Jasti Chelameswar, C.J.

1. A learned Judge of this Court hearing the Criminal Revision No. 9 (SH)/04 by his order dated 14.11.06 opined that the issue involved in the case requires to be heard by a Bench of appropriate strength in order to settle the issue once and for all. By an order dated 22.11.06 the then Hon'ble Chief Justice directed this matter to be heard by a Division Bench. Therefore, the matter is placed before us.

2. The petitioner is under trial for an offence Under Section 376 IPC before the Fast Track Courtcum-Addl. Deputy Commissioner, Shillong. The charge against the petitioner is that he committed the offence of rape of a certain woman. The further details of the case are not relevant for the present purpose except to state that both the petitioner and the alleged victim are tribals belonging to a Scheduled Tribe known as Khasi. Initially the charge sheet was filed before the learned Sub Divisional Judicial Magistrate, Sohra Civil Sub-Division. The case was subsequently transferred to the court of Deputy Commissioner, Shillong who by an order dated 25.7.03 in turn transferred the case to the Fast Track Court at Shillong. The petitioner thereupon filed an application praying that the case be transferred to the court of the learned Judge, District Council Court at Shillong on the ground that in view of the provisions of 6th Schedule of the Constitution, the case, as the one for which the petitioner is facing trial, is exclusively triable by a court constituted by the District Council functioning under the provisions of the 6th Schedule to the Constitution of India. The learned Judge of the Fast Track Court by his order dated 30.2.04 declined to transfer the case of the petitioner. Therefore, the petitioner has approached this Court by way of the above-mentioned revision.

3. Courts are established for trial of offences created either under the Indian Penal Code or under the various laws made by the Parliament or the appropriate State Legislature under the provisions of the Code of Criminal Procedure, 1973 or under some other law made by either the Parliament or the appropriate State Legislature. It is not in dispute that the Fast Track Court before which the petitioner is facing trial is a court established and functioning under the provisions of the Code of Criminal Procedure, 1973. By virtue of the declaration made under Section 1 Sub-section (2) of the Cr.P.C., the Code of Criminal Procedure has no application to the tribal areas except the Chapters--VIII, X and XI which are not relevant for the present purpose. However, the appropriate State Government is authorized to extend the operation of the Criminal Procedure Code to the tribal areas. Section 1 Sub-section (2) of the Cr.P.C. reads as follows:

1(2) It extends to the whole of India except the State of Jammu and Kashmir:

Provided that the provisions of this Code, other than those relating to Chapters VIII, X and XI thereof, shall not apply-

(a) To the State of Nagaland,

(b) To the tribal areas.

But the section authorises the government to extend the provision of the Code to the tribal areas.

But the concerned State Government may, by notification apply such provisions or any of them to the whole or part of the State of Nagaland or such tribal areas, as the case may be, with such supplemental, incidental or consequential modifications, as may be specified in the notification.

A provision of doubtful legal efficacy in view of the prohibition contained in para 5(3):

5(3). Save as expressly provided in this paragraph, the Code of Civil Procedure, 1908, and the Code of Criminal Procedure, 1898, shall not apply to the trial of any suits, cases or offences in an autonomous district or in any autonomous region to which the provisions of this paragraph apply.

of the Sixth Schedule, but we do not wish to record any final conclusion on this question as no arguments in this regard are advanced.

The expression "tribal areas" occurring in the section is to be understood to