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2004 DIGILAW 312 (AP)

O. Veeraaiah v. State Of A. P.

2004-03-15

S.R.K.PRASAD

body2004
S. R. K. PRASAD, J. ( 1 ) THE accused has preferred this appeal against the conviction and sentence awarded by the Sessions Judge at Khammam, in Sessions Case No. 223 of 1997, dated 18-12-2000, sentencing him to undergo Rigorous Imprisonment for eight years and also imposition of fine of Rs. 1,000/-, in default to undergo Rigorous imprisonment for three months. ( 2 ) THE brief facts arising from the case of prosecution are as follows: the offence is said to have taken place at Dibbagudem village, Yathalakunta of sathupalli, which is an agency area of Khammam District. It is alleged by the prosecution that the accused O. Veeraiah killed his wife Smt. O. Rajeswari with an axe in his house on 24-06-1996 at about 11. 00 p. m. suspecting her fidelity. Thereafter, Ex. P-1, complaint was given by the Sarpanch of Yathalakunta, when p. W. 1 informed him about the death of his daughter by the accused. The said complaint was registered as a case in Cr. No. 61 of 1996 of P. S. Sathupalli under f. I. R. , Ex. P-19. P. W. 19-Circle Inspector of Police conducted inquest over the dead body of the deceased in the presence of P. W. 12 and some other persons and during inquest M. O. 1-Axe was seized. He has also conducted the scene of offence panchnama under Ex. P-12 and seized the blood stained slab stone. He has also examined the witnesses and sent the dead body of the deceased to the Government hospital, Sathupally, for conducting Post M! ortem examination. P. W. 17-Dr. V. Janardhan Reddy conducted Post Mortem examination over the dead body of the deceased and noticed 9 injuries and he issued Ex. P-18 post Mortem Certificate. After completing the autopsy, he opined that all the injuries 1 to 9 are ante mortem in nature and caused by sharp weapon like M. O. 1 axe. The dead body of the deceased was said to have been photographed. The motive for committing the offence by the accused is suspicion of fidelity of his wife as she is having illicit intimacy with one Srinivasa Rao. Thereafter, the circle Inspector of Police, charge sheeted the accused. ( 3 ) THE plea of the accused is one of denial before the Sessions Court for the charge under Section 302 I. P. C. The prosecution in all examined 19 witnesses. Ex. Thereafter, the circle Inspector of Police, charge sheeted the accused. ( 3 ) THE plea of the accused is one of denial before the Sessions Court for the charge under Section 302 I. P. C. The prosecution in all examined 19 witnesses. Ex. P-1 is the complaint, Ex. P-19 is the F. I. R. , Ex. P-9 is the inquest panchnama, ex. P-18 is the Post Mortem examination report and Ex. P-22 is the F. S. L. report. After considering the entire oral and documentary evidence, the Sessions Judge, khammam, came to a conclusion that the prosecution proved the guilt of the accused for the offence punishable under Section 304 Part-I I. P. C. and convicted and sentenced him to undergo R. I. for eight years and also imposed fine of rs. 1,000/-, in default to undergo R. I. for three months. Aggrieved by the same, the accused has preferred this appeal. ( 4 ) DURING the course of hearing, Sri Dr. K. Lakshminarasimha, learned counsel for the accused-appellant herein, contends that as per the evidence he is a juvenile. The Court ought not to have tried him since he has no jurisdiction to try the case against a Juvenile. He has also contended that non-application of the provisions of Juvenile Justice Act, 1986, to the accused is fatal and the trial is vitiated since the Sessions Judge has no jurisdiction to try the case. He has also contended that all the acts, which are to be, applied to agency areas, the Governor has followed the procedure mentioned under Schedule-V of the constitution of India. It is also further contended that since trial is conducted under Criminal Procedure Code, 1973 (new Cr. P. C.), the trial is vitiated. Since he has to be tried under the provisions of Criminal Procedure code, 1898 (old Cr. P. C.), the trial is also vitiated on that ground. ( 5 ) THE learned Additional Public Prosecutor Sri T. Niranjan Reddy has contended that it is not a case to apply the provisions of old Cr. P. C. and as such juvenile Justice Act is not applicable to the case of the accused. He has supported the judgment of the Sessions Judge, Khammam. ( 6 ) ADVERTING to the said contentions, the provisions of Code of Criminal procedure, 1898 (old) is made applicable to the agency areas. P. C. and as such juvenile Justice Act is not applicable to the case of the accused. He has supported the judgment of the Sessions Judge, Khammam. ( 6 ) ADVERTING to the said contentions, the provisions of Code of Criminal procedure, 1898 (old) is made applicable to the agency areas. At the time of launching the case, the provisions of new Code of Criminal Procedure, 1973, is not made applicable by the Governor. Before adverting to the same, it is necessary to have a look at General Part A and Part B, Schedule-V of the constitution of India, which reads as follows: article 244 (1) Schedule-V, Part A General 1. In this Schedule, unless the context otherwise requires, the expression "state" does not include the States of Assam, Meghalaya, Tripura and Mizoram. 2. Subject to the provisions of this Schedule, the executive power of a State extends to the Scheduled Areas therein. 3. The Governor of each State having Scheduled Areas therein shall annually, or whenever so required by the President, make a report to the President regarding the administration of the Scheduled Areas in that State and the executive power of the Union shall extend to the giving of directions to the State as to the administration of the said areas. PART B administration AND CONTROL OF SCHEDULED AREAS AND SCHEDULED TRIBES 4. (1) There shall be established in each State having Scheduled Areas therein and, if the President so directs, also in any State having Scheduled Tribes but not Scheduled Areas therein, a Tribes Advisory Council consisting of not more than twenty members of whom, as nearly as may be, three-fourths shall be the representatives of the Scheduled Tribes in the Legislative Assembly of the state: provided that if the number of representatives of the Scheduled Tribes in the legislative Assembly of the State is less than the number of seats in the Tribes advisory Council to be filled by such representatives, the remaining seats shall be filled by other members of those tribes. (2) It shall be the duty of the Tribes Advisory Council to advise on such matters pertaining to the welfare and advancement of the Scheduled Tribes in the state as may be referred to them by the Governor. (2) It shall be the duty of the Tribes Advisory Council to advise on such matters pertaining to the welfare and advancement of the Scheduled Tribes in the state as may be referred to them by the Governor. (3) The Governor may make rules prescribing or regulating, as the case may be,-- a) the number of members of the Council, the mode of their appointment and the appointment of the Chairman of the Council and of the officers and servants thereof; b) the conduct of its meetings and its procedure in general; and c) all other incidental matters. 5. (1) Notwithstanding anything in this Constitution, the Governor may by public notification direct that any particular Act of Parliament or of the Legislature of the State shall not apply to a Scheduled Area or any part thereof in the state or shall apply to a Scheduled Area or any part thereof in the State subject to such exceptions and modifications as he may specify in the notification and any direction given under this sub-paragraph may be given as to have retrospective effect. (2) The Governor may make regulations for the peace and good government of any area in a State, which is for the time being a Scheduled Area. In particular and without prejudice to the generality of the foregoing power, such regulations may- a) prohibit or restrict the transfer of land by or among members of the scheduled Tribes in such area; b) regulate the allotment of land to members of the Scheduled Tribes in such area; c) regulate the carrying on of business as money-lender by persons who lend money to members of the Scheduled Tribes in such area. (3) In making any such regulation as is referred to in sub-paragraph (2) of this paragraph, the Governor may repeal or amend any Act of Parliament or of the legislature of the State or any existing law which is for the time being applicable to the area in question. (4)All regulations made under this paragraph shall be submitted forthwith to the president and, until assented to by him, shall have no effect. (5) No regulation shall be made under this paragraph unless the Governor making the regulation has, in the case where there is a Tribes Advisory Council for the state, consulted such Council. . . . . . . . . . . . . . . . . (5) No regulation shall be made under this paragraph unless the Governor making the regulation has, in the case where there is a Tribes Advisory Council for the state, consulted such Council. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Article 245 of the Constitution of India reads as follows: (1) Subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of India, and the Legislature of a State may make laws for the whole or any part of the State. (2) No law made by Parliament shall be deemed to be invalid on the ground that it would have extra-territorial operation. Article 246 of the Constitution of India reads as follows: (1) Notwithstanding anything in Clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the union List ). (2)Notwithstanding anything in clause (3), Parliament, and, subject to Clause (1), the Legislature of any State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in the constitution referred to as the concurrent List ). (3)Subject to clauses (1) and (2), the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in the Constitution, referred to as the state List ). (4) Parliament has power to make laws with respect to any matter for any part of the territory of India not included in a State notwithstanding that such matter is a matter enumerated in the State List. ( 7 ) IT is clear from the Schedule and Articles that the Parliament or State legislature has got power to make laws for the whole or any part of the State. ( 7 ) IT is clear from the Schedule and Articles that the Parliament or State legislature has got power to make laws for the whole or any part of the State. Schedule-V Article 244 (1) Clause 5 (1) commences with a word notwithstanding anything in this Constitution, the Governor may by public notification direct that any particular Act of Parliament or of the Legislature of the State shall not apply to a Scheduled area or any part thereof in the State or shall apply to a Scheduled Area or any part thereof in the State subject to such exceptions and modifications as he may specify in the notification and any direction given under this sub-paragraph may be given as to have retrospective effect. Article 244 of the Constitution of India reads as follows: (1) The provisions of the Fifth Schedule shall apply to the administration and control of the Scheduled Areas and Scheduled Tribes in any State, other than the states of Assam, Meghalaya, Tripura and Mizoram. (2) The provisions of the Sixth Schedule shall apply to the administration of the tribal areas in the State of Assam, Meghalaya, Tripura and Mizoram. ( 8 ) IT is clear from Article 244 of the Constitution of India that the provisions of Fifth Schedule shall apply to the Administration and control of the Scheduled areas and Scheduled Tribes in any State. It is observed in Durga Das Basu shorter Constitution of India, 13th Edition Reprint 2002, at page 1706, which reads as follows: administration of Scheduled Areas and Scheduled Tribes (other than in Assam, meghalaya, Tripuura and Mizoram ).-While the Sixth Schedule deals with the administration of the Tribal Areas in Assam, Meghalaya, Tripura and Mizoram (see table A and B appended to para 20 of that Schedule, post), the Fifth Schedule deals with the administration of other Scheduled Areas and Tribes (as enumerated under para 6 of the 5th Sch. ). Thus, the Fifth Schedule is applicable to the godavari Agency in Madras. Roughly speaking, the Fifth Schedule corresponds to the excluded Areas and partially Excluded Areas , as referred to in ss. 91-92 of the Government of india Act, 1935 and the Government of India (Excluded and Partially Excluded areas) Order, 1936 (minus the Areas of Assam which are included in the 6th Sch ). Roughly speaking, the Fifth Schedule corresponds to the excluded Areas and partially Excluded Areas , as referred to in ss. 91-92 of the Government of india Act, 1935 and the Government of India (Excluded and Partially Excluded areas) Order, 1936 (minus the Areas of Assam which are included in the 6th Sch ). The reasons why special provisions have been made for these areas and Tribes are that they are culturally backward, and that their social and other customs are different from the rest of India. The Scheduled areas are determined by the President by an Order and such Order may be amended by the President from time to time except that he cannot alter an order made under sub-paragraph 1 of para 6 except as laid down in Cls. (a), (b) and (c) of the second sub-paragraph. Any amendment of the Schedule must be made by Parliament. For the enumeration of Scheduled Tribes, we have to refer to the Order of the president made under Art. 342, such as the Constitution (Scheduled Tribes) Order, 1950. The system of administration provided for the Scheduled Areas and Scheduled tribes may be summarized as follows: the executive power of the Union shall extend to giving directives to the State regarding the administration of the Scheduled Areas [para 3]. Tribes Advisory councils are to be constituted to give advice on such matters as welfare and advancement of the Scheduled Tribes in the States as may be referred to them by the Governor [para 4]. Governors of the States in which there are Scheduled areas have to submit reports to the President regarding the administration of such areas, annually or whenever so required by the President [para 3]. The Governor is authorized to direct that any particular Act of Parliament or of the Legislature of the State shall not apply to a Scheduled Area or shall apply, only subject to exceptions or modifications. The Governor is also authorized to make regulations to prohibit or restrict the transfer of land by, or among members of, the Scheduled Tribes, regulate the allotment of land, and regulate the business of money-lending. All such regulations by the Governor or Ruler must have the assent of the President [para 5]. In short, under Sch. V, the Governor is the sole legislature for the Scheduled areas and Scheduled Tribes to which this Schedule applies. All such regulations by the Governor or Ruler must have the assent of the President [para 5]. In short, under Sch. V, the Governor is the sole legislature for the Scheduled areas and Scheduled Tribes to which this Schedule applies. He makes Regulations after consulting the Tribes Advisory Council and submits them to the President for the latter s assent [para 5]. The Parliament or the State Legislature, as the case may be, can pass any enactment mentioning that they apply to every area within the State. But, the governor has been given power to consult the Tribes Advisory Council. He has also given power to make regulations for the peace and good government of any area in a State, which is for the time being a Scheduled Area. He has also empowered to exclude the operation of the Acts of Parliament or of the appropriate Legislature or apply the said Acts to the Scheduled Areas of their own. He has also given power to state whether any act is applicable to juvenile and that particular Act is not applicable to Scheduled Areas. Under Clause (3), he has to submit a report to the President whenever so required regarding the administration of the Scheduled Areas in that State and the executive power of the Union shall extend to the giving of directions to the State as to the administration of the said areas. ( 9 ) UNFORTUNATELY, the case has been tried under new Cr. P. C. The provisions of new Cr. P. C. are not applicable to the agency areas as there is no notification by the Governor applying the same. The fact remains that the trial has been conducted under new Cr. P. C. , as can be seen from the fact that the Court has conducted 313 Cr. P. C. , examination, which indicates that is done under new cr. P. C. There is a prescribed procedure that has to be followed in committing the Sessions cases under old Cr. P. C. The Magistrate has to record the evidence of all the eye witnesses and arrive at a finding whether there is any case made out for committal of the case or not. This has not been done. In fact, committal order was made under new Cr. P. C. Committal Order ought not have been made under the new Cr. P. C. The Magistrate has to record the evidence of all the eye witnesses and arrive at a finding whether there is any case made out for committal of the case or not. This has not been done. In fact, committal order was made under new Cr. P. C. Committal Order ought not have been made under the new Cr. P. C. and has to be made under the provisions of old cr. P. C. Even at the time of examination of the witnesses about the quantum of sentence, the Court has stated that the accused is being ! questioned under Section 235 Clause (2) Cr. P. C. i. e. , t is under new Cr. P. C. All these things make it clear that the Sessions Judge has failed to follow the procedure contemplated under the old Cr. P. C. , for trying the Sessions Case arising from agency tracks of Khammam. Incidentally, the Court has to consider whether the Juvenile Justice Act has been extended to the agency tracks of andhra Pradesh including Khammam area by issuing a notification by the Governor since the accused is invoking the said provisions. If really the accused is a juvenile, the trial by a regular Court is against the public policy of the state. The object of amending of the Children Act, 1960 (60 of 1960) or juvenile Justice Act, 1986, has been clearly adumbrated under the Juvenile justice Act, 1986. It is also clearly mentioned in Juvenile Justice Act, 1986, that the same extends to the whole of India except the State of Jammu and kashmir. The third clause shows that it shall come into force o! n such date as the Central Government may, by notification in ! the Official Gazette, appoint, and different dates may be appointed for different provisions of this Act and for different States. Is it necessary to extend the applicability of this Act by means of issuing a notification by the governor under the provisions of Schedule V of Constitution of India to the agency areas? ( 10 ) THE learned Additional Public Prosecutor has contended that once notification has been issued by applying the Act throughout India, the same automatically applies to all the scheduled areas. In Jotindra Nath Das Vs. ( 10 ) THE learned Additional Public Prosecutor has contended that once notification has been issued by applying the Act throughout India, the same automatically applies to all the scheduled areas. In Jotindra Nath Das Vs. Lala prasad Sao it was held by the Patna High Court that in the absence of notification issued by the Governor, the Acts of Legislature should extend to such areas. The language envisaged in Schedule-V makes it clear and also enumerates the powers of the Governor to issue notification. It also empowers him with the power not to apply the Acts to any scheduled area, and discretionary power vests with the Governor. The Governor is supposed to issue notifications regarding the application of the Acts or its non-applicability to the agency areas after exercising his discretion, keeping in view the fact that the benefits that will be accrued to the Tribal and the peculiar circumstances where under they were placed and also the fact of the necessity to extend! the cases in agency areas. Article 50 of Constitution of India contemplates separation of judiciary from executive. It has not been extended to agency tracks even though it has been implemented to the entire country. This Court has already expressed its displeasure for not extending this article to the tribals in the agency area. The Constitution contemplates that judiciary shall be separated from executive and it shall have control by the Union Judiciary or state Judiciary under Article 227 of Constitution of India as the case may be. This has not been achieved even after a long lapse of time viz. , 50 years. Time has come to make introspection about the non-applicability of Article 50 of constitution of India to the Agency Areas and the rational behind it. This can be done by the Governor alone. The Governor has to exercise the said act. I am leaving it open to the Governor to consider the applicability of Article 50 of Constitution of India to the agency tracks ! of Tribal. Judiciary is still under the control of the Execut! ive Magistrates. The old and archaic laws including old Cr. P. C. are being applied to them. The fruits of modernity have not been handed over to the agency people in the agency tracks. If it is not handed over, no progress can be expected from the people. of Tribal. Judiciary is still under the control of the Execut! ive Magistrates. The old and archaic laws including old Cr. P. C. are being applied to them. The fruits of modernity have not been handed over to the agency people in the agency tracks. If it is not handed over, no progress can be expected from the people. ( 11 ) COMING to the contention canvassed by the learned counsel for the accused-appellant herein that Juvenile Justice Act has to be extended to him, the learned Additional Public Prosecutor is unable to show any notification extending the provisions of Juvenile Justice Act to the agency tracks of Khammam area or any other areas. The Juvenile Justice Act cannot be applied to the agency tracks unless there is a notification issued by the Governor to that effect. I have already stated that it goes against the public policy of the state. The public policy of the State is that a juvenile shall not be tried in a regular Court and there is no rational showing the reasonable differentiation made for trials being conducted in a different manner by the judicial officers to the cases arising in tribal areas as well as others. I am of the considered view that the Court cannot be a silent spectacular when miscarriage of justice is caused and different kind of procedural laws are made! applicable to different area, which is part and parcel of this country or state, governed by the Constitution. In M/s. Pepsi Foods Limited Vs. Special judicial Magistrate, the Supreme Court held that the Court has got power under article 227 of the Constitution to have the proceeding quashed when miscarriage of justice occurred though the petitioner cannot approach the High Court under section 482 of the Code when the complaint does not make out any case against him and still he has to undergo the agony of a criminal trial. No doubt, when an appeal has been preferred, the High Court has got powers under Section 482 of cr. P. C. as well as Article 227 of the Constitution to consider these aspects and declare the law applicable to the appellants. ( 12 ) THE learned Additional Public Prosecutor Sri T. Niranjan Reddy has stated that the notification has been issued under G. O. Ms. P. C. as well as Article 227 of the Constitution to consider these aspects and declare the law applicable to the appellants. ( 12 ) THE learned Additional Public Prosecutor Sri T. Niranjan Reddy has stated that the notification has been issued under G. O. Ms. No. 33, dated 11-03-2004, applying the provisions of Sections 428, 167 (2) (a), 438, 374 (2) and (3) and section 468 of Code of Criminal Procedure, 1973. The said notification has been placed before the Court. The Court can take judicial notice of subsequent events. It adds confusion rather than clearing the mist since the provisions of old Act are made applicable as well as few provisions of new Cr. P. C. There is no clarity of things. It indicates that the provisions of new Cr. P. C. are made applicable to a limited extent. All these things show that there is no rational basis to apply them. The Governor has always power to apply the provisions of either old Cr. P. C. or new Cr. P. C. It does not contemplate picking out some provisions under old Act and some under new Act The picking out few provisions from some other Act and make them applica! ble to the case goes extra to the object and intention of Clause 5 of Schedule-V of the Constitution of India. It is a matter to be reconsidered by the Governor bestowing his attention. It is always better to apply one Code to the area instead of picking and choosing from different statute here and there either from the new Act or under old Cr. P. C. It appears that the Juvenile Justice Act, 1986, has been replaced with another Act viz. , the Juvenile Justice (Care and protection of Children) Act, 2000, but the Governor has not yet considered to make the said Act applicable to agency areas. ( 13 ) COMING to the aspect whether the accused is a juvenile or not, the accused counsel has placed reliance on the evidence of P. W. 1 and contents that the accused was a juvenile. It is stated by P. W. 1 that even before attaining puberty, she was married and 6 months after attaining puberty their marriage was consummated in their house. The incident is said to have taken place on 24-06-1996 and the accused age was mentioned in the charge sheet as 20 years. It is stated by P. W. 1 that even before attaining puberty, she was married and 6 months after attaining puberty their marriage was consummated in their house. The incident is said to have taken place on 24-06-1996 and the accused age was mentioned in the charge sheet as 20 years. The trial was conducted in the year 2000. If the age of the accused were to be calculated, it is doubtful whether he was aged more than 15 or 16 years or not. The matter has not at all viewed in that angle either by the Sessions Court or by the Prosecutor. It is the duty of the Sessions Judge to verify the age of the accused when he has got suspicion. It is only before this Court that contention has been urged. Ex facie, it is clear that the accused was aged less than 16 years. It can be arrived on the strength of e! vidence of P. Ws. 1 and 2 and also from the ages given in the charge sheet. The trial judge ought to have enquired about the age before commencing the trial since he has no jurisdiction to try the case against the Juvenile. ( 14 ) MORE over, the trial has not been conducted under old Cr. P. C. and new cr. P. C. has been followed which caused prejudice to the accused. The Sessions proceedings are certainly vitiated. It is a case where trial has been conducted against juvenile by Sessions Court, which is against the public policy of the state. It is also vitiated in view of the fact that the provisions of new cr. P. C. have been applied instead of old Cr. P. C. , which contemplates a different procedure. More over, the Governor has not issued any notification applying the provisions of Juvenile Justice Act to agency tracks of Andhra Pradesh. Hence, the accused cannot invoke the benefit. On that score, it is rightly contended that the accused could have derived the benefit if the Governor extended the benefits under the Acts of the Parliament or State Legislature to the scheduled area. That has to be done by means of a notification. He can also pass regulations only in consultation with the Tribal A! dvisory Council of the State. That has to be done by means of a notification. He can also pass regulations only in consultation with the Tribal A! dvisory Council of the State. The Governor has to consider and take appropriate action in the following matters to agency tracks as miscarriage of justice is bound to occur if archaic laws are followed. i) Separation of judiciary from executive as contemplated under Article 50 of the Constitution of India has to be considered. ii) Notifications have to be issued applying the Acts passed by the State legislature or Parliament on their non-applicability of agency tracks as the case may be. iii) It is always better to apply the provisions of one Code alone instead of picking and choosing the provisions here and there under different enactments and directing its application to agency tracks of Andhra Pradesh. It is always better to have a list of Acts maintained where notifications have been issued and made applicable to the agency tracks and thereby the legal awareness can be brought about to the agency people to work out their rights conferred under various statutes. ( 15 ) I am not giving any directions to the Governor but only placing suggestions for non-applicability of provisions and exercising the powers vested under schedule-V, which is causing miscarriage of justice to the tribal people in the agency tracks of Andhra Pradesh. However, the above observations are only subject to the Apex Court observations, said to have been issued already. In view of the trial being vitiated, there is no need to order retrial. This is a case where there is no proper committal order passed as per the old Cr. P. C. Apart from it much prejudice would be caused if the accused were to be retried after a long lapse of eight years. In that view of the matter, the accused is entitled to acquittal. ( 16 ) IN the result, the conviction and sentence awarded by the court below is set aside and the accused is acquitted while making observations regarding the miscarriage of justice that occurred due to failure to issue necessary notifications under Schedule-V of the Constitution of India by the Governor. It is for the Governor to take appropriate action in the matter immediately to rectify the miscarriage of justice. It is for the Governor to take appropriate action in the matter immediately to rectify the miscarriage of justice. ( 17 ) THE Registrar (Judicial) shall place a copy of this judgment before the concerned authority for taking appropriate action. ( 18 ) THE Criminal Appeal is accordingly allowed.