Research › Search › Judgment

Gauhati High Court · body

2008 DIGILAW 823 (GAU)

Md. Mamtaz Ali v. State of Assam

2008-11-27

AFTAB H.SAIKIA, ANIMA HAZARIKA

body2008
JUDGMENT Anima Hazarika, J. 1. The legality of the judgment of conviction and sentence passed by the learned Additional Sessions Judge, Dhubri in Sessions Case No. 85 of 1992 has been questioned in the instant appeal whereby and whereunder the appellant herein was convicted under Section 302 of the Indian Penal Code (IPC for short) and sentenced to undergo rigorous imprisonment (RI for short) for life and fine of Rs. 25,000/- (Rupees Twenty Five thousand) only, in default, RI for another three years with a further direction that on realization of fine, Rs. 10,000/- (Rupees Ten Thousand) only each may be given to the parents of the victims as compensation. 2. Before answering the legal issues raised by the learned Counsel appearing for the parties, it would be appropriate to narrate the brief facts whereunder the prosecution was launched against the accused appellants: On the fateful day of 17-7-89, at about 3 to 3,30 p.m., Ms. Gita Basumatary, daughter of Somen Basumatary (PW-1) and Ms. Urmila Basumatary, daughter of Deben Basumatary of village Malgaon, under Salkocha out post of Chapar Police Station went to Solmari gaon for collecting the leaves of silk worm but did not return till dusk. The inmates of the family of Ms. Urmila Basumatary including the brother of Gitarani went out to search them and came to know from Md Farid Ali and Md Salam Sheikh of village Solmari that Gitarani and Urmila were last seen by them when both the girls boarded the boat of Hazarat Ali. Thereafter, the inmates of the family of both the girls went to the house of Hazarat Ali and found Hazarat Ali along with Mantaz Ali in the house. On query, Hazarat Ali gave a passive reply at the hints of Mantaz Ali that he did not see them in the afternoon nor gave any ferry to them to the other side of the Beel by his boat. On the request of the inmates of the family of the missing girls for accompanying them in search with his boat, Hazarat Ali avoided the request and asked them to take the help of his father. His father accompanied them but they did not find the girls. On the request of the inmates of the family of the missing girls for accompanying them in search with his boat, Hazarat Ali avoided the request and asked them to take the help of his father. His father accompanied them but they did not find the girls. On the following day the search party traced out the dead bodies of both the girls from Solmari beel and both the dead bodies were brought near Solmari Primary School and the matter was reported to in-charge of the Salkocha Police out post on 18-7-89 on which UD Case No. 7 of 1989 of Chapar PS case was registered. In-charge of the police out post immediately rushed to the spot and found multiple injuries with fatal cut injury on the neck of the victims by sharp cutting weapon. The in-charge came to a conclusion that it was a case of murder. Therefore, he lodged a formal ejahar (Ext-7) on 19-7-89 before the Officer-in-Charge (OC for short) Chapar Police Station in reference to UD Case No. 7/89 and accordingly, the OC of Chapar Police Station registered a case under Section 302/34 IPC being Chapar PS Case No. 109 of 1989 and investigation to the case was entrusted to Mr. Nagen Saikia, PW-9. 3. Thereafter, the Investigating Officer (I/O for short) (PW-9) took over the charge of investigation and made an inquest on the dead bodies of both the girls (Ext-5 and 6) and sent the dead bodies to Dhubri Civil Hospital for post-mortem examination. The doctor accordingly conducted post-mortem examination on the bodies of both the victim girls on 19-7-89 and found fatal incised injuries on the neck of the dead bodies (Ext-2 and 3). The I/O had seized some clothes from the place of occurrence stated to have been taken by the victims for carrying palu pat (Ext-1). He had also seized one boat from Ainuddin Sheikh (PW-5) vide Ext-4 which was stated to be used by the accused before and after the crime. Witnesses were examined by him viz. Md Farid Ali, Md Abdul Salam Sheikh, Md Ibrahim Khan and Mustt. Pochaki Khatoon alias Pocha Khatoon (PW-7) and their statements were recorded under Section 164 of the Code of Criminal Procedure (Code for short). Witnesses were examined by him viz. Md Farid Ali, Md Abdul Salam Sheikh, Md Ibrahim Khan and Mustt. Pochaki Khatoon alias Pocha Khatoon (PW-7) and their statements were recorded under Section 164 of the Code of Criminal Procedure (Code for short). From the initial materials available on record at the early part of the investigation, the I/O came to a decision that Hazarat Ali and Mantaz All had committed the crime since both of them were absconding from their houses with effect from 17.7.1989. 4. Thereafter, accused Mantaz Ali was apprehended on 11-8-89 from Bilasipara and he was brought to Chapar where the I/O interrogated him. After some days, on 14-8-89, accused Hazarat Ali was also apprehended by Village Defence Party (VDP for short) and they handed him over to the police station. On interrogation, he confessed about the occurrence. He stated that the accused Mantaz had killed the girls. Accused Hazarat was produced before the Magistrate for recording his confessional statement. Accordingly, confessional statement of Hazarat Ali was recorded vide Ext-9 on being produced before the Magistrate on 29-8-89 wherein he clearly stated that accused Mantaz Ali had committed the murder of both Gitarani and Urmila since they refused to satisfy his sexual desire. He had further stated that accused Mantaz Ali caused death to them by cutting their necks by a 'Nepali Khukri' he was having with him. Accused Mantaz Ali declined to confess before the Court though he had admitted his involvement in the crime. Since there was no eyewitness to the commission of crime by Mantaz Ali, save and except the statement of co-accused Hazarat Ali, the I/O made a prayer before the Chief Judicial Magistrate (CJM for short), Dhubri on 14-2-90 vide Ext-8 for making accused Hazarat Ali an approver/accomplice in the case after granting him pardon and to record his statement under Section 306 of the Code. Learned CJM, Dhubri though allowed the prayer so made by the I/O on 20-2-90 but did not follow the mandatory provision under Section 306 of the Code while tendering pardon to the accused and recording statement as provided under the aforesaid Section and the case was proceeded accordingly. 5. Learned CJM, Dhubri though allowed the prayer so made by the I/O on 20-2-90 but did not follow the mandatory provision under Section 306 of the Code while tendering pardon to the accused and recording statement as provided under the aforesaid Section and the case was proceeded accordingly. 5. The I/O on completion of the investigation, submitted charge-sheet against the accused Mantaz only on 22-5-90 under Section 302, IPC and the case was committed to the learned trial Court on 30-9-1992 since the case was triable exclusively by the Court of Sessions, Dhubri. The learned trial Court after due consideration of the materials on record framed charge under Section 302, IPC. The charge so framed was read over and explained to the accused to which he pleaded not guilty and claimed to be tried. 6. Accordingly, trial proceeded against accused Mantaz Ali and the prosecution has examined 11 witnesses. Two defence witnesses also were examined on 21 -2-95 on behalf of the accused in support of his case. The statement of the accused was recorded under Section 313 of the Code. The case was ready for delivering the judgment but no judgment was delivered on that day and on 29-3-1996, the then trial Judge remanded the case to the learned CJM, Dhubri for rectification of some procedural irregularities in granting pardon to the co-accused/approver/accomplice Hazarat Ali as per provision under Section 306 of the Code with a direction to tender pardon to Hazarat Ali first and then to record his statement under Section 306(4)(a) of the Code and on completion of all the formalities to remit the case again. 7. The case record was accordingly dispatched to the learned CJM Dhubri on 28-3-1996 and upon receipt of the case record, learned CJM, Dhubri on 25-4-1996 send it to the Judicial Magistrate, 1st Class, Dhubri for taking necessary action and accordingly, accused Hazarat Ali was granted pardon, his statement was recorded and the same was sent to the trial Judge after rectification of irregularities and the accused appeared again for facing trial afresh. 8. After receipt of the case record, the prosecution examined the judicial Magistrate, 1st Class, Dhubri on 27-7-1999 as P.W. 11 and the approver Hazarat Ali (P.W. 8) was re-examined on 21-9-1999 and the defence cross-examined him afresh. 8. After receipt of the case record, the prosecution examined the judicial Magistrate, 1st Class, Dhubri on 27-7-1999 as P.W. 11 and the approver Hazarat Ali (P.W. 8) was re-examined on 21-9-1999 and the defence cross-examined him afresh. The witnesses examined earlier by both sides were not tendered for fresh examination and the statements recorded earlier during the trial were accepted by both the parties as if these were recorded after framing of the charge afresh on 29-4-1998. 9. The learned trial Court convicted the accused appellant Mantaz Ali on the basis of the statements of Hazarat Ali recorded during trial which was found to be consistent with offence of crime committed by the accused Mantaz Ali as aforesaid which is under challenge before this Court. 10. Advancing argument on behalf of the accused appellant, Mr. B.D. Konwar, the learned Counsel has raised the following points for determination by this Court, viz. (i) As to whether the power exercised by the Court of Judicial Magistrate tendering pardon to accused Hazarat Ali as approver and thereafter, statements recorded of the approver under Section 306 of the Code is not sustainable after the commitment of the case to the Court of Sessions? (ii) As to whether the order of conviction and sentence is without jurisdiction and illegal, and hence, requires interference of the Court, as the power to grant pardon to Hazarat Ali, (on whose testimony alone the prosecution case is based) which is a prerequisite for being an approver lies only with the Sessions Judge (Addl. Sessions Judge, in the instant case being trial Judge), once the case is committed to the Court of Sessions under Section 3P7 of the Code and he has failed to exercise the power so vested instead preferring only to remit the case to the Court of CJM? 11. In support of his contention, Mr. Konwar has referred the following decisions:- (i) Sheshanna Bhumanna Yadav vs. State of Maharashtra (ii) Chandan vs. State of Rajasthan, 1988 Cri LJ 842 (iii) A Deivendran vs. State of Tamil Nadu, 1998 Cri LJ 814 12. Refuting the argument advanced by the learned Counsel for the appellant, Mr. 11. In support of his contention, Mr. Konwar has referred the following decisions:- (i) Sheshanna Bhumanna Yadav vs. State of Maharashtra (ii) Chandan vs. State of Rajasthan, 1988 Cri LJ 842 (iii) A Deivendran vs. State of Tamil Nadu, 1998 Cri LJ 814 12. Refuting the argument advanced by the learned Counsel for the appellant, Mr. Z. Kamar, learned PP appearing for the State would urge that the grant of pardon is a concurrent jurisdiction of both the learned Magistrate and the Court of Sessions as provided under Sections 306 and 307 of the Code and as such, grant of pardon by the Magistrate to the accused (P.W. 8) cannot be held to be illegal. 13. The learned PP would further urge that even if it is held that the Judicial Magistrate had no jurisdiction to grant pardon since the case had been committed to the Court of Sessions, yet the said order of the Magistrate is curable under Section 460(g) of the Code and the objection being not taken in the trial there would be no failure of justice and on that score the provision of Section 465 of the Code get attracted and therefore, the conviction and sentence of the accused appellant cannot be reversed on this ground. 14. In support of his contention, learned PP has placed reliance on the following decisions: (i) Maghar Singh vs. State of Punjab, AIR 1975 SC 1320 (ii) Suresh Chandra Bahri vs. State of Bihar, 1994 Cri LJ 3271 (iii) A. Deivendran v. State of Tamil Nadu, 1998 Cri LJ 814 (iv) Al-Saleha Beig vs. State, (2008) 110 BOM LR 567 15. The submissions are considered. In order to determine the points raised above it would depend upon the interpretation of Sections 306 and 307 of the Code. The Court of Sessions is empowered under Section 307 of the Code to grant pardon after commencement of the proceedings by the Court to which the commitment has been made. The legislative mandate cast a duty that the pardon would be tendered on the same condition which again refers to the condition of tendering pardon provided under Sub-section (1) of Section 306 of the Code. The said condition being the person concerned on making a full and true disclosure of the whole of the circumstances within his knowledge relating to the offence. The said condition being the person concerned on making a full and true disclosure of the whole of the circumstances within his knowledge relating to the offence. The Sub-section (4) of Section 306 cannot be held to be a condition for tendering pardon. A conjoint reading of Sub-section (4) of Section 306 and Section 307would make it clear that in a case exclusively triable by the Court of Sessions, if an accused is tendered pardon and is taken as approver before commitment, then compliance of Sub-section (4) of Section 306 becomes mandatory and non-compliance of such mandatory requirements would vitiate the proceedings but if an accused is tendered pardon by the Court to which the proceeding is committed in exercise of powers under Section 307 of the Code, then in such a case the provisions of Sub-section (4) of Section 306 are not attracted. The procedural requirement under Sub-section (4)(a) of Section 306 to examine the accused after tendering pardon cannot be held to be a condition for granting pardon. 16. The plain language of Section 307 of the Code makes it clear that after commitment of the case, the power to tender pardon lies under the Code with the Court to which the commitment is made and not with any other Magistrate, including the CJM. Once a commitment is made, the committing Magistrate no longer retains jurisdiction over the proceedings and that apart the language of Section307 of the Code does not confer such power on a Magistrate to tender pardon after a case is committed to the Court of Sessions. In the instant case, the learned Additional Sessions Judge, Dhubri was ready for delivering the judgment on 27-3-1996 but no judgment was delivered on that day and on the following day, i.e. on 28-3-1996 the case was remanded back to the Court of learned CJM, Dhubri for rectification of some of the procedural irregularities in granting pardon to the approver Hazarat Ali (P.W. 8) with a direction to tender pardon to the approver at first and thereafter to record the statement under Section 306(4)(a) of the Code. On receipt of the case record, the learned CJM, Dhubri on 25-4-1996 sent the case record to the learned Judicial Magistrate for necessary action. The learned Judicial Magistrate recorded the statement of Hazarat Ali (P.W. 8) on 16-12-1996 (Ext. On receipt of the case record, the learned CJM, Dhubri on 25-4-1996 sent the case record to the learned Judicial Magistrate for necessary action. The learned Judicial Magistrate recorded the statement of Hazarat Ali (P.W. 8) on 16-12-1996 (Ext. 12) under Section 306(4)(a) of the Code and sent back the case record for disposal. A bare reading of the evidence of the learned Magistrate (P.W. 11), it would appear that the witness did not pardon the accused Hazarat Ali (P.W. 8) before recording the statement. Therefore, the corollary follows that admittedly after the commitment of the case to the Court of Sessions, the power of tendering pardon exercised by the learned Magistrate under Section 306 of the Code is not sustainable under the law being without jurisdiction. It is a settled law that once the case is committed to the Court of Sessions for trial, the Sessions Court has the power to tender pardon to the approver under Section 307 of the Code which is not the case in hand. 17. Now let us examine the other evidence of the prosecution witnesses in order of establish the guilt of the accused Mantaz Ali. Admittedly, there is no eye-witnesses in the instant case. The only witness P.W. 7, Pocha Khatoon, mother of the accused Hazarat Ali has deposed that on the day of occurrence, both Hazarat Ali and Mantaz Ali were in their house, took meal in the night and after her husband left with two Bodo men in search of two of their girls, the accused Mantaz Ali pulled Hazarat Ali by his hand and on a query, Hazarat told his mother that Mantaz had cut to death the two daughters of Deven Basumatary and Somen Basumatary. Thereafter, she told Mantaz, you killed them, so you run away. I would not allow you to take Hazarat. Mantaz pushed her aside taking Hazarat with him and told her, if he stays here, Hazarat will make the incident public. Apart from the evidence of P.W. 7, no clinching evidence was brought by the prosecution to prove the guilt of Mantaz. More over, defence has examined two D.Ws. who have deposed that they saw both the victim girls on the boat of Hazarat on the fateful day. Apart from the evidence of P.W. 7, no clinching evidence was brought by the prosecution to prove the guilt of Mantaz. More over, defence has examined two D.Ws. who have deposed that they saw both the victim girls on the boat of Hazarat on the fateful day. Therefore, on the basis of the evidence of P.W. 7, accused Mantaz cannot be convicted inasmuch as, grant of pardon to Hazarat, the approver and statement made consequent thereto by the approver is held as illegal and without jurisdiction and not sustainable under the law. 18. The contention raised by the learned PP representing the State cannot be accepted in view of the fact that Section 465 of the Code is the residuary Section intended to cure any error, omission or irregularity committed by the Court of competent jurisdiction in course of trial through accident or inadvertent or even an illegality consisting in the infraction of any provisions of law. The sole object of the Section is to secure justice by preventing the invalidation of a trial already held on the ground of technical breach of any provision in the Court causing no prejudice to the accused. But by no stretch of imagination the aforesaid provision can be attracted to a situation where the Court having no jurisdiction under the Code does something or passes an order in contravention of the mandatory provision of the Code. The interpretation of Sections 306 and 307 of the Code amply clarified that after a criminal proceeding is committed to the Court of Sessions it is only the Court of Sessions which has the jurisdiction to tender pardon to an accused and CJM/Judicial Magistrate does not possess any such jurisdiction. It would be impossible to hold that such tender of pardon by the CJM/Judicial Magistrate can be accepted and the evidence of the approver thereafter can be considered by attracting the provision of Section 465 of the Code. The aforesaid provisions cannot be applied to a patent defect of jurisdiction which is glaring in the instant case. 19. Taking the facts in its entirety, the only conclusion arrived at is that admittedly the case was committed to the Court of Sessions on 30-9-1992. After commitment to the Court of learned Sessions Judge, Dhubri, the case record was returned to the CJM, Dhubri vide order dated 28-3-1996 (Ext. 19. Taking the facts in its entirety, the only conclusion arrived at is that admittedly the case was committed to the Court of Sessions on 30-9-1992. After commitment to the Court of learned Sessions Judge, Dhubri, the case record was returned to the CJM, Dhubri vide order dated 28-3-1996 (Ext. 10) for observing necessary formalities required under Section 306 of the Code and accordingly, the statement of approver Hazarat Ali was recorded by P.W. 11 under Section 306(4)(a) of the Code on 16-12-1996 (Ext. 12). It thus necessary follows that after commitment of the case to the learned trial Court, the learned Magistrate was asked to record the statement of the approver granting pardon to Hazarat Ali, who is examined as P.W. 8 is not sustainable under the law being without jurisdiction. 20. In view of the decisions arrived at, the case laws cited by the learned Counsel appearing for the parties have not been referred to as they would burden the judgment. 21. Therefore, this Court has no option but to allow the criminal appeal by setting aside the judgment of conviction and sentence passed by the learned trial Court. 22. In the result, the appeal is allowed. 23. The appellant be set at liberty forth-with, if not required for any other case. Send down the lower Court record immediately. Appeal allowed.