Salman has filed a revision application against the order of a Bandra magistrate, who invoked the serious charge of culpable homicide not amounting to murder (section 304 part II IPC), which is triable by the sessions court and attracts a maximum punishment of 10 years.
He was tried by a magistrate under lesser charge of causing death by negligence (section 304 A IPC), that provides for a maximum punishment of two years years in prison.
Hearing the Bollywood star's plea today, sessions judge A N Patil asked his lawyer Ashok Mundargi to convince him whether he had the jurisdiction to hear the application.
The judge said since the magistrate had referred the case for trial by the sessions court, the Bombay High Court would have been the appropriate forum for filing the revision petition or appeal.
Salman's lawyer argued that as the magistrate's order was final and not interlocutory (interim), because he had invoked 304 part II after recording evidence of 17 witnesses, and found that a case of culpable homicide not amounting to murder was made against the actor, he had a remedy in law to move the sessions court with a revision application.
He could not have moved the sessions court had the magisterial court's order been interlocutory as that was barred by statute, Mundargi contended.
The sessions court deferred the arguments to March 8 to decide whether Salman's application could be entertained.
If the actor's application is admitted, the court will decide on merit whether the more stringent charge of culpable homicide not amounting to murder could be invoked. In case the court rejects his plea, the actor would either have to face trial under the same charge in the sessions court or move a superior court in appeal.
Earlier in the day, Salman's counsel had sought the film star's exemption from appearance before sessions court on March 11 as directed by the magistrate. However, he did not press the plea later.
Salman's lawyer argued that the magistrate's order was "erroneous, bad in law and contrary to evidence on record".
He said the magistrate had failed to appreciate that he (Salman) had neither the intention (to kill people) nor the knowledge that his rash and negligent driving would kill a person and cause injury to four others.
The magistrate had observed that Salman was aware that driving in a rash and negligent manner might kill people sleeping on footpaths. Moreover, he was familiar with the topography of the area where the accident took place as he stayed there, the court had observed.
The magistrate had relied upon the evidence tendered by Salman's police bodyguard Ravindra Patil, who had given a statement to police after the accident, that he had warned the actor about driving at a reckless speed as that might kill people but the actor did not heed his advice.
In his revision petition, Salman has pleaded that the magistrate had failed to consider contradictions and changes in the statement made before the court by Patil, who died during the trial.
The actor pleaded that not only he but everyone was aware that people slept on footpaths but there was no fixed place for them to retire for the day and they lay down wherever they found space. Therefore it was difficult for him to know that people were sleeping at the spot where the accident occurred.
One person was killed and four others injured when the Land Cruiser allegedly driven by Salman crushed a group of people sleeping outside a bakery in suburban Bandra in the wee hours on September 28, 2002.
Though the court had initially charged him with causing death by negligence, the more serious charge of culpable homicide not amounting to murder was later slapped. The actor had challenged it in the sessions court which upheld the charge but the Bombay High Court set it aside on appeal.
Being aggrieved, the State had moved the Supreme Court which said the magistrate had the discretion to decide about invoking that charge. The apex court asked the magistrate to record evidence and decide afresh whether the charge of culpable homicide not amounting to murder was made out.
After examining 17 witnesses, the magistrate last month invoked provisions relating to culpable homicide not amounting to murder and referred the case to sessions court for trial.