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2010(3) Crimes 446 (Gau.)
GAUHATI HIGH COURT
P.K. Musahary, J.
Md. Abdul Ahad Chaudhaury —Appellant
versus
State of Mizoram and Anr. —Respondents
Criminal Petition No. 01/2009
Decided on 23.4.2010
For the Petitioner:Mr. M.M. Ali, Mr. N. Dhar, Mr. B. Malakar and Mr. A.T.H. Ahmed, Advocates.
For the Respondents: Mr. N. Sailo, P.P.
IMPORTANT POINTS
(1) The concept of applying the spirit of the Cr.P.C in “scheduled areas” should no longer stand as a general principle without any exception.
(2) The application of spirit alone in criminal proceeding without any exception in the scheduled areas, particularly in the State of Mizoram, has become outdated and the same cannot be made applicable any longer, without any exception.
Headnote:Criminal Procedure Code, 1973—Section 209 and Section 1(2)(b) —Petitioner charged with offence u/s 489 (b) and 489 (c) IPC—Petition for quashing criminal proceedings on ground of violation of provision u/s. 209 Cr.P.C. i.e. committed by Magistrate was a must—Question of applicability of Cr.P.C. to “tribal areas” if the letters or spirit alone that should govern the criminal proceeding in the State of Mizoram—Case was sent up by Magistrate without committing it applying the spirit of Cr. P.C. in “scheduled area” should no longer stand as a general principle without any exception—Criminal proceeding taken up by Sessions Judge without being committed by Magistrate concerned was unsustainable in law and was liable to be quashed.
Held: For the aforesaid reasons, I am not in a position to accept the submissions made by Mr. Sailo, learned P.P that the spirit of the Code of Criminal Procedure alone should be applied in the State of Mizoram and there was no irregularity or illegality in not complying with the committal proceeding by the learned Magistrate under Section 209 of the Cr.P.C and taking up the trial by the learned Additional Session Judge without the case being committed to his Court. The concept of applying the spirit of the Cr.P.C in “scheduled areas” should no longer stand as a general principle without any exception. Here is the case where the distinctive features have been found inasmuch as the parties have been found admittedly from the general caste i.e. non-scheduled tribes and the residents of the neighbouring State of Assam who have business establishment or connection in the State of Mizoram. Since the Courts of Sessions have been established and are functioning with the separation of judiciary from the executive, although the process is not complete to the satisfaction of all concerned, there is no more scope for applying the spirit of Criminal Procedure Code in the present case and it must be governed by the letters of the Code of Criminal Procedure without any relaxation. In my considered view. The application of spirit alone in criminal proceeding without any exception in the scheduled areas, particularly in the State of Mizoram, has become outdated and the same cannot be made applicable any longer, without any exception.
Considering the advancement of the Mizo people particularly, in the field of education, they having achieved the highest position in the literacy in the whole of the country, there is sufficient reason for presuming that they have attained the position to understand and follow the uniform statutory law like the Criminal Procedure Code and time has come that the Code of Criminal Procedure should be made applicable in letters and spirit in the State of Mizoram without any exception. Time has come to review the position in the context of the present development in the State and bring necessary amendments to the Criminal Procedure Code so as to make the letters of the same applicable even if the parties to the suit or case are scheduled tribe or tribes.
In view of what has been discussed and considered in the light of the decisions of the Supreme Court, it would lead to a natural conclusion that the general concept that the spirit of Criminal Procedure Code alone should be made applicable to the criminal proceeding in the “scheduled areas” no longer holds the water and it cannot be applied in all the cases in general. This leads to ultimate conclusion that the present case cannot be saved by the aforesaid principle of application of spirit of the Criminal Procedure Code and accordingly, it must be held that the present case must be guided by the letters of the Criminal Procedure Code. As a result, it must be held that the criminal proceeding taken up by the learned Additional Sessions Judge without being committed the Magistrate concerned is totally unsustainable in law and the same is liable to be quashed. (Paras 16 to 18)
JUDGMENT & ORDER
P.K. Musahary, J.—The accused petitioner charged with offence under Sections 489(B)/489(C) IPC, without being committed by the Magistrate concerned and having been forced to stand trial before the Court of Additional District and Sessions Judge, Aizawl in Mizoram approaches this Court mainly for quashing the criminal proceeding on the ground of violation of provisions under Section 209 Cr.P.C. and precisely on the ground that committal by the Magistrate is a must, if the offence is exclusively triable by the Court of Sessions. This claim is based on prosecution case narrated as under:
One Md. Roshid (Respondent No.2) of Zawlnuam, who deals in condemned iron and steel, having a stock of about 10 quintals and 35 kgs, lodged FIR on 14-09-2005 with Zawlmuam Police outpost under Kanhmunph Police Station stating that Md. Ahad Choudhury (Petitioner) from Karimganj, wanted to buy his collection for an amount of Rs.13,000/- and paid Rs.10,000/- as advance on 12-09-2005 and took the stock loaded in a vehicle. Later on, he found the said amount of Rs.10,000/- is fake Indian currencies. The police registered a crime being Kanhmunph P.S. Case No.21 of 2005 under Sections 489(B)/489(C) of the IPC and accordingly arrested and produced the accused petitioner before the Magistrate on 26-09-2005. He was released on bail on 28-09-2005. On completion of the investigation, police submitted charge sheet on 28-01-2006.
2. I have heard Md. M.M. Ali, learned counsel appearing for the petitioner and Mr. N. Sailo, learned Public Prosecutor, appearing on behalf of the State of Mizoram.
3. Mr. Ali, learned counsel for the petitioner submits that-
(i) The learned Magistrate did not commit the case as required under Section 209 Cr.P.C for trial before the Court of Sessions and the learned Additional Sessions Judge, Aizawl, took cognizance of the alleged offence, which is exclusively triable by the learned Court of Sessions.
(ii) Even assuming that the case was committed, it was incumbent upon the learned Additional Sessions Judge to issue or serve summons on the petitioner after taking cognizance of the case but it was not done so at any point of time, and as such, the criminal proceeding, not being sustainable in law, is liable to the quashed.
(iii) The charge sheet dated 28-01-2006 does show that any fake Indian currency was recovered and/or seized from the possession of the petitioner inasmuch as there is no mention in the charge sheet that the aforesaid amount of Rs.10,000/- allegedly paid by the petitioner as advance to the informant on 12-09-2005, was seized from the possession of the petitioner.
(iv) A conjoint reading of FIR and the charge sheet does not prima facie disclose any offence and make out a case against the petitioner and as such, the continuance of the criminal proceeding against him would be an abuse of process of Court and unsustainable in law.
(v) It has further been submitted that the petitioner was suffering from various ailments and he was under treatment in hospital as an indoor patient during the period from 03-06-2006 to 30-07 -2009 for which he could not appear before the Court. The petitioner’s bailer, on the basis of false certificate obtained from the Registrar birth and death, Karimganj submitted an application dated 31-06-2007 for discharging him from the liability of a bailer before the learned Addl. Sessions Judge stating that the accused-petitioner has died.
(vi) The learned Addl. Sessions Judge without making any inquiry or obtaining any report from the police, or from the authority and without application of mind issued warrant of arrest dated 27-03-2009 against the petitioner without first issuing any summons as provided under Section 87 of the Code of Criminal Procedure, which is unsustainable under the existing law. Before execution of the warrant of arrest, the accused-petitioner made an application dated 05-10-2009 for recalling the same and in its place prayed for issuance of summons for appeara
