Whether the Court of Magistrate empowered under section 30 of the Code of Criminal Procedure, 1898 (Cr.P.C.) is competent to try the offences of pornography punishable .............

(i)Whether the Court of Magistrate empowered under section 30 of the Code of Criminal Procedure, 1898 (Cr.P.C.) is competent to try the offences of pornography punishable under section 292-C PPC, which was shown as triable by the Court of Sessions in column 8 of the Schedule II attached with the Cr.P.C?

(ii)Whether the offences mentioned in the relevant column of First Information Report (FIR) i.e. 377 & 292-C PPC could be treated as bailable one in the light of provisions of section 6(3) of the Act ibid?

Answer of the query No 1

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To answer the above quoted query No 1 regarding the jurisdiction of the Court, I observe that although section 377 PPC is shown in column 8 of the Schedule II of the Cr.P.C. to be triable as “Court of Sessions or Magistrate of the first class”. However, in the same column of the Schedule II, offence u/s 292-C PPC is shown as exclusively triable by the Court of Sessions. But according to Section 30 Code of Criminal Procedure, 1898, any Magistrate of first class could be invested with power to try as a Magistrate all offences not punishable with death. To determine this controversy, I have perused Chapter-III of the Code, which has given the description of offences triable by each Court. Section 28 of the Code.

So, analogy is derived from class (c) of the above referred Section 28, as offence under section 292-C PPC shown in eighth column of Schedule II is to be triable by the Court of Sessions but Section 30 of the same Code is the exception of the above said principle and create a separate forum of judicial Magistrate enabling with power of Section 30 of the Code.

Meaning thereby that the Magistrate vested with powers under section 30 of the Code is fully empowered/eligible to try all offences not punishable with death.

There is no dispute regarding the jurisdiction of section 377 PPC as two forums i.e. Court of Sessions or Magistrate first class have been provided in the relevant column of the Schedule II but for section 292-C PPC, there is only one forum available and that is Court of Sessions. But since the punishment provided under section 292-C PPC is mentioned as [Imprisonment of either description for a term which shall not be less than fourteen years and may extend up to twenty years and with fine which shall not be less than one million rupees.]. Meaning thereby that there is no denial to the fact that all the offences leveled against the petitioner are not punishable with death penalty, so, according to section 30 of the Code as observed above, the learned Magistrate having power of section 30 is fully competent to try the same.

Answer of the query No 2

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Now adverting to query No.ii, it is observed that according to section 6 (3) of the Act, a juvenile accused of a minor or a major offence shall be treated as if he is an accused of commission of bailable offence, so, inter alia by deriving analogy from this section of the Act, learned Magistrate Section 30, while considering the same as bailable one, admitted the petitioner to post arrest bail.

Bare perusal of clauses "m" and "o" Section 2 of the Act makes it clear that both the offences mentioned in the instant FIR cannot be categorized as bailable ones as section 377 PPC is punishable [with imprisonment for life] or imprisonment of either description for 10 years, and fine. Similarly, [imprisonment of either description for a term which shall not be less than fourteen years and may extend up to twenty years and with fine which shall not be less than one million rupees] is provided under section 292-C CPC.

Cr. Revision No.19 of 2021/BWP
Muhammad Sanwal v. The State, etc.