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Province of Assam Vs. Lakhi Nayak and ors. - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati
Decided On
Judge
AppellantProvince of Assam
RespondentLakhi Nayak and ors.
Prior history
Ram Labhaja, J.
1. This is a revision petition against the order of the Politioal Officer, Sadiya Frontier Tract, dated 11th June 1948 by which he acquitted the three accused who are' respondents in this petition and who were tried' under a charge of murder for intentionally causing the death of Mt. Niang, a Khasi lady.
2. Mt. Niang was murdered in the early hours of the morning of 12th June 1947. Metilda, who was living with the deceased as her adopted-daughter, was in her room on the night o
Excerpt:
- - this right is not enjoyed by a private party to the case who may feel aggrieved by an order of acquittal. it is clear that like section 26, this bection also deals with cases of conviction only as distinguish, ed from those of acquittal. 14. the revisional jurisdiction of the court like its appellate jurisdiction has to be exercised within the limit set on it by the regulation. they, therefore, enjoy wide powers they are not hampered in their work by elaborate rules of procedure which though they may tend to prolong cases sometime are intended to help the courts in getting at the truth, the chances of their coming to a decision leading to a miscarriage of justice and thus bringing the administration of justice into disrepute are immeasurably greater......of death or transportation that an appeal lies to the governor. in other oases- there is no right of appeal, but the governor may entertain an ap-peal at his discretion. section 88 confers on the governor powers of revision. under this section, the governor or the political officer may call for proceedings of any officer subordinate to him and reduce, enhance or cancel any sentence passed, or remand the case for retrial, but they cannot punish any offence by a sentence exceeding that warranted by law. it is under this sec tion that interference with the order of the political officer is sought.9. the powers of the governor under sections 26 and 28 of the regulation are now exercisable by the high court.10. it is dear that the regulation contains no provision for appeals against.....
Judgment:

Ram Labhaja, J.

1. This is a revision petition against the order of the Politioal Officer, Sadiya Frontier Tract, dated 11th June 1948 by which he acquitted the three accused who are' respondents in this petition and who were tried' under a charge of murder for intentionally causing the death of Mt. Niang, a Khasi lady.

2. Mt. Niang was murdered in the early hours of the morning of 12th June 1947. Metilda, who was living with the deceased as her adopted-daughter, was in her room on the night of the occurrence. She reported at 6 A. M. that Lakhi Bangali and Ekadaai, respondents 1 and 2, had committed burglary by breaking open the house and had caused grievious hurt to Mt. Niang, who was alive till then. She died later.

3. On 18th June 1947, Metilda took Jogendra K. Chaudhury, Officer-in-Charge, Sadiya Police Station, to the house and pointed out a hole in the wooden post. From this some ornaments and Cash were recovered. She also pointed out the blood stained Dao which was also concealed is the room behind that post,

4. On 19th June 1947, Metilda, accused, was produced before Mr. B. M. Boy, Magistrate, 1st Class, who after satisfying himself that Metilda. wanted to confess voluntarily recorded her confession. She revealed that Lakhi, accused, met her at 12 noon on the day preceding that of murder and they both decided to kitl Mt. Niang in the course of the following night. At about 1 A. M. he (Lakhi) came and knocked at the door which was opened by her, He entered the room. The deceased was sleeping. Ekadasi, ac used, who came with Lakhi, did not entered the house. He remained outside in the compound all the time. She and Lakhi both caused injuries to the deceased as a result of which she died. She then informed Lakhi aa to where cash and ornaments were, Lakhi took his share and left the houBe together with Ekadashi. She conoealed her share of the stolen property in a hole in the jvooden post inside the house.

5. Ekadashi waa wearing a blood stained ahirt on 18th June when he was in the hajat. This was seized and sent to the Chemical Examiner, who reported that traces of human blood hacl been found on it.

6. The confession made by Metilda before the Magistrate was retracted at the trial. AH the three accused pleaded not guilty. No defence evidence was produced. The learned Political Officer, who tried the case, came to the conclusion, in these circumstances, that the recovery of ornaments and cash from the wooden post was an inconclusive circumstance. His finding was that nothing had been proved which would connect the accused with the murder. He thought Matilda mentally deficient. He described her as a 'crack.' He regarded it as improbable that she heraelf should have participated in the murder and caused injuries which she had confessed to have caused when making her confessional statement. In consequence he acquitted all the accused.

7. The correctness of the finding arrived at toy the Political Officer is assailed by the learned Government Advocate and the revisional jurisdiction of the Court is invoked for setting aside the order of acquittal and ordering a retrial either under Section 38 of the Regulation, I [1] of 1945, [The Assam Frontier (Administrotion of Justice) Begulation 1946] or Under Section 439, Criminal P.C.

8. The first question that arises for consideration is whether this revision petition is competent. In order to answerthis question, it is necessary to examine the Scheme of the Regulation [1] of 194li) under which the trial was held. Sections 24 to H6 of the Eegulation deal with appeals. Any party aggrieved by a decision of a village authority may appeal within seven days to the Assistant Political Officer, who, on receipt of such appeal shall try the case de novo. From every original decision of the Assistant Political Officer an appeal lies to the Political Officer. Section 26 of the Regulation provides for appeals to the Governor. It is only in case of sentences of three years' imprisonment and upwards, and sentences of death or transportation that an appeal lies to the Governor. In other oases- there is no right of appeal, but the Governor may entertain an ap-peal at his discretion. Section 88 confers on the Governor powers of revision. Under this section, the Governor or the Political Officer may call for proceedings of any officer subordinate to him and reduce, enhance or cancel any sentence passed, or remand the case for retrial, but they cannot punish any offence by a sentence exceeding that warranted by law. It is under this sec tion that interference with the order of the Political Officer is sought.

9. The powers of the Governor Under Sections 26 and 28 of the Regulation are now exercisable by the High Court.

10. It is dear that the Regulation contains no provision for appeals against orders of acquit, tall Section 26 provides for appeals against convictions. It lays down that an appeal shall lie to the Governor against sentences of three years' imprisonment and upwards, and sentences of death or transportation. There is no right of appeal in other cases, but the Governor may entertain an appeal at his discretion. It is obvious that Fart 1 of the section authorises appeals against sentence of three years' imprisonment and upwards and sentences of death or transportation. Clause a necessarily refers to orders of convictions which are not covered by the preceding clause. It provides that:

In other oases there shall be no right of appeal but the Governor may enteitain an appeal at his discretion.

The reason for the interpretation given above is obvious. Certain orders of conviction resulting in sentences passed by the Political Officer are not covered by cl. l of Section 26. They had to be provided for this clause merely covers these cases. By no stretch of imagination can the words 'in other eases' be considered to cover appeals against orders of acquittal. The reasons for this view are also apparent. Under the Criminal Procedure Code, the right of appeal against orders of acquittal has been conferred only on the Government in order that interested parties may not indulge in vindictive prosecution. This right is not enjoyed by a private party to the case who may feel aggrieved by an order of acquittal. If, therefore, it had been intended that there should be a right of appeal against orders of acquittal, the right would have been conferred on the Government only in conformity with the principle on which Section 417, Criminal P, 0., has been founded. The right could not have conceivably been given to any one else. To confer the right on the Government alone, it would have been neoessary to enact an express provision on the lines of 8. 417, Criminal P.C. Such a course would have been found neoessary in order to maintain the essential distinction between orders of acquittal and order of conviction. If the words 'in other cases' which find place in Section 26 of the Regulation are held to include orders of acquittal, anyone dissatisfied with the order will have the right of appeal, The result will be that while a party dissatisfied with an order of acquittal will have a right of appeal, it will be questionable whether the Government can exercise that right. It is obvious that this result could not have been contemplated. It would be a gross violation of the salutary principle which finds satutory recognition in 8, 417, Criminl P.C. It could not have, therefore, been intended that instead of the Government having the right of appeal in suitable oases against orders of acquittal, a party considering himself adversely affected by the order may appeal from that order as of right.

11. Section 82 of the Ragulation directs that the Governor and the Political Officers exereising the jurisdiction under the Regulation shall be guided in regard to procedure by the principles of the Code of Criminal Procedure, so far as they are applicable to the circumstances of the Tracts (to which the Regulation applies) and consistent with the provisions of this Regulation. Section 404, Criminal P.C. lays down that

No appeal shall lie from any judgment or order of a Criminal Court except as provided for by tibia Code or by any other law for the time being in fore.

The principle of this section is binding on the Courts acting under the Regulation. There can be no right of appeal unless it is expressly provided for it either in the Criminal Procedure Code or in any other special law. The right of appeal must be expressly conferred. It cannot be extended by a process of inferential reasoning. Where it is not given by the law, it does not exist. The Regulation contains no provision for an appeal against an order of acquittal. In these circumstances, no right of appeal against orders of acquittal can be said to exist either in the Government or in anyone else. Section 32 of the Regulation cannot be utilised to extend the jurisdiction of the appellate or the revisional authorities under the Regulation. All that it lays down is that the Courts and Officers acting under the Regulation shall be guided in regard to their procedure by the principles of the Code of Criminal Procedure which are consistent with the provisions of the Regulation. They cannot enlarge their jurisdiction by reference to the provisions contained in the Criminal Procedure Code as doing so would not be consistent with the express provision of the Regulation. These observations apply in particular to powers to hear and dispose of appeals and revision petitions.

12. The learned Government Advocate does not claim that the Government have any right of appeal against the order of acquittal. He was conscious of this lacuna in the law a3 contained in the Regulation and has, therefore, tried to invoke the deviational jurisdiction of the Court Under Section 2a of the Regulation and in the alternative Under Section 439, Criminal P.C.

13. We do not think it is open to this Court to interfere with an order of acquittal in revision either. Under Section 28 of the Regulation, this Court may call for the record of the proceedings of any subordinate officer and may reduce, enhance or cancel any sentence passed, or it may remand a case for retrial, but it cannot pass any sentence not warranted by law. The powers given to the Court to enhance, reduce or cancel a sentence can only be exercised in oases which have ended in conviction. In some oases of conviction, it may be found necessary to order a retrial. This contingency is also provided for. The last clause indicates the maximum limit of sentence that may be imposed in a particular case. It is clear that like Section 26, this Bection also deals with cases of conviction only as distinguish, ed from those of acquittal. This interpretation of the section is in consonance with the schame of the Regulation. It does not give any right of appeal even to the Government against orders of acquittal. It would not be conceivable that, in these circumstances, it would permit anyone feeling aggrieved by the order to move the High Court for ice reversal in the exercise of its revision jurisdiction. It is for this reason that the provisional jurisdiction is as circumscribed as the appellate jurisdiction. The Court may draw on its revi3ional jurisdiction in cases of conviction where no appeal lies to it. But it has no power to pass any order or to give any direction except such as affects the sentence or conviction. A sentence may be enhanced, reduced or cancelled; a conviction may be set aside and a retrial ordered. These are the only orders which can be passed under the section. There is thus no power in the High Court to set aside an order of acquittal under the section also.

14. The revisional jurisdiction of the Court like its appellate jurisdiction has to be exercised within the limit set on it by the Regulation. The Court cannot utilise its powers of revision Under Section 439, Criminal P.C. In the exercise of its revisional jurisdiction in oases tried under the Regulation, it shall no doubt be guided by such principles as are recognised by the Code of Criminal Procedure but the jurisdiction itself cannot be exceeded. Section 28 is exhaustive of the cases in which revisional jurisdiction may be exercised. It defines the limits of the revisional jurisdiction. Therefore the Court acting under it cannot pass any order not contemplated by it just as this Court cannot pass any order Under Section 439, Criminal P.C. which is not expressly permitted by that section. The interpretation of Section 28 will be governed by exactly the same rules which have been applied in construing Section 26 and the result, therefore, cannot be different. In consequence it must be held that the revisional jurisdiction of the Court under the Regulation is as restricted as its appellate jurisdiction.

15. The process of reasoning which has led to the above result indicates that this Court cannot have recourse to its revisional jurisdiction under the Code of Criminal Procedure when exercising jurisdiction in a case under the Regulation. Such a course of action would involve a clear contravention of the provisions of Sections 28 and 32 of the Regulation. The High Court acting Under Section 439, Criminal P.C., can set aside an order of acquittal as it is expressly authorised to exercise all its powers Under Section 423, Criminal P.C. Section 423 empowers to it to Bet aside an order of acquittal. Clause it of Section 439, Criminal P.C. prohibits the conversion of an order of acquittal. into one of conviction on revision in Case of acquittal. This power is expressly conferred on the High Court when acting under the Criminal Proceedure Code and one reason for this may be that an appeal against an order of acquittal, though expressly provided can be preferred only by the Government. The revisional powers of this Court Under Section 28 of the Regulation are very limited and contain no provision for interference with orders of acquittal and as stated above Section 12 of the Regulation affords no justification for extending the jurisdiction either appellate or revisional of the High Court. Such a course cannot be regarded as consistent with the Regulation. Section 439, Criminal P.C. therefore, cannot be utilised. It has no application to oases covered by the Regulation.

16. The result of the foregoing discussion is that the order in question is not liable to interference either in appeal or in revision, even if it is found on examination to be wholly untenable. In the view of the law we take, it is not necessary to examine the merits of the order.

17. In view of the interpretation we have placed on Sections 26 and 28 of the Regulation it would appear that the Regulation is lacking in some essential provisions. The Officers entrusted with Criminal jurisdiction under the Regulation are not bound by the provisions of the Criminal Procedure Code. They have to be guided merely by the principles behind the statutory directions. They, therefore, enjoy wide powers they are not hampered in their work by elaborate rules of procedure which though they may tend to prolong cases sometime are intended to help the Courts in getting at the truth, The chances of their coming to a decision leading to a miscarriage of justice and thus bringing the administration of justice into disrepute are immeasurably greater. The necessity of the Government having the right of appeal against order of acquittal is obvious. The absence of a specific provision to that effect does not appear to us to be deliberate or intentional. Similarly, we think that it was not contemplated that the highest authority under the Regulation should have such restricted powers of revision as are now vested in it. As the law stands now revisional jurisdiction is available only in cases which have ended in conviction. These, however, are matters foe the Governor of the province to consider.

18. For reasons given above, the petition is dismissed.

Thadani, Ag. C.J.

19. I agree.


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