Delhi HC seeks Centre's response on plea to rectify inherent lacunae in law

The Delhi High Court Tuesday asked the Centre to respond to a plea seeking to make various penal provisions, including unnatural sex and kidnapping minors for begging, which entail imprisonment up to life term be tried by a sessions judge and not a magistrate.

The plea said the punishment prescribed in the Indian Penal Code (IPC) for these heinous offences cannot be awarded by a magistrate as he or she is empowered to award sentence for a maximum period up to three years only.

A bench of justices Siddharth Mridul and Anu Malhotra sought responses of the ministries of Home Affairs and Law and Justice on a plea filed by social activist and advocate Amit Sahni.

The court listed the matter for further hearing on July 16.

The plea said that Schedule-I of the Code of Criminal Procedure, which makes sections 326 (voluntarily causing grievous hurt by dangerous weapons or means), 327(voluntarily causing hurt to extort property, or to constrain to an illegal act), 363A (kidnapping or maiming a minor for purposes of begging), 377 (unnatural sex), 386 (extortion by putting a person in fear of death), 392 (robbery), 409 (criminal breach of trust by public servant), of the IPC 'triable by magistrate' is ultra-vires to Articles 14 and 21 of the Constitution.

These offences entail punishment ranging from 10 years to life term.

It sought the court to ask the authorities concerned to ponder over it and rectify the "inherent lacunae" in the procedural law by making it triable by the 'court of sessions' instead of 'court of judicial magistrate of first class'.

It added that the magistrate can refer the matter to Chief Judicial Magistrate (CJM)/Chief Metropolitan Magistrate (CMM) under section 325 CrPC in case he or she feels that three years punishment is not sufficient in any particular case.

The CJM or CMM can award sentence up to seven years only and the object of awarding severe punishment which is provided for these offences does not meet, it said.

"The procedural law is incapable to meet the ends of justice as prescribed in substantive law, that is, IPC particularly regarding the aforesaid sections in the present context. Further not only injustice is caused to the victims but the deterrence effect of providing higher sentence is also defeated," the petition said.

It added, "The object of higher punishment in these sections cannot be achieved in absence of provisions, which entitled the magistrate to award maximum sentence upon any accused convicted in any of the sections.