Addition of offence

2013 PLD 12 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Ss. 28, 30, 561-A & Sched.-IIPenal Code (XLV of 1860), Ss.337-A(i), 337-L(2), 365, 147 & 148TrialCourt, jurisdiction ofAddition of offence

Investigating officer prepared his investigation report and submitted challan before Magistrate (First Class) for trial but the Magistrate while taking cognizance observed that offence under S.367 P.P.C. was made out and he had no jurisdiction to try the same

Magistrate sent reference to Sessions Judge, who entrusted the same to Additional Sessions Judge for trial

Plea raised by accused was that in Sched.-II of Cr.P.C., offence under S.367, P.P.C. was triable by Court of Session and Judicial Magistrate could take cognizance of the case

Validity

Provisions of S.30, Cr.P.C. excluded applicability of S. 28, Cr.P.C. in clear terms by making exception to it in respect of courts mentioned in Column 8 of Schedule-II of Cr.P.C.

Magistrate First Class with powers under S.30, Cr.P.C. had jurisdiction to try all those offences, which were not punishable with death

Judicial Magistrate by sending reference to Sessions Judge for entrusting case to Court of Session, as offence under S.367, Cr.P.C. was not triable by it, was an illegal exercise of jurisdiction by the court concerned

High Court set aside order of Judicial Magistrate as well as that of Sessions Judge by which case was entrusted to Additional Sessions Judge for trial

High Court withdrew the case from court of Additional Sessions Judge and entrusted the same to Magistrate S. 30, Cr.P.C. for conclusion of trial

Petition was allowed in circumstances.