Sessions Judge Is Not Under A Mandate To Frame Charges Under Section 228(1)(a) CrPC,1973 Before Transferring The Case To Chief Judicial Magistrate If The Case Is Not Exclusively Triable By Him: Delhi High Court

  • Shruti Kakkar
  • 04:52 PM, 23 Feb 2021

The Delhi High Court has recently observed that the if the matter is not exclusively triable by the Court of Sessions, then the Court is not under the mandate to first frame a charge under Section 228(1)(a) of the Code of Criminal Procedure,1973 (Cr.P.C) unlike under Section 228(1)(b) of the Cr.P.C before transferring a case to the Chief Judicial Magistrate.

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 place. 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 Single Bench of Justice Subramonium Prasad noted.

In the present matter, the accused/ petitioner caught hold of the complainant’s throat to suffocate him and threatened to register case against him if he came again to Dr. Karni Singh shooting range, Tughlakabad. The complainant after the incident approached the Court to file an application under section 156(3) CrPC for registration of FIR and as per the Court’s direction an Action Taken Report was filed and the Magistrate directed the police station Ambedkar Nagar to lodge an FIR under appropriate sections. After lodging the FIR, the Metropolitan Magistrate after hearing the arguments in point of charge committed the case to the Court of Sessions as the allegations prima facie made an offence under section 307 of the Indian Penal Code,1860 which was exclusively triable by Sessions Court. The Ld Additional Sessions Judge upon hearing the parties on the question of framing charge concluded that offence under Section 307 IPC was not out and sent the file back to the learned Chief Metropolitan Magistrate. Thus, the petitioner by way of revision petition challenged the order passed by the Additional Sessions Judge on the ground that the impugned order was contrary to the mandate of Section 228, CrPC,1973.

The issue that arose for consideration was whether the Sessions Judge is required to frame charges before transferring the case to Chief Judicial Magistrate if he is of the view that the offence is not exclusively triable by him under section 228(1)(a) CrPC,1973.

The Bench placed reliance on the Supreme Court judgement of Kailash Nath Agarwal v. Pradeshiya Industrial & Investment Corpn. of U.P. Ltd., (2003) 4 SCC 305 in which it was observed that,

20. There is an apparent distinction between the expressions “proceeding and “suit” used in Section 22(1). While it is true that two different words may be used in the same statute to convey the same meaning, that is the exception rather than the rule. The general rule is that when two different words are used by the same statute, prima facie one has to construe these different words as carrying different meanings. In Kanhaiyalal Vishindas Gidwani [(1993) 2 SCC 144] this Court found that the words “subscribed” and “signed” had been used in the Representation of the People Act, 1951 interchangeably and, therefore, in that context the Court came to the conclusion that when the legislature used the word “subscribed” it did not intend anything more than “signing” The words “suit” and “proceeding” have not been used interchangeably in SICA. Therefore, the reasons which persuaded this Court to give the same meaning to two different words in a statute cannot be applied here."

to note that different meanings should be given to different words in the same statute. There was an occasion to give the same meaning to different words.

In this context, the Court further stated that,

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.

Thus, the Court while dismissing the revision petition noted that there was no reason to give any other meaning to the word may and no necessity to read the word “may” as “shall” in Section 228(1)(a) CrPC. It was open for the Sessions Court to either 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 would then proceed further in accordance with the procedure prescribed in CrPC.

Case Title: Shyam Singh Yadav V. The State Govt Of Nct Of Delhi & Ors Delhi High Court

Law Point/Statute Involved: Section 228 of the Code of Criminal Procedure,1973