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2001 DIGILAW 207 (GAU)

State of Nagaland v. I. Akum AO and Ors.

2001-07-31

AFTAB H.SAIKIA, B.LAMARE

body2001
A. H. Saikia, J. — Short but an interesting question of law is involved in this present criminal appeal. The issue is whether the learned Single Judge can suo motu initiate a proceeding exercising the inherent power under section 482 Cr PC as well as re visional jurisdiction under section 401 CrPC against a judgment and order passed by the criminal Court below awarding lesser sentence to one accused and acquitting the other accused, by calling for the records from the trial Court and directing to register a criminal appeal to be heard by Division Bench when there is specific provision to assail the impugned judgment and order by appeal for enhancement of the sentence as well as against the acquittal as provided under section 377 and 378 Cr PC. 2. This criminal appeal has been posted before the Division Bench by order dated 6.6.94 passed by the learned Single Judge in Civil Rule No.69 (K) of 1994. The learned Single Judge of this Court, while dealing with a writ petition being Civil Rule No.69 (K) 1994 had passed the order dated 6.6.94 which is quoted below : "It has been brought to the notice of this Court in connected Civil Rule 69 (K) of 1994 that the learned ADC (J) Dimapur Shri MK Mero convicted one accused Shri Khetovi Sema charged under section 21 NDPS Act, and sentenced him to undergo RI for one year and to pay a fine of Rs.8,000 in default RI for 5 years, and also acquitted Shri K. Pauthing Tangkhul and Inspector AokumAo from the charges by its judgment and order dated 26.11.92 passed in GR Case No.753/90 under section 21 NDPS Act. The punishment awardable under section 21 NDPS Act shall not be less than 10 years which may extend to 20 years and shall also be liable to fine which shall not be less than one lakh but may extend to two lakhs. Considering the gravity of the offence, the Legislature purposely prescribed minimum punishment so as to inflict deterrent punishment By sentencing the accused under the aforesaid section to undergo RI for one year and to pay a fine of Rs. 8,000, the learned ADC (J) appears to have unlaw the law. This is precisely an abuse of the process of the Court. 8,000, the learned ADC (J) appears to have unlaw the law. This is precisely an abuse of the process of the Court. Curiously enough, the learned PP who conducted the case did not appear to have brought it to the notice of concerned authorities. In exercise of our inherent power under section 482 of Cr PC read with section 401,1 call for the records of Dimapur PS Case No. 18 (12)/90 under section 21 NDPS Act corresponding to GR Case No.753/90, disposed of by the learned ADC (J) Dimapur on 26.11.92 from die Court of learned Deputy Commissioner (J) Dimapur. The learned DC (J) Dimapur is directed to transmit the records forthwith.Registry is directed to take immediate steps. Post it for order after the receipt of the case record along with the copy of this order before the Division Bench." 3. A cursory reading of the aforesaid order clearly indicates that the learned Single Judge while exercising the inherent power under section 482 Cr PC read with section 401 Cr PC, suo motu called for the records of Dimapur PS Case No. 18(12)90 under section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter in short referred to as NDPS, Act) corresponding to GR Case No.753/90 disposed of by the learned ADC (J) Dimapur on 26.11.92. Pursuant to the aforesaid order of calling for the records of the above mentioned case, the Deputy Commissioner (J) Dimapur sent the case records as ordered. On receipt of the said records, on 13.3.95 the learned Single Judge, in the same Civil Rule No.69 (K) of 1994 directed the Registry to register the case as an appeal when the learned PP, Nagaland was proposed to be treated as an appellant in the case. Consequently, appeal was admitted and notice was issued to the respective accused persons. For the sake of convenience, the order dated 13.3.95 is extracted herein below: "As ordered on 15.2.95, learned Deputy Commissioner (J) has sent the case record of Dimapur PS Case No. 18 (12) 90 under section 21 NDPS Act, corresponding to GR Case No.753/90. The explanation shown by the learned Deputy Commissioner (J) is also perused and accepted. Registry is directed to register this case as an appeal case. Mr. EY Rengmungo, learned PP Nagaland shall be treated as an appellant in this case. The appeal is admitted. The explanation shown by the learned Deputy Commissioner (J) is also perused and accepted. Registry is directed to register this case as an appeal case. Mr. EY Rengmungo, learned PP Nagaland shall be treated as an appellant in this case. The appeal is admitted. Issue a notice to accused Khetovi Sema to show cause as to why the punishment under section 21 NDPS Act should not be enhanced in accordance with the provisions of law or why such further or other orders should not be passed as to this Court may seem fit and proper. Issue also a notice to Mr. K. Paothing Tangkhul and Inspector Akum Ao to show cause as to why they should not be punished under the provisions of section 21 NDPS Act Registry is directed to serve notice accordingly. If necessary, learned PP shall furnish correct address of the accused person after consulting with the GR case. Post it for order after the receipt of the notice." 4. We have heard Mr. BN Sarma, learned counsel appearing on behalf of the accused, Inspector Akum Ao and Mr. A. Zhimomi, learned counsel appearing on behalf of accused Khetovi Sema and also heard Mr. GA Shimray, learned counsel appearing on behalf of the accused K. Paothing Tangkhul. Also heard Ms. Y. Longkumar, learned PP, Nagaland. 5. At the very outset Mr. Sarma, learned counsel for the accused-respondents, leading the arguments on behalf of all the accused-respondents, raising a preliminary objection, submits that learned Single Judge in dealing with writ petition has no jurisdiction to exercise both inherent power as well as revisional jurisdiction against the judgment and order dated 26.11.92 passed by the Additional Deputy Commissioner (J) Dimapur in GR Case No.753/90 convicting and sentencing one accused namely Khetovi Sema for one year under section 21 NDPS Act which prescribes a sentence not less than 10 years that may extend to 20 years with also a liability to pay fine which shall not be less than one lakh but may extend to two lakhs and acquitting the other two accused namely K Paothing Tangkhul and inspector Akum Ao from the offences under section 21 of the NDPS Act. Supporting his such submission, the learned counsel contends that when there is specific provision of law prescribed under the Code of Criminal Procedure for preferring an appeal for the enhancement of sentence as well as against such acquittal, the learned Single Judge has committed a grave error in exercising re visional jurisdiction of his own by calling for the records of the case in question including the judgment and order dated 26.11.92 and treating the same as a criminal appeal to be heard by the Division Bench having been posted before it. 6. Referring to section 401 Cr PC which runs as follows : “401. High Court's powers of revision-(1) In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, die High Court may, in its discretion, exercise any of the powers conferred on a Court of appeal by section 386, 389,390 and 391 or on a Court of Session by section 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by section 392. (2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence. (3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction. (4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed. (5) Where under this Code an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly." Mr. Sarma, learned counsel for the accused, urges that before exercising revisional power, it is incumbent that the accused must be given an opportunity of being heard as envisaged under sub-clause (2) of section 401 Cr PC. Sarma, learned counsel for the accused, urges that before exercising revisional power, it is incumbent that the accused must be given an opportunity of being heard as envisaged under sub-clause (2) of section 401 Cr PC. But in the instant case, it is clearly seen that no such opportunity was given to the accused before initiating the proceeding under section 401 Cr PC read with section 482 Cr PC. More so, sub-section (3) of section 401 Cr PC does not authorise the High Court to convert a finding into one of the conviction by initiating a proceeding under section 401 Cr PC. But in the instant case, it seems that the learned Single Judge initiated a proceeding of criminal appeal for conversion of finding of acquittal into one of the conviction by taking recourse to exercise revisional jurisdiction under section 401 Cr PC by which suo motu this present criminal appeal was registered against the judgment and order passed on 26.11.92, by the trial Court and the same itself has resulted in the abuse of the process of the Court. We find force in such submissions of the learned counsel appearing on behalf of the accused and accordingly we are in full agreement to approve and accept the same. 7. We have perused both the orders dated 6.6.94 as well as order dated 13.3.95 passed by the learned Single Judge. Having carefully examined those, we are of the view that when there is specific provisions for appeal by the State Govt against the sentence as well as the acquittal as enshrined under section 377 and 378 Cr PC, the learned Single Judge ought not to have exercised his jurisdiction of his own by exercising power conferred under section 401 read with 482 Cr PC for registering a criminal appeal in present nature and, as such, with due respect, we are constrained to hold that the learned Single Judge has committed a grave jurisdictional error by taking such action as discussed above which resulted in abuse of the process of Court. More so, interestingly, it transpires from the materials available on record that no appeal whosoever has been preferred on behalf of the State impugning the judgment and order dated 26.11.92 against such lesser punishment as well as acquittal. More so, interestingly, it transpires from the materials available on record that no appeal whosoever has been preferred on behalf of the State impugning the judgment and order dated 26.11.92 against such lesser punishment as well as acquittal. That apart, when the impugned judgment was passed on 26.11.92, the learned Single Judge initiated the proceeding exercising his revisional jurisdiction only on 6.6.94 to assail the said judgment and order after a gap of 17 months ignoring the aspect of limitation period inasmuch as, by that time the period of limitation for preferring appeal or revision against the said judgment and order had also already been expired. Keeping in view such situation, we are of the considered view that the initiation of this criminal appeal itself is unwarranted and an abuse of the process of the Court. That being the position, we are in total agreement not to proceed with the present appeal. 8. Consequently, this criminal appeal is closed. 9. Before parting with the records, we are tempted to put on records our anxiety about the imposition of punishment of rigorous imprisonment for one year and a fine of Rs.8,000, in default rigorous imprisonment for another 5 years by the trial c Court where under section 21 of the Act the minimum punishment prescribed is 10 years which may extended to 20 years and shall also be liable to fine which shall not less than one lakh but may extend to two lakhs. We are wondering under what reasoning the said Additional Deputy Commissioner (J) had awarded a sentence much less than minimum prescribed that to, contrary to the legislative intent as well as settled position of law. Glaringly it reflects the total non-application of mind on the part of the Additional Deputy Commissioner. It is to noted that repeatedly the Apex Court has been holding that the Court has no power to impose a sentence less than the minimum prescribed. Reiterating this accepted legal position, the Apex Court in a recent case of State of J&K vs. Vinay Nanda reported in (2001) 2 SCC 504 , in paragraph 15 and 16 of its judgment held as follows : "15. Where the mandate of law is clear and unambiguous, the Court has no option but to pass the sentence upon conviction as provided under the statute. 16. Where the mandate of law is clear and unambiguous, the Court has no option but to pass the sentence upon conviction as provided under the statute. 16. The mitigating circumstances in a case, if established, would authorise the Court to pass such sentence of imprisonment or fine which may be deemed to be reasonable but not less than the minimum prescribed under an enactment." 10. Therefore it is felt that the Addl Deputy Commissioner (J) Dimapur, being aware of the minimum punishment prescribed under the Act, ought not to have imposed such lesser punishment. That being the position, we hope and trust that the trial Court should act cautiously and carefully in imposing a sentence so that the same does not contravene the statutory provisions in which minimum punishment is prescribed. 11. We are also surprised to note the silence maintained by the State Govt in such a case relating to NDPS Act inasmuch as, the State Govt, it seems, has failed to make any move to approach the competent forum against such lesser sentence as well as acquittal of the accused persons alleged to have committed an offence under section 21 of the Act for reasons best known to it. Therefore it is desired and expected that the State Govt shall keep in mind that such inaction shall not be repeated, by which manner only the State Govt can deliver maximum good for building the confidence in the public mind in the administration of justice.