Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
SPECIAL LEAVE TO APPEAL (CRL.) NO.1218 OF 2018
THE STATE OF MEGHALAYA ….PETITIONER
VERSUS
MELVIN SOHLANGPIAW ….RESPONDENT
J U D G M E N T
MOHAN M. SHANTANAGOUDAR, J.
1. The Respondent herein, a member of the Khasi
Scheduled Tribe, was being tried for the offences punishable
under Sections 302 and 201 of the Indian Penal Code (‘IPC’)
before the Sessions Judge, Nongstoin, West Khasi Hills District.
Signature Not Verified
Digitally signed by
ASHWANI KUMAR
Date: 2020.02.15
10:30:53 IST
Reason:
Briefly, the case set up by the prosecution is that a dead body
was found lying on the Nondein river bank on 26.03.2017,
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pursuant to which the Officer in Charge of Police Station,
Nongstoin (‘Complainant’) was informed and an FIR was
registered by him. Upon investigation, the identity of the
deceased person was known, who was also found to be a member
of the Khasi Scheduled Tribe. With the use of a SIM card
recovered from her body, the last calls made using her number
were traced to the Respondent herein (accused). Consequently,
the accused was arrested and he voluntarily lead the police to the
spot where he had buried the dead body. On 31.08.2017, a
chargesheet was filed against him under Sections 302 and 201,
IPC. On 08.11.2017, the case was committed for trial to the
Court of the Sessions Judge, Nongstoin, West Khasi Hills District
and the accused was summoned to appear before it.
However, on the basis that the parties to the instant case
are both tribals and thus, the case is exclusively triable by the
District Council Court, the accused preferred a petition for
transfer of the said case to the Court of Judge, Khasi Hills
Autonomous District Council, Shillong. Vide the impugned
judgment dated 05.12.2017, the High Court of Meghalaya,
Shillong allowed this petition. The instant SLP has been filed
against this order of the High Court.
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2. At the very outset, it is important to note that the area
where the alleged offence is said to have occurred, West Khasi
Hills District, is a notified autonomous district included in the
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table appended to paragraph 20 of the 6 Schedule to the
Constitution of India (‘the Constitution’), which deals with the
administration of tribal areas in the States of Assam, Meghalaya,
Mizoram, and Tripura. Specifically, the aspect of judicial
dispensation in such areas is dealt with under paragraphs 4 and
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5 of the 6 Schedule to the Constitution as follows:
4. Administration of justice in autonomous
districts and autonomous regions.— (1) The Regional
Council for an autonomous region in respect of areas
within such region and the District Council for an
autonomous district in respect of areas within the
district other than those which are under the authority
of the Regional Councils, if any, within the district may
constitute village councils or courts for the trial of
suits and cases between the parties all of whom belong
to Scheduled Tribes within such areas, other than
suits and cases to which the provisions of sub
paragraph (1) of paragraph 5 of this Schedule apply, to
the exclusion of any court in the State, and may
appoint suitable persons to be members of such village
councils or presiding officers of such courts, and may
also appoint such officers as may be necessary for the
administration of the laws made under paragraph 3 of
this Schedule…
…(4) A Regional Council or District Council, as the
case may be, may with the previous approval of the
Governor make rules regulating—
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(a) the constitution of village councils and courts and
the powers to be exercised by them under this
paragraph;
(b) the procedure to be followed by village councils or
courts in the trial of suits and cases under sub
paragraph (1) of this paragraph;
(c) the procedure to be followed by the Regional or
District Council or any court constituted by such
Council in appeals and other proceedings under sub
paragraph (2) of this paragraph;
(d) the enforcement of decisions and orders of such
councils and courts;
(e) all other ancillary matters for the carrying out of the
provisions of subparagraphs (1) and (2) of this
paragraph.
x x x
5. Conferment of powers under the Code of Civil
Procedure, 1908, and the Code of Criminal
Procedure, 1898 , on the Regional and District
Councils and on certain courts and officers for the
trial of certain suits, cases and offences.— (1) The
Governor may, for the trial of suits or cases arising out
of any law in force in any autonomous district or
region being a law specified in that behalf by the
Governor, or for the trial of offences punishable with
death, transportation for life, or imprisonment for a
term of not less than five years under the Indian Penal
Code or under any other law for the time being
applicable to such district or region, confer on the
District Council or the Regional Council having
authority over such district or region or on courts
constituted by such District Council or on any officer
appointed in that behalf by the Governor, such powers
under the Code of Civil Procedure, 1908, or, as the
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case may be, the Code of Criminal Procedure, 1898, as
he deems appropriate, and thereupon the said Council,
court or officer shall try the suits, cases or offences in
exercise of the powers so conferred.
(emphasis supplied)
3.
Relying on these provisions, learned Counsel for the
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Petitioner urged that under paragraph 4 of the 6 Schedule to
the Constitution, all of the parties to a suit or case must
necessarily belong to Scheduled Tribes within such areas, for the
District Council Court to have exclusive jurisdiction over such
suits or cases. Given that a criminal case is always prosecuted by
the State, he submitted that the instant case against the
Respondent cannot be said to be a dispute between two tribals,
as the deceased is not and cannot be a party to such a case. He
also urged that the Complainant, i.e. the Officer in Charge at the
Police Station, can also not be considered a party to the case, as
he was acting in his official capacity and thus forms part of the
State machinery.
4.
Per contra, learned Counsel for the Respondentaccused
emphasized that a combined reading of paragraphs 4 and 5 of
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the 6 Schedule to the Constitution indicates a special
dispensation for the adjudication of disputes in tribal areas, that
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must be given effect. Where the Governor exercises his power
under paragraph 5(1) and entrusts the Courts set up by a
District Council with the trial of certain kinds of offences, such
Courts must have exclusive jurisdiction. In this regard, learned
Counsel drew our attention to the notification dated 07.02.2017,
vide which the Governor of Meghalaya conferred the judge of the
Additional District Council Court, Shillong, with the powers for
the trial of offences punishable with death, transportation for life,
or imprisonment for a term of not less than five years under the
IPC or under any other law applicable in the Khasi Hills
Autonomous District Council for the time being. In light of this,
she submitted that the jurisdiction of the case against the
Respondent rests exclusively with the District Council Court.
Reliance was also placed on a Full Bench decision of the
Meghalaya High Court in Longsan Khongngain v. State of
in this regard.
Meghalaya , (2012) 1 Gauhati Law Reports 812
5. Upon considering the material on record and the
arguments advanced by the parties, the central issue that arises
for our consideration is whether the criminal case against the
Respondent is exclusively triable by the District Council Court,
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having regard to the scheme and language of paragraphs 4 and 5
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of the 6 Schedule to the Constitution.
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6. Before we delve into the provisions of the 6 Schedule, it
is to be noted that the Sessions Court before which the
Respondent was facing trial is a court established and
functioning under the provisions of the Code of Criminal
Procedure, 1973 (‘Cr.P.C.’). Notably, subsection (2) of Section 1
of the Cr.P.C. provides that the Code has no application to tribal
areas. At the same time, it gives the State Government the power
to extend the operation of the Cr.P.C. to tribal areas as follows:
“ Section 1. Short title, extent and
commencement.
(1) This Act may be called the Code of Criminal
Procedure, 1973.
(2) It extends to the whole of India
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 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.
Explanation. In this section, "tribal areas" means the
territories which immediately before the 21st day of
January, 1972, were included in the tribal areas of
Assam, as referred to in paragraph 20 of the Sixth
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Schedule to the Constitution, other than those within
the local limits of the municipality of Shillong.
As seen above, the expression “tribal areas” occurring in
Section 1 of the Cr.P.C. refers to the areas indicated in the Fifth
and Sixth Schedule of the Constitution. In the absence of a
notification by the State Government extending the Cr.P.C. to
such areas, except the three chapters referred above, the
provisions of the Cr.P.C. are not applicable to the tribal areas in
the State of Meghalaya, including the Khasi Hills District.
Here, it would be useful to note that that Chapter VIII of the
Cr.P.C. deals with security for keeping peace and for good
behaviour, Chapter X deals with maintenance of public order and
tranquility, and Chapter XI deals with preventive action of the
Police. Evidently, none of these subjects falling under Chapter
VIII, X and XI are relevant for the purpose of deciding this matter.
Trial before the Court of Sessions falls under Chapter XVIII of the
Cr.P.C, which does not apply to the tribal areas in question.
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7. Under the 6 Schedule to the Constitution, Paragraphs 4
and 5 deal with the administration of justice in Autonomous
Districts and Autonomous Regions referred to in paragraph 2 of
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the 6 Schedule. As mentioned supra, paragraph 4(1) accords the
District Council or Regional Council, as the case may be, with the
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power to constitute Courts to exclusively try suits and cases
where all parties thereto belong to Scheduled Tribes within such
areas. This, however, does not apply to those suits and cases that
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are covered by paragraph 5(1) of the 6 Schedule, wherein the
Governor may confer on the District or Regional Council, or the
courts set up by a District Council, or on any officer appointed by
the Governor in that behalf, such powers under the Cr.P.C. or the
Code of Civil Procedure (‘C.P.C.’) as the Governor deems
appropriate. Further, paragraph 4(4) stipulates that Courts set
up by the District Council are to function in accordance with the
procedure evolved by the rules made by the District Council or
Regional Council, as the case may be.
8. In the instant case, in exercise of powers under
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paragraph 4(4) of the 6 Schedule to the Constitution, the United
KhasiJaintia Hills Autonomous District (Administration of
Justice) Rules, 1953 were adopted. Rule 9 hereunder provides for
the constitution of one District Council Court for the Khasi Hills
Autonomous District and for the appointment of judges thereto.
In exercise of such powers under Rule 9 and paragraph
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5(1) of the 6 Schedule, a notification was published on
07.02.2017, vide which the Governor of Meghalaya appointed an
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Additional Judge to the District Council Court, Shillong and
conferred her with powers for the trial of offences punishable
with death, transportation for life or imprisonment for a term of
not less than five years under the IPC or any other law applicable
in the Khasi Hills Autonomous District Council.
9. In light of such specific conferral of powers on the District
Council Court, Shillong, the issue to be examined is whether the
jurisdiction to try the case against the Respondent rests solely
with the District Council Court.
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9.1 As mentioned supra, paragraph 4 of the 6 Schedule
contemplates the “ trial of suits and cases between the parties all
of whom belong to Scheduled Tribes ” to the exclusion of any other
Court in the State. Though the expression “ suits and cases ” has
not been defined in Article 366 of the Constitution, the Cr.P.C., or
the C.P.C., in common legal parlance developed over the years,
the expression ‘suit’ is used to connote legal proceedings of a
purely civil nature, while the term ‘case’ is used to connote either
a civil suit or a criminal proceeding.
9.2 In view of this, when we look to the argument raised by
the Petitioner that the term ‘case’ as used in paragraph 4 of the
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6 Schedule precludes criminal cases, merely because the State
is the de jure complainant in all such cases, it appears that their
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interpretation suggests that paragraph 4 of the 6 Schedule does
not comprehend trial of criminal cases by the District Council
Court at all. This, however, is not supported by the scheme of the
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6 Schedule, specifically when a conjoint reading of paragraphs 4
and 5 is undertaken. As mentioned supra, paragraph 4 itself
refers to suits and cases to which provisions of paragraph 5(1)
apply. Thus, to examine the content of “suits and cases” under
paragraph 4, it is first necessary to look to the content of
paragraph 5(1).
9.3 Under paragraph 5(1), the Governor is invested with the
power to confer the District or Regional Council, or the courts set
up by a District Council, or on any officer appointed by the
Governor in that behalf, such powers under the Cr.P.C. or the
C.P.C. as he deems appropriate, for the trial of certain suits,
cases, and offences. The conferral of powers under the Cr.P.C. in
certain instances, as has been done by the notification dated
07.02.2017 here, makes it amply clear that the District Council
Court has jurisdiction to entertain criminal cases,
notwithstanding the fact that the State is the de jure
Complainant in such cases and cannot be considered as a tribal
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party. In fact, it is reflective of an intention to ascribe a broad
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meaning to the term ‘case’ under paragraph 4 of the 6 Schedule.
9.4 Such a reading of the term ‘cases’ is also substantiated
by the fact that paragraph 5 only empowers the Governor to
make the Cr.P.C. applicable to those cases where the punishment
for the offence is not less than five years under the IPC. By
necessary implication then, the Governor is not authorized to
invest any of the bodies mentioned in paragraph 5(1) with the
powers under Cr.P.C. for offences where the punishment is less
than five years. Reading paragraph 5 in conjunction with
paragraph 4 inevitably leads to the conclusion that all such
criminal cases are triable by the Courts constituted under
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paragraph 4 of the 6 Schedule, irrespective of the fact that de
jure Complainant is the State, as long as both the accused and
the victim of the offence belong to the same Scheduled Tribe.
9.5 Thus, in our considered opinion, the term “case” does
not preclude criminal cases merely because the State is a party
to such cases. Upon a close reading of paragraphs 4 and 5 to the
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6 Schedule, it becomes clear that the reference to “ suits and
cases between the parties all of whom belong to Scheduled Tribes ”
was in fact to the affected party (victim/Complainant) and the
accused party.
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9.6 In the instant case, it is an admitted position that the
victim and the Respondentaccused both belong to the Khasi
Scheduled Tribe. Thus, given that there is a specific notification
dated 07.02.2017 that confers the District Council Court with the
powers under Cr.P.C. to try certain criminal offences, we find
that such conferral should be given effect. In fact, upon a
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combined reading of paragraphs 4 and 5 of the 6 Schedule,
such District Council Court has the exclusive jurisdiction to
entertain such a case.
10. In view of the foregoing, we do not find any grounds to
interfere with the judgment and order dated 05.12.2017 passed
by the High Court of Meghalaya inasmuch as the High Court was
justified in transferring the criminal case against the
Respondentaccused from the Court of Sessions Judge,
Nongstoin, West Khasi Hills District to the Court of Judge, Khasi
Hills Autonomous District Council, Shillong.
As mentioned supra, on 08.11.2017, the case against the
accused was committed for trial to the Court of the Sessions
Judge, Nongstoin, West Khasi Hills District and he was
summoned to appear before it. In view of the same, we now direct
the transferee Court, i.e. the District Council Court to issue fresh
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summons to the accused, if he has not already entered
appearance, and to proceed with the trial after framing of charges
in accordance with law. Furthermore, given that the incident in
question occurred in March, 2017, the District Council Court is
directed to complete the trial and decide the matter on merits as
early as possible, but not later than one year from the date of this
order. With such observations, the instant Special Leave Petition
is disposed of.
…..…………................................J.
(MOHAN M. SHANTANAGOUDAR)
.……………………………...............J.
(R. SUBHASH REDDY)
New Delhi;
February 11, 2020
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