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Nima Tshering Bhutia and anr. Vs. State of Sikkim - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtSikkim High Court
Decided On
Judge
Reported in1981CriLJ1391
AppellantNima Tshering Bhutia and anr.
RespondentState of Sikkim
Cases ReferredIn H.V. Rishbud v. State of Delhi
Excerpt:
.....session in each sessions devision for which it is obligatory for the state government to appoint a sessions judge under section 9(1) and for which the state government may also appoint additional sessions judges under section 9(3) and, as would clearly appear from the provisions contained in section 9(3), an additional sessions judge is appointed 'to exercise the jurisdiction in one or more such courts',that is, the courts of session. by itself, vitiate the trial, but would be cured by the provisions of section 537, unless such irregularity is shown to have in fact occasioned a failure of justice. 10. the relevant provisions of section 103(2) as well as section 409(2) have been quoted hereinabove, both of which use the expression 'only' while providing which cases or appeals shall be..........to such an infraction of the constitution.'6. mr. moulik has firstly urged that the additional sessions judge, who has directly taken cognizance of this case and has tried the same resulting in the conviction and sentence as aforesaid, has and had no jurisdiction or competence to do so as under the provisions of section 193(1). criminal p.c, 'no court of session shall take cognizance of any offence as a court of original jurisdiction, unless the accused has been committed to it by a magistrate duly empowered to do so.' mr. moulik has. secondly urged that even that apart, additional sessions judges, under the provisions of section 193 (2), criminal p.c. can and 'shall try such cases only as the state government, by general or special order, may direct them to try or as the sessions.....
Judgment:

A.M. Bhattacharjee, J.

1. The appellants, having pleaded guilty to the. charges framed against them under Section 457/34 and Section 380/34 of the Penal Code by the Additional Ses sions Judge and having been convicted on such plea and sentenced to suffet rigorous imprisonment, for one year under the first charge and for two years for the second charge, have preferred this appeal,

2. Under the provisions of Section 412, Criminal P. C. 1898, by which this State is still governed, where an accused person has pleaded guilty and has been convicted on such plea by any Court other than that of a Magistrate of the Second or the Third Class, 'there shall be no appeal except as to the extent or legality of the sentence'. But it is by now well-settled that though ordinarily in the case of a conviction on a plea of guilty, the conviction cannot be assailed in appeal and only the sentence can be interfered with if it is excessive or illegal, yet if the facts alleged or disclosed by the prosecution in the documents referred to in Section 173 or otherwise, do not amount to and cannot constitute any offence for which a charge has nevertheless been framed, a plea of guilty to such a charge is no bar to an appeal on merits. This proposition has been affirmed by this Court in Pushpa Kumar Rai v. State of Sikkim 1978 Cri LJ 1379 at p. 1382 and has been reiterated in later decisions in Raj Kumar Rai v. State 1979 Cri LJ 310 and Sonam shering v. State 1979 Cri LJ 1281 at P- 1288 and also in a recent decision in Garjaman Gaimere v. State Criminal Appeal No. 8 of 1980, decided on 3rd April. 1981) (Reported in 1981 Cri LJ 1067).

3. Mr. A. Moulik, the learned Advocate for the appellants, has not, however, been able to point out and we have also not been able to find out anything in the record to show that on the materials contained therein, the 1981 Cri. L.J./88 X charges framed as aforesaid could not be framed or that the accused did not plead guilty or pleaded the same under such circumstances as would amount to no plea under the law. It may be noted that the contention that the plea of guilty was obtained from the accused as a result of threat, inducement or other undue influence, though urged by Mr. Moulik at the initial stage, has been expressly given up by him later.

4. But Mr, Moulik, however, has contended that the appellants in this case are entitled to challenge the conviction also and to urge that the conviction is illegal, having been made by a Court without jurisdiction and the entire trial, according to Mr. Moulik, being thus vitiated, the bar to appeal against the conviction under Section 412 would no longer operate and the conviction can, therefore, be assailed by the appellants and can be set aside by this Court.

5. A criminal conviction resulting in a sentence of imprisonment obviously deprives a person of his fundamental right to personal liberty, of which he cannot be deprived under the provisions of Article 21 of the Constitution except according to the procedure established by law. Now under Article 21 of the Constitution, as interpreted and expounded in Maneka Gandhi's case : [1978]2SCR621 the procedure established by law providing for deprivation of personal liberty can be justified only when such procedure can be regarded to be 'reasonable, just, right and fair'. If any such law, having any bearing on the personal liberty of a private individual, is capable of being interpreted in more ways than one, it must then be interpreted in a way which will make it more reasonable and just and right and fair. Section 412 of the Criminal P. C. goes a very long way to curtail and abridge the right and opportunity, otherwise available to a convict, to challenge his conviction before a Court of appeal and, therefore, an interpretation which would reasonably enlarge the right of the convict to appeal against his deprivation of personal liberty must be favoured.

That being so, though according for the letters of Section 412 a conviction by any Court specified in that section on a Plea of guilty will be a bar to any appeal against the legality of the conviction, the interpretation, that before allowing that bar to operate it must be shown that the Court ordering the conviction was competent and had jurisdiction to do so under the law, that the accusation or the charge to which the plea is alleged to have been made must be maintainable on the facts and in law, and that the plea on which the conviction is based must also amount to a plea in fact and also in law, would make the section more reasonable and just and right and fair and must, therefore, be adopted. But apart from Article 21 and the new gloss put on it in Maneka Gandhi, I am inclined to think that even if there has been a conviction on a plea of guilty to a charge maintainable on the facts alleged or disclosed, the appellate Court, even under and in spite of Section 412, cannot iust fold its hands and behave as a helpless onlooker, even though it finds that the Court which ordered the conviction had no legal competence or the law under which the conviction was made has no legal application.

I would like to have no manner of doubt that even in a case of a conviction on a plea of guilty, prima facie attracting Section 412, if the trial itself is vitiated as a result of inherent lack of competence of the Court, or some absolute prohibition to the taking of cognizance or holding of trial, the alleged plea of guilt will be no bar to any appeal against the legality of the conviction, the provisions of Section 412 notwithstanding. For instance, if a Magistrate of the First Class or a Presidency Magistrate frames a charge under Section 302, Penal Code and on the accused pleading guilty thereto, convicts the accused and awards him life or death sentence, then it cannot obviously be contended that the accused cannot challenge such a blatantly illegal conviction because of the bar of Section 412, for that would be pushing the section to the extreme end of illegal and illogical absurdity, I would, therefore, hold, in conformity and consonance with the earlier decisions of this Court, that even in an appeal from a conviction on a plea of guilty, the appellate Court must be satisfied that the Court which has convicted the accused is legally competent and has jurisdiction to do so or that the law under which he has been convicted is validly in force. In fact, in Rai Kumar Rai's case 1979 Cri LJ 310 (Sikkim) in an appeal from a conviction on a plea of quilty this Court did not hesitate to go into the question as to whether the Arms Act, 1959, was validly extended to and operative in Sikkim, It was observed in that case (at p. 312) that 'if the Arms Act, 1959, is not validly operative in Sikkim, the admission of guilt in this case shall not amount to any admission or plea of guilt within the meaning of Section 412, Code of Criminal Procedure to bar an appeal challenging the legality of the conviction' and the accused was not 'to seek his remedy in a revisional or writ proceeding or a proceeding under Article 227 of the Constitution'. It was observed further that 'if the law whereunder the accused has been convicted is itself not in force or operation, then the conviction will amount to a violation of Article 20 of the Constitution whereunder 'no person shall be convicted of any offence except for violation of law in force at the time of the commission of the act charged as offence'' and 'that even a Court sitting in appeal from a conviction on a plea of guilty cannot remain a silent spectator to such an infraction of the Constitution.'

6. Mr. Moulik has firstly urged that the additional Sessions Judge, who has directly taken cognizance of this case and has tried the same resulting in the conviction and sentence as aforesaid, has and had no jurisdiction or competence to do so as under the provisions of Section 193(1). Criminal P.C, 'no Court of Session shall take cognizance of any offence as a Court of original jurisdiction, unless the accused has been committed to it by a Magistrate duly empowered to do so.' Mr. Moulik has. secondly urged that even that apart, Additional Sessions Judges, under the provisions of Section 193 (2), Criminal P.C. can and 'shall try such cases only as the State Government, by general or special order, may direct them to try or as the Sessions Judge of the Division, by general or special order, may make over to them for trial'.

7. The first submission of Mr. Moulik overlooks that the Criminal P. C. 1898, applies to Sikkim subject to some exceptions and modifications as noted in the Schedule to the Sikkim Criminal Procedure Act, 1976 and that it would appear therefrom that Chapter XVIII of the Code providing for Committal Inquiry-and Chapter XXIII of the Code providing for the procedure for trials before the High Court and the Courts of Session 'shall not apply and all cases triable by the Court of Session are and shall be filed in such Courts and the trial before the Courts of Session is and shall be according to the provisions of Chapter XXI of the Code', providing for trial of warrant-cases by the Magistrate. Therefore, the law relating to Criminal Procedure as applied in Sikkim. having done away with committal proceeding and having expressly provided for the filing of all cases triable by Court of Session directly in such Court, the first ground urged by Mr. Moulik must fail.

8. The second ground urged by Mr. Moulik, however, appears to have good deal of force and substance, As already noted, the contention is that under Section 193(2) of Criminal P.C. an Additional Sessions Judge can try only such cases as the State Government may, by general or special order, direct or as the Sessions Judge may, by general or special order, make over to the Additional Sessions Judge for trial. The learned Public Prosecutor has not disputed that the State Government has not passed any order, general or special, by which the Additional Sessions Judge can be said to have been directed to try this case and that the Sessions Judge also has not passed any such order, general or special, by which this case can be said to have been made over by him to the Additional Sessions Judge for trial. The provisions of Sub-section (2) of the Section 193 are reproduced hereinbelow:-

(2) Additional Sessions Judges and Assistant Sessions Judges shall try such cases only as the State Government, by general or special order, may direct them to try, or as. the Sessions Judge of the division, by general or special order, may make over to them for trial.' Similar provisions relating to hearing of appeals to the Court of Session by Additional Sessions Judges or Assistant Sessions Judges are to be found in Section 409 (2), which are also reproduced hereunder :-

(2) An Additional Sessions Judge or an Assistant Sessions Judge shall hear only such appeals as the State Government may, by general or special order, direct or as the Sessions Judge of the Division may make over-to him.

9. Under Section 6. Code of Criminal Procedure, 1898, besides the High Court and the Courts constituted under any other law, and the Courts of the Magistrates of three defferent classes, there is only one class of Criminal Court namely, 'the Court of Session'. There is only one Court of Session in each Sessions Devision for which it is obligatory for the State Government to appoint a Sessions Judge under Section 9(1) and for which the State Government may also appoint Additional Sessions Judges under Section 9(3) and, as would clearly appear from the provisions contained in Section 9(3), an Additional Sessions Judge is appointed 'to exercise the jurisdiction in one or more such Courts', that is, the Courts of Session. An Additional Sessions Judge, therefore, exercises jurisdiction in one and the same Court of Session established for a Sessions Division under Section 9(1) and has no separate or independent entity in the sense that the Court over which he presides while exercising such jurisdiction does not constitute an independent Court of Session under Section 9 of the Code, but is a part or constituent of the same Court of Session headed by the Sessions Judge.

That being the position, it can be argued, as has been sought to be argued by the learned Public Prosecutor, that Additional Sessions Judges also have equal and concurrent jurisdiction to try all such cases as can be tried by the Court of Session or the Sessions Judge. And that the direction of the State Government or the making over by the Sessions Judge, being only 'a mode of assuming such jurisdiction', as distinguished from the essence of jurisdiction, the trial by the Additional Sessions Judge without such direction or making over is only an irregularity which would not. by itself, vitiate the trial, but would be cured by the provisions of Section 537, unless such irregularity is shown to have in fact occasioned a failure of justice.

10. The relevant provisions of Section 103(2) as well as Section 409(2) have been quoted hereinabove, both of which use the expression 'only' while providing which cases or appeals shall be tried or heard by the Addl. Sessions Judges, Bearing in mind the well-established canon of interpretation of statutes that the Legislature is never presumed to waste any word or to use any word in vain and that no word in a statute is to be deemed to be useless, redundant or surplus age or to be unnecessarily added, the word 'only' in the expression 'shall try such cases only' in Section 193(2) or the expression 'shall hear only such appeals' in Section 409(2), must be held to have much significance.

If without using such expression 'only', it was merely provided that Additional Sessions Judges shall try such cases and hear such appeals as the State Government may direct or as the Sessions Judge may make over to them for trial or hearing, then it could have been argued that when a case or appeal is to be and can be tried or heard by a Court of Session, the trial or hearing thereof by an Addl. Sessions Judge, even without such direction or making over, night not have amounted to any breach of any mandatory provisions. But when the Legislature has expressly and affirmatively provided that Addl. Sessions Judges shall try or hear only such case or appeals as the State Government may direct or the Sessions Judge may make over, the Legislature must be deemed to have provided impliedly and negatively that the Additional Sessions Judge shall not try or hear any other case or appeal. And if the provisions, therefore, have such an obligatory mandate and, therefore really go to create jurisdiction and regulate the competence of Addl. Sessions Judges to try cases or to hear appeals, a breach thereof would 'trike at the very root of jurisdiction.

11. There is also a long catena of weighty authorities of the different High Courts in support of the proposition and, as I shall presently show, the Supreme Court also appears to have endorsed such view. Out of the decisions of the different High Courts I propose to refer mainly to the two Full Bench decisions, one of the Patna High Court in Kamleshwar Singh v. Dharamadeo Singh : AIR1957Pat375 and the other of the Andhra Pradesh High Court Re. pasupulati Nanjappa : AIR1961AP471

12. In Kamleshwar Singh's case (supra), a Full Bench of the Patna High Court considered the effect of the admission as well as hearing of ,in appeal by an Assistant Sessions Judge without any direction from the State Government or making over by the Sessions Judge, as required by Section 409(2) and it was held by the Full Bench that such admission as well as hearing of the appeal was without jurisdiction and the order of acquittal passed by the Assistant -'Sessions Judge was set aside. Sahai J., in his separate but concurrent judgment, pointed out the similarity of the provisions of Section 409(2) and Section 193(2) and observed that 'it is manifest that an Addl. Sessions Judge or an Asst. Sessions Judge cannot exercise original jurisdiction in the matter of trial of any case unless the case comes before him under any direction of the State Government or the Sessions Judge'. According to the ratio of this Full Bench decision, such a trial without any such direction or making over, as in the case before us, would be wihtout jurisdiction and void.

13. In Pasupulati Nanjappa's case 1961 (2) Cri LJ 611 (AP) (supra) the very same question, decided by the Patna Full Bench in Kamleshwar Singh's case 1957 Cri LJ 879 (supra), arose for consideration before a Full Bench of the Andhra Pradesh High Court and following the Patna decision as well as a Division Bench decision of its own in Marrapu Narayanamma v. Marrapu Satyanarayana : AIR1960AP425 it was held by the Full Bench that 'the Additional Sessions Judge in each of the two cases had no power and competence to receive and admit the appeal' and 'also had no power and competence to hear and dispose of the appeal which he had received directly' and in consequence the action of one of the Addl. Sessions Judges in one case in returning the appeal for presenting to the proper competent Court was confirmed and the action of the other Addl. Sessions Judge in hearing and disposing of the appeal was held to be without jurisdiction and was set aside.

14. It is true that any and every breach or infraction of any of the provisions of 'such a comprehensive and leng- thy enactment like the Code of Criminal Procedure does not vitiate a proceeding. As the Law Commission in its 41st Report (Volume 1 Page 350) has pointed out, 'the Code recognises the principle that it is not every deviation from, or neglect of, procedural formalities and technicalities that would vitiate the proceeding of a Court' and that 'though broadly speaking, only the irregularities that have caused substantial prejudice to the accused will render the proceeding invalid, while minor or inconsequential errors or omissions are considered curable1', yet, 'there are certain provisions of the Code which the considered so vital that their disregard must vitiate fair and proper trial and, therefore, destroy the validity of the proceeding'.

The Code has taken care to provide in details in Chapter XLV as to when and under what circumstances such a breach is to be regarded as vita-ting and fatal and when and under what circumstances such a breach is to be ignored, allowing the substance to prevail over form and technicalities. In Jasman Kai v. Sonamaya Rai 1980 Cri LJ 500 (Sikkim) and also in a later decision in Ram Prasad Manger v. State (Criminal Rev. No. 1 of 1981, decided on 25th March, 1981 : reported in 1981 Cri LJ 1384 (Sikkim) I have had occasions to classify all those irregularities into four broad categories. But I have pointed out there that apart from those four categories, there is another category of irregularities which goes to strike at the root of the competence and jurisdiction of the Courts. If the breach or infraction relates to any of those provisions of the Code which gives the Courts jurisdiction to entertain the proceedings and regulate their competence, such breach or infraction would vitiate the proceedings and in such cases the question of any prejudice to any party or of any miscarriage of justice having in fact been caused would be immaterial. In H.V. Rishbud v. State of Delhi : 1955CriLJ526 the Supreme Court has pointed out (at p. 204 of AIR) : (at p. 534 of Cri LJ) that Section 193 and Sections 195 to 199 of the Code 'regulate the competence of the Court and bar its jurisdiction in certain cases excepting in compliance therewith'.

And if Section 193, therefore, provides for the jurisdiction and regulates the competence of the Courts and non-compliance thereof bars its jurisdiction, then any proceeding in disregard of the provisions of this Section must be without jurisdiction and, therefore, void. The infraction of Section 193, therefore, would make the Courts mentioned therein lacking in competence and jurisdiction and there can be no doubt that such a defect striking at the root of the jurisdiction of the Court, would render its proceeding null and void. The ratio of the decisions of the Patna Full Bench in Kamleshwar Singh's case 1957 Cri LJ 879 (supra) and of the Andhra Pradesh Full Bench in Pasupulati Nanjappa's case (1961) 2 Cri LJ 611 (supra) and also of the Andhra Pradesh Division Bench in the the Marrapu Narayanamma's case 1960 Cri LJ 1070 (supra) therefore, appears to be in accordance and consonance with the observations of the Supreme Court in H.V. Rishbud's case (supra) and must accordingly be followed. This Supreme Court decision, however, does not appear to have been noticed in any of the decisions above refered to. I will, therefore, have to hold that the taking of cognizance and the trial of this case by the Addl. Sessions Judge was without jurisdiction and was. therefore, void.

15. It may be pointed out that in Ram Prasad Manger's case 1981 Cri LJ 1384 (Sikkim) (supra) to which reference has been made by the learned Public Prosecutor in the course of his argument, both the Court of the Judical Magistrate which tried the case up to a certain stage and the Court of the District Magistrate to which the case was subsequent transferred and which thereafter proceeded with the trial ending in conviction, were perfectly competent and had full jurisdiction to try the case under the law and the only irregularity related to the order of transfer passed by the Sessions Judge whereby the case was transferred from the former to the latter Court. Under those circumstances it was held that the order of transfer having been followed by a trial without objection and no prejudice or miscarriage of justice having been proved to have been caused, the irregularity was cured under the provisions of Section 537. It was not a case of absence of jurisdiction or lack of competence, but an irregularity in the mode of assuming jurisdiction which the Court otherwise had under the law.

16. The learned Public Prosecutor has also submitted that as the accused-appellants did not object to the trial by the Additional Sessions Judge and rather agreed to the trial by voluntarily pleading guilty to the charges framed, they cannot now be allowed to raise this objection in, appeal before this Court and that in that context, the non-compliance of Section 193(2) is to be treated as a mere ijregularity not affecting the trial This submission must and cannot but be rejected for, if, as held in the decisions noted hereinbefore including the decision of the Supreme Court in H. V. Rishbud's case 1955 Cri LJ 526 non-compliance of the Section 193 bars the jurisdiction of the Court and, therefore, makes the Court lacking in jurisdiction and competence, any amount of non-objection or consent by or on behalf of any of or both the parties cannot create any jurisdiction for the Court where initially it has and can have none. It may be noted that in the Andhra Pradesh decision in Marrapu Naryanamma's case 1960 Cri LJ 1070 (supra) approved by the Full Bench decision of that High Court in Pasupu-lati Nanjappa (1961) 2 Cri LJ 611 (supra), such a contention was also pressed and was rejected.

17. Under the circumstances I would allow the appeal, set aside the order of conviction passed and the sentence imposed by the learned Additional Sessions Judge and send the case back to the learned Sessions Judge who would proceed to take cognizance of and try the case according to law. Let the records of the case go down at once,

Man Mohan Singh Gujral Gujral, C.J.

18. I agree.


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