TARUN KUMAR GUPTA, J. - (1.) THE petitioner accused has filed this application under Section 482 of the Code of Criminal Procedure, 1973 praying for quashing the criminal proceeding being S.T. Case No.1(3) of 2009 arising out Rajarhat P. S. case No.440 dated 01.11.2006 under Section 377/506 I. P. C. The petitioner has also prayed for setting aside order dated 7th of March, 2009 as well as order dated 13th of November, 2013 passed by the learned Sessions Judge in connection with said Sessions trial.
(2.) MR . Kamalesh Chandra Saha, learned counsel for the petitioner, submits that on the basis of a complaint Rajarhat P. S. case No. 440 dated 1st of November, 2006 under Section 377/ 506 I. P. C. was initiated which culminated into filing of a charge sheet. According to him, the offence was exclusively triable by a court of magistrate as per schedule appended to the Criminal Procedure Code, 1973 but the same was wrongly committed to a Court of Sessions. He submits that a charge under Section 377/506 I. P. C. was framed by the learned Sessions Judge on 7th of March, 2009. He further submits that as both the offences were triable by a Court of Magistrate learned Sessions Judge should have remitted the matter back to the learned Chief Judicial Magistrate under Section 228 (1)(a) of the Code of Criminal Procedure for said case to be tried by a competent Court of Magistrate. According to him, the Sessions Court though was not empowered to try a criminal case under Section 377/506 I. P. C. continued to try the case illegally. He submits that when the matter was detected an application dated 18th of November, 2013 was filed in the trial court for passing necessary order as said court had no jurisdiction to try a case under Section 377 and 506 I. P. C. He submits that learned trial court wrongly rejected said application by assuming jurisdiction to try said magistrate triable case by invoking Section 26 of the Criminal Procedure Code. According to him, the entire proceeding and trial in the Sessions Court vitiated for want of jurisdiction and that the criminal proceeding should be quashed. Mr. Amartya Ghosh appearing for the O. P. State, on the other hand, submits that even though said criminal case under Section 377 and 506 I. P. C. was triable by a Magistrate but if a Sessions Court took up the trial and continued with said trial there was no illegality calling for interference by this Court. The only point in issue is whether a Sessions Court has the authority to try a case disclosing offences triable by a court of magistrate. The admitted fact of the case is that on the basis of written complaint of one Asma Bibi, Rajarhat P. S. case No.440 dated 01.11.2006 under Section 377 / 506 I. P. C. was initiated. After investigation the police submitted a charge sheet against the present petitioner accused under Section 377 and 506 I. P. C. Though the offences under Section 377 and 506 I. P. C. were magistrate triable but the case was committed to the court of Sessions. After contested hearing the Sessions Court namely learned Additional Sessions Judge, Fast Track Court No.2, Barasat, District ­ North 24 Parganas framed charges under Section 377 /506 I. P. C. against present accused vide order No.11 dated 7th of March, 2009. Dates were fixed for evidence by issuing summons to the witnesses. After completion of evidence of other witnesses while the evidence -in -chief of the I. O. was concluded and his cross - examination was continuing the petitioner accused filed an application dated 8th of November, 2013 alleging that the trial court had no jurisdiction to try said magistrate triable offence. By order No.52 dated 13.11.2013 learned trial court rejected the same by observing that a Sessions Court had the authority to try even magistrate triable case under Section 26 of the Criminal Procedure Code.
(3.) CHAPTER III relates to power of courts. Section 26 of the Code of 1973 is reproduced below for sake of convenience. Section 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; Provided that............................. (b) any offence under any other law shall, when any Court is mentioned in this behalf in such law, be tried by such Court and when no Court is so mentioned, may be tried by ­ (i) the High Court, or (ii) any other Court by which such offence is shown in the First Schedule to be triable. Chapter XVVIII of the Code deals with "trial before a Court of Sessions". Section 228 deals with framing of charge. Section is reproduced below: - 228. Framing of charge. ­ (1) If, after such consideration and hearing as aforesaid the Judge is of opinion that there is ground for presuming that the accused has committed an offence which ­ (a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, and thereupon the Chief Judicial Magistrate shall try the offence in accordance with the procedure for the trial of warrant -cases instituted on a police report; (b) is exclusively triable by the Court, he shall frame in writing a charge against the accused. (2) Where the Judge frames any charge under clause (b) of sub -section (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried. ;