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U Saul Dkhar Vs. State of Meghalaya - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantU Saul Dkhar
RespondentState of Meghalaya
Prior history
K. Lahiri, J.
1. This Criminal Reference arises out of a letter received from the Sessions Judge, Shillong. Meghalaya wherein the learned Judge apologetically pointed out that at the hearing of Criminal Misc. Case No. 67 of 1978 U, Saul Dkhar v. State of Meghalaya on 30-3-79 by the Full Bench of this Court (since reported in 1979 Cri LJ 1418): (AIR 1979 NOC 144) the amendment made to Section 326 of the Cr. P. C, 1973 by Act 45 of 1978 was not brought to the notice of the Court and accordingly
Excerpt:
.....speedily. therefore, the present law empowers the deputy commissioners as well as the additional deputy commissioners and judges trying sessions triable cases to take resort to the provisions of section 326 of 'the new code' and the hardships so long suffered by the litigants and inconveniences caused to the judicial officers in trying sessions cases are all over. it empowers the officers to try the cases quickly, these being wholesome provisions were recommended by the law commission and accepted by the parliament in the form of amendment. the principles which lurk in the provision are in consonance with 'the principles of justice, equity and good conscience',the governing principles of administration of justice in the tribal areas. the section is structured on the three pillars of..........the tribal areas of meghalaya, the deputy commissioner and/or additional d. c. cannot act on the evidence recorded by their predecessors.' the learned sessions judge indirectly pointed out that the trio decedent of the full bench decision would cause great hardship and injury to the litigants, as the officers are continuously transferred within a short span of time and in most of the cases they are transferred before completion of recording of the evidence in sessions treble cases and hence 'de novo trial' would cause grave in justice to the litigants. the learned sessions judge has merely punted out 'the change in law' and asked the court for a decision as t0 whether in view of the change in law introduced in section 326 the officers in charge, of administration of justice in the.....
Judgment:

K. Lahiri, J.

1. This Criminal Reference arises out of a letter received from the Sessions Judge, Shillong. Meghalaya wherein the learned Judge apologetically pointed out that at the hearing of Criminal Misc. Case No. 67 of 1978 U, Saul Dkhar v. State of Meghalaya on 30-3-79 by the Full Bench of this Court (since reported in 1979 Cri LJ 1418): (AIR 1979 NOC 144) the amendment made to Section 326 of the Cr. P. C, 1973 by Act 45 of 1978 was not brought to the notice of the Court and accordingly the Court held that 'in a Sessions trial for offence of murder in the tribal areas of Meghalaya, the Deputy Commissioner and/or Additional D. C. cannot act on the evidence recorded by their predecessors.' The learned Sessions Judge indirectly pointed out that the trio decedent of the Full Bench decision would cause great hardship and injury to the litigants, as the officers are continuously transferred within a short span of time and in most of the cases they are transferred before completion of recording of the evidence in Sessions treble cases and hence 'de novo trial' would cause grave in justice to the litigants. The learned Sessions Judge has merely punted out 'the change in law' and asked the Court for a decision as t0 whether in view of the change in law introduced in Section 326 the officers in charge, of administration of justice in the Tribal areas should follow the ratio of the decision or should be governed by 'the changed law'.

2. In U. Saul Dkhar (supra) the petitioner was being tried for an offence Under Section 302 IPC and they trial was held by the Additional Deputy Commissioner, East Khasi Hills, Shillong, exercising the powers of the Sessions Judge, The charge sheet was submitted on 29-1-71; evidence was recorded inter-mittantly by five Additional Deputy Commissioners. Ultimately at the argument stage the matter came up before Shri Bazeley, Additional Deputy Com-nvssioner who found that the evidence had been recorded by a number of successive presiding officers and as such it was not proper for the Court to appreciate the evidence and accordingly ordered the case to be heard 'de novo'. The order was challenged by the accused before this Court in an application Under Section 439 of Criminal P. C. 1898. hereinafter called 'the old Code', read with Rule 17 of 'the Rules for Administration of Justice and Police in K & J Hills District, 1937', as amended. It may be stated at this stage that criminal justice is dispensed in 'the Tribal Areas' of Meghalaya under the said Rules as well as other similar set of Rules. The procedure for hearing of cases by the High Court, the Deputy Commissioners or the Additional Deputy Commissioner etc. is in the spirit of this Code of Criminal Procedure.'

3. The matter ultimately came up before the Full Bench. The majority held that the said case was governed by the provisions of Section 350 of 'the old Code' and the Additional Deputy Commissioner was duty bound to follow the spirit of the same. It was held that the Deputy Commissioners or the Additional Deputy Commissioners who try the Sessions cases could not be equated to a Magistrate as they were Sessions Judges while they try such Sessions cases; therefore, Deputy Commissioners, or Additional Deputy Commissioners hearing such cases where bound by the spirit of Section 350 and could not act on the evidence recorded by his predecessor. They were bound to try the cases 'de novo'. The decision was rendered on the interpretation of Section 350 of 'the old Code' and on the authorities of, Ajit Deka v. State of Assam : (1962)ILLJ637SC and Government 'Criminal Appeal No. 10 of 1972 State of Meghalaya v. Whitley Sangma disposed by a Division Bench of this Court on 3-2-1977: 1977 Cri LJ NOC 122. In U Saul Dkhar 1979 Cri LJ 1418 (Gau) (supra) the Full, Bench undoubtedly made certain observations that the provision of Section 350 of 'the old code' was in 'part materia' with Section 326 of the Criminal Procedure Code, 1973, hereinafter referred to as 'the new Code.' The statement of law is undoubtedly correct as Section 326 of the new Code read as under, except the bracketed portions:—

326. Conviction or commitment or evidence partly recorded by one Magistrate and partly by another. —

(1) Whenever any (Judge or) Magistrate, after having heard and recprded whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein and is succeeded by another (Judge or) Magistrate who has and who exercises such jurisdiction, the [Judge or] Magistrate so succeeding may act on the evidence so recorded by his predecessor, or partly recorded by his predecessor and partly recorded by himself;

Provided that if the succeeding [Judge or] Magistrate is of Opinion that further examination of any of the witnesses whose evidence has already been recorded is necessary in the interests of justice, he may resummon any such witness, and after such further examination, cross-examination and re-examination, if any, as he may permit, the witness shall be discharged.

(2) When a case is transferred under the provisions of this Code from the Judge to another Judge or] from one Magistrate to another Magistrate, the former shall be deemed to cease to exercise jurisdiction therein, and to be succeeded by the latter, thin the meaning of Sub-section (1).

(3) Nothing in this section applied to summary trials or to cases in which proceedings have been stayed Under Section 322 or in which proceedings have been submitted to a superior Magistrate Under Section 325.

4. The bracketed portions were introduced by the criminal procedure (Amendment) Act, (45 of 1978). The amendment introduced in Section 326 of 'the new Code' was rightly left out of consideration by the Full Bench as the said case was governed by the old Code and/or the provisions of Section 326 of 'the new Code' unaffected by the amendment introduced by Act 45 of 1978. As such, the ratio decidendi of the decision governs the cases under the old Code and/or Section 326 of 'the New Code' prior to its amendment by Act 45 of 1978. It goes without saying that the change in law made by the Parliament may alter the fabric of a decision. After the amendment of Section 326 of 'the new Code,' the amendment so made now holds the field and it will have its own course. These are our construction of the principles of law enunciated by the Full Bench in U Saul Dkhar 1979,Cri LJ 1418 (Gau) (supra).

5. Justice must be 'dispensed with according to law' and Judges are not knight errants to set right every wrong which may be paraded before them without regard to 'the Rules of the game'. The Court room is not a pulpit nor a place for crusaders in the robes of Judges to espouse different theories, tenets, dogmas and innovate experimental theorems which go counter to law. Judges are not to set aside existing law at pleasure in favour of any other rules which they may hold to be expedient or wise. Law making falls in the dbmain of another organ. It is true that one of the main tasks of the Judges is to interpret law that serves a social purpose. It is also true that justice to be dispensed must be responsible and responsive to cater to the needs of the present, resilient enough to cope with the demands of the future. No Judge can flout law to dispense relief however deserving the recipient might be. When the provision of law is straight, simple and clear it does not permit a Judge to swim against- the current of the mandatory provisions of law. It is true that while administering justice a Judge ought to be ever conscious of the fact that he is to do justice according to law and still must look beyond the law to find out how he can do justice 'within the framework of the law.' The guiding: principle of a Judge in deciding cases must be to do justice, that is, 'Justice according to law'. A Judge cannot deliver justice violating the framework of the law; it is not the discipline of legal jurisprudence, A disciplined Judge must obey the mandates of law and if he finds injustice lurking in any provision of law he can just point it out but he cannot usurp the function of the Legislature and 'ulnae the law'. In the Full Bench decision their Lordships expressed in clear terms as to the requirement of the change in law in so far as Section 326 was concerned. Their Lordships hopefully wished that changes in law were brought in Previously the section was confined to cases in the Magistrate's court and cases inapplicable to the Courts of Session, Many a pathetic submission was heard by various courts and in some cases trial concluded after a number of years, but as the provision of Section 350 was not applicable to 'the Judges', the latter had to try cases de novo, much against their desire. The accused persons suffered agony, some pined within the cold walls of jails, some could not bear and wailed over the expensive 'de novo' trial, but the provision remained immobile and static. Even the recommendation of 'the Law Commission' vide 41st Report, Vol page 217 remained unattended by Parliament. However, at long last Parliament saw the, agony, considered the urgent need of speedy trial and era-powered the Judge including those trying sessions cases to act on evidence recorded by his predecessor unless in certain case he thinks fit to recall witnesses for further examinations in his presence; The cry of the hour made the Legislature introduce the benevolent amendment by Act 45 of 1978. All suffering litigants got relief and the Judges are happy to try and dispose the cases speedily.

6. Now the Judges trying Sessions triable cases intead of going through the ordeal of 'de novo trials' are empowered to act on the evidence of witnesses recorded or partly recorded by their predecessors. However, a discretion has been left with the Court to further examine any witness whose evidence has already been recorded, if it is considered necessary to do so in the interest of justice. Therefore, the present law empowers the Deputy Commissioners as well as the Additional Deputy Commissioners and Judges trying sessions triable cases to take resort to the provisions of Section 326 of 'the new Code' and the hardships so long suffered by the litigants and inconveniences caused to the Judicial Officers in trying sessions cases are all over. It is desirable to make it clear at this stage that the provisions of 'the new Code' including the amended Section 326 have been made applicable in the Tribal Areas of the State of Meghalaya in view of the provisions made in Section 3 of the Meghalaya Administration of Justice (Amendments Act 18 of 1976 which read as follows :—

3. Constitution of references. — In the principal Rules and Order, all references therein to the Code of Criminal Procedure. 1898 or to any of the provisions of the said Code, shall be read as referring to the Code of Criminal Procedure, 1973 (Act 2 of 1974) or to the corresponding provisions of the Code.

7. As such the spirit of Section 326.of the Cr. P. C. 1973 (Act 2 of 1974), as amended by Act 45 of 1978 is squarely applicable in the Tribal Areas of the State of Meghalaya. It is also desirable to state here as to how 'the spirit of the Code' should be applied. There are misgivings in various quarters about the methodology of the application of the spirit of the procedural laws. In Civil Appeal No. 659 of 1957 Gurumayum Sekhigopal Sarma v. L. Ongbi Anisua Devi, Hidayatullah, J. speaking for the Supreme Court explained it while dealing with the question of applicability of the Civil Procedure Code, where the courts were guided by the spirit but were not bound by the letter of the Code. The sum and substance of the decision is> that the officers in charge of the Administration of Justice in the Tribal Areas are untrammelled, unhampered or unencumbered by the technicalities of 'the Code'. Application of the sprit does not mean the application of the provisions of 'the Code' by the backdoor. When there are certain provisions in the Rules of Administration of Justice which go counter to 'the Code', the Rules shall govern the field. In State of Nagaland v. Ratan Singh : 1967CriLJ265 , Hidayatullah J. speaking for the Supreme Court explained the Rule as to the applicability of 'the spirit of the Code.' On perusal of the decisions we are of the view that the letter of the Code should not be the guide for the persons in charge of the Administration of Justice in the Tribal Areas but they should be governed by 'the spirit of the Code'. However, the provisions of Section 326 are beneficial provisions which conclude trial at the earliest possible opportunity. It empowers the officers to try the cases quickly, These being wholesome provisions were recommended by the Law Commission and accepted by the Parliament in the form of amendment. By virtue of the provisions an accused gets quick trial and the Courts can dispense iustice quickly. The principles which lurk in the provision are in consonance with 'the principles of justice, equity and good conscience', the governing principles of administration of justice in the Tribal Areas. The section is structured on the three pillars of 'justice, equity and good conscience'. All these three elements are in Section 326 of the Criminal Procedure Code, ' as amended. As such, the provision is a fitting provision for governance of trial in Tribal Areas governed by the Rules for the Administration of Criminal Justice.

8. In the result we answer the question posed by the learned Sessions Judge that the Deputy Commissioners and Additional Deputy Commissioners are governed by the provisions of Section 326 of 'the new Code-, as amended by Act 45 of 1978 and that they can act on the evidence recorded or partly recorded by their predecessors and can conclude trial in accordance with the spirit of Section 320 of the Cr. P. C. This answers the question posed. We express that the learned Judge has done very well to make the reference asking for ' guidance of the Court in the form of a decision to allay all fears and doubts. We are happy about the reference made and we are confident that the flame of justice will burn bright while administration of justice is in the hands of such officers having vigour, vitality and enthusiasm.

S.M. Ali, J.

9. I agree.

K.N. Saikia, J.

10. I agree.


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