Report No. 41
Powers of Courts
3.1. High Courts' original jurisdiction.-
Under section 28, any offence under the Indian Penal Code may be tried by the High Court, and under section 29, any offence under any other law which contains no special provision as to the trying courts, may be tried by the High Court. Section 194 provides that the High Court may take cognizance of any offence upon a commitment made to it in the manner provided in Chapter XVIII of the Code. Detailed provisions are then made in Chapter XXIII with regard to the procedure of High Courts in trying cases.
Although these provisions apply to all High Courts in India, only those of Calcutta, Madras and Bombay exercised ordinary original criminal jurisdiction at any time and this jurisdiction was limited by the Letters Patent establishing these High Courts to the three Presidenc.-towns. With the establishment of City Sessions Courts in Bombay in 1948 and in Madras in 1956, the High Courts at these two places altogether ceased to try criminal cases.
3.2. Present position in Calcutta.-
In Calcutta, however, although a City Sessions Court was established in 1957 with jurisdiction over the Presidenc.-town of Calcutta, it was precluded from trying offences punishable under sections 131 to 134, 302, 307, 396, 468 and 477A of the Indian Penal Code. These offences, when committed within the presidenc.-towns, were retained within the ordinary original jurisdiction of the Calcutta High Court and continued to be triable with the aid of a jury. In this connection it may be mentioned that the area of this Presidenc.-town is only a part, and the smaller part at that, of the area comprised within the Municipal Corporation of Calcutta. The other part of the city is within the jurisdiction of the Sessions Judge of the 2.-Parganas District who holds Court in Alipore.
3.3. Law Commission's recommendation in 14th Report.-
The Law Commission, in its 14th Report, considered that this division of original criminal jurisdiction between the Calcutta High Court and the City Sessions Court was1 "full of anomalies. For example, whereas an offence under section 302, I.P.C. for which the Court may impose a sentence of death or imprisonment for life, is exclusively triable by the High Court, an offence under section 303 for which the only penalty is the sentence of death, is triable by the City Sessions Court." The Commission further said1, "The City Sessions Courts in Bombay and Madras which have been established much earlier than the Calcutta Court possess all the powers which the High Court did in the respective States in exercise of its ordinary original criminal jurisdiction.
The evidence given before us revealed that the City Sessions Courts in those States were functioning efficiently. There is no reason why the Court should not be able to deal with these matters in Calcutta. We, therefore, recommend that the City Sessions Court be given exclusive and the ordinary original criminal jurisdiction of the High Court be abolished. This will result in a substantial saving of the judge time in the High Court."
1. 14th Report, Vol. II.
3.4. Law Commission's recommendatio.-37th Report.-
In the 37th Report, however, the Law Commission took a different view1. They thought it was better to have justice from the court of superior jurisdiction than from a court of inferior jurisdiction and where justice from a superior court was available under the existing law (as in Calcutta), strong reasons should be needed to disturb the law. They further pointed out that the judgment of the High Court on the original side had enriched not only our civil law but also our criminal law. They thought that there were cogent reasons for not disturbing the existing position and that it would be too big a price to pay for uniformity.
1. 37th Report, para. 145.
3.5. Earlier recommendation preferred.-
We have again considered the matter and come to the conclusion that the earlier recommendation made by the Law Commission in its 14th Report is definitely to be preferred. We were struck by the fact that original trials in the Calcutta High Court are held up for an unduly long time as compared to trials before the City Sessions Court. Apart from that fact, we are unable to see any reason for. treating a small part of the city of Calcutta on a different footing from the rest of the country. There can hardly be any doubt that the City Sessions Court at Calcutta is as competent to deal with murder, dacoity, forgery and account falsification cases as the Sessions Court sitting and functioning in Alipore.
The transfer of this work from the Calcutta High Court to the City Sessions Court would relieve the former of a considerable work load which should be welcome in the present state of heavy arrears in that High Court. We therefore recommend that this vestigial jurisdiction of the Calcutta High Court should be abolished and the City Sessions Court should have the same complete jurisdiction with regard to criminal cases as all other Courts of Session in the country.
3.6. Sections 28 and 29 combined and revised.-
This proposal does not require the deletion of the references to High Courts in sections 28 and 29 of the Code since these will continue to be relevant for the extremely rare, but possible, exercise of the extraordinary original criminal jurisdiction vested in them. We, however, recommend that the two sections may be combined and formally r.-drafted as follows.-
"28. Courts by which offences are triable.- Subject to the other provisions of this Code.-
(a) any offence under the Indian Penal Code may be tried by the High Court or by the Court of Session or by any other Court by which such offence is shown in the Second Schedule to be triable; and
(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, it may be tried by the High Court or by any Court by which such offence is shown in the Second Schedule to be triable."
The illustration to the existing section 28 may be omitted in view of our proposal to do away with commitment proceedings and, even otherwise, as not being very necessary for elucidating the section.
3.7. Section 3.- recommendation in the previous Report.-
In the previous Report1, various suggestions were considered in regard to section 30, such as, whether it should be retained at all, whether it should be modified by increasing or reducing the range of offences triable by Magistrates empowered under the section, whether it would not be preferable to have all the lesser Sessions cases tried by Assistant Sessions Judges instead of such Magistrates, etc. Finally, however, the Report recommended that the section should be retained with one or two minor amendments leaving the position flexible.
1. 37th Report, para. 151.