEP SINGH SARAN v. STATE OF CHHATTISGARH 455
              [C. T. RAVIKUMAR, J.]

could not be committed to the Court of Session concerned in exercise
of the power under Section 325, Cr. PC. We do not think it necessary
to delve into that question as according to us this could be done legally
in exercise of the power under Section 323, Cr. PC which reads thus: -
     “323. Procedure when, after commencement of inquiry or trial,
     Magistrate finds case should be committed. - If, in any inquiry into an
     offence or a trial before a Magistrate, it appears to him at any stage of
     the proceedings before signing the judgment that the case is one which
     ought to be tried by the Court of Session, he shall commit it to that
     Court under the provisions hereinbefore contained [and thereupon the
     provisions of Chapter XVIII shall apply to the commitment so made]”.
       27. A scanning of the provisions under Section 323 Cr. PC would show
that in any inquiry or trial before a Magistrate, “which expression would take
in the Chief Judicial Magistrate as well”, it appears to him at any stage of the
proceedings before signing the judgment that the case is one which ought
to be tried by the Court of Session, it should commit to that Court. Thus, it
is evident that before signing the judgment, the power under Section 323,
Cr. PC is available to be exercised. Certainly, the sine qua non for exercise
of the power under Section 323 is the opinion of the Magistrate concerned
that it is a case which ought to be tried by the Court of Session. In view of
the provision, under normal circumstances, it is desirable to direct the Court
of the Magistrate concerned to exercise the power after due consideration.
However, in view of the peculiar circumstances of this case which we have
already taken into account, id est that the maximum penalty imposable by
the Court of Chief Judicial Magistrate is imprisonment not exceeding 7
years, that taking into account the fact that the appellant herein had already
undergone incarceration for a period of more than 8 years we have already
passed an order for his release on bail and the fact that only 10 out of 86
witnesses on the side of the prosecution have been examined, we direct the
Court of the Chief Judicial Magistrate, Raipur to commit the case under trial
against the appellant herein, arising out of FIR No.22/2015 of Police Station,
New Rajendra Nagar, Raipur in the State of Chhattisgarh, to the Court of
Session to which he is subordinate, to enable that Court to conduct the trial
in the said case. This shall be done within a period of three weeks from the
date of the receipt of the copy of this judgment. Upon such committal and
456            SUPREME COURT REPORTS                    [2023] 16 S.C.R.


receipt of the case, the Court of Session concerned shall proceed with the
trial of the case in accordance with law under Chapter XVIII, Cr. PC. The
Court of Session concerned shall make an endeavor to conduct and conclude
the trial expeditiously.
      28. The appeal stands disposed of as above.


Headnotes prepared by:                                    Appeal disposed of..
Divya Pandey