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2009 DIGILAW 162 (GAU)

Takek Niji v. State of Arunachal Pradesh

2009-03-03

P.K.MUSAHARY

body2009
JUDGMENT P.K. Musahary, J. 1. Heard Mr. Muk Pertin, learned Counsel for the petitioner and Mr. N. Lowang, learned Public Prosecutor on behalf of the State of Arunachal Pradesh. 2. This application is directed against the impugned judgment and order dated 29.10.2008 passed by the learned Judicial Magistrate, First Class, Daporijo in G.R. Case No. 52/2007 corresponding to Daporijo P.S. Case No. 36/2007 under Sections 279/337, IPC. 3. The prosecution case, in brief, is that on 29.5.2007 an FIR was lodged by one Shri Tadak Makcha with Daporijo Police Station stating that one Shri Takek Niji hit Shri Tabi Makcha, HGB of village Jigi at Daporijo on 29.5.2007 at 7.15 p.m. by a Motor Cycle bearing registration No AR-04-1108. On the basis of the aforesaid FIR, the Police registered a case being Daporijo P.S. Case No. 36/2007 under Sections 279/337, IPC. After completion of investigation, the I.O. laid charge sheet on 26.6.2007. 4. In order to prove the case, the prosecution examined 4 witnesses inducting the medical officer and on the basis of the evidence on record, the learned trial court held that the petitioner-accused is liable to be convicted under Sections 279/337, IPC. The learned trial court directed the petitioner-accused Takek Niji to pay a sum of Rs. 50,000 to Shri Tabi Makcha, victim as a compensation within a period of 30 days from the date of judgment instead of sentencing the petitioner-accused to suffer imprisonment and fine. 5. Mr. M. Pertin, learned Counsel for the petitioner submits that the petitioner-accused was not furnished with the documents, particularly, the charge sheet and the charge was not framed in accordance with the procedures prescribed under the Criminal Procedure Code inasmuch as, the charges were not explained to the accused-petitioner and no opportunity was given to him to deny the same. Moreover, according to Mr. Pertin, the accused was not given any opportunity to engage any counsel to depend his case, not to speak of providing pro-legal assistance to him. The accused was not asked by the learned trial court as to whether he wanted to engage any counsel or he needed free legal assistance for his defence. As the accused was not given any chance to engage defence counsel or provided with free legal assistance, the prosecution witnesses could not be cross-examined. As regard the right to free legal services to be provided to petitioner-accused, Mr. As the accused was not given any chance to engage defence counsel or provided with free legal assistance, the prosecution witnesses could not be cross-examined. As regard the right to free legal services to be provided to petitioner-accused, Mr. Pertin, has cited the cases of Khatri and Ors. v. State of Bihar and Ors. AIR 1981 SC 928 and Suk Das and Anr. v. Union Territory of Arunachal Pradesh AIR 1986 SC 991 . 6. The farther submission of Mr. Pertin is that there is a specific provision for claiming compensation before the Motor Accident Claims Tribunal ('MACT') under the Motor Vehicles Act, 1988 and such compensation can be awarded by the jurisdictional MACT only. The learned trial court has exceeded his jurisdiction in awarding compensation to the victim instead of sentencing the petitioner. In fact, according to Mr. Pertin, the victim has already filed claim petition, which is pending before the MACT at Daporijo. In view of the above, according to Mr. Pertin, the impugned judgment and order dated 29.10.2008 is liable to be quashed and set aside in the interest of justice. 7. I have gone through the case record obtained from the learned trial court and produced before this Court. It is found that the charge sheet was submitted on 26.6.2007 by the I.O. and the same was forwarded by the Superintendent of Police, Upper Subansiri District, Daporijo to the District Magistrate, Upper Subansiri District, Daporijo vide letter No. DRJ/CR-52/07/1510 dated 28th June, 2007. Summons was issued to the petitioner-accused on 14.12.2007 asking him to appear and answer to the charge on 18.2.2008 at 10.00 hrs. in the court of the Judicial Magistrate, Second Class, Daporijo. The petitioner-accused appeared accordingly on 18.2.2008 and so another summons was issued on 22.2.2008 asking him to appear on 6.5.2008 before the said Magistrate. Another summons was issued to the accused person on 22.09.2008 to appear before the aforesaid Magistrate on 29.10.2008. The petitioner-accused appeared on 29.10.2008 before the court and on the same day, the learned trial court delivered/pronounced the impugned judgment and order dated 29.10.2008. 8. From the records, it appears that although he appeared on 18.2.2008, the learned trial court did not furnish the copy of the charge sheet to him and no charge was framed as required under the provision of the Code of Criminal Procedure. The trial proceeded without framing any charge. 8. From the records, it appears that although he appeared on 18.2.2008, the learned trial court did not furnish the copy of the charge sheet to him and no charge was framed as required under the provision of the Code of Criminal Procedure. The trial proceeded without framing any charge. The learned trial court recorded the deposition of prosecution witnesses on a single day, i.e., 18.2.2008, except the medical witness who appeared on 29.10.2008, i.e., on the day of pronouncement of impugned judgment. The records reveal that the petitioner-accused was not given any opportunity to deny the charges brought against him and to depend himself by engaging counsel. It does not appear from the records that the learned trial court ever enquired or informed the petitioner-accused that he has a right to engage counsel in his defence and he is entitled to get free legal assistance at the cost of the State provided he is not in a position to engage any counsel of his own. It is also found that the prosecution witnesses were not cross-examined by the petitioner-accused and after the closing of evidence of prosecution witnesses, the petitioner-accused was not apprised of the evidence against him and was not asked whether he wanted to adduce any evidence in his defence. The learned trial court, rather, on the very same day, after closing the evidence of prosecution witnesses, prepared and pronounced the impugned judgment. 9. After completion of trial the Presiding Officer is required to pass judgment and order either convicting or acquitting the accused person. In case of conviction, the trial court has to award sentence/imprisonment minimum or maximum with find or without find. In the present case, the leaded trial court did not record any conviction but simply observed that the accused is liable to be convicted. The relevant portion of the impugned judgment is quoted below: Examined Shri Tadak Makcha and Smt. Yanu Makcha. Their statements are perfectly corroborated with the prosecution. Hence, the offences charged against the accused Shri Takek Niji under Section 279/337, IPC is well established beyond all reasonable doubt and he is liable to be convicted under above section of IPC. The punishment prescribed under Section 279 is imprisonment for 6 months or fine of Rs. 1,000 or both and under Section337, IPC is imprisonment for 6 months or fine of Rs. 500 or both. The punishment prescribed under Section 279 is imprisonment for 6 months or fine of Rs. 1,000 or both and under Section337, IPC is imprisonment for 6 months or fine of Rs. 500 or both. After having established the offence so charged against the accused, the parties were heard about the award of punishment/sentence. Accused Shri Takek Niji stated that he wants to compensate the victim by defraying the expenditures incurred for medical treatment. However, he stated that he is an ordinary farmer residing at his village Niji. Hence, he requested to determine the compensation amount at a reasonable rate which he can afford. He further submitted that if he is imprisoned, his family members will suffer untold miseries. Sri Tabi Makcha, victim stated that he spent Rs. 1,60,000 (One lakh sixty thousand) only for his medical treatment. However, he leaves at the auspicious of the court to award compensation. This being the fact before me, I am inclined to award compensation instead of sentencing the accused to suffer imprisonment. In my considered opinion, the accused had no intention to hit the victim. He is an innocent person and the accident occurred due to human fallacy. Therefore, awarding of a reasonable compensation would meet the interest of the victim and also protect the interest of the Society. In the light of above, Shri Takek Niji is hereby directed to pay a sum of Rs. 50,000 (Fifty thousand) only to Shri Tabi Makcha, victim is a compensation within a period of 30(thirty) days from today. 10. On careful reading of the impugned judgment and order, it appears that the learned trial court acted himself like a Member of the MACT and was keen only to award compensation to the victim without taking any care to conduct the criminal trial and to pronounce the judgment in accordance with the law. In my considered view, the learned Magistrate has failed to discharge his duties and responsibilities as a Judicial Officer in conducting the trial and adjudicating the matter in accordance with law, rather, indulged himself in awarding compensation to a victim of a motor accident beyond his power and jurisdiction. 11. In my considered view, the learned Magistrate has failed to discharge his duties and responsibilities as a Judicial Officer in conducting the trial and adjudicating the matter in accordance with law, rather, indulged himself in awarding compensation to a victim of a motor accident beyond his power and jurisdiction. 11. From the above discussions, I am of the considered view that the provisions of law in conducting the trial of the petitioner-accused, particularly, in regard to furnishing of charge sheet, consideration and framing of charges, providing of free legal assistance, chance of engaging defence counsel, cross-examination of prosecution witnesses by defence, right to adduce defence witness and statement under Section 313, Cr.PC have not been complied with. There is, thus, absolutely no compliance with the provision of law and as such, the impugned judgment and order dated 29.10.2008 cannot stand the scrutiny of law and the same is liable to be set aside. Accordingly, the impugned judgment and order dated 29.10.2008 is quashed and set aside and the matter is remanded back to the learned trial court for fresh trial in accordance with law and provision of the Code of Criminal Procedure. 12. The petition stands allowed and disposed of. 13. Send down the LCR forthwith.