AMANDEEP SINGH SARAN versus STATE OF CHHATTISGARH
[2023] 16 S.C.R. 435, Supreme Court of India, 2023
Outcome: Disposed off
Segment: Issues
[2023] 16 S.C.R. 435 : 2023 INSC 1028
435
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 oﬀ ence 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 oﬀ ences 
are triable – Procedure when, after commencement of inquiry or trial, 
Magistrate ﬁ nds case should be committed– Appellant charged for 
commission of various oﬀ ences 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 ﬁ ne 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 oﬀ ence u/s.409, IPC:
Held: True that going by the First Schedule to Cr.PC an oﬀ ence 
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 diﬀ erent 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 conﬂ ict with the other speciﬁ c 
provisions under the Cr.PC must give way to such other provisions
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 oﬀ ence 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,
437
any such contra-construction would tantamount to a declaration that as per 
the First Schedule to Cr. PC no oﬀ ence is triable by a Court of Chief Judicial 
Magistrate. [P aras 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 ﬁ rst 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 oﬀ ences 
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 oﬀ ence upon conviction of the oﬀ ender 
and, therefore, it is diﬀ erent 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 oﬀ ence where imprisonment for life or imprisonment 
for 10 years and ﬁ ne is prescribed:
Held : Barring very few oﬀ ences including s.409, IPC, in all cases, 
where the oﬀ ence concerned is punishable with imprisonment for life or 
imprisonment for 10 years and ﬁ ne, the First Schedule to Cr. PC provides the 
Court competent to try such oﬀ ences as “Court of Session” – Barring some 
exceptions, it is essentially the severity of the punishment imposable and 
severe nature of the oﬀ ence that acts as the decisive factor in the matter of 
ﬁ xing the forum in the hierarchy of Courts, for trying the diﬀ erent oﬀ ences. 
[Paras 21, 24]
AMANDEEP SINGH SARAN v. STATE OF CHHATTISGARH
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
439
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 oﬀ ences 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 ﬁ ne 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 aﬃ  davit 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.
AMANDEEP SINGH SARAN v. STATE OF CHHATTISGARH
[C. T. RAVIKUMAR, J.]
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 ﬁ led an additional aﬃ  davit. 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 ﬁ led 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
441
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 oﬀ ence, 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 oﬀ ences 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
AMANDEEP SINGH SARAN v. STATE OF CHHATTISGARH
[C. T. RAVIKUMAR, J.]
442 
SUPREME COURT REPORTS 
[2023] 16 S.C.R.
(i) 
Courts by which oﬀ ences are triable; 
(ii) The sentences which these courts can pass including passing of 
sentence in case of conviction of several oﬀ ences at one trial; 
and 
(iii) Modes of conferring of powers on and withdrawal of powers 
from the persons or oﬃ  cials 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 oﬀ ences are triable.—Subject to the 
other provisions of this Code,— 
(a) any oﬀ ence 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 oﬀ ence is shown in the First 
Schedule to be triable;…”
(underline supplied)
10. Thus, going by the First Schedule to Cr. PC, an oﬀ ence under 
Section 409, IPC is triable by “Magistrate of the ﬁ rst 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, oﬀ ence 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 
ﬁ ne. 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 ﬁ ne 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 ﬁ led before the Court
443
of Chief Judicial Magistrate, not merely by taking note of the accusation 
of having committed oﬀ ence under Section 409 IPC, but owing to Section 
9 of the Banning Act. Though the chargesheet was ﬁ led 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 oﬀ ence 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 oﬀ ence 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
AMANDEEP SINGH SARAN v. STATE OF CHHATTISGARH
[C. T. RAVIKUMAR, J.]
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 oﬀ ence under the IPC 
subject to the rider speciﬁ ed and sub-clause (iii) thereof would reveal that 
any other Court inferior in rank to a Court of Session can try only oﬀ ences 
shown in the First schedule to the Cr.PC as triable by it. True that going by 
the First Schedule to Cr.PC an oﬀ ence 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 diﬀ erent 
oﬀ ences 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

445
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 conﬂ ict with the other speciﬁ c 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 ﬁ rst 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 ﬁ rst 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 ﬁ rst 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:-
AMANDEEP SINGH SARAN v. STATE OF
CHHATTISGARH
[C. T. RAVIKUMAR, J.]
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 oﬀ ence 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 oﬀ ence under 
Section 409, IPC simpliciter or along with other lesser punishable oﬀ ences, 
is to be tried, is left to the whim or idiosyncrasy of the oﬃ  cer in-charge of 
the police station concerned by the legislature so that he may ﬁ le ﬁ nal 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 diﬀ erence 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 ﬁ rst class may pass a sentence 
of imprisonment for a term not exceeding three years, or of ﬁ ne 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
447
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 oﬀ ender 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 ﬁ rst 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 oﬀ ences 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 oﬀ ence upon 
conviction of the oﬀ ender and, therefore, it is diﬀ erent 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 oﬀ ence 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 oﬀ ender. 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 diﬀ erent 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. 
AMANDEEP SINGH SARAN v. STATE OF CHHATTISGARH
[C. T. RAVIKUMAR, J.]
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 oﬀ ence, the accused concerned 
while facing the trial in relation to such an oﬀ ence must have the right to 
raise the question of competence of the Court to try him for that oﬀ ence 
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 beﬁ tting to have a survey 
through the First Schedule to Cr. PC, carrying enumeration of Courts by 
which diﬀ erent oﬀ ences 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 oﬀ ence where imprisonment for life or imprisonment for 
10 years and ﬁ ne is prescribed as is imposable on oﬀ ender(s). Such a survey 
would reveal that barring very few oﬀ ences including Section 409, IPC, 
in all cases, where the oﬀ ence concerned is punishable with imprisonment 
for life or imprisonment for 10 years and ﬁ ne the First Schedule
to Cr. PC 
provides the Court competent to try such oﬀ ences as “Court of Session”. It 
is apposite to state that though such exceptions are exponible we could not 
ﬁ nd 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: -
Oﬀ ences
punishable 
under IPC
Sentence awardable on conviction 
Triable in terms of 
the First Schedule 
of Cr. PC
Section 121
Punishable with death or imprisonment for 
life and ﬁ ne.
By Court of Session 
Section 121A Imprisonment for life or imprisonment for 
10 years and ﬁ ne. 
By Court of Session
Section 122
Imprisonment for life or imprisonment for 
10 years and ﬁ ne
By Court of Session
449
Section 124A Imprisonment for life or with imprisonment 
which may extend to three years with ﬁ ne. 
By Court of Session 
Section 125
Imprisonment for life and fine or 
imprisonment for 7 years and with ﬁ ne. 
By Court of Session 
Section 128
Imprisonment for life or imprisonment for 
10 years and ﬁ ne. 
By Court of Session 
Section 130
Imprisonment for life or imprisonment for 
10 years and ﬁ ne. 
By Court of Session 
Section 131
Imprisonment for life or imprisonment for 
10 years and ﬁ ne.
By Court of Session 
Section 132
Punishable with death or imprisonment for 
life or imprisonment for 10 years with ﬁ ne. 
By Court of Session 
Section 194
Imprisonment for life or with rigorous 
imprisonment for a term which may extend 
to ten years and ﬁ ne. 
By Court of Session
Section 222
Imprisonment for life or with imprisonment 
of either description for a term which may 
extend to fourteen years and ﬁ ne. 
By Court of Session
Section 225 
(Para V)
Imprisonment for life or imprisonment of 
either description for a term not exceeding 
ten years and ﬁ ne. 
By Court of Session
Section 232
Imprisonment for life or imprisonment for 
10 years and ﬁ ne.
By Court of Session 
Section 238
Imprisonment for life or imprisonment for 
10 years and ﬁ ne.
By Court of Session 
Section 255
Imprisonment for life or with imprisonment 
of either description for a term which may 
extend to ten years and ﬁ ne. 
By Court of Session
Section 302
Punishable with death or imprisonment for 
life with ﬁ ne.
By Court of Session 
Section 304 
(Para I)
Imprisonment for life or imprisonment for 
10 years with ﬁ ne.
By Court of Session 
Section 305
Punishable with death or imprisonment for 
life or imprisonment for 10 years with ﬁ ne.
By Court of Session 
Section 307 
Imprisonment for life or imprisonment for 
10 years with ﬁ ne.
By Court of Session 
AMANDEEP SINGH SARAN v. STATE OF CHHATTISGARH
[C. T. RAVIKUMAR, J.]
450 
SUPREME COURT REPORTS 
[2023] 16 S.C.R.
Section 307 
(Para II)
Imprisonment for life or imprisonment for 
10 years with ﬁ ne.
By Court of Session 
Section 307 
(Para III)
Punishable with death or imprisonment for 
10 years with ﬁ ne.
By Court of Session 
Section 311
Imprisonment for life with ﬁ ne. 
By Court of Session 
Section 313 
(Para I)
Imprisonment for life or imprisonment for 
10 years with ﬁ ne.
By Court of Session 
Section 314 
(Para II)
Imprisonment for life or imprisonment for 
10 years with ﬁ ne.
By Court of Session 
Section 326A Ten years which may extend to imprisonment 
for life and ﬁ ne. 
By Court of Session 
Section 329
Imprisonment for life or imprisonment for 
10 years with ﬁ ne.
By Court of Session 
Section 363A 
(2)
Imprisonment for life and ﬁ ne. 
By Court of Session
Section 364
Imprisonment for life or Rigorous 
Imprisonment (R.I.) for 10 years with ﬁ ne.
By Court of Session 
Section 364A Punishable with death or imprisonment for 
life with ﬁ ne. 
By Court of Session 
Section 370 
(3)
Imprisonment for life or imprisonment for 
10 years with ﬁ ne.
By Court of Session
Section 370 
(4)
Imprisonment for life or imprisonment for 
10 years with ﬁ ne.
By Court of Session
Section 370 
(5)
Imprisonment for life or imprisonment for 
14 years with ﬁ ne.
By Court of Session
Section 370 
(6)
Imprisonment for life with ﬁ ne.
By Court of Session
Section 370 
(7)
Imprisonment for life with ﬁ ne.
By Court of Session
Section 371
Imprisonment for life or
imprisonment for 
10 years with ﬁ ne.
By Court of Session 
Section 376
RI for not less than 10 years but which may 
extend to imprisonment for life with ﬁ ne. 
By Court of Session 
Section 376A RI for not less than 20 years but which 
may extend to imprisonment for life which 
shall mean imprisonment for the remainder 
of that person's natural life, or with death. 
By Court of Session
451
Section 
376AB
RI for a term which shall not be less than 
twenty years, but which may extend to 
imprisonment for life, which shall mean 
imprisonment for the remainder of that 
person's natural life, and with ﬁ ne or with 
death. 
By Court of Session 
Section 376D
RI for a term which shall not be less than 
twenty years, but which may extend to life 
which shall mean imprisonment for the 
remainder of that person's natural life, and 
with ﬁ ne.
By Court of Session 
Section 
376DA
Imprisonment for life, which shall mean 
imprisonment for the remainder of that 
person's natural life, and with ﬁ ne. 
By Court of Session 
Section 
376DB
Imprisonment for life, which shall mean 
imprisonment for the remainder of that 
person's natural life, and with ﬁ ne, or with 
death.
By Court of Session 
Section 376E
Imprisonment for life which shall mean 
imprisonment for the remainder of that 
person's natural life, or with death.
By Court of Session 
Section 395
Imprisonment for life, or with RI for a term 
which may extend to ten years, and ﬁ ne.
By Court of Session 
Section 396 
Punishable with death, or imprisonment for 
life, or RI for a term which may extend to 
ten years, and ﬁ ne. 
By Court of Session 
Section 400 
Imprisonment for life, or with RI for a term 
which may extend to ten years, and ﬁ ne.
By Court of Session 
Section 412
Imprisonment for life, or with RI for a term 
which may extend to ten years, and ﬁ ne.
By Court of Session 
Section 413
Imprisonment for life, or
with imprisonment 
of either description for a term which may 
extend to ten years, and ﬁ ne.
By Court of Session 
Section 436
Imprisonment for life, or with imprisonment 
of either description for a term which may 
extend to ten years, and ﬁ ne.
By Court of Session 
AMANDEEP SINGH SARAN v. STATE OF CHHATTISGARH
[C. T. RAVIKUMAR, J.]
452 
SUPREME COURT REPORTS 
[2023] 16 S.C.R.
Section 438
Imprisonment for life, or with imprisonment 
of either description for a term which may 
extend to ten years, and ﬁ ne. 
By Court of Session 
Section 449
Imprisonment for life, or with rigorous 
imprisonment for a term not exceeding ten 
years, and ﬁ ne. 
By Court of Session 
Section 459
Imprisonment for life, or imprisonment of 
either description for a term which may 
extend to ten years, and ﬁ ne. 
By Court of Session 
Section 460
Imprisonment for life, or with imprisonment 
of either description for a term which may 
extend to ten years, and ﬁ ne. 
By Court of Session 
Section 489A Imprisonment for life, or with imprisonment 
of either description for a term which may 
extend to ten years, and ﬁ ne. 
By Court of Session 
Section 489B
Imprisonment for life, or with imprisonment 
of either description for a term which may 
extend to ten years, and ﬁ ne. 
By Court of Session 
Section 489D
Imprisonment for life, or with imprisonment 
of either description for a term which may 
extend to ten years, and ﬁ ne. 
By Court of Session
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 conﬁ rmation by the High Court.
453
(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 oﬀ ence that acts as the decisive factor in the 
matter of ﬁ xing the forum in the hierarchy of Courts, for trying the 
diﬀ erent oﬀ ences. A scanning of the First Schedule to Cr.PC also would 
reveal that barring some exceptions, in respect of the oﬀ ences where 
the punishment imposable is imprisonment for life or imprisonment 
which may extend to 10 years and ﬁ ne, 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 oﬀ ences 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 ﬁ rst 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 ﬁ nd that in respect of a case where the oﬀ ence 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 
AMANDEEP SINGH SARAN v. STATE OF CHHATTISGARH
[C. T. RAVIKUMAR, J.]
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 oﬀ ences including Section 409, IPC before the Court of 
the Chief Judicial Magistrate, Raipur. Both the sides made submissions to 
the eﬀ ect 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 ﬁ nd 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 oﬀ ence against any 
accused upon committal of the case to the Court of Sessions. In respect 
of oﬀ ences 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 
oﬀ ence 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
455
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 ﬁ nds case should be committed. - If, in any inquiry into an 
oﬀ ence 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 
AMANDEEP SINGH SARAN v. STATE OF CHHATTISGARH
[C. T. RAVIKUMAR, J.]
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