How Can Magistrate Try Offences With 10 Year Jail Term When He Cannot Award More Than 3-Yr Imprisonment? Delhi HC Seeks Centre's Response

Surprised by the anomaly in the Criminal Procedure Code (CrPC) and the Indian Penal Code (IPC) which makes certain heinous offences like acid attack, kidnapping and maiming a child for begging, etc., punishable with imprisonment for 10 years or life but at the same time makes them triable by a magistrate who cannot award punishment of more than three years, the Delhi High Court on Tuesday wondered how such an incongruity has existed for so long without being agitated.

The anomaly was highlighted by advocate Amit Sahni who moved court against the injustice caused to victims of offences such as acid attack, kidnapping and maiming a child for begging, robbery, etc.

Sahni particularly highlighted offences under sections 326 (acid throwing), 327 (voluntarily causing hurt for extorting property), 363A (kidnapping or maiming a minor for the purpose of begging), 377, 382 (theft after preparation made for causing death, hurt or restraint in order to the committing of the theft), 386 (extortion by putting a person in fear of death or grievous hurt), 389, 392 (robbery), 394, 409, 455 (trespass), 458, 467, 493 (cohabitation caused by a man deceitfully inducing a belief of lawful marriage), and 495 of the Indian Penal Code which are all punishable with minimum imprisonment of 10 years but are triable by a magistrate who, as per the CrPC, cannot award punishment of more than three years which results in lesser sentence and injustice to the victims besides defeating the deterrent effect a higher sentence is supposed to have.

While Schedule 1 CrPC makes these offences triable by a magistrate, as per Section 29 of the CrPC, the magistrate can award a sentence for a maximum three years.

As per Section 325 CrPC, if a magistrate feels that punishment of more than three years should be awarded in any of the cases under these sections, he can refer the matter to the Chief Judicial Magistrate who also can award not more than seven years of punishment.

Sahni laid emphasis on heinous offences such as kidnapping of children and maiming them for the purpose of begging, which, he said, was a grave offence and many kids reported missing were becoming victims but culprits were being tried by the magistrate and coming back to crime in three years, if found guilty.

After hearing Sahni, a bench of Justice Siddharth Mridul and Justice Anu Malhotra observed that it is an anomaly which needs to be examined.

The court asked the counsel for Centre as to how such an anomaly could continue to exist for so long but went unagitated and asked it to file its response within six weeks.

"The Indian Penal Code, 1860 provides a severe punishment for the offences referred hereinabove and prescribes sentence for a period of ten years to life but at the same time, there is inherent lacuna in the procedural law i.e. Code of Criminal Procedure, 1973 (as amended upto date), which empowers a Magistrate to award sentence upto 3 years only. Further such magistrate can refer the matter to Chief Judicial Magistrate/Chief Metropolitan Magistrate under 325 Cr.P.C, in case Magistrate feel that 3 years punishment is not sufficient in any particular case. CJM/CMM can award sentence upto 7 years as provided in Section 29(1) of Cr.P.C," said Sahni.

Another worrisome aspect is that a mere five per cent of cases are sent to Chief Judicial Magistrate under Section 325 CrPC.

The petition also highlights how the sentence varies if the offence is committed in a different jurisdiction. "For instance, if an offence is committed under the jurisdiction of CMM/CJM, he can award upto 7 years of incarceration but if the same offence is committed under the jurisdiction of Judicial Magistrate First Class (JMIC)/Metropolitan Magistrate (MM), he can award a sentence upto 3 years only. However Magistrate can follow the procedure of 325 Cr.P.C in certain cases," it said.

The petitioner submitted that "Schedule I of the Code of Criminal Procedure, which makes the Sections 326, 327, 363A, 377, 382, 386, 389, 392, 394, 409, 455, 458, 467, 493, 495 Indian Penal Code, 1860 "Triable by Magistrate" is ultra-vires of the Article 14 and 21 of the Constitution of India".

He prayed that the Centre be directed to ponder over the same and rectify the inherent lacuna in the procedural law (CrPC), which is defeating the object of substantive law (IPC) and that the Sections agitated in the PIL be made triable by the "Court of Sessions" instead of "Court of Judicial Magistrate of First Class".

It is to be noted that the State of Madhya Pradesh had by way of the Code of Criminal Procedure (Madhya Pradesh Amendment) Act, 2007, changed the forum for the trial of offences punishable under Sections 317, 318, 326, 363, 363A, 365, 377, 392, .393, 394, 409, 435, 466, 467, 468, 471, 472, 473, 475, 476, 477 and 477A, from that of a Court of Magistrate of First Class to Court of Sessions.